SZQVP v Minister for Immigration
[2012] FMCA 1137
•30 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQVP v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1137 |
| MIGRATION – Review of Independent Merits Review – refusal of a protection visa – no matter of principle – application dismissed. |
| Migration Act 1958 (Cth), ss.91, 91R |
| Applicant: | SZQVP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2591 of 2011 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 27 July 2012 |
| Date of Last Submission: | 27 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 30 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appearing in person |
| Counsel for the Respondents: | Ms Latif |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The amended application filed on 15 November 2011 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
SYG 2591 of 2011
| SZQVP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The Applicant is a citizen of Afghanistan. He is approximately 41 years of age.
The Applicant was granted a temporary protection visa in 2001 on the basis that he was an Hazara and, at the time, at risk of persecution as a result of his ethnicity. Two years he accepted a repatriation package and returned to Afghanistan later (in 2003), where he lived and worked for the next 7 years. He said that he returned to Afghanistan because his wife was ill. He returned to Australia by boat on 23 May 2010. The boat was intercepted and taken to Christmas Island. Subsequently, the Applicant was placed within the general community.
In October 2010 the Applicant requested an assessment of his refugee status, following which on 16 December 2010 the Department or delegate provided a negative assessment. The Applicant sought a review of this assessment on 14 January 2011, leading to the decision that is the subject of this application. The Reviewer’s decision was made on 4 November 2011, following interviews with the Applicant on 10 August 2011.
The Applicant made various claims with respect to events that took place in Afghanistan. He explained that he had starting drinking when he lived in Australia and that his drinking came to the attention of his local Imam when he returned to Afghanistan, which led to a number of warnings to stop drinking followed by an attempt on his life. He said that he was only released upon payment of a bribe, and that, then he moved to Pakistan before arranging to come to Australia. He fears suicide bombers, the government, people wanting money; the Police (who he says had demanded bribes) and pressure to join the military. He also said that he feared the Taliban and would face discrimination as an Hazara and as a Shiite Muslim if he returned to Afghanistan.
Before the Reviewer the Applicant had the assistance of a migration agent, who filed a written submission clarifying his claims as being on the following basis:
a)His Hazara race or ethnicity;
b)His Shiite religion;
c)An imputed political opinion as a supporter of the Afghani government and its reconstruction efforts; and
d)Membership of a social group being failed asylum seekers or western returnees.
The Applicant claimed that protection by the State of Afghanistan was not available and relied upon country information in this regard.
The Reviewer’s decision
During the course of the hearing, issues arose with respect to the veracity of the Applicant’s version of events, particularly with regard to whether or not he had a brother. The Reviewer said:
97. In the delegate’s decision the claimant is reported as follows, “At interview the Applicant claims that his brother, Mr. Gholam Sakhi Saddeghi was killed 14 months ago by the Taliban during fighting for Mazar I Sharif. At the interview the applicant stated his other brother Mohammad Ashraf escaped to Sanglakh when Wahdat were defeated by the Taliban but he was captured by the Taliban and held in prison.” (emphasis added)
98. In the RRT decision N00/35245 he claimed that he had three brothers and that one of them had been killed in escaping from Mazar e Sharif and another brother had been captured by the Taliban and was in prison at the time of the RRT hearing and his third brother went missing in Kabul when it was held by the Taliban.
…
102. He said that he had never claimed that and he never had a brother called Ashraf.
…
104. After the recess the Claimant said that he had never said that he had a brother called Ashraf or that he had been captured by the Taliban.
105. I pointed out that he had provided details of him in his application and that he had claimed to both the Immigration delegate and the RRT member that this brother, Ashraf, had been captured and imprisoned by the Taliban.
106. He responded by saying he sometimes forgot things.
Further to this claim, the Reviewer (at page 11 of the Reviewer’s decision) said:
133. He said that he had called his father and his father had delivered the money to an address the captors gave. He said the amount was five lakh Afghani.
134. I asked what the situation was with his business in Kabul and he said that it was continuing and that his father was the head of the business and that it was a very successful business.
…
137. …
Following the interview:
On 30 August 2011 I received a translation of a letter purporting to be from the Claimant’s father in which it was stated:
I Saleh Mohammad would like to write about Mohammad Ashraf who is my adopted son. At the time when Mazar-Sharif was falling, I Saleh Mohammad and my family were escaping to our village Dare Turkman. When we went to our village we took a vehicle and Mohammad Ashraf who is an honest man knew about the problems of the road, helped us like a brother until we arrive (sic) in Dare Turkman. From there we left for Sanglakh and we wanted to escape to Pakistan. I told my son that Mohammad Ashraf helped us like a family. From now on Mohammad Ashraf is your Quaranic brother. I have considered him like my son because when we were travelling from Mazar to Sanglakh he told me his story that he does not have father, mother and has lost his family. I have considered him like a son and I want to take him to Pakistan with us. When we left Sanglakh Mohammad Ashraf said that let me acquire information about the route then we leave. He went to get information about our escape route when Taliban captured him and we still have no news regarding his whereabouts.
Subsequently, at page 23 of the Reviewer’s decision (paragraph numbering seems to have ceased partway through the Reviewer’s decision), the Reviewer says:
I have considered the letter to the reviewer purportedly from his father reminding him that he had an “adopted” brother and find that this letter has no credibility. It is self-serving and has been constructed solely for the purpose of trying to convince the reviewer that such a person did exist.
I find that this “Quaranic brother” does not exist and that the references to him in the RRT matter were fabricated to provide a basis for a well-founded fear of persecution at the hands of the Taliban.
This leads me to find that the Claimant is not a credible witness and, even his core claims lack credibility. (Emphasis added).
The Reviewer also rejected as implausible the Applicant’s claims with respect to drinking and with respect to being addicted to alcohol (see page 24 of the Reviewer’s decision).
With respect to the claims that the Applicant was at risk for not being devout in his religious practice, the Reviewer noted (at page 26 of the Reviewer’s decision) that:
The Claimant has said that the Mullah came to see him twice with an interval of two or three years between those visits.
I find that the Mullah was not interested or concerned about his religious practices to the extent that he has claimed for reasons discussed above.
I therefore find that the Claimant was not of interest or concern for his lax religious practices.
With respect to prospective risks, the Reviewer found that this ability in the country of Afghanistan, including Kabul, had deteriorated. The Reviewer went on to say:
This then begs the question could the Claimant suffer harm and, if so, would that harm be for a Convention reason.
I find that the Claimant had no profile of greater concern than any other member of his family and that the family remained in Kabul, running their business under the Taliban and did not suffer harm for reasons of their Hazara race or Shi’a religion or any other Convention reason. Accordingly, I find that the Claimant would not face a real chance of serious harm as a Hazara or a follower of the Shia faith in the reasonably foreseeable future.
Ultimately, the Reviewer found that although Afghanistan is in turmoil, the claims in the Applicant’s case did not substantiate discrimination or harm of persecution as described in s.91R of the Migration Act 1958. The Reviewer therefore refused the Application.
The hearing
The Applicant represented himself at the hearing, assisted by a friend from the St Vincent de Paul’s society. No grounds were set out in his application, and no written outline of case or points of argument was filed.
Issue 1
The Applicant said that the claim that his family remained in Kabul running their business under the Taliban was a factual error, in that the Applicant denies this claim. There is nothing before me other than the Applicant’s denial in submissions with respect to this matter. The transcript is not before me and therefore I am unable to determine whether or not words to this effect were said to the Reviewer.
In these circumstances I am unable to be satisfied that it was not open to the Reviewer to make the finding of fact that he did. Even if this is an error of fact, such an error is not, of itself, sufficient to show jurisdictional error. In any event, the reasons generally would support the conclusion of the Reviewer without this particular factual finding. For example, the Applicant’s own account was that the Shia Mullah and his followers have a Mosque in Kabul and he made no claim that they faced persecution. Similarly, the Reviewer found that the Applicant was not of interest or concern to the Taliban for any Convention reason and would not suffer disproportionately even if the Taliban returned to power.
Issue 2
The second issue raised by the Applicant was that the Reviewer referred to s.91 of the Act at page 21 of the Reviewer’s decision.
Section 91 of the Migration Act 1958 is clearly an inappropriate reference, as that section deals with the order of dealing with visas. It is apparent from the context of the reasons that the Reviewer intended to refer to s.91R which modifies the operation of the Convention and, in particular, provides a definition of serious harm. This is obviously a typographical error and can not be the basis for judicial review of the decision.
Issue 3
The third issue raised by the Applicant concerned the findings in relation to the Applicant’s brother. The Applicant disputed the findings. However, it is clear that there was some confusion with respect to the brother, following which an explanation was given. The Reviewer did not accept the explanation.
The issue was the subject of detailed attention by the Reviewer in that, following the receipt by the Reviewer of the letter concerning the issue relating to the Applicant’s brother, the Reviewer wrote to the Applicant providing an opportunity to the Applicant to provide further information. This letter also addressed the question of the business in Kabul, saying:
I also note in your first application for refugee status that you claimed you were self employed in the same business that you claim in your application for review to me.
That being the case it shows that you continued to operate your business in Kabul throughout the period of Taliban rule.
In the response from the migration agent (court book p.116-117) the agent stated:
While the Client’s immediate family members may currently be living in Kabul, we believe that the Client’s personal circumstances and the available information on the overall situation in Kabul (particularly for Hazaras) indicates that this area does not meet the above criteria to be considered as a reasonable option for relocation for the Client.
It could not be said that the Reviewer’s rejection of the explanation was outside the bounds of reasonable decision-making by a Reviewer in the circumstances of this case. Ultimately, this was a finding of fact that was open to the Reviewer. This is not a basis for judicial review.
Issue 4
The Applicant also raised, during the hearing, that he had scars in order to provide evidence of having been stabbed. There does not appear to have been any medical evidence to this effect placed before the Reviewer. It is not open to me to review facts in a case such as this, as this is not a rehearing of the case, but judicial review. In these proceedings the court is limited to determining whether there was error at law that amounts to jurisdictional error. Under the legislative scheme it is for the Reviewer to make findings of fact and determine the merits of the claim, not the court.
Conclusion
As the Applicant has not established jurisdictional error on the part of the Reviewer I must dismiss the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 29 November 2012
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