SZQVZ v Minister for Immigration

[2012] FMCA 485

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQVZ v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 485

MIGRATION – Review of decision of RRT – where review dismissed on credibility grounds – where applicant provided no grounds of application to the court – whether adjournment should be granted – where applicant did not perceive advice from practitioners under Minister’s scheme.

Migration Act 1958 (Cth), ss.424A, 425

Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZQVZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2641 of 2011

Judgment of: Raphael FM

Hearing date: 1 June 2012

Date of Last Submission: 1 June 2012

Delivered at: Sydney

Delivered on: 1 June 2012

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Minter Ellison

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s cost assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2641 of 2011

SZQVZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan who arrived in Australia on 3 April 2008.  He was then the holder of a Temporary Business (short stay) visa valid until 3 July 2008.  He overstayed that visa and was taken into immigration detention from where, on 26 May 2011, he applied to the Department of Immigration and Citizenship for a protection (Class XA) visa.  On 28 June 2011 the delegate of the Minister refused to grant the protection visa and on 29 June the applicant applied for a review of that decision from the Refugee Review Tribunal.  The Tribunal held a hearing which the applicant attended and on 28 December 2011 determined to affirm the decision under review. 

2. The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was the Convention one of political opinion.  He claimed that he was a member, indeed a prominent member, of the Pakistan People’s Party[1] and that, as a result, he came into conflict with the Mohajeer Quami Movement[2], which is the opposition party in Pakistan.  He claimed that he had been threatened by members of the MQM and that following a rally which he had organised near the assembly hall on Mall Road Lahore, people from the MQM had shot at him.  He was wounded.  He was required to go to hospital as a result of his wounds.  It appeared that although he was the victim of the shooting incident he claimed that he was arrested by the police and placed in jail from where he was released upon bail of some 50,000 rupees paid for by the PPP.  After his release he went to a village near the Indian border where he stayed until he was able to arrange to leave the country.

   [1] “PPP”

   [2] “MQM”

3. It is not intended as prejudicial to the applicant not to rehearse in any detail the concerns which the Tribunal expressed as to his credibility. The Tribunal wrote to him, pursuant to the provisions of s.424A of the Migration Act 1958 (Cth)[3] on 5 September 2011 setting out particulars of information which would, subject to his comments or response, be the reason or part of the reason for affirming the decision. 

   [3] “Act”

4. The Tribunal referred to information about the rally in December 2007 which the applicant had told the delegate that he had organised to make members of the PPP aware of threats that had been made against him.  He told the Tribunal, however, that the rally had been organised to protest the death of Benazir Bhutto and that the rally took place at a different location to that which he said it took place at to the delegate.  The letter continued with reference to the fact that the applicant was incorrect in telling of the date of death of Benazir Bhutto.  The Tribunal also brought to the applicant’s attention inconsistent evidence about his arrests and whether the applicant had had any other difficulties with the police.  It brought to his attention that he had wrongly named the general secretary of the PPP in Lahore.

5. The letter continued with references to the possibility that some of the applicant’s documentation might have been manufactured for the purposes of his application, that there were inconsistencies in his story about him being arrested and bailed and about the amount paid for his bail.  There were also inconsistencies about the date of his release from prison and the date of his temporary business visa application.  The Tribunal had concerns about his evidence of events after his release from prison and threats allegedly made to his wife.  

6. The applicant responded to these concerns by way of a short letter from his advisors which the Tribunal took into account.  In paragraph [115] [CB 251] the Tribunal commences its findings and reasons.  At [116] the Tribunal says:

   “[116]While the Tribunal accepts the applicant’s evidence about his nationality, the Tribunal believes that beyond this issue he has fabricated a claimed background and past experiences which are not truthful, in an attempt to secure a protection visa.  The Tribunal believes that he has not been truthful about his past political background and experiences, his activities, arrest and detention in Pakistan, and the difficulties he has had in Pakistan as a  consequence of political involvement with the PPP.

   [117]For the reasons set out below, the Tribunal does not believe the applicant undertook any political activity in Pakistan, nor that he has ever come to the adverse attention of any person or organisation in Pakistan as a result of such political activity.  In the Tribunal’s view he has fabricated claims to have been harmed as a result of his membership of and participation in the PPP.  The Tribunal does not believe the applicant’s claims to have played a role in the PPP or that he has been or is a member of the PPP.”

7. In the following paragraphs the Tribunal provides comprehensive reasons for its disbelief of the applicant’s claims and at [141] it deals with the applicant’s claim that he will be persecuted upon his return to Pakistan because he is a failed asylum seeker.  The Tribunal relies on independent country information to the effect that failed Pakistani refugee claimants were not usually detained. That as it was not aware of any publicity drawing attention to the applicant’s claim to be a refugee and because it did not believe that he had been arrested or detained whilst he was in Pakistan there would not be a real chance that he would be detained in Pakistan because he had been deported from Australia.  The Tribunal concluded that the applicant did not have a real chance of persecution and therefore he was not a person to whom Australia owed protection obligations.

8. On 21 October 2011 the applicant filed an application with this court.  No grounds of application were included within it.  At the call over of the matter the applicant requested and was granted access to the Minister’s scheme for provision of legal advice.  An advisor was appointed and the applicant told that he attended the applicant at Villawood but he tells me today that he did not receive any written advice.  I have looked through the papers in the file and can find no copy of the form that is normally completed by an advisor who has provided advice and it may well be that the applicant did not receive advice from this practitioner.  Whilst I propose to take the matter up with the registry, I informed the applicant that I did not intend to give him an adjournment because having considered the Tribunal’s decision myself, it seemed to me that his application had been comprehensively rejected on credibility grounds which are a matter for the Tribunal “par excellence”; Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407. To my mind that would be the burden of any advice given to him. In any event, legal advice is not a right, it is a privilege, and the failure to obtain legal advice should not be a matter which affects the court’s decision making.

9. In the absence of any written ground for review I asked the applicant whether he had anything to say to me as to why he believed that the Tribunal had made an error of law in the manner in which it reached its decision.  The only thing that the applicant said was that he was a diabetic and that the sugar level in his blood at the time of the Tribunal hearing was high.  This is a matter to which the Tribunal referred at [37] of its decision record:

   [37]At the commencement of the hearing the Tribunal invited the applicant to request a break at any time as it was aware he suffers diabetes.  It asked if he had to eat at any specific time.  He indicated he did not need to do this.

10. If one reads the decision record it would appear that the applicant was able to provide coherent answers to the Tribunal’s questions and in the absence of any evidence I am not prepared to come to a conclusion that the applicant did not receive a meaningful opportunity to attend the hearing to give evidence and present arguments as required by s.425 of the Act. The applicant told me today that his sugar level was raised. I have no reason to disbelieve him when he tells me that he does not feel particularly well, but his condition does not seem to be so serious that he could not raise an argument if he believed there was one. Had he done so and had I believed that there was any merit in it but that it would benefit from better articulation, I would have adjourned.

11. Having considered the Tribunal’s decision record carefully I am unable to see that it fell into jurisdictional error in the manner in which it reached its decision. It appears to have complied with the provisions of s.425 and provided the applicant with procedural fairness as required by the codes found in Division 4 of the Act. He received a 424A letter and he responded to it. In those circumstances the application must be dismissed and the Applicant must pay the First Respondent’s costs which I assess in the sum of $4,000.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  7 June 2012