SZQZG v Minister for Immigration
[2012] FMCA 858
•21 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQZG v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 858 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – Tribunal found no convention nexus – request for impermissible merits review – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.425, 476 |
| Minister for Immigration v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration v Khawar [2002] HCA 14; (2002) 210 CLR 1; (2002) 187 ALR 574 Minister for Immigration and Multicultural Affairs v Respondents S13/2003 Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 Applicant S v Minister for Immigration & Multicultural Affairs (2004) CLR 387 Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 |
| Applicant: | SZQZG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2924 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 13 September 2012 |
| Date of Last Submission: | 13 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2012 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Mr H P T Bevan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application made on 20 December 2011 is dismissed.
The applicant pay the first respondent’s costs, set in the amount of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2924 of 2011
| SZQZG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 20 December 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 16 November 2011, which affirmed the decision of the respondent Minister’s delegate, made on 2 May 2011, to refuse the grant of a protection visa to the applicant.
Background
The applicant is a citizen of Pakistan (CB 1). He arrived in Australia most recently on 15 February 2011 and applied for a protection visa on 4 March 2011 (CB 1 to CB 39 with attachments).
The applicant’s claims to protection were set out in a statement attached to that application (CB 31 to CB 39). They can be summarised as follows:
1)Subsequent to his marriage, which occurred on November 2009, the applicant was made aware that another man, “Usman”, had wanted to marry his wife but her parents had refused. Usman had been living and working in Saudi Arabia and the applicant had been told that he worked for “terrorist organisations in Pakistan and in foreign countries” (CB 35).
2)Usman had returned to Pakistan in the hope of stopping the applicant’s marriage to his wife and had “tried to forcibly take away” the applicant’s wife. A “Mosque cleric” had intervened and “… promised Usman that he could marry [the applicant’s] wife the second time if [the applicant] deserted her” (CB 35).
3)The applicant’s wife fell pregnant. Upon the wife’s family hearing that news, “problems started to aggravate”. The applicant’s father thought that he should leave the country, study overseas and sponsor his wife. The applicant’s father applied for a student visa for him through “agents”.
4)In the meantime, the applicant and his wife moved to his parent’s residence. However, Usman, along with “a group of armed men”, came to that house. The applicant was beaten up and Usman threatened to kill him if his wife did not come out of hiding. The applicant’s wife presented herself and confirmed that she was pregnant. Usman and the other men immediately left the applicant’s family home (CB 35.9 to CB 36.2).
5)That same evening, the applicant was attacked by the same group of men. He was beaten “with bicycle chain and sharp iron rods”. The men told him that they would kill him if he stayed in Pakistan any longer.
6)The applicant’s parents attended at the police station to file a complaint. The police told them that “… if [the applicant] wished to be alive, [they] should not file any charges”. Further, that “… Usman is a notorious criminal with political influence and is capable of killing all of us if we complained against them” (CB 36.3).
7)The applicant’s parents then approached the “Mosque cleric”. He told them that Usman had threatened to kill the applicant if he failed to divorce his wife (CB 36.3).
8)In March 2010 the applicant left Pakistan and came to Australia. His wife and children remained in Pakistan with his parents. The applicant’s wife was pregnant and he was eager to get her out of Pakistan (CB 36.5).
9)In January 2011, the applicant was told that Usman would not be in Pakistan for some time. In light of that, on 19 January 2011, the applicant returned to Pakistan. He “… stayed indoors with family” (CB 36.8).
10)On 7 February 2011, while at a petrol station in Pakistan with his wife and children, the applicant was shot at by a man on the back of a motorbike. “The men” immediately fled the scene. When the applicant went to file a report at the police station, the police refused to include Usman’s name in that report (CB 37.1).
11)As a result, of those attacks the applicant’s wife and his father urged him to leave Pakistan. Although he was worried to leave his wife and children, he decided to come to Australia and seek protection (CB 38).
The Delegate
The applicant was invited to attend an interview with the Minister’s delegate on 29 April 2011 (CB 101 to CB 104). The applicant failed to attend on that occasion (CB 112). Nor did he “… contact the Department to advise that there was a reason why he was unable to attend an interview” (CB 112).
The delegate was satisfied that “all reasonable steps have been taken to give the applicant an opportunity to substantiate his claims” and, on 2 May 2011, the delegate decided to refuse the grant of a protection visa to the applicant (CB 113).
The delegate found that while the applicant feared serious harm, that fear of harm was not for a Convention reason (CB 111). Further, as the applicant had failed to attend at the interview, the delegate was not “satisfied as to the veracity of his claims” (CB 113).
The Tribunal
On 3 June 2011 the applicant applied to the Tribunal for review of the delegate’s decision (CB 114 to CB 117).
By letter dated 13 September 2011, the applicant was invited to attend a hearing before the Tribunal on 10 October 2011 (CB 121). The applicant failed to attend on that occasion (CB 128 to CB 129).
On 18 October 2011 the applicant contacted the Tribunal and advised that he wanted to change his address for service. An officer of the Tribunal told him that a hearing invitation had been sent to his address for service, that it “had come back” and that he had “missed the hearing”. The applicant “… asked if he could have another hearing” (CB 131).
By facsimile transmission on 18 October 2011 the applicant requested that the member “resend [him] the date” (CB 132). In addition, he provided a copy of his drivers license which displayed his “new” address.
By letter dated 18 October 2011, the applicant was invited to attend a hearing before the Tribunal on 9 November 2011 (CB 133). The applicant attended on that occasion and was assisted by an interpreter in the Urdu language (CB 142 to CB 143).
At that hearing the applicant confirmed that the original statement, provided in support of his protection visa application, “… accurately reflected his claims” ([23] at CB 168). In addition to the incidents recorded in that statement, the applicant claimed that Usman and his men had been “constantly threatening him” ([26] at CB 168).
On 16 November 2011 the Tribunal decided to affirm the decision of the Minister’s delegate (CB 171). Its findings and reasons are set out in its decision record ([40] – [41] at CB 171), a copy of which was provided to the applicant (CB 162).
The Tribunal found that “…one or more of the five Convention reasons [was] not the essential and significant reason for the persecution” feared by him ([40] at CB 171). Rather, the Tribunal found that Usman wanted to kill the applicant in order to marry his wife. That issue, and the need for the applicant’s claims to come within one of the five convention grounds, had been raised by the Tribunal at the hearing ([35] – [39] at CB 170).
Application to the Court
At the first Court date, the applicant had appeared in person and been assisted by an interpreter in the Urdu language. Ms L Weston had appeared for the first respondent.
On that occasion the applicant indicated that the grounds of his application to the Court had been drafted by a “friend” and that that friend was not a lawyer. I alerted the applicant to the fact that the Court was concerned with jurisdictional error and that, on its face, the grounds of his application failed to assert jurisdictional error (particularly, ground one) and lacked particularity (ground two). That is, that his application to the Court sought to challenge the facts as found by the Tribunal and invite the Court to engage in impermissible merits review (Minister for Immigration v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).
The applicant indicated his willingness to participate in the Court’s “RRT Legal Advice Scheme”. In light of the above, I urged him to attend, and listen carefully, to the lawyer on the panel of that Scheme that would be assigned to him. Consent orders were made granting leave to the applicant to file an amended application.
Despite that opportunity, nothing further was filed by the applicant. At the final hearing of the matter he continued to press the grounds of his application. Those grounds are as follows:
“1. The Tribunal completely rejected all the Applicant’s claims ignoring the fact that the Applicant feared persecution from a terrorist and the Pakistani government and its authorities encouraged and are powerless to protect the Applicant from target killing perpetrated by the terrorist. The Tribunal failed to provide protection to the Applicant as the Applicant lost the de jure or de facto protection of his government. The Tribunal’s decision is an adverse decision under the Convention.
2. The Tribunal failed to note that the Pakistani government and its authorities tolerated the criminal conduct of the terrorists and failed to give protection to the Applicant against harm and target killing
3. The Tribunal failed to note that the Applicant’s social background is different from that of the terrorist and a fanatic, who is politically and financially capable of controlling the state agents to harm and persecute the Applicant. The Tribunal failed to consider the seriousness of the way and manner the Applicant escaped from being shot in public and the fear of being shot by the terrorist and his men involved in target killing with the knowledge of the state authorities in Pakistan. The Tribunal used excessive power and authority in rejecting the Applicant’s claims and thus made a jurisdictional error.
4. The Tribunal made a jurisdictional error by not considering the Applicant to fall under a separate social group different from his opponent who is a terrorist and a member of Al-Qaeda and Lasha-e-Toiba terrorising the country Pakistan as a whole and also the Applicant.
5. The Tribunal has misinterpreted misusing its authority and knowingly ignored the relevant facts in reaching its adverse decision. The Tribunal ignored the relevant facts and circumstances including the Applicant’s cultural circumstances, the fear of ordinary Muslims in Pakistan from these terrorists and their influence among the state authorities. The Tribunal ignored the attitudes of the authorities towards the behaviour of the terrorist who intend to kill the Applicant and the fact that the authorities were aware as to the terrorist’s motives before the Applicant was shot at in public. The Tribunal’s use of excess authority to ignore valid claims during the hearing falls under procedural fairness and thus made jurisdictional error.”
Before the Court
At the hearing, the applicant appeared in person and was assisted by an interpreter in the Urdu language. Mr H P T Bevan of counsel appeared for the first respondent. The Court had before it the Court Book and written submissions filed on behalf of the Minister.
At the hearing, the applicant stated that the Tribunal did not consider his case. It appeared that what the applicant meant by this was that he understood that his case had been refused because there was no Refugee Convention (“the Convention”) nexus, but the Tribunal’s error was that the person from whom he feared harm (Usman) was a member of a particular social group (terrorists) and that that therefore brought his case within the Convention.
The applicant also sought “justice” from the Court because he had sustained injuries in Pakistan from those associated with Usman and further because he had a wife and two children in Pakistan that he needed to support.
This latter complaint plainly does not rise above a request for impermissible merits review and, without anything else, does not reveal jurisdictional error on the part of the Tribunal. Nor can the Court entertain any such merits review (Wu Shan Liang).
As to the first complaint, it may give rise to a consideration of whether what was said by the High Court in Minister for Immigration v Khawar [2002] HCA 14; (2002) 210 CLR 1; (2002) 187 ALR 574 (“Khawar”) assists the applicant in the current case.
However, what is immediately obvious is that the applicant’s explanation before the Court that the social group he referred to was “terrorists”, and their supporters, of which Usman was a member, distinguishes the current case from Khawar.
In that case, Mrs Khawar was the victim of domestic violence from her husband and his family in Pakistan. The Court found that it was open to the Tribunal in that case to determine that “women in Pakistan” (at [32] per Gleeson CJ) were a particular social group (see also in a similar vein per McHugh and Gummow JJ at [81] and the suggestion per Kirby J at [218] – [219]).
The link to a Convention ground therefore was provided in circumstance where the person who claimed to fear harm (Mrs Khawar) was a member of a particular social group (women in Pakistan) where the state tolerates and condones the harm occasioned to members of that particular social group. That is, the state withheld protection from her because she was, in Mrs Khawar’s case, a woman in Pakistan.
In the current case, the applicant did not, and does not now, assert to have been a member of a particular social group. Nor do the circumstances of his case as presented to the Tribunal give rise to any such indication. The Tribunal was correct therefore, in light of its finding that the harm feared was from a private source and not referable to any of the Convention grounds, to find that the applicant did not have a well founded fear of persecution for a Convention reasons. Those findings were reasonably open to it.
Further, as Mr Bevan submitted, while the applicant’s evidence was that his father reported one of the incidents of claimed harm to the police ([34] at CB 169) the unwillingness of the police to register the complaint could not be seen in the circumstances and, on its own, as supplying a link to the Convention. Ultimately, as was submitted, the state is not required to guarantee the safety of its nationals from harm occasioned by private individuals (Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18, (2004) 222 CLR 1 (“Respondents S152/2003”) at [26] and [117]).
It is the case that the Tribunal’s “Findings and Reasons”
([40] – [41] at CB 171) are brief. However, when read with, and in light of, the Tribunal’s account of the hearing with the applicant ([23] at CB 168 to [39] at CB 170) they can be seen as conclusions to the matters put to the applicant at the hearing. Therefore, while the key findings are set out at [40] to [41] (at CB 171), the reasons for those findings appear to have been derived from the account of the hearing.
It may be that some further explanation in the “Findings and Reasons” would have been helpful to the Court and the applicant (and possibly even the Minister’s legal representatives before the Court). But, in any event, what emerges is that the Tribunal considered each aspect of the applicant’s claims and accepted the factual account of relevant events given by the applicant. It simply did not find the necessary Convention nexus such as to bring the applicant within the Convention definition of “refugee”.
The essential and significant reason for the harm feared by the applicant did not fall within, at least, one of the Convention reasons. The applicant feared harm from Usman because of Usman’s claim regarding his wife. That Usman may have had political connections, and other religious inclinations, played no role in that. The protection of the police, it can be inferred in the absence of any specific findings, was not relevant in circumstances where no Convention nexus was evident (as distinct from Khawar). There was nothing in the claims before the Tribunal to indicate that the Pakistani authorities would withhold protection on a selective and discriminative basis in any way referrable to the Convention.
When seen in this way, none of the applicant grounds before the Court reveal jurisdictional error on the part of the Tribunal.
Ground One
The first ground of the application alleges that the Tribunal “completely rejected all the Applicant’s claims” and, in doing so, ignored the fact that the applicant feared harm from a terrorist and the Pakistani government was “powerless” to protect the applicant from harm.
As submitted by the Minister, ground one simply invites the Court to engage in impermissible merits review (Wu Shan Liang). That is, it takes issue with the findings made by the Tribunal, findings which were reasonably open to the Tribunal and for which it gave reasons (Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547).
The ground also has no factual basis when regard is had to the Tribunal’s findings. The Tribunal actually accepted the truth of the applicant’s factual claims. However, for reasons which were open to it, it found that those claims lacked a necessary Convention nexus. No error is revealed in circumstances where that finding was reasonably open to the Tribunal on what was before it.
Ground Two
The second ground asserts that the Tribunal failed to “note” that the Pakistani government and its authorities tolerated terrorists. Further that the Pakistani government failed to provide the applicant with protection from “target killing”.
The Minister’s submission was that, while a person can have a
well-founded fear of harm if they fear harm from a non-state agent for a non-Convention reason and there is selective and discriminatory withholding of state protection ([18] of written submissions and with reference to Khawar and Respondent S152/2003), there was no material before the Tribunal to suggest that the Pakistani authorities withheld protection on a “selective or discriminatory basis”.
For the reasons set out above, I agree.
Ground Three
Ground three asserts that the Tribunal failed to “note” that the applicant’s “social background” was different “… from that of the terrorist and a fanatic, who is politically and financially capable of controlling the state agents to harm and persecute the Applicant”. Further, that the Tribunal failed to consider the “seriousness” of the applicant being shot at in public. Finally, that the Tribunal “… used excessive power and authority in rejecting the Applicant’s claims”. That was said to be revelatory of jurisdictional error.
It was the Minister’s position that, contrary to the applicant’s assertion in ground three, the Tribunal had noted that there was a difference in the political and religious background of the applicant and Usman
([37] – [38] at CB 170 and [40] at CB 171). Further, that there was nothing to support the applicant’s claim that the Tribunal “used excessive power and authority” (whatever that may mean – the applicant did not explain this before the Court). I agree.
In any event, this ground, like the others, fails given the Tribunal’s finding as to the lack of Convention nexus.
Ground Four
The fourth ground of the application alleges that the Tribunal committed jurisdictional error in that it failed to consider whether the applicant “… fall under a separate social group different from his opponent”.
In written submissions, the Minister asserted that there was no evidence before the Tribunal that supported the applicant’s contention that he was a member of a particular social group in the “relevant sense”, with reference to Applicant S v Minister for Immigration & Multicultural Affairs (2004) CLR 387.
This ground, as stated, contradicts what the applicant told the Court. But, in any event, the Minister’s submissions in this regard must be accepted on any plain reading of the relevant material.
Ground Five
Ground five asserts that the Tribunal “… misinterpreted misusing its authority and knowingly ignored the relevant facts in reaching its adverse decision.” Those relevant facts were said to be the applicant’s cultural circumstances, the fear from “these terrorists” felt by ordinary Muslims in Pakistan and the influence of “these terrorists” over state authorities. The Tribunal was also said to have “ignored” the attitude of the Pakistani authorities towards terrorists. The Tribunal’s alleged failings in this regard were said to be a “use of excess of authority” so as to “falls under procedural fairness”.
In addition, the ground asserts that the authorities “… were aware as to the terrorist’s motives before the Applicant was shot at in public”.
In response, the Minister submitted that, like ground one, the applicant’s fifth ground invited the Court to engage in impermissible merits review (Wu Shan Liang). I agree with that submission.
Further, to the extent that the applicant’s complaint could be characterised as an allegation of a denial of procedural fairness, the Minister submitted that there was nothing before the Court to suggest that the Tribunal failed to meet its procedural fairness obligations under Div.4 of Pt.7 of the Act (as understood in light of Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204).
I agree, and note further that even if such consideration at common law were to apply, the applicant’s ground is not made out. The applicant could have been in no doubt following the hearing (the applicant has not challenged the Tribunal’s account of what occurred) of the issue determinative of the review (with reference to s.425 of the Act and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152). That issue was squarely put to the applicant for comment.
Conclusion
None of the grounds the applicant has put before the Court are revelatory of jurisdictional error. Nor is such error otherwise revealed in the material before the Court. In those circumstances, the application should be dismissed. I will make an order accordingly.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 21 September 2012
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