SZRGW v Minister for Immigration
[2012] FMCA 701
•28 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRGW v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 701 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Pakistan – applicant generally credible but harm experienced found not to be Convention related or not to amount to persecution – whether the Tribunal erred by refusing to accept documents from the applicant at the Tribunal hearing considered. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.417 |
| Minister for Immigration v SZIAI (2009) 83 ALJR 1123 SZKDL v Minister for Immigration & Anor [2007] FMCA 1806 |
| Applicant: | SZRGW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 614 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 13 August 2012 |
| Date of last submission: | 24 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 28 September 2012 |
REPRESENTATION
Applicant appeared in person
| Solicitors for the Respondents: | Mr O Jones Clayton Utz |
ORDERS
The application filed on 20 March 2012 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,471 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 614 of 2012
| SZRGW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (the Tribunal). The decision is dated 24 February 2012 on its face and was certified on behalf of the Tribunal’s District Registrar on 27 February 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Pakistan and had made claims of political persecution. The following statement of background facts is derived from written submissions filed on behalf of the Minister on 6 August 2012.
Before the Tribunal, the applicant claimed that he faced persecution for reason of his political opinion in Pakistan. He stated that he joined, or at least financially supported, the “All Pakistan Muslim League” (APML), a party founded by former President General Pervez Musharraf.[1] As a result, in 2010 he received threatening telephone calls and letters from religious fundamentalists.[2]
[1] Court Book (CB), 29, 31, 77 [22], 78 [24] and [32], 79 [34]
[2] CB 29, 69 [4], 71 [13], 78 [28], 79 [35]
In the first week of January 2011, the applicant received a letter from “Molvi Hasmat Ullah Masood commander”. The letter threatened the applicant on the basis of his association with the APML and political activities. The letter demanded a ransom in order to save his business and his life.[3] On 20 January 2011, two or three men confronted the applicant at his workplace. They repeated the ransom demand made in the letter. When the applicant said he did not have the money, the men set a deadline of four days for payment.[4]
[3] CB 29, 31, 34, 69 [4], 77 [22], 79-80 [36]
[4] CB 30, 31, 69, 77 [22]
On 25 January 2011, three armed men entered the applicant's workplace and again demanded that the applicant pay the ransom. When the applicant stated that he was unable to do so, he was dragged into a motor vehicle. The applicant managed to escape when the vehicle stopped for refuelling. The armed men fired upon the applicant as he escaped.[5] The same day, the applicant reported the incident to the police.[6] The police were unable to take any effective action.[7]
[5] CB 30, 31, 70 [5]-[6], 77 [22]
[6] CB 30, 31, 69 [70], 77 [23].
[7] CB 71 [13], 72 [14]-[15], 79 [32]
The applicant departed Pakistan for Australia. He fears persecution from the same people if he returns to Pakistan.[8]
[8] CB 30, 72 [16], 78 [26], 81 [40]
Decision of Tribunal
The Tribunal accepted some of the applicant's claims. In particular, the Tribunal accepted the following:
a)the applicant financially supported the APML;
b)the applicant was harassed through anonymous telephone calls and letters due to his association with the APML;
c)the applicant was targeted from January 2011 by persons who were seeking to extort money from him resulting in his abduction and escape;
d)the applicant reported the matter to the police; and
e)the applicant had an ongoing fear of harm based on the extortion and kidnapping.[9]
[9] CB 82 [44]
However, the Tribunal refused to accept that the applicant had been kidnapped for a Convention reason, particularly the applicant's political opinion. Rather, the Tribunal considered that the extortion and consequent kidnapping was criminal conduct for monetary reasons. The Tribunal was not satisfied that the applicant was at risk of being targeted by the same persons in the reasonably foreseeable future for a Convention reason.[10]
[10] CB 84 [52]
The Tribunal then considered the applicant's claims regarding the telephone calls and letters in 2010. It considered these events to be unrelated to the later extortion and kidnapping of the applicant.[11] The Tribunal accepted that the applicant had faced harassment by telephone and letter in 2010. However, the Tribunal did not consider that the harassment was sufficiently serious to amount to persecution. Further, the applicant's evidence did not indicate that he was still engaged in political activities so as to suggest that there was a real chance of persecution for reasons of political opinion upon his return to Pakistan.[12]
[11] CB 84 [54]
[12] CB 84 [53]
For these reasons, the Tribunal was not satisfied that the applicant met the criteria for a protection visa.
The judicial review application
These proceedings began with a show cause application filed on 20 March 2012 on which the applicant continues to rely. There is one ground in that application:
1. The Tribunal constructively failed to exercise its jurisdiction;
Particulars:
The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his protection claims.
The ground in the application makes no sense as the Tribunal did not make an adverse credit finding against the applicant and neither did it give no weight to documents before it. It became apparent at the trial of this matter on 13 August 2012 that the applicant’s real concern was that the Tribunal refused to accept from him documents which he attempted to provide to the Tribunal at the hearing conducted by the Tribunal. At the trial before me I accepted as an exhibit[13] correspondence from the Minister’s Department relating to the applicant’s request for Ministerial intervention pursuant to s.417 of the Migration Act 1958 (Cth). Annexed to that correspondence are a written statement by the applicant and copies of two documents: a handwritten threat letter which is the same as the document at page 34 of the court book and a newspaper article which the applicant says the Tribunal refused to accept.
[13] Exhibit A1
The solicitor for the Minister stated that he was not in a position to deny the applicant’s assertion, having listened to the audio recording of the Tribunal hearing. In view of the circumstances, I directed the Minister to file and serve a transcript of the Tribunal hearing, together with any further written submissions. I also invited further submissions from the applicant.
In the event, only the Minister filed additional written submissions.
Ultimately, the Minister submitted that while the Tribunal did refuse to accept from the applicant a document proffered at the Tribunal hearing, the Tribunal acted within its jurisdiction in doing so.
In addition to exhibit A1, I also have before me as evidence the court book filed on 4 May 2012, as well as the affidavit of Oliver Richard Jones made on 24 August 2012, to which is annexed a transcript of the hearing conducted by the Tribunal on 22 February 2012.
Consideration
The Minister has obtained a professional translation of the document referred to at [11] above which the Tribunal allegedly refused to accept. No other professional translation has been provided to the Court.[14]
[14] The applicant has provided an unofficial translation as part of a submission in support of his application for Ministerial intervention. I have not relied upon it as it is not a professional translation.
The document is an undated newspaper article (article). The title of the article is “A few persons are spreading anarchy in the country for their self-interest”. The article describes a meeting in Karachi between the President of the Human Rights Network and a delegation. The article describes remarks made by a member of the delegation as follows:
A member of the delegation, Babar Bhatti, resident of Gulshan-e-Iqbal, said that some people began to pressure his close relative, owner of Euro Company, …, to achieve their self-interest. When he refused, he was harassed by giving the issue a political twist. As a result of this, being depressed, he left the country in order to save his life.[15] (name of victim deleted for the purposes of s.91X of the Migration Act)
[15] Affidavit of Oliver Richard Jones, sworn 24 August 2012 (Affidavit), Annexure B
The article also recounts the response by the President of the Human Rights Network:
On this occasion, the Human Rights Network assured him that they will formally bring this to the notice of responsible officials of the government. They strongly condemn the attempt by a few selfish persons to harass those who turn the wheels of the economy ...[16]
[16] Ibid
Hearing before Tribunal
At the end of the hearing before the Tribunal, the following exchange took place:
Applicant Ok. Do you need these papers?
Tribunal What are they?
Applicant We have a local minister from Karachi. Everything has been written here.
Tribunal About what?
Applicant About me.
Tribunal About you, the extortion attempt and the kidnapping?
Applicant Yes.
Tribunal I can't read, they're not in English, so I can't read them. But I don't actually need any more convincing because I've basically accepted all your story. So credibility is not really an issue here in your case. So I won't take them because then for me to take them you'd have to get them translated and it's not going to change anything. The issue's not going to be whether it happened, but whether it's for Convention related reasons. Do you understand?
Applicant Yeah. There's an hospital report, when I went to the hospital, what happened at the hospital. Do you need that?
Tribunal No I don't. Ok. Thank you.[17]
[17]Annexure A to the affidavit of Oliver Richard Jones, pages 7-8
Factual difficulties
The Minister submits that there are several factual difficulties with the article:
a)the article is undated, so there is no proof that it was in existence at the time of the Tribunal hearing;
b)there is no evidence, beyond a bare assertion by the applicant, that the article was the same document he attempted to give the Tribunal at the hearing; and
c)Babar Bhatti simply states what happened to his “close relative” who is named, without identifying any evidence of what happened to him. Assuming the named person is the applicant, Mr Bhatti may simply be recounting what the applicant told him.
The Minister submits that the Court cannot further consider the article without finding that the article was in existence at the time of the Tribunal hearing and was the document that the applicant attempted to give the Tribunal. The Minister further submits that if the Court makes that finding, the article has little weight if Mr Bhatti was simply recounting what the applicant told him.
The applicant impressed me (as he did the Tribunal) as an honest person. I am willing to draw the inference from the available material that the newspaper article was the first of the two documents that the Tribunal declined to accept. It is therefore necessary to consider whether the Tribunal's refusal to accept the article from the applicant resulted in jurisdictional error.
The Minister submits that the Tribunal proceeded within jurisdiction. This is for three reasons:
a)the Tribunal was under no duty of inquiry or translation;
b)the applicant led the Tribunal to understand that the article was irrelevant; and
c)the article was in fact irrelevant.
Was the Tribunal under a duty to inquire?
I accept the Minister’s first submission as a general proposition. It has been held by the Federal Court that the “Tribunal was not under any obligation to seek additional information that could remedy any deficiency in the evidence presented by the applicant”.[18]
[18] MZXHY v Minister for Immigration [2007] FCA 622
This is consistent with the High Court's statement that the Tribunal has no general duty of inquiry.[19] This is subject to a possible exception comprising “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review”.[20]
[19] Minister for Immigration v SZIAI (2009) 83 ALJR 1123
[20] Ibid [25]
The outcome of the review in this case turned upon the Tribunal’s assessment of the motives of those who kidnapped the applicant. The motives of the persons responsible for the applicant's kidnapping were anything but “easily ascertained”. The Tribunal was mindful of the difficulty, stating that[21]:
we know so little about the perpetrators or their motives that it is hard to make a finding that your politics is really what was motivating them to target you, or their politics.
[21] Affidavit of Oliver Richard Jones, Annexure A, page 6
I also accept that the Tribunal had warned the applicant that he should translate documents into English. The invitation to the Tribunal hearing stated[22]:
Any documents or written arguments sent to the Tribunal should be in English or translated by a qualified translator.
[22] CB 42
This Court has also stated[23]:
the Tribunal is under no obligation to translate foreign language documents submitted to it by applicants. It invites applicants to put evidence and arguments before it but no error is disclosed by requiring that the documents that are submitted to it be translated into English so that they can be understood by the Tribunal.
[23] SZKDL v Minister for Immigration [2007] FMCA 1806 at [22]
I am inclined to the view, however, that this case represents an exception to the general principle. The High Court’s qualification to the general principle that there is no duty to inquire could encompass obtaining a translation of a potentially critical document either before it or proffered to it. Here, the Tribunal had, by the end of the hearing, accepted the applicant’s factual claims as true. The remaining critical issue was the motivation of the applicant’s kidnappers. Unless it was plain that the document offered by the applicant did not bear upon that issue, in my view the Tribunal should have accepted it and obtained a translation of it (or at least have given the applicant a reasonable opportunity to do so).
Did the applicant suggest article irrelevant to Convention reason?
The Minister submits that the applicant led the Tribunal to understand the article concerned the fact that the kidnapping and extortion had taken place, but not whether it had occurred for a Convention reason. The Tribunal had already described to the applicant that it was willing to accept the truth of his account of the kidnapping and extortion. The Tribunal had emphasised that it had to decide whether it had occurred for monetary reasons or for a Convention reason. The presiding member said to the applicant[24]:
… the delegate has some difficulties in accepting your story but it seems pretty plausible to me and I'm willing to accept that you provided entirely truthful account of your circumstances. But the dilemma is that we know so little about the perpetrators or their motives that it is hard to make a finding that your politics is really what was motivating them to target you, or their politics. Because you see, the legislation governing what we do here, basically tells us that a convention reason has to be the essential and significant reason for the harm. So if they're targeting you primarily because they want money and, you know, maybe there is an aspect in there about your politics but really it's all about the money, then it would be hard to mount an argument that you had been targeted for a Convention reason. And what we'd be left with is that you're basically an unfortunate victim of criminal activity. And that's the main issue that I'm going to have to think about.
[24] Affidavit of Oliver Richard Jones, Annexure A, page 6
The Tribunal returned to the point when the applicant attempted to give the presiding member the article. As indicated earlier, the presiding member said[25]:
So credibility is not really an issue here in your case. So I won't take them because then for me to take them you'd have to get them translated and it's not going to change anything. The issue's not going to be whether it happened, but whether it's for Convention related reasons. Do you understand?
[25] Ibid, Annexure A, page 8
I accept the Minister’s submission that the applicant had the opportunity to explain that the article did go beyond the fact of the occurrence of the events occasioning harm to the presence of a Convention reason. He did not do so. However, I do not accept that in those circumstances, the Tribunal was entitled to assume that the article would not be of assistance and did not need to be further considered. The applicant referred to a “local minister from Karachi” and that “everything has been written here” about the extortion attempt and the kidnapping. “Everything” may well have gone beyond the bare facts to the motivation of those responsible.
Article in fact irrelevant to Convention reason
The Minister submits that the applicant did not suggest the article was relevant to the presence of a Convention reason because he could not. I agree. The article instead supports the Tribunal's reasoning that those responsible for the kidnapping and extortion were targeting the wealthy for personal gain. As indicated above at [17]-[18], the article makes this point in various places:
a)“A few persons are spreading anarchy in the country for their self-interest”;
b)“some people began to pressure ... to achieve their self-interest”;
c)“the attempt by a few selfish persons to harass those who turn the wheels of the economy”.
The article goes on to suggest that any reference to politics by those responsible for the kidnapping and extortion was an afterthought, designed to increase harassment and strengthen the pursuit of personal gain. As indicated at [17] above, it states[26]:
[26] Ibid, Annexure B
When he refused, he was harassed by giving the issue a political twist.
In short, the article did not add anything to the applicant's case. He had already indicated that the persons pursuing him were after money.[27] Further, the article was consistent with the Tribunal's conclusion that the applicant was a victim of criminal activity, not persecution for a Convention reason.[28]
[27] CB 77-81
[28] CB 52
In short, whilst the Tribunal fell into error by declining to accept the article, it was an error within jurisdiction. The article, if accepted, could not have affected the outcome once translated and understood.
Conclusion
The applicant has failed to establish jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed.
I will so order.
I will order that the applicant pay the Minister’s costs in accordance with the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 28 September 2012
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