SZRMS v Minister for Immigration
[2013] FMCA 161
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRMS v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 161 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424A, 425 |
| Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 |
| Applicant: | SZRMS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1124 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 8 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2013 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1124 of 2012
| SZRMS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 26 April 2012. The Tribunal affirmed the decision of a delegate of the First Respondent not to grant the Applicant a protection visa. The Applicant is a citizen of Pakistan who arrived in Australia in March 2011. He applied for protection in May 2011. In connection with his protection visa application he provided a written statement in which he claimed to be a businessman involved in the leather business and a member of the MQM (the Muttahida Qaumi Movement).
The Applicant claimed he was targeted by members of the PPP (the Pakistan People’s Party) because he “was working against them and doing well in local business community” and that he was “forced to pay monthly donation to local PPP members”. He complained, but did not receive support from the MQM. He claimed that to avoid threats he had found it necessary to pay 20,000 rupees and to seek additional time to pay. He realised he could not expect protection from any law enforcement authority and decided to leave Pakistan.
After his application was refused the Applicant sought review by the Tribunal. He attended a Tribunal hearing on 11 April 2012. The only evidence before the Court as to what occurred in the Tribunal hearing is the Tribunal’s account of the hearing in its reasons for decision.
In its reasons for decision, after setting out the evidence given by the Applicant in his protection visa application, at the departmental interview and at the Tribunal hearing, the Tribunal accepted that the Applicant had a lucrative leather business that he had operated for some time, but was not satisfied he had provided a truthful account of events in Pakistan. It did not find him to be credible regarding some key aspects of his claims. The Tribunal set out the matters which led it to that conclusion.
The Tribunal had regard to an inconsistency between the Applicant’s initial claim in the statement accompanying his protection visa application that he was a member of the MQM and his evidence to the Tribunal. It noted that during the Tribunal hearing the Applicant said he was not an MQM member but “considered himself to be a member because he gave them money and attended meetings” and also that he later said that “the MQM also demanded money from him because he did not have a membership card”. It recorded that when the Applicant was asked why he had stated he was a member of the MQM, he responded that “he was thinking that he might vote for them”, although he did not vote for them at the last election. The Tribunal did “not accept that the applicant supported the MQM in any way, or was regarded as a supporter prior to coming to Australia”.
The Tribunal also had regard to the Applicant’s evidence at the hearing about his business and the claimed extortion and differences between that evidence and his claims in his protection visa application, in particular about whether he was threatened over the telephone and whether family members were threatened and inconsistencies in relation to how much the Applicant claimed to have paid to PPP members in his protection visa application compared to at the Tribunal hearing. Having regard to such inconsistencies, the Tribunal did not accept that the Applicant or his family were threatened or that he paid amounts of money monthly to persons from the PPP as claimed.
Nor did the Tribunal accept that the “applicant was approached, threatened and the victim of extortion, as claimed”. It had regard to his claim that the police had said he needed evidence but also that “it could be evidence from anyone”. However when asked why his employee or his partner could not provide such evidence, the Applicant had said that: “the men came in the afternoon when the others were usually at the market.”
In addition, the Tribunal did not accept that the Applicant was fearful of any harm prior to leaving Pakistan, having regard to the fact that while he was granted a tourist visa in November 2010, he did not travel to Australia until March 2011. It addressed his explanations for the delay in leaving Pakistan but did “not accept that he was avoiding the persons he mentioned, or that anyone was making inquiries about him”. It was of the view that “had the applicant been in fear of serious harm, he would not have remained in Pakistan, and would have travelled to Australia soon after acquiring his Tourist visa rather than waiting until four months”.
These matters collectively led the Tribunal to reject the Applicant’s claims that he was targeted. It was not satisfied he would be seriously harmed for any Convention reason should he return to Pakistan in the reasonably foreseeable future. Nor did it accept that members of his family were threatened at any time. The Tribunal found no credible evidence upon which it could find there was a real chance the Applicant would suffer Convention-related harm in the reasonably foreseeable future if he returned to Pakistan.
The Tribunal also addressed the complementary protection provisions in the Migration Act 1958 (Cth) but did “not accept, on the evidence before it, that there [we]re substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there [wa]s a real risk he [would] suffer ‘significant harm’ as defined … in the Act”. The Tribunal affirmed the decision of the delegate.
The Applicant sought review by application filed in this Court on 24 May 2012. He did not file written submissions, but had the opportunity to make oral submissions today.
In oral submissions the Applicant raised fresh matters to which I will return, but did not address in any meaningful sense the grounds in his application except insofar as he sought, as some of the grounds do, impermissible merits review.
Ground one in the application is that the Tribunal “denied the applicant procedural fairness by reaching adverse conclusion[s] that applicant claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant the opportunity to be heard in respect of those matters”.
This ground is not particularised. It is not clear to which aspect of the Applicant’s claims the ground is intended to relate. The Tribunal, as set out above, rejected the Applicant’s credibility, including particular claims, based in large part on inconsistencies, not simply implausibility, in his claims. Insofar as the Applicant may be seen as taking issue with the Tribunal’s approach to his evidence about extortion and the complaints to police, such findings were open to the Tribunal on the material before it.
It appears that this ground reveals an intention to rely on the common law principles of procedural fairness as considered in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074, insofar as such principles require that a decision maker advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. However in this case, the Tribunal’s procedural fairness obligations in Division 7 of Part 4 of the Migration Act have not been shown to have been contravened. Nor is there anything in the material before the Court to suggest any other denial of procedural fairness, let alone a denial of procedural fairness on the basis contended for by the Applicant.
The Tribunal’s obligations to put material to an Applicant for comment are regulated by ss.424A and 425 of the Migration Act. There is nothing in the material before the Court to suggest that there was any information to which the obligation in s.424A(1) of the Act would apply. It is apparent that as the Tribunal stated in making its decision it relied on inconsistencies between information contained in the Applicant’s protection visa application and evidence provided by the Applicant at the Tribunal hearing. Inconsistencies as such are outside the concept of “information” for the purposes of s.424A(1) of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26). Moreover, information in the protection visa application or provided at the Tribunal hearing is within the s.424A(3) exceptions. This would extend, for example, to the information provided by the Applicant in his protection visa application about the time he left Pakistan following the grant of his tourist visa.
Beyond this, the Tribunal’s thought process and appraisals and reasoning do not constitute information for the purposes of s.424A of the Act (see SZBYR at [18]). Hence, the view of the Tribunal that any aspect of the Applicant’s claims was implausible (as may be intended to be suggested in relation to that part of his claims that related to his approach to the police) is not a matter that has to be put to the Applicant pursuant to s.424A of the Act.
It is the case that the Applicant also gave oral evidence to the delegate of the First Respondent. This evidence is summarised in the Tribunal reasons for decision. Such evidence is not within the exceptions contained in s.424A(3) of the Act. However in this case a clear inference can be drawn from the Tribunal reasons for decision (in particular, its findings and reasons) that such information was not information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. Hence the Tribunal was not obliged to put such information to the Applicant under s.424A(1) of the Act.
There is nothing in the material before the Court to suggest any failure by the Tribunal to comply with s.425 of the Migration Act and to meet its obligation to invite the Applicant to a Tribunal hearing to give evidence and make submissions in relation to the issues arising in relation to the decision under review.
It is convenient to consider in this respect the issue raised by the Applicant in oral submissions to the effect that he had a medical condition at and after the time of the Tribunal hearing. He said that the evidence he gave to the Tribunal in the hearing was wrong and that he was confused during the hearing; that he was asked a lot of questions and therefore was confused; that he could not answer the questions properly at the hearing; that he was a heart patient and wanted to stay in Australia for a while because of medical reasons and that he was a diabetic.
As the solicitor for the First Respondent pointed out, this contention appears to have two relevant aspects. The first of these appears to be a contention that the Applicant was not fit to participate in the Tribunal hearing. The second appears to take issue with the allegedly vigorous nature of the Tribunal questioning at the hearing.
As to the first of these, as indicated, the only evidence of what occurred at the Tribunal hearing is the Tribunal’s account in its reasons for decision. The Tribunal did record that the Applicant told it that he was “taking medication for diabetes, tension/anxiety, cholesterol problems and sometimes low blood-pressure” and that he consulted a doctor in Newcastle. It recorded that he asked, apparently after the Tribunal hearing had been proceeding for some time, if he could take a break. The Tribunal adjourned the hearing. The hearing subsequently resumed and the Tribunal does not record that the Applicant raised any further issues or difficulties in relation to or arising from his claims about his medical conditions.
The Tribunal did record that towards the end of the hearing it asked the Applicant if he wished to add anything further, but he said he did not wish to do so. In addition, at the end of the hearing the Tribunal told the Applicant that a copy of the recording was available, that he could listen to that if he wished and that he could make further submissions and provide further material by 18 April 2012. He did not do so.
There is no evidence before this Court, other than the Applicant’s assertions from the bar table, to support his claims in relation to his medical condition at the time of the hearing. The Tribunal’s account of the hearing and of the evidence given by the Applicant (while consistent with its view that there were inconsistencies between that information and the written information he had provided to the delegate) is not such as to raise or support any contention that the Applicant was not in a fit state to participate in the Tribunal hearing such that the Tribunal hearing invitation might be seen as not amounting to a real invitation.
The Applicant’s claims that his condition worsened after the Tribunal hearing do not in any way go to show that at the time of the Tribunal hearing he was deprived of or unable to participate in the necessary Tribunal hearing. No failure to comply with s.425 of the Act is established on this basis.
The other relevant aspect of the Applicant’s oral submissions is his claim that he was asked “lots” of questions at the hearing and was confused and gave incorrect evidence. This aspect of his claims does not establish jurisdictional error. This is so whether it related to a claim about his medical condition or a claim that the Tribunal questioning was vigorous.
The only evidence before the Court in relation to the conduct of the Tribunal hearing is the Tribunal reasons for decision. It may be that one can discern that the Tribunal member was sceptical of the Applicant’s claims. It was, however, open to the Tribunal to take a fairly vigorous approach in testing his claims where his credibility was in issue. The evidence before the Court is not such as to establish that there was any failure to comply with s.425 or any actual or apprehended bias arising out of the manner in which the Tribunal questioned the Applicant (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28). Nor is the Tribunal’s fact finding such as to support any allegation of actual or apprehended bias.
More generally, insofar as s.425 of the Act requires the Tribunal to put dispositive issues to the Applicant, as the First Respondent submitted, the Tribunal’s account of what occurred at the hearing indicates that the Tribunal did raise with the Applicant potentially dispositive matters throughout the course of the Tribunal hearing. The Tribunal was not required to give a running commentary of its appraisals of the evidence to the Applicant (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 at [48]). The Tribunal’s account of the hearing reveals that it specifically brought to the Applicant’s attention the complementary protection criteria. Moreover the Tribunal not only gave the Applicant the opportunity to say more at the hearing but also to make further submissions after the hearing. No failure to comply with s.425 of the Act is made out.
Nor, more generally, is there any evidence before the Court to support any maintainable allegation of a denial of procedural fairness. Ground one is not made out.
Ground two is a generally expressed contention that the Tribunal had no jurisdiction to make the decision “because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act”. No particulars are provided.
There is no evidence before the Court to support any contention that the Tribunal’s state of satisfaction was not formed reasonably on the material before it. The Tribunal rejected the Applicant’s claims to fear persecution for a Convention reason because it concluded that he was not truthful or credible in relation to key aspects of his claims. Credibility findings are a matter for the Tribunal as the decision-maker (see Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1). As indicated, its findings were open to it for the reasons that it gave on the material before it. This ground is not made out.
The third ground is that the Tribunal decision was “unjust and was made without taking into account the full gravity of the applicant circumstances and the consequence of the claim”.
Insofar as the Applicant intends in this un-particularised ground to seek merits review, merits review is not available in this Court. If it is intended to suggest that the Tribunal failed to consider any integer of the Applicant’s claims, such a contention cannot be sustained on the evidence before the Court. The Tribunal considered the Applicant’s claims. Moreover, having rejected the Applicant’s claims on the basis that he was not truthful or credible in relation to such claims, the Tribunal was not bound to consider the “gravity” of his circumstances or consequences had it accepted such claims. The factual premise upon which such matters rest has been rejected. Ground three is not made out.
Ground four is an assertion that the Applicant satisfies “the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision” and that the “Tribunal has not considered this aspect and therefore committed factual and legal error”.
Insofar as ground four is a disagreement with the Tribunal’s factual findings, it does not establish jurisdictional error. Furthermore, it has not been established that the Tribunal made an error of law. As indicated, it rejected the Applicant’s key claims to fear persecution for a Convention reason. Such findings were open to the Tribunal on the material before it for the reasons that it gave. It has not been established that it failed to consider the elements of the Convention definition insofar as it was necessary to do so having regard to the findings that it made.
Beyond this, merits review is not available. There is no jurisdictional error in the Tribunal merely making a wrong finding of fact. This ground is not made out.
I note for the sake of completeness, that there is nothing in the material before the Court to suggest any illogicality, irrationality or unreasonableness in the Tribunal reasons such as might give rise to any suggestion of jurisdictional error (see Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16).
As no jurisdictional error has been established on any of the bases contended for by the Applicant either in his application for review or in his oral submissions the application must be dismissed.
Before I make the orders, I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The Applicant has been unsuccessful. There is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful Applicant should meet the costs of the First Respondent. The First Respondent seeks costs in the sum of $6,000 on the basis that this represents some 75 per cent of the actual solicitor/client costs. The Applicant told the Court that he could not afford to pay costs.
The Applicant’s lack of funds or impecuniosity is not a reason for departing from the normal principle that he should meet the costs of the First Respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. This was a relatively straightforward matter not involving a large body of material or complex grounds. I am of the view on the material before me that an appropriate and reasonable amount of costs in circumstances such as the present, bearing in mind the nature of this and other matters and having regard to the amount provided as a starting point in the Federal Magistrates Court Rules, is the sum of $4,500.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 12 March 2013
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