SZRMS v Minister for Immigration and Citizenship

[2013] FCA 530

FEDERAL COURT OF AUSTRALIA

SZRMS v Minister for Immigration and Citizenship

[2013] FCA 530

Citation:		SZRMS v Minister for Immigration and Citizenship [2013] FCA 530
Appeal from:		SZRMS v Minister for Immigration and Citizenship [2013] FMCA 161
Parties:		SZRMS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 316 of 2013
Judge:		RARES J
Date of judgment:		17 May 2013
Legislation:		Migration Act 1958 (Cth) ss 36(2)(aa), 91R, 424A, 424AA, 425
Cases cited:		SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Date of hearing:	17 May 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	29
Counsel for the Appellant:	The appellant appeared in person
Solicitor for the First Respondent:	Ms S A Given of Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 316 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRMS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	17 MAY 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. 

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 316 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRMS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	17 MAY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Circuit Court refusing the appellant constitutional writ relief in respect of the decision of the Refugee Review Tribunal given on 26 April 2012 that affirmed a decision of a delegate not to grant him a protection visa.

   THE APPELLANT’S CLAIMS

2. The appellant is a citizen of Pakistan, who arrived in Australia on 9 March 2011 and applied for a protection visa on 31 May 2011.  After interviewing him, the delegate refused to grant the visa on 2 November 2011, and the appellant sought review of that decision in the Tribunal.  The appellant attached a typed statement of his claims as part of his protection visa application.

3. He asserted that he was a member of the Muttahida Qaumi Movement or MQM.  He said that he was born in Karachi into a Sunni family and was a businessman by profession.  He claimed that in the previous two years he had run a leather business and that over the years, violence against MQM party members had escalated alarmingly.  He said that he was targeted by Pakistan People’s Party or PPP members because he was working against them and doing well in the local business community.  He claimed to have been forced to pay a monthly donation to local PPP members, but feared raising this with the authorities because of his knowledge, so he claimed, that those persons might target his family members and destroy his business.

4. He claimed that in the previous year his business had not done as well as before, and that his income was less than his expenses, leaving him unable to pay the monthly amounts demanded.  He claimed that the PPP members became very aggressive on the phone, threatening him that, if he did not provide the money, he would face severe consequences and that his family members could also face problems.  He claimed that, when the threat was made about his family, he became very nervous, went to the police and told them about the situation, but that the police told him that he needed a witness to begin any sort of proceeding.

5. He claimed that after this he went to his local MQM party leader, told him about his situation.  He claimed that the party leader responded that it was very hard to speak out against PPP members at the time.  He claimed that he asserted to the party leader that he was a loyal MQM party member from the beginning and had paid money to the party’s candidate at every election, only to be told by the party leader that he should move to another place or country for a time.  He claimed that in the meantime he had been receiving constant phone calls from the PPP members and, to avoid the immediate threats made to him, he paid them another 20,000 rupees and asked for more time to pay the balance.

6. He claimed that at that time he realised that being a member of the MQM could not provide him with any form of protection or the enforcement of the law, and that he had witnessed thousands of opposition party members being forced to leave their homes or farms and businesses, and subjected to politically motivated attacks including assault, rape, abuse, arson and robbery.  He claimed that that was the reason he decided to leave Pakistan for his own safety and that of his family.  He claimed that he was worried about what might happen in the future to his children who were still in Pakistan.

   THE APPELLANT’S INTERVIEW WITH THE DELEGATE

7. At his interview with the delegate on 1 November 2011, the appellant agreed with the delegate’s summary of his claims (being those above).  However, the appellant then proceeded to give a different version of events to the delegate.  This version included that he was not a member of the MQM but rather he had voted for them, and that he had been threatened not as a supporter of the MQM but as a successful businessman.  He claimed that even though his business had collapsed since he came to Australia, he would still be under threat when he returned to Pakistan, as it was known that he had money.  The delegate noted that he had asked the appellant several times to identify the party to which the thousands of opposition party members belonged who were referred to in his statement that had been attached to his protection visa application but the appellant was unable to do so.  He claimed that he was unable to relocate with Pakistan because those threatening him would find out from his relatives where he lived.

8. The delegate referred to country information from the United Kingdom Home Office about targeted killings of persons connected to political parties in Karachi during 2009.  He noted that the MQM was a political party representing Urdu-speaking descendants of refugees who had left India at independence in 1947, and that that party was at present in control of the Karachi city government.  This country information identified the MQM as having long been accused of encouraging violence against Pashtuns in order to consolidate its grip on power in Karachi, and that it was an important ally of the PPP in the Sindh provincial government and the federal Pakistani Parliament.

9. The delegate concluded that the MQM was far from being a powerless entity compared to the PPP, but was the party controlling Karachi, and that it was in an alliance with the PPP in both Sindh province, where Karachi is located, and in the National Government.  The delegate noted that when he had put to the appellant this fact and that, as an MQM member, he would expect favourable treatment and protection, he then admitted he was not in fact a member of the party, but had only voted for them.  The delegate concluded that the appellant had attempted to construct a profile for himself as an MQM member and then to fabricate reasons why he was persecuted for political reasons.  The delegate did not find his evidence reliable or credible and accordingly refused the application.  The delegate also found the appellant could relocate within Pakistan if he wanted to.  He was satisfied that there was no real chance of the appellant facing Refugee Convention related persecution in Pakistan in the reasonably foreseeable future.

   THE TRIBUNAL’S REASONS

10. The Tribunal referred in its recitation of the claims and evidence before it to the fact that it had the Departmental interview before it and recited in some detail from the delegate’s interview.  The Tribunal also recited the course of the interview it had with the appellant in which he gave evidence to it during which the Tribunal explored aspects of the appellant’s account of his claims.

11. In the findings and reasons section of its decision, the Tribunal said that it had considered the information provided in the appellant’s protection visa application and his evidence during his Departmental interview and before the Tribunal. 

12. Next, the Tribunal made detailed adverse findings against the appellant, concluding that he was not truthful or credible in relation to his Convention claims.  It did so in one long paragraph divided into a series of subparagraphs in which the Tribunal explained its reasoning process without referring at all to any information or material from the appellant’s interview with the delegate or the delegate’s reasons.

13. The Tribunal found that the appellant had claimed in his protection visa application that he was a member of the MQM and had been targeted by PPP members because he was working against them, but during his evidence before the Tribunal, he said he had not been a member of the MQM but only considered himself to be a member because he gave them money and attended meetings.  The Tribunal did not accept that he supported the MQM in any way or had been regarded as a supporter prior to his coming to Australia.

14. The Tribunal recorded that the appellant had told it that, when he had started his business in about the middle of 2008, he had been approached for money and that this had happened subsequently on a number of occasions.  The Tribunal recorded the appellant’s assertion that he had capitulated to those demands, paying initially 3000 to 4000 rupees and later 10,000 rupees per month until January 2011.  He told the Tribunal that those making the demands had always done so face to face when they attended at his business premises and that they had never phoned him.  The Tribunal challenged that account by reminding him that he had said in his protection visa application that the people to whom he had paid the money were very aggressive on the phone and had threatened him.  The Tribunal referred to his evidence to it that he then had said people threatened him on the phone.  The Tribunal recorded that in his protection visa application, the appellant had stated that his family members had been threatened, but in his evidence to the Tribunal he said his family had never been threatened.  It concluded that it did not accept that the appellant or his family had been threatened or paid amounts of money monthly to persons from the PPP as he had claimed. 

15. The Tribunal then dealt with his other claims, finding that it did not accept that the appellant had been the victim of any extortion or had paid money monthly as claimed to PPP members.  The Tribunal noted that the appellant had been granted a tourist visa in November 2010, but had not travelled to Australia until March 2011.  When this was explored with him he told the Tribunal that he had closed his business in January 2011 and then spent most of his time at home before leaving Pakistan or went out early in the morning and returned home late at night.  He then gave another account that before he came to Australia he did not go home and stayed at a friend’s house.

16. The Tribunal found it was not satisfied that the appellant was fearful of any harm prior to leaving Pakistan.  It did not accept that he was avoiding the persons he mentioned, or that anyone was making inquiries about him.  It found that, had the appellant 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 a further four months. 

17. The Tribunal noted that collectively those matters led it to reject the appellant’s claims that he was targeted as he claimed or that he would be seriously harmed for any Convention reason should he return to Pakistan in the reasonably foreseeable future.  The Tribunal did not accept that any members of the appellants’ family had been threatened at any time.  It found that there was no credible evidence upon which it could find there was a real chance the appellant would suffer Convention related harm in the reasonably foreseeable future, were he to return to Pakistan.  Accordingly, it was not satisfied that he had a well founded fear of being persecuted for a Convention reason if he were to return to Pakistan. Similarly, relying on its earlier findings, the Tribunal, found that the appellant was not a person to whom Australia had protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth) and then affirmed the decision of the delegate.

    THE PROCEEDINGS BEFORE THE TRIAL JUDGE

18. The appellant raised four grounds of a template variety in his application to the Federal Circuit Court, namely, that:

    (1)the Tribunal denied him procedural fairness by reaching adverse credibility conclusions that were not obvious on the known material, without giving him the opportunity to be heard in respect of those matters;

    (2)the Tribunal had no jurisdiction to make its decision because it did not arrive at its “reasonable satisfaction” in accordance with the requirements of the Act;

    (3)the Tribunal’s decision was unjust and was made without taking into account the full gravity of the appellant’s circumstances and the consequences of his claims;  and

    (4)although the appellant satisfied the four elements in the Convention definition, the Tribunal had not considered that aspect of his claims. 

19. Having regard to the Tribunal’s careful examination of his claims, those grounds were doomed to fail, as indeed her Honour found. The trial judge observed that the appellant had raised some fresh matters before her in oral submissions, and had not addressed the grounds in his application in any meaningful sense, except to the extent that he may have sought that her Honour engage in merits review of the Tribunal’s decision. Her Honour observed that the only evidence before the Federal Circuit Court in relation to the conduct of the Tribunal hearing was contained in the Tribunal’s written decision. She found there was nothing in the material before the Court to establish any failure to comply with the requirements of s 425 of the Act or any other basis upon which the first ground could be established. For the reasons her Honour gave, I am satisfied her Honour was correct to have done so.

20. Her Honour rejected the second ground.  She found that it was unparticularised and that credibility findings were a matter for the Tribunal, as the decision-maker.  That was unarguably correct.

21. Her Honour again noted that the third ground was an unparticularised ground that essentially sought merits review, in circumstances where the Tribunal had comprehensively disbelieved the appellant’s account of his Convention-based claims, having fully considered them.  I agree.  No error has been shown in her Honour’s reasoning.

22. The fourth ground essentially sought, as her Honour concluded, to disagree with the jurisdictional factual findings of the Tribunal.  The Federal Circuit Court could not entertain such a ground.  Moreover, her Honour found that having given the appellant a fair hearing, the Tribunal found, on the material before it that his claims were not credible.

23. Her Honour also raised one further consideration herself. That was whether the Tribunal had made a jurisdictional error by referring to its having considered the appellant’s evidence in his Departmental interview without having provided him with written or oral particulars about any information in that interview under ss 424A or 424AA of the Act. Each of those sections required the Tribunal, first, to give clear particulars of any information that it considers would be the reason, or part of the reason, for affirming the decision under review, secondly, to ensure, as far as is reasonably practical, that the applicant for review understands why that matter is relevant to the review, and the consequences of it being relied on in affirming the decision under review, and, thirdly, to invite the applicant for review to provide any comment on those matters. 

24. The Tribunal made no reference in its operative reasoning to any material that emerged during the interview with the delegate. To the extent that it explored inconsistencies in the appellant’s claims in his application for the protection visa and his evidence before the Tribunal on those matters alone, her Honour drew the inference that it was clear that any information in the interview with the delegate was not information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review, and accordingly it was not obliged to put that information to him under s 424A, or, I would add, 424AA. In my opinion, it was appropriate for her Honour to have considered that matter, as I also have.

25. Her Honour was correct to conclude that there was nothing in the material before her to warrant a conclusion that either ss 424A or 424AA had been engaged by the procedures in the Tribunal, as is apparent from its reasoning process: see also SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 615-617 [16]-[21]. In my opinion, the Tribunal’s stated reasoning process demonstrated that it did not consider the appellant’s evidence at the Departmental interview, or any information in it, as being a reason, or part of the reason, that could or did provide a basis for it to affirm the decision under review.

26. Accordingly, no error has been shown in her Honour’s reasons, and indeed they are correct.

    THIS APPEAL 

27. The appellant adopted another template for his notice of appeal to this court.  He asserted that:

    (1)her Honour had failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with his claims, and had ignored the aspect of persecution and harm within the meaning of s 91R of the Act;

    (2)the Tribunal had failed to observe its statutory obligations;  and

    (3) her Honour had dismissed his case without considering the legal and factual errors contained in the decision of the Tribunal.

28. In my opinion, none of those grounds raises any intelligible or arguable case of error by her Honour or the Tribunal.  Her Honour gave careful consideration to the appellant’s arguments that the Tribunal had made a jurisdictional error.  Her Honour had every reason to dismiss those claims for the reasons she gave, as I have explained.

    CONCLUSION

29. For these reasons, I am of opinion that this appeal is devoid of merit and must be dismissed with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:  Dated: 30 May 2013