SZTDE v Minister for Immigration

[2013] FCCA 2218

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTDE v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2218

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – show cause hearing – no arguable case for relief sought – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A , 475, 476

Federal Circuit Court Rules 2001 (Cth), r.44.12

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 457.
SZMCD v Minister for Immigration and Citizenship & Anor [2009] FCAFC 46; (2009) 174 FCR 415
SZJOV v Minister for Immigration and Citizenship [2012] FCA 459).
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592

Applicant: SZTDE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1752 of 2013

Judgment of: Judge Nicholls

Hearing date: 27 November 2013

Date of Last Submission: 27 November 2013

Delivered at: Sydney

Delivered on: 18 December 2013

REPRESENTATION

The Applicant: In Person

Appearing for the Respondents Ms M Stone

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 29 July 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs set in the amount of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1752 of 2013

SZTDE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 29 July 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 24 June 2013, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. The applicant is a citizen of Pakistan. He arrived in Australia in August 2012 as an “irregular maritime arrival” (CB 1). He was interviewed on arrival by an officer of the Minister’s department (CB 1 to CB 21). He claimed to fear harm from the Taliban.

2. It appears the Minister “raised” the relevant “bar” because the applicant applied for a protection visa on 11 September 2012 (CB 23). He was represented by a firm of registered migration agents and lawyers (CB 75). His claims to protection were initially summarised in his “Statement of Claims” (CB 88 to CB 91).

3. The applicant claimed to be of Pashtu ethnicity and Shi’a Muslim religion ([3] at CB 88). He claimed to fear harm from the Taliban in Pakistan ([24] at CB 90). He stated that while employed as a taxi driver in the “Kurram Agency” (Parachinar) he witnessed violent incidents involving the Taliban. These were a bomb explosion at a taxi rank in 2007 and another explosion in 2008 in which many Shi’a were killed ([3] – [7] at CB 88).

4. The applicant also claimed that in 2010 he had been targeted by the Taliban and had been “followed by the Taliban” after being at a taxi rank ([9] – [15] at CB 89). He left his local area and moved to Rawalpindi. There he was recognised by a “Sunni taxi driver” and he “ran away” ([19] – [20] at CB 89).

5. The delegate refused the applicant on the basis that the applicant could reasonably relocate to avoid harm (CB 111 to CB 127, particularly CB 99.3).

6. The applicant applied for review to the Tribunal on 26 October 2012 (CB 128). He continued to be represented and submissions were made on his behalf (CB 165 to CB 216 with annexures).

7. The applicant, with his representative, appeared at a hearing before the Tribunal on 10 January 2013 (CB 207.3). The Tribunal wrote to the applicant, by letter directed to his representative, on 14 January 2013 to invite him to comment on, or respond to, certain information (CB 217). The applicant’s representative responded on 25 January 2013 (CB 221 to CB 231).

8. In its analysis, the Tribunal expressed concerns about the applicant’s credibility. These included inconsistencies in his evidence about how he obtained his passport ([63] at CB 245 to [71] at CB 246), the reason for the Taliban approaching him in July 2010 ([78] at CB 247 to [91] CB 248, and, relevant to one of the applicant’s complaints before the Court, the account of his remaining in Rawalpindi for 18 months

   
   

   ([72] – [77] at CB 246).

9. The Tribunal found parts of the applicant’s claims not to be credible (see [92] at CB 248 to [93] at CB 249). However, based on the parts of his claims which it did accept, the Tribunal found, with reference to country information, that there was a real chance of serious harm if the applicant were to return to his local area ([99] at CB 249).

10. However, the Tribunal also considered the possibility of relocation and found that it would be reasonable and practicable for the applicant to relocate to Rawalpindi ([110] at CB 250). It made a similar finding in relation to complementary protection ([148] – [149] at CB 250).

The Application to the Court

1. The grounds of the application before the Court are in the following terms:

   “[1] Application for Protection Visa.

   [2] My life was on Risk in Pakistan. I need Australian Government Support.”

2. The order sought by the applicant is that the Tribunal’s decision be “quashed”. I assume that the applicant also sought that his matter be returned to the Tribunal for reconsideration.

3. There is no assertion of legal error in these grounds. At best the applicant seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). Therefore, there is no assertion of any proper grounds for judicial review of the Tribunal’s decision.

4. At the first Court date, the applicant appeared in person. He was assisted by an interpreter in the Pashtu language. I sought to explain the “lack” of proper grounds in the application. I also sought to explain the different power and role of the Court (to that of the Tribunal and for that matter, the Minister). At that time the applicant’s response was that he had come to the Court to obtain “the right decision”.

5. I referred the applicant to a lawyer on the panel of the Refugee Review Tribunal Legal Advice Scheme with the expectation that this would provide another opportunity for the applicant to comprehend the true nature, and limitations, of the application he had made. The matter was set down for hearing pursuant to Rule 44.11(b) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) (a “show cause” hearing).

6. At the hearing, the applicant again appeared in person. He was assisted by an interpreter in the Pashtu language. Ms M Stone appeared for the Minister. The applicant confirmed, ultimately, that he had spoken to the panel lawyer and had sought other legal advice, including an approach to “legal aid”.

7. Initially, the applicant’s submissions were that he could not return to Pakistan because it was “very dangerous” for him to live anywhere in Pakistan. In effect, therefore, he sought to challenge the Tribunal’s finding as to relocation. Given this, I understand this to be a challenge of the merits of the decision, rather than an assertion of legal error. But, in any event, no such legal error is apparent, let alone that the assertion in the circumstances raises an arguable case.

8. In what is before the Court, the Tribunal understood and applied the correct test as to relocation in the context of the Refugees Convention (see generally [10] – [13] at CB 237, [18] at CB 238 and Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 457 at 441, 442). The Tribunal took into account all of the applicant’s “objections” to relocation (see in particular [102] at CB 249 to [111] at CB 250, [120] at CB 251 to [143] at CB 254 (SZMCD v Minister for Immigration and Citizenship & Anor [2009] FCAFC 46; (2009) 174 FCR 415 at [124] per Tracey and Foster JJ). Further, the Tribunal identified and focused on a location to which the applicant could relocate (SZJOV v Minister for Immigration and Citizenship [2012] FCA 459).

9. In relation to complementary protection and relocation, the Tribunal relied on factual findings made earlier in its analysis and accepted that there was a real risk of “significant” harm if the applicant were to return to his home area in Pakistan ([147] – [148] at CB 255). However, the Tribunal found that it was reasonable for the applicant to relocate to Rawalpindi where the risk of significant harm was “remote” ([150] – [151] at CB 255).

10. The Tribunal correctly stated the relevant law ([18] at CB 238 and [149] at CB 255), and there was no error in its application of s.36(2B) of the Act. I cannot see that this provides any arguable case for the relief the applicant seeks.

11. Following submissions from the Minister the applicant raised a number of other related complaints. The applicant said that the Tribunal had made a “mistake” in finding that he had “lived in Rawalpindi” for 18 months. He told the Court that he had not lived there for 18 months. Second, that while it may have been said to the Tribunal at the hearing that the applicant had lived there for 18 months, he claimed that this was a “mistake” by the interpreter (see further below at [35]).

12. It is the case that the matter of the applicant’s stay in Rawalpindi, and its length, was part of the Tribunal’s adverse credibility finding in relation to the applicant ([72] – [77] at CB 246), and part of its reasoning as to why it was safe and reasonable for him to relocate there (see, for example, [101] at CB 249).

13. However, I agree with subsequent submissions by the Minister that these complaints do not raise an arguable case for the relief sought by the applicant.

14. The notion of the applicant’s 18 month stay in Rawalpindi did not initially arise at the hearing before the Tribunal. The statement of claims that accompanied the applicant’s application for a protection visa was drafted at a time when the applicant was represented by the same firm of registered migration agents and lawyers (see CB 22 and CB 91) The applicant was assisted in the interpretation of the contents of the statement by a “NAATI qualified interpreter” (CB 91).

15. In this statement, the applicant said that he left his local area for Rawalpindi two weeks after the “serious incident” of August 2010 ([9] and [18] at CB 89). In his account of his experience in Pakistan at this time, the applicant then stated that he left for Australia in “March of this year”, (in context, 2012). It is implicit, if not explicit, in this statement that he remained in Rawalpindi for some time. The statement includes the following “[f]rustratingly, it took a long time for the agent (who was arranging his departure) to honour his agreement” (to arrange the departure). There is certainly nothing in the statement to suggest that the applicant waited in any place other than Rawalpindi.

16. In her decision record, the delegate made references to the applicant’s evidence concerning his going to Rawalpindi (for example, see CB 120.9 to CB 121.5). Relevantly, the delegate’s record is consistent with the understanding derived from the statement above.

17. The applicant’s representatives (noting again, their status as lawyers and migration agents) made written representations to the Tribunal about two months after the making of the application for review (CB 168 to CB 201). Even without the attachments (CB 202 to CB 216), the submissions are long and detailed. However, there is nothing in these submissions, which amongst other things, specifically focused on the delegate’s decision (CB 169 to CB 171), to even suggest that the delegate’s understanding, initially derived from the applicant’s own statement, was wrong in relation to the duration of his stay in Rawalpindi.

18. The applicant appeared at a hearing before the Tribunal on 10 June 2013. The applicant, despite opportunity, has not provided any evidence to the Court about what occurred at the hearing. The only such evidence is the Tribunal’s account of the applicant’s evidence. At [29] (at CB 238) of its decision record, the Tribunal states “[t]he following is a recitation of evidence given by the applicant at the hearing…”.  In that “recitation” there is a clear reference to the Tribunal’s understanding that “…[t]he applicant lived in Rawalpindi for approximately 18 months…” ([38] at CB 240).

19. The applicant’s representative was present at the hearing. Yet, when he responded on the applicant’s behalf to the Tribunal’s letter of 14 January 2013, which sough comment on certain information, he made no mention of any “mistake” in relation to the applicant’s stay, for 18 months, in Rawalpindi as stated at the hearing before the Tribunal (see further below).

20. Importantly, the part of the information, in respect of which the Tribunal sought a response or comment, was a reference to the applicant going to “live in Rawalpindi”. The context of his stay in Rawalpindi was important here to the circumstances as to how and when the applicant obtained his passport (CB 219.5).

21. In fact, the response to the Tribunal contains the following (at CB 222 to CB 223):

    “…Furthermore, during [the applicant’s] hearing you expressed your scepticism regarding [the applicant’s] extended stay in Rawalpindi (of 18 months) prior to his departure from Pakistan, despite his claimed fear of danger…”

    And:

    “…In addition we submit that [the applicant’s] claims to have feared danger in Rawalpindi is entirely consistent with having remained in that city for eighteen months while waiting to escape. The claim has been consistent throughout the interview and assessment process, and is consistent with the other actions of [the applicant]…”

22. Plainly, there is no reference to any “mistake” in interpretation, nor is there any denial of the Tribunal’s understanding of the evidence before it, that the applicant had stayed in Rawalpindi for 18 months. There is, in fact, an explicit acceptance that he had stayed in Rawalpindi for this period of time.

23. There is no evidence, by way of the transcript, to say that there was any error by the interpreter as to the “18 month stay in Rawalpindi”. The evidence before the Court is that the applicant, through his representative, knew that both the delegate and the Tribunal (as was put to him at the hearing with the Tribunal) understood that he had said that he had lived in Rawalpindi for 18 months. If there was any “mistake” no attempt, despite opportunity, was made to correct it.

24. When the Minister’s response to the applicant’s claims before the Court (as set out at [22] above) became apparent, the applicant then sought to interject with a further explanation. He then claimed that he had been told by his “agent” (in context, his representative) that he could not state (presumably, in the statement accompanying his protection visa application) “roughly” how long he had stayed in Rawalpindi, he had to be “exact”.

25. The applicant’s submissions to the Court then, with great respect to the applicant, can only be described as incoherent. He variously submitted that he did “now know” how long he had stayed in Rawalpindi, that he did not know the “exact date”, that he “may have spent 18 months in Rawalpindi, then, finally, he submitted he stayed between “18 to 28 days” in Rawalpindi.

26. The applicant’s final statement in his submissions to the Court, in light of the evidence before the Court cannot be accepted. There is no arguable case here for the relief that the applicant seeks.

27. For the sake of completeness, I also note that the Tribunal complied with its obligations pursuant to s.424A (CB 217) and s.425 (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592) of the Act. The applicant must have been well aware that, as a result of the delegate’s decision, relocation was a live issue in the review. In any event, it was discussed at the hearing.

28. One final matter requires note. During the hearing before the Court, the applicant stated that there were some difference of dialect and accent between himself and the interpreter. That is, the interpreter before the Court. However, the applicant did not ask for an adjournment for another interpreter to be provided. In response to a specific question from the Court, he said that he was content to proceed with the hearing. I was satisfied that the level of interpretation provided was adequate for the purpose of the hearing. For example, the applicant, through the interpreter, was plainly responsive to oral submissions made by the Minister, and “expanded” on his complaints in light of those submissions.

29. At one point, the applicant did state that he could not understand what was being said by the Minister’s representative. I note, however, that this was when the Minister’s submissions dealt with s.36, including the provisions of s.36(2)(aa) and s.36(2B), of the Act.

30. It was clear that this was not a problem of interpretation, but rather the general problem faced by lay persons in understanding the sometimes impenetrable features of the Act. In all, I was satisfied that the level of interpretation was adequate, and took steps, by subsequently explaining certain matters to the applicant, to ensure he understood to the extent possible the Minister’s submissions. I am satisfied that the applicant received a fair hearing.

Conclusion

1. In all, however, the application to the Court does not state or otherwise reveal any arguable case for the relief sought. The application should be dismissed pursuant to r.44.12(1)(a) of the Rules. I will make an order accordingly.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  18 December 2013