SZUAZ v Minister for Immigration

[2016] FCCA 393

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUAZ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 393

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to consider all the material before it.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 424A, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZUAZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 688 of 2014

Judgment of: Judge Cameron

Hearing date: 12 February 2016

Date of Last Submission: 12 February 2016

Delivered at: Sydney

Delivered on: 12 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N. Blake of Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,646.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as the second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 688 of 2014

SZUAZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Pakistan who arrived in Australia on 23 June 2012 as the holder of a business visa. On 20 July 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Pakistan because he had witnessed a politically motivated murder. On 14 November 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa were set out in an attachment to the Tribunal’s decision which I shall summarise as relevant.

2. The applicant made the following claims in statement attached to his protection visa application:

   a)after completing his studies, he lived in Karachi and owned a business there.  One night while he was out with friends a group of people started shooting at them.  One of his friends who worked for the Awami National Party (“ANP”) was shot dead.  He later found out that the people who attacked them were members of MQM, a political party;

   b)after the attack members of MQM tried to hit him.  He complained to the police but they told him they could do nothing so in 2008 he moved to Sialkot;

   c)while in Sialkot he was followed.  One night he visited a vendor to pick up some goods and when he left to return home he heard some gun shots.  He was later told the vendor had been killed.  He believed that he had been the intended target of the attack; and

   d)he owned a property near Sialkot which people knew belonged to him.  His tenants who lived there had been attacked and killed.

3. The applicant made the following additional claims at a Tribunal hearing on 23 January 2014:

   a)he started living in Karachi in 1995;

   b)the attack in Karachi during which his friend was killed occurred in June 2008.  He and his friend were riding a bike and when someone pulled out a gun they stopped and he managed to run away.  His friend was targeted because of his connections to the ANP;

   c)no-one was arrested over the attack and he had last spoken to the police about the matter in 2009.  However, the MQM members who had attacked them sought to harm him because he had seen them and he had lodged a report with the police;

   d)three months after the attack he was hit by a big vehicle.  He was also shot at while leaving his business but managed to run away;

   e)after the attack he moved his family to Sialkot while he stayed in Karachi to close his business before joining them in 2009, eight or nine months after the June 2008 attack;

   f)he was safe in Sialkot for two and a half years until the end of 2011 when he saw someone he recognised.  After that he started being followed; and

   g)his tenants had been killed in July 2012 after he had left for Australia.

4. Following the hearing, the Tribunal wrote to the applicant seeking his comments on inconsistent evidence he had given about when he moved to Sialkot and on information in his business visa application which indicated that his address had always been in Sialkot.  The Tribunal also sought the applicant’s comments or response to information indicating that he had been granted a business visa to travel to Australia in January 2012 but had only left Pakistan in July [recte: June] 2012.  In a response dated 17 February 2014 the applicant’s representatives submitted that the applicant had instructed them that:

   a)his family had moved to Sialkot in 2008 while he remained in Karachi to close down his business.  He had registered his business in Sialkot because his business partner had lived there but he, the applicant, had not always lived there; and

   b)he had remained in Pakistan after being granted his business visa in the hope that the situation would improve.  It was only after his business partner was killed in May 2012 that he left Pakistan, in June 2012.

The Tribunal’s decision and reasons

1. The Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 or s.36(2)(aa) of the Act. It did not accept that the applicant had suffered any harm in Pakistan or that any of the events he claimed had led him to flee Pakistan had occurred. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal did not accept that the applicant had provided a convincing or credible account of the events surrounding the alleged killing of his friend in Karachi in June 2008.  In that regard it noted that he was unable to explain how his friend was able to stop their bike and how he was able to run away at a time when MQM members were shooting at them.  The Tribunal also noted that the applicant had failed to provide a plausible explanation as to why those persons would still have been after him three years after the incident when he had never identified them and no-one had been arrested in relation to the incident;

   b)the Tribunal noted that although the applicant claimed that the June 2008 incident had occurred while he lived in Karachi, in a statement in support of his business visa application he claimed that he had lived at an address in Sialkot since birth and his work documents dated 1 July 2007 and April 2008 as well as his passport dated June 2003 suggested that his residential address had always been in Sialkot, not Karachi.  The Tribunal did not accept that the applicant would have identified a place in Sialkot as his address since birth, and as his residential address in his passport, if he had not been living there; and

   c)the Tribunal noted that although the applicant had been granted his business visa on 16 January 2012, he had not left Pakistan until July [recte: June] 2012, which was some six months after someone allegedly tried to kill him.  It noted the applicant’s explanation that he had remained in Pakistan hoping that the situation would improve but it found that that delay was not consistent with the applicant’s alleged fear of persecution.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Refugee Review Tribunal did not take into consideration my evidence.

   2.The Refugee Review Tribunal did not take into consideration facts presented by me.

2. The grounds the applicant pleaded alleged one or more failures by the Tribunal to consider material which was before it.  The applicant did not particularise those allegations and, in his submissions at the hearing of this application, focused his arguments on remaking his case for a protection visa.  It appears that the applicant’s concern was that the Tribunal’s lack of satisfaction that he met the criteria for the grant of a protection visa betokened a failure to have regard to all of the matters he had pressed on it.  However, in his address to the Court he did not identify what those matters were and, as I have already said, he did not particularise the allegations made in the application. 

3. I am not persuaded that the Tribunal did not consider all the material before it. As the Minister pointed out in his written submissions, at para.21 of its decision the Tribunal set out in full the claims that the applicant made in a statement attached to his protection visa application. Further, at paras.24 to 30 of its reasons the Tribunal outlined the applicant’s oral evidence at its hearing and at para.36 also set out the relevant portions of the applicant’s written response to its s.424A letter.

4. The Tribunal’s decision was based on evidence which was before it.  The matter was one with a narrow factual compass and the Tribunal’s decision was correspondingly compact.  There is no reason to conclude that, having set out the applicant’s factual claims, the Tribunal did not have regard to all of those matters when reaching its decision.  The applicant has not proved the allegations made in the application. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  26 February 2016