SZUJO v Minister for Immigration

[2016] FCCA 1252

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUJO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1252

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 – no arguable case.

Legislation:

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

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958, ss.36, 425, 474

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZUJO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1408 of 2014

Judgment of: Judge Cameron

Hearing date: 20 May 2016

Date of Last Submission: 20 May 2016

Delivered at: Sydney

Delivered on: 20 May 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr M. Glavac of Clayton Utz

ORDERS

1. Pursuant to rule 44.12 of the Court’s Rules, the application be dismissed.

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

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1408 of 2014

SZUJO

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 28 March 2012. On 25 June 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 of his former membership in an extremist Islamic group. On 2 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. The matter is before the Court for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to him.

3. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (“Rules”) if the applicant does not have an arguable case against the respondents. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).

4. It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. 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 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, to be successful in the present application the applicant had to demonstrate that it was at least arguable that the Tribunal’s decision was effected by jurisdictional error.

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

Background facts

1. The applicant’s claims were summarised by the Minister in his written submissions as follows:

   8.The applicant claims to fear harm from the Jamaat-e-lslami party because of his involvement with the party in 1996 and 1997.  In support of his claims, the applicant asserted ... that:

   (a)he attended religious meetings with Jamaat-e-lslami and later joined the party.  In May 1995, he was appointed as Union Council Nazim for the party;

   (b)in May 1996, the applicant accompanied a district leader of Jamaat-e-lslami ... and several young boys from his village, to Kashmir.  The boys were to be trained in Kashmir for jihad;

   (c)on 15 June 1996, [the district leader] took the boys to occupied Kashmir and sent the applicant home to prepare other boys to be trained;

   (d)on 15 September 1996, the applicant was informed that the boys had been killed.  He was unable to inform their parents;

   (e)the boys’ parents reported the applicant to the police.  When investigated by the police, the applicant told the police about the involvement of Jamaat-e-lslami;

   (f)on 8 November 1996, the applicant received a telephone call from [the district leader], who asked why he had not returned to Kashmir with other boys.  The applicant told [the district leader] that the boys were “not ready to go to Kashmir at this stage”.  However, Jamaat-e-lslami thought that the applicant was lying and was not interested in taking the boys to Kashmir;

   (g)in December 1996, the applicant told a commander of Jamaat-e-lslami ... that he was resigning as Union Council Nazim and would not participate in their activities any longer.  The commander threatened to kill the applicant if he left the party.  He claims that Jamaat-e-Islami believes he knows the party’s secrets;

   (h)in February 1997, the applicant was kidnapped, tortured and threatened with death.  The applicant provided the Tribunal with a letter purportedly from the Zamord Surgical Unit (Zamord letter) as evidence of his stay in hospital after the kidnapping;

   (i)afterwards, he left Pakistan and travelled to Kuwait.  He would visit Pakistan every one or two years, for one or two months at a time, but would not socialise or tell people about his visits; and

   (j)in 2011, the applicant moved back to Pakistan believing that everything would have settled.  However, around 28 days after his return, the applicant was approached by Jamaat-e-lslami and threatened with harm if he did not join them.  As a result, he decided to leave Pakistan.

2. I adopt that summary of the applicant’s claims.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal 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 (“Convention”) or s.36(2)(aa) of the Act. In his written submissions the Minister set out the Tribunal’s findings and reasons for its decision in the following terms, which I adopt:

   9.The Tribunal found that the applicant’s recount of alleged events was not convincing.  It rejected the applicant’s evidence because:

   (a)he could not consistently identify the number of boys who had died. The applicant’s written statement submitted along with his protection visa application identified that 4 boys had died.  However, at his protection visa interview, the applicant told the Delegate that only 2 or 3 boys had died.  The Tribunal put this inconsistency to the applicant at the hearing, who responded that it was due to his difficulty communicating with the Delegate in English.  After listening to a recording of the interview, the Tribunal did not accept this explanation;

   (b)the applicant’s conduct after he allegedly fled Pakistan in 1997 did not suggest that he was afraid to return there at any stage after he departed.  This conduct included returning to Pakistan every one or two years after 1997 (including for three months in December 2011); failing to use his Australian tourist visa until 28 March 2012, despite it being granted in July 2010; and the applicant’s delay in applying for protection upon arriving in Australia.  All of these matters were inconsistent with the applicant genuinely fearing harm in Pakistan;

   (c)the applicant’s evidence as to whether he was forced into hiding on his return trips to Pakistan was not convincing. The applicant could not provide a plausible explanation as to how Jamaat-e-lslami were unable to locate him on the many occasions he had returned to Pakistan since 1997, but were able to locate him within a month of his arrival in Pakistan in December 2011.  Nor could he explain why a banned organisation that he had allegedly complained to police about would want him to re-join them; and

   (d)the Tribunal gave no weight to the Zamord letter because of its concerns with the applicant’s credibility, and because country information evidenced the production of fraudulent documents in Pakistan.

   10.The Tribunal consequently did not accept the applicant’s claims.

Proceedings in this Court

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

   1.The Refugee Review Tribunal did not give sufficient weight to the evidence and facts presented by me.

   Particulars

   The Tribunal did not take in to consideration relevant facts and evidence presented by the applicant.  For example, the Tribunal stated the applicant produced fake documents of the stay in the hospital after he had been kidnapped in 1997.  The tribunal came to this conclusion based on an assumption that fraudulent documents are produced in Pakistan and no attempt was made to ascertain the authenticity of the documents.

   2.The Tribunal’s conclusion that the Jamaat-e-Islami had never approached the applicant was irrational and was based on pre-conceived judgment as to what happened or what did not happen.

   Particulars

   The applicant produced evidence as well as events that led to his involvement with the Jamaat-e-Islami.  He showed how his life in danger from such extremists elements in Pakistan.  The Tribunal did not accept the applicant was approached by Jammat-e-Islami or he has reason to fear from the group.

   3.The applicant was not given a fair hearing by the Refugee Review Tribunal.

   Particulars

   The applicant feels the Member questioned him so intensely that he felt so confused at times.  The applicant understands that such questioning may have been used to ascertain the real facts relating to his application.  However the applicant states the intensity at which they were probed, he felt he was being questioned for committing some wrongful act.  The applicant states he believes a fair hearing is where each person is given time to think what he speaks in relation to actual facts and circumstances.

2. The applicant spoke to those grounds in the course of his address to the Court at the hearing of this application and raised one further matter to which I will turn shortly.

Ground 1

1. The first allegation made in the application sought review of the Tribunal’s decision on the merits of the applicant’s visa application.  As indicated earlier in these reasons, the Court does not have power to undertake a review of that sort. 

2. The particulars of the allegation might have set the allegation in a different light but did not.  The only particular pleaded was, in substance, a complaint that the Tribunal did not take the contents of the Zamord letter into account because it assumed that fraudulent documents are produced in Pakistan.  That contention was based on a false premise.  The Tribunal was in possession of country information which reported on the existence of document fraud in Pakistan.  That was information, not an assumption, which the Tribunal was entitled to take into account, as it did.  It therefore provided a logical basis for the Tribunal’s decision to give no weight to the Zamord letter.  It is therefore plain that no cause of action is disclosed by the first ground of the application.

Ground 2

1. The second ground of the application also invited merits review and so, to that extent, did not disclose a cause of action.  In light of the manner in which the ground was particularised, the allegation of irrationality must therefore be understood to be no more than an emphatic disagreement with the Tribunal’s conclusions, not an allegation of legally significant irrationality in a public law context.  The ground also alleged pre-judgment but failed to provide particulars sufficient to expose an arguable case of bias.

Ground 3

1. The allegation in the third ground of the application, that the applicant had not been given a fair hearing before the Tribunal, was general and unspecific and was revealed by its particularisation to have no substance. Pursuant to s.425 of the Act, the applicant was implicitly entitled to a real and meaningful opportunity to put his case to the Tribunal which would be denied if, relevantly for this allegation, the Tribunal’s conduct of its hearing prevented this. However, that is not what the application alleged. An implication to that effect might be drawn from the final sentence of the particulars but, in the absence of any details, that sentence should, in the context of a consideration of the existence of an arguable case, be regarded as merely rhetorical.

Submissions at hearing

1. At the hearing of this application, the applicant submitted that the Tribunal had not given him enough time. The only potentially relevant issue to which that submission could go was an allegation that the applicant was denied the opportunity to put his case fully to the Tribunal and that s.425 of the Act was breached as a consequence. However, the applicant did not suggest that he had been denied an opportunity to put his case fully. Rather, the thrust of this submission was that the Tribunal had not asked him enough questions and so had not given him an opportunity to expound or expand on his claims, a submission somewhat contradictory of the third ground of the application.

2. In any event, the Tribunal was under no duty to ask the applicant any particular questions.  Consequently, the matters raised for the first time at the hearing of this application did not evidence an arguable case of jurisdictional error on the part of the Tribunal. 

Conclusion

1. The matters raised by the applicant do not disclose an arguable case for the relief claimed. Consequently, the matter will be dismissed pursuant to r.44.12 of the Court’s Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 25 May 2016