SZOTX v Minister for Immigration & Anor [2011] FMCA 37 (31 January 2011)

Last Updated: 4 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOTX v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 37

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Pakistan – applicant not believed – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.424A, 424AA

Minister for Immigration v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 SZBYR v Minister for Immigration [2007] HCA 26; (2007) 235 ALR 609 SZOER v Minister for Immigration [2010] FCA 1100 VCAK of 2002 v Minister for Immigration [2004] FCA 459 WAGJ of 2002 v Minister for Immigration [2002] FCAFC 277

Applicant:

SZOTX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2473 of 2010

Judgment of:

Driver FM

Hearing date:

31 January 2011

Delivered at:

Sydney

Delivered on:

31 January 2011

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr R White Sparke Helmore

ORDERS

(1) The application is dismissed.
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2473 of 2010

SZOTX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 18 October 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Pakistan and had made claims of political persecution. Background facts relating to the applicant’s claims and the decisions of the Department and the Tribunal on them are set out in the Minister’s written submissions.
2. The applicant, a citizen of Pakistan, arrived in Australia on 5 April 2009 and applied for a Protection (Class XA) visa on 16 February 2010: court book (“CB”) 1-26. In a written statement attached to his visa application, the applicant claimed that he had walked out of the Pakistan People’s Party (PPP) and became a political advisor to the Pakistan Muslim League – Nawaz (PML(N)): CB 27. He claimed that during the last parliamentary election he had worked for the PML(N) which caused him to be targeted by members of the PPP. He claimed that he was dragged out of a polling station and beaten, his house was ransacked and members of his family were assaulted: CB 28.

The delegate

3. On 19 August 2010, a delegate of the Minister invited the applicant to attend an interview scheduled for 12 May 2010: CB 32-34. At this interview, the applicant repeated the claims he made in his application for a protection visa. He also claimed at the interview that members of the PPP were involved in a kidnapping charge laid against his brother-in-law and that his political opponents had influence over the local police: CB 100-101.
4. At the interview, the applicant produced copies of his previous passport (CB 35-55), an undated letter from the President of the PML(N) in Sailkot (CB 56), a letter dated 8 August 2008 from his uncle (CB 57), and various business and birth certificates: CB 58-68. The applicant also produced an untranslated document in Urdu dated 1 July 2009 in relation to the alleged kidnapping case.
5. On 29 June 2010, the delegate made a decision refusing to grant the applicant a protection visa: CB 73-82. The delegate noted that there had been a delay of ten months in the applicant applying for a Protection visa after his arrival in Australia: CB 80. The delegate also noted that the applicant had been interviewed by a Departmental Compliance Officer on 2 February 2010. During that interview the applicant had stated that he had come to Australia to make some money after the global financial crisis and that he was thinking of applying for a Protection visa: CB 80. On this basis, the delegate found that the applicant did not hold a subjective fear of persecution if he were to return to Pakistan. Additionally, the delegate found that relocation within Pakistan was a reasonable and viable option for the applicant: CB 81. The delegate therefore found that the applicant’s claimed fear of persecution was not well-founded: CB 81.

The Tribunal’s proceedings

6. On 15 July 2010, the applicant lodged an application with the Tribunal to review the delegate’s decision: CB 83-86.
7. By a letter dated 6 August 2010, the Tribunal invited the applicant to attend a hearing before the Tribunal scheduled for 10 September 2010: CB 88-89. The applicant accepted that invitation (CB 90-91) and attended the hearing on 10 September 2010: CB 92-94; CB 101-108, [24]-[58].

The Tribunal’s decision

8. In a decision dated 18 October 2010, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a protection visa: CB 96-113. The Tribunal accepted that the applicant had some knowledge of the outcome of the local election in his area in February 2008 (CB 111, [72]) but “it had difficulty accepting his evidence” about his claimed involvement in politics in Pakistan: CB 109, [62]. In particular, the Tribunal found that the applicant’s evidence of his political involvement was not supported by the independent country information: CB 109 [62]. It also found that the applicant had difficulty explaining why he had joined the PML(N) and providing reasons for leaving his home in Sialkot: CB 109-110, [63]-[64]. The Tribunal also found that the applicant’s evidence that he had not suffered any major problems between March 2008 and April 2009 and had been able to return to Sialkot at night suggested that members of the PPP were not after him at all: CB 110, [65]. In addition, the Tribunal found on the basis of the applicant’s evidence that his brother-in-law was no longer in trouble for allegedly kidnapping his wife: CB 110, [66]. The Tribunal rejected his claim that the PPP still wanted to target him and placed weight on the independent information that Sialkot is a stronghold of the PML(N): CB 110, [66].
9. The Tribunal noted that the applicant had produced three documents to the delegate in support of his claims but found that these documents did not overcome the concerns it had with the applicant’s evidence: CB 111, [71]. The Tribunal concluded that the applicant was not telling the truth about his involvement in politics in Pakistan (CB 111, [71]), and found on the basis of his evidence to the Departmental Compliance Officer and the delegate that his real reason for coming to Australia was to make money: CB 111, [69]-[70], [72]. The Tribunal also found that even if the applicant had faced problems from his political opponents, as he claimed, he could obtain protection from the authorities: CB 110, [67]-[68].

The present application

10. The applicant relies upon his show clause application filed on 15 November 2010. That application contains five grounds:
    • 1. My point is that despite having attended in the hearing, it became imperative that, before the Tribunal made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order to fully compliance of s.424A as decided by the majority of the High Court in SAAP.
    • 2. That the decision of the Refugee [R]eview Tribunal was effected by jurisdictional error in that the Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant claims;
    • 3. The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.

Particulars of Grounds

• a. The [T]ribunal did not consider the applicant who had been under immense and intimidating pressure from PPP members and harassed because of the applicant had left the PPP and had joined the PML(N) on 8 January 2008.
• b. In relation to above the Tribunal did not consider the applicant claim that if he has to go back to Pakistan in near future, the PP members will seriously harm him.
• 4. The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.
• 5. The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final out come.

11. The application is supported by a short affidavit. Paragraph 1 I accepted as evidence. Paragraph 2 asserts that the Tribunal decision was affected by actual bias. I treated that paragraph as a submission.

Consideration

12. Regrettably, allegations of bias, whether actual or apprehended, are too frequently made and too seldom supported. When the matter came before me for the first time on 6 December 2010, I discussed that allegation with the applicant. I told the applicant that if he wished to pursue that allegation, he would need to serve an amended application pleading the allegation with particulars. I also told him that if he wished to pursue the allegation, I would expect to see evidence in support of it. No amended application was filed.
13. The evidence I have before me which, in addition to the applicant’s affidavit, is the court book filed on 20 December 2010, provides no support for an allegation of bias, whether actual or apprehended.
14. In his oral submissions, the applicant addressed the merits of the Tribunal decision. He asserted a political reason for his business problems in Pakistan. That assertion was considered by the Tribunal, but was not accepted. I explained to the applicant that if the Tribunal decision is a valid one, the only person who can change it is the Minister.
15. The Tribunal was not required to accept the applicant’s claims at face value and the weight to be given to his claims was a matter for the Tribunal to assess as part of its fact-finding function.[1] The Court cannot review the merits of the Tribunal’s decision and it is well established that in determining whether an applicant has a “well-founded” fear of persecution the Tribunal may need to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events.[2]
16. Turning to the grounds of review advanced by the applicant, he first asserts a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act). The applicant does not explain what information the Tribunal failed to disclose to him that it should have disclosed. The Tribunal’s decision was based substantially on information provided to it by the applicant and country information. Neither class of information required disclosure to the applicant pursuant to s. 424A because of the operation of subsections 3(a) and 3(b) of that section. The Tribunal did take into account information given by the applicant orally to the Minister’s Department concerning his reasons for coming to Australia. That information had an impact on outcome, as is indicated at [72] of the Tribunal’s reasons: CB 111, 112:
    • I accept that the applicant was able to tell me details about the outcome of the election in February 2008 in his local seat which was won by Khawaja Muhammad Asif. However for the reasons given above I do not accept his evidence that he was involved with the PPP from 193, that he left the PPP after the assassination of Benazir Bhutto on 27 December 2007 and that he joined the PML(N) on 8 January 2008, that he had a fight with members of the PP on the day of the election, 18 February 2008, in which his shoulder was dislocated, nor that after that these people from the PPP attacked the applicant’s house in ... on 8 March 2008, nor that, when the police came to his house in connection with the kidnapping case in June or July 2009, the two or three people with whom he had had a fight at the polling station were with them. I do not accept that there is a real chance that, if the applicant returns to Pakistan now or in the reasonably foreseeable future, he will be killed, attacked or otherwise persecuted for reasons of his real or imputed political opinion. As I put to the applicant, I consider on the basis of the evidence before me that the real reason he came to Australia was that he had suffered a big financial loss in his business in Pakistan and that he wanted to make some money to support his family.
17. The Tribunal purported to go through a process of oral disclosure in relation to that information. That process of oral disclosure is evidenced at [46]-[50] of the Tribunal’s reasons: CB 106. The information provided orally to the Minister’s Department was inconsistent with his protection claims. However, having regard to the High Court’s observations in SZBYR v Minister for Immigration [2007] HCA 26; (2007) 235 ALR 609, it is doubtful whether that information was information requiring disclosure, pursuant to s.424A(1) because it was not on its face adverse. Nevertheless, the Tribunal’s approach of going through a process of oral disclosure, purportedly pursuant to s.424AA, was a prudent one.
18. If the Tribunal was under an obligation of disclosure pursuant to s.424A, I am satisfied that the process of oral disclosure engaged in by the Tribunal was sufficient to meet that obligation pursuant to s.424AA.
19. In particular, the Tribunal thoroughly explained how the information was relevant to the review and the consequences of the information being relied upon by the Tribunal as required by s.424AA(b)(i) and orally invited the applicant to comment on or respond to the information as required by s.424AA(b)(ii): CB 106, [46]-[50]. The Tribunal also advised the applicant that he may seek additional time to comment on or respond to the information pursuant to s.424AA(b)(iii): CB 106, [46]. The applicant elected to respond immediately to the information and did so orally (CB 106, [50]) and expressly stated that he did not require any additional time to respond: CB 108, [58]. The Tribunal was therefore excused from complying with its obligations under s.424A(1) by reason of s.424A(2A) .
20. Grounds 2 and 3 in the show clause application assert a failure by the Tribunal to consider certain integers of the applicant’s claims. There is no factual basis to support that allegation. The Tribunal did not accept the applicant’s claim of political harassment and intimidation. It did, however, consider those claims as it was required to do.
21. The Tribunal considered but did not accept that the applicant was a former member of the PPP or that he had joined the PML(N). It rejected his claims to have suffered harm in Pakistan on this or any other basis: CB 111, par 72. Further, the Tribunal expressly stated that it did not accept that there was a real chance that if the applicant were to return to Pakistan “now or in the reasonably foreseeable future” that he would be targeted for reasons of his real or imputed political opinion: CB 111, [72].
22. In ground 4, the applicant asserts a failure by the Tribunal to investigate his claims. As is pointed out in the Minister’s submissions, which I agree with, the Tribunal is not under a general duty to inquire. Neither was there anything before the Tribunal to compel a further inquiry in the particular circumstances of the case.
23. The fourth purported ground of review complains that the Tribunal failed to investigate the applicant’s claims as required by the Migration Act. However, it is well established that the Tribunal has no general obligation to investigate, nor any duty to consider utilising such permissive statutory powers as it had which might enable it to investigate.[3] The applicant has not listed any particulars in support of this complaint to indicate what inquiry the Tribunal should have undertaken. In these circumstances, it cannot be said that the Tribunal was under a duty to inquire in the sense that there was a failure to make an inquiry about a critical fact the existence of which was easily ascertained.[4]
24. Finally, the applicant asserts a misuse of country information by the Tribunal. As the Minister points out, the weight to be given to country information is a factual matter for the Tribunal, pursuant to its statutory functions. I can detect in the Tribunal’s reasons no inappropriate use of country information by the Tribunal.
25. I conclude that the Tribunal decision is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I so order.
26. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,000. The applicant sought a reduction in costs, having regard to the fact that he has no employment. I am satisfied that the costs sought have been reasonably and properly incurred when assessed on a party basis. I inform the applicant of his rights of appeal and also his rights to request a write-off or waiver of a debt created by a costs order made by the Court. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 4 February 2011

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[1] Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 281-282
[2] Ibid
[3] VCAK of 2002 v Minister for Immigration [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration [2002] FCAFC 277 at [21], [24]-[25]
[4] See Minister for Immigration v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25]- [26]. See also SZOER v Minister for Immigration [2010] FCA 1100 per Cowdroy J