SZKKD v Minister for Immigration and Citizenship

Federal Court of Australia|2008-02-19|Before: Cowdroy J

REASONS FOR JUDGMENT 1 The appellant appeals from the decision of Federal Magistrate Scarlett dated 3 September 2007 in which his Honour affirmed the decision of the Refugee Review Tribunal ('the Tribunal') dated 5 February 2007. That decision upheld the decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') to refuse to grant the appellant a Protection (Class XA) visa ('protection visa').

BACKGROUND 2 The appellant arrived in Australia on 5 April 2006, travelling from Pakistan on a Pakistani passport. On 2 May 2006 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application and on 29 August 2006 the appellant applied to the Tribunal for a review of that decision. 3 The appellant was born in Pakistan and claims to be a Kashmiri citizen. He asserts that Kashmiri are not citizens of Pakistan. 4 The appellant claimed that he feared harm for reasons of his political opinion and Kashmiri ethnicity if he were to return to Pakistan. He claimed that he was of Kashmiri ethnicity and that he had suffered various forms of discrimination as a consequence of his ethnicity. 5 Regarding his political views, the appellant claimed he was a member of the Jammu and Kashmir Liberation League ('JKLL') which supported an independent state of Jammu and Kashmir. The appellant claimed to have joined the JKLL in 1997 and to have held the position of information secretary in that organisation. He claimed to have been mistreated by security authorities on a number of occasions as a result of his association with the JKLL. This included being arrested and held for a week in May 1998 during which he was questioned, tortured and bashed by information officers. He claimed to have been arrested again in 1999. The appellant gave evidence that despite this persecution, he continued his political activity by various means including the giving of speeches against the Pakistani authorities. The appellant claimed that he was kidnapped in 2005 by Pakistani Intelligence Agents ('ISI'), who interrogated him and kept him in solitary confinement. As a result of the above, the appellant claimed to have well-founded fear of persecution. 6 The appellant provided various documents to the Tribunal in support of his claims.

THE DECISION OF THE TRIBUNAL 7 Although the appellant did not appear at a hearing scheduled for 7 November 2006, on 7 December 2006 the Tribunal invited the appellant to attend a hearing before that Tribunal scheduled for 13 December 2006. The appellant appeared before the Tribunal and gave evidence with the assistance of an interpreter in the Urdu language. 8 On 5 February 2007 the Tribunal handed down its decision. The Tribunal noted that the appellant claimed that he feared harm because he was an active member of the JKLL. The JKLL supported an independent and self determining state of Jammu in Kashmir, which was not supported by Pakistan. The Tribunal also noted his allegations that he would suffer harm if he returned to Pakistan. 9 The Tribunal addressed itself to the question of the appellant's nationality and found that the appellant was a Pakistani citizen and accordingly assessed his claims against Pakistan as the country of reference. 10 The Tribunal noted that it had taken into consideration documents provided to it on 16 November 2006 relating to the residential and ethnic origins of the appellant's father in Jammu in Kashmir. The Tribunal accepted that the appellant's father and the appellant identify as Kashmiris, and that the appellant was born and grew up in Sialkot, a large Pakistani city in the Punjab Provence near the border of Azad Jammu Kashmir ('AJK') being Pakistani controlled Kashmir. The Tribunal also accepted that the appellant was educated in Sialkot where he obtained engineering qualifications and worked as a site supervisor before departing for Australia. The Tribunal considered country information which indicated that migrants such as his father are citizens of Pakistan and that the son of a Pakistani father will automatically be regarded as a Pakistani citizen. Further, the Tribunal had regard to the fact the appellant held a Pakistani passport. 11 The appellant claimed to be Kashmiri and supported an independent state of Jammu and Kashmir. The Tribunal was prepared to accept that the appellant may have been a supporter of the JKLL and its aims and that he may have taken part in meetings and protest activities. However the Tribunal did not accept that the appellant was either an office-bearer or a member of that organisation, nor did it accept that he joined the student wing of that organisation at school nor that he used to lecture on independence. Apart from being aware of some well published events, for example the death of the founder KH Korshid in the 1980s and the name of the president, the appellant did not have the knowledge or familiarity in the details of the organisation which the Tribunal member considered he would have had he been an office bearer. 12 As the Tribunal did not accept that the appellant was a member of the JKLL, it did not accept that he was mistreated for that reason. The Tribunal did not accept that if the appellant had been of adverse attention to the authorities he would have been able to obtain a passport and leave Pakistan without restriction. The Tribunal did not accept that the appellant had been detained and mistreated by the ISI. With reference to country information, the Tribunal did not accept the appellant would be at risk of harm if he were to return to Pakistan for reasons of his support for the JKLL or because of his pro-independence views. 13 The Tribunal found further reason not to accept the appellant's claim that he had been detained and mistreated by the ISI because he was unable to provide the type of detail which he might have been able to provide had he been arrested. The Tribunal did not accept his reason for such lack of knowledge in his explanation that he could not speak about what had happened to him. 14 The Tribunal also considered the claims of discrimination but did not accept that he would be discriminated against because of his Kashmiri ethnicity. The Tribunal member found that the appellant had lived in Pakistan all his life; had received a tertiary education; had worked in Sialkot before his departure to Australia; and that there was no evidence that Kashmiris had been subjected to serious discrimination in Pakistan which would amount to persecution. 15 The Tribunal member because of these reasons considered that Australia did not owe protection obligations to the appellant under the Convention Relating to the Status of Refugees 1954 as amended by the Protocol Relating to the Status of Refugees and did not satisfy the criteria contained in s 36(2) of the Migration Act 1958 ('the Act'). Accordingly the Tribunal affirmed the decision not to grant the appellant a Protection (Class XA) visa.

APPLICATION FOR REVIEW IN THE FEDERAL MAGISTRATES COURT 16 The appellant applied to the Federal Magistrates Court of Australia for review claiming inter alia that the Tribunal failed to determine his nationality and thereby committed jurisdictional error and legal error; did not follow the proper procedure to consider the appellant's persecution as the appellant was a stateless person; and that the Tribunal acted beyond its jurisdiction by not taking into account the United Nations Resolutions as the appellant was a 'Kashmari' [sic]. Such application came before Scarlett FM on 20 August 2007. 17 In his decision Scarlett FM noted that the appellant claimed that the most important question on the application was the identification of his nationality which he asserted had not been resolved by the Tribunal. That question involved the determination whether the appellant was a Pakistani person who was advocating the Kashmiri cause or a person who was a bona fide Kashmiri. 18 In support of his claim the appellant referred to the Interim Constitution Act 1974 and the State Subject Certificate issued by the Azad Jammu and Kashmir government. He claimed such government was not internationally recognised and that it did not issue passports to its subjects. He relied upon the State Subject Certificate and claimed that there had been a miscarriage of justice in the Tribunal because neither the Tribunal nor the Minister considered such matters. The appellant then referred to various documents which had been produced to the Tribunal and alleged that a Pakistani national could not become a member of any Kashmiri political party. He claimed that he had not been given a fair chance to be heard and that the Tribunal had not considered his claims properly. He submitted that the Tribunal had a duty to take information from independent sources other than sources employed by the government of Pakistan. The appellant claimed to be in grave danger.

FINDINGS OF THE FEDERAL MAGISTRATE 19 Scarlett FM found that the appellant's claim that the Tribunal failed to determine his nationality failed. He concluded that the Tribunal determined that the appellant was a national of Pakistan who held a Pakistani passport. Further, the independent country information before the Tribunal showed that the citizens of the states of Jammu and Kashmir who migrated to Pakistan, as was the case of the appellant's father, were deemed to be citizens of Pakistan and the appellant, as the son of a Pakistani father, would automatically be regarded as a citizen of Pakistan. 20 Scarlett FM found that there was no evidence before the Court that the Tribunal did not follow proper procedures in considering the appellant's alleged persecution and that the appellant had not identified which procedures were allegedly not fulfilled. The Tribunal determined against the appellant in respect of his claim of statelessness and found that he was a national of Pakistan. 21 The Federal Magistrate noted that there was no breach of either s 424A or s 425 of the Act. The appellant had been invited to a hearing and the appellant had provided documents to the Tribunal. Scarlett FM concluded that there was no failure to render procedural fairness to the appellant. 22 Scarlett FM also rejected the appellant's submission that the Tribunal acted beyond its jurisdiction by not taking into consideration United Nations resolutions concerning Jammu and Kashmir. His Honour held that such claims could not be substantiated and was satisfied that the Tribunal had considered the material referred to it. 23 In an amended application, which also formed part of the submissions, the appellant challenged the determination of his nationality. Scarlett FM held there was no evidence to show that the Tribunal misread the evidence provided, and held that the Tribunal considered its decision on the material which was supported by the evidence. 24 The Federal Magistrate also considered the claim that the appellant had not been given a fair chance to be heard. His Honour found that there was no evidence of such claim. Further, there was no evidence that the Tribunal had 'brushed aside' the material that was before it as alleged by the appellant. 25 The appellant also claimed that the Tribunal did not give reasons for its conclusion that the appellant was not a national of Azad Jammu Kashmir. However, his Honour found that it was not necessary that the Tribunal provide evidence for its reasons for rejecting the appellant's claims. His Honour concluded that the Tribunal did consider the appellant's citizenship and found that the appellant was a citizen of Pakistan based upon evidence which would allow of such a finding. 26 Scarlett FM found that there was no jurisdictional error in any of the claims made before him either in writing or orally. Since the appellant had been unrepresented Scarlett FM considered the whole of the Tribunal's decision and supporting material. His Honour concluded that he could not discern any arguable case of jurisdictional error.

APPEAL TO THIS COURT 27 The appellant appeals from the decision of Scarlett FM by notice of appeal filed on 21 September 2007. The appellant relies upon three grounds, namely: that the Federal Magistrate failed to determine the nationality of the appellant leading to jurisdictional error and a mistake of law; that the Department and the Tribunal did not consider the evidence that the appellant was Kashmiri who had suffered persecution but due to 'the mistake of the law no decision in the eyes of the law was made'; and that the respondents failed to assess his claim as laid down by the handbook on the United Nations Commission on Human Rights.

APPELLANT'S SUBMISSIONS 28 The appellant appeared before the Court unrepresented but assisted by an interpreter. Although he stated initially that he did not wish to make any submissions, the appellant subsequently reconsidered and made submissions to the Court. He claimed that he was Kashmiri and said that he had submitted documents to the Tribunal establishing that fact. He also claimed that he had been tortured and arrested in Pakistan for being Kashmiri. The appellant said that the Tribunal had not accepted these claims. The appellant said that the Tribunal was mistaken and should have held him to be Kashmiri.

FINDINGS 29 The Tribunal's decision shows that it considered the appellant's claims to be a citizen of Kashmir. However, the Tribunal observed that the appellant had been born in Sialkot, a Pakistani city, that he had lived in Pakistan all his life and that he had received his tertiary education and worked in Sialkot before his departure for Australia. The Tribunal observed that there was no evidence that Kashmiris had been subjected to serious discrimination in Pakistan that would amount to persecution. The Tribunal rejected his claim that he would be persecuted should he return to Pakistan. 30 Such findings are factual and the Court cannot review the fairness thereof: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]; Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 (per Brennan J). The Court is not able to reconsider the appellant's claims in view of the contrary findings made by the Tribunal: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-41; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 281-282 (Brennan CJ, Toohey, McHugh, Gummow JJ; 291 per Kirby J). 31 There is no error as claimed by the appellant's first ground of appeal. 32 With respect to the second ground of appeal it is apparent that the Tribunal considered the documents which the appellant provided to it in support of his claim that he was Kashmiri. The Tribunal provided its reasons for finding that the appellant was a citizen of Pakistan, albeit one with Kashmiri ethnicity. The Tribunal was not required to make findings in respect of every claim raised by the appellant in the documents submitted to that Tribunal: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68], (73)-(74) and (91); Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 775 ALD 630 at [47]; Paul v Minister for Immigration and Multicultural Affairs [2001] 113 FCR 396 at [79]. It is apparent from the Tribunal's reasons that it considered all the relevant issues raised by the appellant and that no error as claimed in the second ground of appeal exists. 33 In a third ground set out in the notice of appeal the appellant claimed that the Tribunal failed to assess his claims in accordance with the Office of the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status ('UNHCR Handbook'). In answer to such claim, the Tribunal is not bound by the UNHCR Handbook, nor does the UNHCR Handbook have binding force. It is merely a reference source which may be used to determine whether or not a person is a refugee: see Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [8]-[9]. 34 No error has been demonstrated in the decision of the Federal Magistrate and the factual findings made by the Tribunal were open to it on the evidence before it. For this reason the appeal will be dismissed.

COSTS 35 The first respondent seeks an order that the appellant pays its costs in the amount of $3,700. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 19 February 2008 Counsel for the Appellant: The appellant appeared in person

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