SZMEI v Minister for Immigration and Citizenship

Federal Court of Australia|2008-11-07|Before: Reeves J

INTRODUCTION 1 This is an appeal against a judgment of Federal Magistrate Scarlett of 3 July 2008, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') of 8 April 2008. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant on the basis that the appellant was able to reasonably and safely relocate to other areas of Pakistan. The appellant disputes this decision and contends that the Tribunal failed to properly consider the appellant's evidence and arguments on this subject.

BACKGROUND - SUMMARY OF FACTS 2 The appellant is a citizen of Pakistan who arrived in Australia on 10 July 2007. On 15 August 2007, 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 on 19 October 2007. On 14 November 2007, the appellant applied to the Tribunal for a review of that decision. The appellant attended a hearing before the Tribunal on 14 January 2008. 3 The appellant claimed to fear persecution in his home area of Swat, from a Muslim extremist group known as the Tehrik Nifazi Shariati Muhammadi ('TNSM'). He alleged that this was attributable to his support of foreign non government organisations ('NGOs'), and in particular his work with the Career Citizen Community Board ('CCCB'), to which the TNSM objected on the basis they are 'American Allies'. The appellant claimed that the TNSM threatened him, that they attacked his house and that he feared he would be killed by the TNSM if he returned to Pakistan. The appellant submitted documentary evidence to the Tribunal in the form of letters from organisations in Swat and local newspaper articles in support of his claims. 4 On the issue of relocation, the appellant claimed that he could not live reasonably and safely elsewhere in Pakistan as there was no protection there for him. In particular he claimed the TNSM had issued a 'kill warning' for him throughout Pakistan and that they were searching nationally for him.

THE TRIBUNAL'S DECISION 5 The Tribunal accepted that conditions in and around Swat were unstable, that religious violence was frequent and that the TNSM was active in the area. However, the Tribunal had some concerns regarding the genuineness of the appellant's claims of his alleged involvement with NGOs, due to a lack of detail and inconsistencies in his evidence. Nonetheless, the Tribunal accepted that the appellant had a fear of serious harm in the Swat area and noted, despite the inconsistencies, that the appellant was generally credible. 6 However, the Tribunal affirmed the delegate's decision because the Tribunal was satisfied that the appellant could safely relocate within Pakistan. It reached that conclusion based, in part, upon country information that the TNSM's operations were localised to the North West Frontier Province, an area that included Swat. It did not accept that the TNSM had issued a 'kill warning' for the appellant throughout Pakistan nor that they were searching nationally for him. Its finding was also based on the fact that the appellant held a relatively-low profile as a worker for NGOs in Swat, and the following personal factors obtained from the appellant's own evidence: · He is a single man, and thus responsible for himself only; · He is a seaman who spends much of the year away from Pakistan and is used to being away from his home village for long lengths of time, and being from Swat he is used to travelling long distances to the port in Karachi to commence work; · He is familiar with, and has previously stayed in, a major Pakistani city - Karachi; · He speaks Pashtu and also Urdu, the official language of Pakistan, and this would assists him in finding employment (if he chose not to be a seaman in the future) and also in finding accommodation in many other Pakistan cities; and · He is a resourceful man, as demonstrated by the fact that he travelled unassisted from Perth to Sydney while not speaking the English language, finding fellow Pakistani people here, as well as meeting is food and accommodation needs here in Australia

THE FEDERAL MAGISTRATE'S DECISION 7 The appellant filed an amended application for review in the Federal Magistrates Court on 13 June 2008. In it he advanced five grounds of review. The Federal Magistrate rejected grounds one and two on the basis that the Tribunal had, in fact, determined those issues in the appellant's favour. The Federal Magistrate also rejected ground four which alleged a breach of s424A of the Migration Act 1958 (Cth) ('the Act'). 8 In relation to the relocation issue raised in grounds three and five, his Honour found that these grounds sought to challenge the Tribunal's factual findings which were matters solely for the Tribunal, and were not open to judicial review by the Federal Magistrates Court.

THE PRESENT APPEAL 9 On 21 July 2008, the appellant filed a notice of appeal in this Court setting out three grounds of appeal. In summary, the appellant contends in that notice that the Tribunal failed to properly consider the evidence pertaining to the reasonableness of relocation within Pakistan, and failed to consider the appellant's arguments on this subject. 10 At the hearing of the appeal before me on 3 November 2008, the appellant appeared in person, unrepresented, but assisted by an interpreter. Mr Cleary appeared for the first respondent.

CONSIDERATION 11 As noted above, each of the three grounds of appeal before me is directed to the issue of relocation. That issue was also the primary issue before the Federal Magistrate: see [45] of SZMEI v Minister for Immigration [2008] FMCA 971. 12 The specific complaints that the appellant makes about the way in which the Federal Magistrate, and the Tribunal before his Honour, dealt with the relocation issue, can be summarised as follows: (a) In relation to Ground 1 They did not properly deal with his evidence or the independent country information; (b) In relation to Ground 2 They did not consider the actual situation in Pakistan; and (c) In relation to Ground 3 They failed to consider his opposition to relocation. 13 The appellant made similar complaints in grounds three and five of his application for judicial review before the Federal Magistrate. As noted above (see [7]), the Federal Magistrate rejected both these grounds on the basis they amounted to challenges to the Tribunal's factual findings: see also [38] and [44] of 2008 FMCA 971. 14 In my view, his Honour was correct in reaching these conclusions. To complain that the Federal Magistrate and the Tribunal did not properly deal with, or consider, certain evidence or arguments before it, is to invite this Court to engage in a review of the Tribunal's fact finding role. It is a trite proposition that it is neither the function of the Federal Magistrates Court on judicial review, nor this Court on appeal, to engage in such a review: see Attorney-General NSW v Quin (1990) 170 CLR 1 at 34 - 36, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291 - 292, Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 at [132] - [134] and Minister for Immigration and Multicultural Affairs v Epeabaka (2001) 206 CLR 128 at [64]. 15 I also consider the Federal Magistrate was correct in concluding that the Tribunal had complied with the High Court's ruling in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 ('SZATV'). His Honour quoted from paragraphs [23] and [24] of the joint judgment in SZATV (at [46] of his reasons) which contained the observation: 'What is 'reasonable', in the sense of 'practicable', must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality'. His Honour then noted that, consistent with this observation, the Tribunal had assessed (at paragraph 74 of the Tribunal's decision record) whether 'relocation in Pakistan [was] reasonable in the [appellant's] particular circumstances'. 16 It follows that I consider his Honour was correct in his ultimate conclusion on the relocation issue as follows (at [50] of his reasons): 'In my view, it was open to the Tribunal to arrive at the conclusion that it did because there was evidence to support it and, in my view, the Tribunal has applied the correct test for consideration of relocation which has been recently reaffirmed by the High Court of Australia in SZATV'. 17 For these reasons I do not consider the Federal Magistrate made any error in his assessment of the Tribunal's consideration of the relocation issue, let alone any error that amounted to a jurisdictional error.

CONCLUSION 18 This appeal must therefore be dismissed. I will hear the parties on the question of costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate: Dated: 7 November 2008 Appellant: In person

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