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MIGRATION - Application for review of decision of the Refugee Review Tribunal - applicant alleged that Tribunal failed to consider him as part of a particular social group - jurisdictional error not an available ground for review.

NAFQ v Minister for Immigration [2002] FMCA 192 (30 August 2002)

NAFQ v Minister for Immigration [2002] FMCA 192 (30 August 2002)
Last Updated: 6 September 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAFQ v MINISTER FOR IMMIGRATION
[2002] FMCA 192



MIGRATION - Application for review of decision of the Refugee Review Tribunal - applicant alleged that Tribunal failed to consider him as part of a particular social group - jurisdictional error not an available ground for review.



Migration Act 1958 (Cth) s.474

Judiciary Act 1903 (Cth) s.39B

SBBK v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 565

NAAV v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCAFC 228

Applicant:
NAFQ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 507 of 2002



Delivered on:


30 August 2002



Delivered at:


Sydney



Hearing Date:


16 August 2002



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Mr R Nair



Counsel for the Respondent:


Mr S Lloyd



Solicitors for the Respondent:


Sparke Helmore


ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the amount of $3,750.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 507of 2002

NAFQ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is a Pakistani citizen who first arrived in Australia on 17 March 1992. After going through a series of visa applications and appearing before a series of Tribunals he founds his way to the Refugee Review Tribunal on 5 December 2001. The Tribunal handed down its decision on 14 March 2002.

2. The applicant claimed refugee status on the basis of an alleged well-founded fear of persecution arising out of his membership of the Pakistan Peoples Party (PPP) a political party in Pakistan to which the Bhutto family belonged. The applicant claimed that not only was he a member of PPP but also members of his family and one uncle was an office holder in the party. The applicant referred in his submissions to the Tribunal to the antipathy which existed between the PPP and the PML, the party of Mr Sharif which was in power when the Bhutto PPP party was not. Both of these parties ceased to be in power after the coup organised by the current President of that country, General Pervez Musharraf.

3. Evidence before the Tribunal indicated that the applicant had been backwards and forwards from Pakistan several times during his residence in Australia. He had secured four Pakistani passports during that time.

4. The Tribunal in its short findings and reasons stated the following:

"The Tribunal finds that the Applicant's repeated access to genuine passports is very strong evidence of his unremarkable profile with successive governments and regimes in Pakistan, from Zia, through Bhutto and Sharif. The Tribunal can find no reason for concluding that the current junta would deny him freedom of movement within Pakistan or in and out of it.

The Tribunal concludes that the Applicant's claims amount to an unreliable mish-mash of ill-considered ambits. The Tribunal is satisfied that the Applicant has never been afraid to return to Pakistan, let alone for Convention-related reasons, especially given the number of times he has returned there. The Tribunal is highly confident that he faces no Convention-related persecution in Pakistan given the number of times his freedom could have been curtailed since his first return there in 1997, and given the number of times it was not." [CB 255]

5. The Tribunal went on to make the following finding:

"The Tribunal is overwhelmingly satisfied that merely being a supporter of the PPP will not attract a real chance of serious negative interest in Pakistan from any party." [CB 255]

6. The applicant was represented at the hearing. His counsel had prepared helpful written submissions. In these it was asserted that the applicant had claimed a fear of persecution for the Convention reason of membership of a particular social group being his family, including his father and brothers. It was argued that the Tribunal did not consider whether the applicant was a member of the particular social group comprising his family and argued that on the basis of the authority of SBBK v MIMIA [2002] FCA 565 this constituted a jurisdictional error which entitled the applicant to review under s.39B of the Judiciary Act 1903 (Cth).

7. The applicant's submissions also alleged that the Tribunal in its finding that there was no evidence to suggest that individuals in Pakistan were being persecuted for being members or supporters of the PPP had ignored relevant material which provided compelling evidence to the contrary. The matter was heard on 16 August 2002, the day after the Full Bench of the Federal Court handed down judgment in NAAV v MIMIA [2002] FCAFC 228 and the other matters heard with it. In the judgment of von Doussa J with which Beaumont J and (in this regard) the Chief Justice agreed at [639] SBBK was discussed. His Honour said:

"I share the difficulty expressed by Allsop J in NAAG of 2002 at [59] - [60] about Tamberlin J's conclusion that an error of law in failing to identify the right question to be addressed in the applicant's claim constitutes a failure to comply with a condition that is essential to the exercise of jurisdiction of the RRT. In my opinion the jurisdiction of the RRT is attracted by a valid application to the RRT made under s 414 to review an RRT reviewable decision. Once that jurisdiction was enlivened, the manner of exercise of the authority and powers of the RRT came within the expanded of authority and powers brought about by s 474(1) with the consequence that the decision of the RRT was lawfully made. This consequence arises even if in the absence of s 474(1) the decision would have been infected with a jurisdictional error the Craig type because the wrong question had been asked."

8. Given that this decision has effectively undermined the basis of the applicant's attack upon the Tribunal's decision I offered the applicant an opportunity to provide me with written submissions before making my decision. I did however point out to the applicant that my reading of the decision indicated that the conclusion that it came to about the applicant's lack of a well-founded fear of persecution overrode any other consideration. In other words, even if he had belonged to a social group constituting his family or active members of the PPP generally and even if there was evidence of persecution the objective evidence was that the applicant did not have a well-founded fear of such persecution based upon his comings and goings to the country from which the alleged fear emanated.

9. A finding of the nature of the one above is clearly a matter for the Tribunal and would not be reviewable under any circumstances.

10. The written submission which I received from the applicant and the respondent have not done anything to lead me to change the views which I have expressed above and in particular of the unavailability of review arising out of the failure to consider the applicant as part of a particular social group. The applicant submitted that the remarks of von Doussa J in NAAV concerning SBBK were obiter and need not be followed. The respondent suggested, to the contrary, the remarks whilst referring to a case which was not on appeal, had direct reference to the matters on appeal and constituted part of the ratio of those cases. It is my opinion that the views of von Doussa J were sufficiently supported in the NAAV decision to make it impossible for me in the present case to do anything but follow them.

11. Accordingly, for the reasons given, I must dismiss this application.

I order that the applicant pay the respondent's costs assessed in the sum of $3,750.00 pursuant to Part 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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