MZWHP v Minister for Immigration and Multicultural Affairs

[2006] FCA 337

FEDERAL COURT OF AUSTRALIA

MZWHP & Ors v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 337

MZWHP, MZWHQ, MZWHR and MZWHS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 1401 OF 2005

NORTH J
16 MARCH 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1401 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWHP
FIRST APPELLANT

MZWHQ
SECOND APPELLANT

MZWHR
THIRD APPELLANT

MZWHS
FOURTH APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

NORTH J

DATE OF ORDER:

16 MARCH 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The name of the first respondent is amended by deleting "and Indigenous."

2.        Leave is granted to the fourth appellant to withdraw his appeal.

3.The appeals are dismissed.

4.        The first and second appellants pay the first respondent's costs of the appeals.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1401 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWHP
FIRST APPELLANT

MZWHQ
SECOND APPELLANT

MZWHR
THIRD APPELLANT

MZWHS
FOURTH APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	NORTH J
DATE:	16 MARCH 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This an appeal from a decision of Federal Magistrate Phipps delivered on 18 October 2005.  FM Phipps dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 22 September 1997.  The Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs, the first respondent, not to grant protection visas to the appellants. 

2. The appeal is heard by a single judge pursuant to a direction by the Chief Justice, under s 25(1A) of the Federal Court of Australia Act 1976 (Cth), made on 30 November 2005.

3. The appellants are husband and wife and two children.  At the beginning of the hearing, the husband indicated to the Court that one of the children, the fourth appellant, has now obtained Australian citizenship and sought that his appeal be withdrawn.  The primary claim was made by the husband, the first appellant, and the fate of the appeals for the remaining two appellants succeeds or fails, depending on his appeal.  Consequently, I will throughout these reasons refer to the first appellant as the appellant.

4. The appellant is a Mohajir from Karachi who first arrived in Australia in late 1989 on a student visa.  The factual background of the application, the essence of the Tribunal's decision and the arguments of the appellant before the Federal Magistrate are all set out in the reasons for decision of the Federal Magistrate.  They are explained so succinctly and clearly that I adopt them as my own without repeating them in these reasons.

5. I can therefore move immediately to the decision of the Federal Magistrate. He rejected the appellant's application, finding that the Tribunal had dealt with the appellant’s claim that he was in danger of future persecution by factional opponents in the Mohajir Qaumi Movement (MQM).  The Federal Magistrate explained why he found that the Tribunal had dealt with this claim.  The Federal Magistrate then determined that the Tribunal had based its decision independently on a finding that the appellant, if he feared for his safety in Karachi, could relocate elsewhere in Pakistan.

6. The appellant was represented before the Federal Magistrate by an experienced barrister practising in the area of refugee law.  No argument was made to the Federal Magistrate against the rejection by the Tribunal of the other three claims made by the appellant, namely, that the Mohajirs in Pakistan are downtrodden, that the appellant was in danger of persecution by the Baralwi group within his mosque, or that he was in danger from State authorities as a supporter of the MQM.

7. The appellant has represented himself on the appeal.  He filed a notice of appeal which is somewhat difficult to follow, but essentially asserts that the Tribunal made an error of law in finding that there was violent conflict between the Mohajirs and rival ethnic groups, but not making a resulting finding that the appellant had a justified fear of persecution. 

8. The appellant also filed a document entitled, Outline of Submission (the Outline), in which he raised a number of points.  He argued that the Tribunal decision in relation to relocation was wrong because it was not possible at the time of the decision, nor is it possible now for the appellant to relocate safely within Pakistan.  There was, so the appellant asserts in his document, danger to him throughout Pakistan. 

9. The Outline then refers to a number of authorities on natural justice and jurisdictional error which are not tied to any specific criticism of the decision of the Tribunal. The document makes the general allegation:

   In present case, the Tribunal appears to have acted on the entirely arbitrary basis of a “hunch” or a “gut-feeling” and without any proper basis in evidence or reasoning.  In such circumstances, it was unreasonable and irrational for the Tribunal to find as it did and it thereby made a jurisdictional error.

10. On the hearing of the appeal, the appellant made some short oral submissions after the court had explained the limited nature of the proceeding before it.  In his oral submissions, the appellant repeated that the Tribunal had made an error in finding that he would be able to relocate within Pakistan.  He explained how ethnic violence affects society outside Karachi and that he, as a Mohajir, would be in danger outside Karachi.  He explained that life in Australia had been very hard for him and that he would not have chosen that hard life if it were possible to relocate within Pakistan.

11. The appellant also addressed the other basis of the Federal Magistrate's decision.  He contended that the Federal Magistrate was wrong in upholding the Tribunal's decision that the claim based on danger from factions within the MQM lacked credibility because it was raised late.  The appellant said that the reason this part of his claim had not been raised earlier was because of his troubled mental state.  Finally, the appellant explained that he was keenly in need of peace and security in Australia, and pointed to the fact that he had lived here now for a very long time.  His children, who now number five, had mostly all grown up in Australia. 

12. The appellant put his submissions with clarity and dignity, and it is easy to understand that he feels aggrieved at the decision of the Tribunal.  However, the role of the appeal court, as was explained to the appellant, is limited to determining whether the Federal Magistrate was in error in failing to detect jurisdictional error on the part of the Tribunal. 

13. Whilst I have sympathy for the appellant’s position, particularly because he has been in Australia for so long, I am unable to say that the Federal Magistrate was wrong in the conclusions which he reached.  The Tribunal considered the question of relocation and came to a decision taking into account the matters which it regarded as relevant to that issue.  In so doing it made no jurisdictional error, even though the appellant disagrees with the factual conclusion reached by the Tribunal.

14. Similarly, in relation to the claim based on the danger from factional violence within the MQM, the Tribunal considered the explanation for delay and regarded it as lacking credibility.  The Tribunal said:

    Due to the belated nature of the applicant's claim concerning an attack on his brother by MQM members, and in the absence of a satisfactory explanation for that delay, the Tribunal finds that the claim lacks credibility.  The Tribunal does not find it believable that the applicant would omit for so long such a central claim if it were true. His explanation that he sought to suppress that claim because it is painful to remember lacks credibility, especially in view of his capacity to outline earlier claims concerning more violent actions directed at him.

15. Whilst one may approach this issue differently on the facts, it cannot be said that the Tribunal in so approaching the matter committed any jurisdictional error.  It was open to the Tribunal on the facts, to come to the conclusion that the appellant’s explanation for the delay in bringing forward the claim concerning danger from MQM factions was lacking in credibility.

16. A number of other arguments raised in the documents filed by the appellant were arguments not put before the Federal Magistrate.  For instance, the general assertion that the decision of the Tribunal was unreasonable and irrational, at least put in those terms, was a new argument.  An appellant will not be permitted to raise arguments which are new at this appellate level unless it is in the interests of justice to allow the appellant to do so.

17. In my view, none of the assertions contained in the two documents filed by the appellant could succeed, and hence to the extent that leave is required, I would not grant leave to raise new arguments.  For those reasons the appeal must be dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             16 March 2006

Counsel for the Appellants:	First appellant appeared in Person
Counsel for the Respondent:	P. Gray
Solicitor for the Respondent:	Australian Government Solicitors
Date of Hearing:	16 March 2006
Date of Judgment:	16 March 2006