SZAFZ v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 260

FEDERAL COURT OF AUSTRALIA

SZAFZ v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 260

SZAFZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1488 of 2003

JACOBSON J
11 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1488 of 2003

BETWEEN:	SZAFZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	11 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs in the proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1488 of 2003

BETWEEN:	SZAFZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	11 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This purports to be an appeal against a decision of a Federal Magistrate.  I use the word purports because the grounds of appeal do not disclose any ground of appeal whatsoever.  The notice of appeal simply states that "all the material facts on file have not been considered before making the decision".  No outline of submissions was provided to me by the appellant before the hearing.

2. The appeal was called on for hearing this morning at 10.15 am but there was no appearance by the appellant.  I stood the matter down until 10.30 am in case the appellant had some transport difficulty in arriving at Court on time. 

3. The appellant appeared before me in person on 23 October 2003 when I listed the matter for hearing.  I made orders in accordance with short minutes of order which were handed to me on that date and the short minutes were provided to the appellant on that occasion. 

4. Counsel for the Minister asks me to exercise my powers under O52, r 38A(1)(c) or (d);  that is to say he asks me to proceed with the hearing and to dismiss the appeal.  I am satisfied that the appeal should be dismissed and I will set out my reasons below.

5. The appellant is a citizen of Pakistan who arrived in Australia on a visitor's visa on 14 March 1997.  He applied for two six month extensions to his visitor's visa and then applied for a special needs relative visa.  That application was refused by a Delegate of the Minister and the Delegate's decision was upheld on appeal by the Migration Review Tribunal.  The appellant then applied to the Minister to be considered on humanitarian grounds.  It was only when that application failed that he applied for a protection visa.

6. The application for protection visa was lodged on 25 July 2000 and on 29 August 2000 a Delegate of the Minister refused to grant the visa.  The applicant claimed to have a well-founded fear of persecution on the grounds of his race and political opinion.  He is a Mohajir.  The Mohajirs are Urdu speaking Muslims who migrated to Pakistan from North Central India in the years immediately following the creation of Pakistan in 1947.  The term also applies to their descendants.  This information is obtained from country information referred to in the Refugee Review Tribunal’s (“the RRT”) Reasons for Decision.

7. The appellant claimed to be a supporter of a movement called the Mohajir Qaumi Movement (“the MQM”).  That is a student movement formed through the union of Karachi University student groups.  It is apparently a nationalist movement that seeks official recognition of Mohajirs as the fifth ethnic national group of Pakistan, the other groups being Punjabis, Sindhis, Baluchis and Pathans.  The country information to which the RRT referred states that the MQM has in the past demonstrated a willingness to use violence to further its aims.

8. The Delegate refused the grant of a protection visa on 29 August 2000 and, on 29 September 2000, the appellant applied to the RRT for a review.  The RRT handed down its decision on 27 February 2003.  The RRT accepted that the appellant was a national of Pakistan and that he was a Mohajir.  However, the RRT dismissed the appellant's claimed persecution against him on the ground that he was a Mohajir because independent country information indicated that Mohajirs do not face persecution in Pakistan because of their ethnic origin.

9. Moreover, the RRT pointed to the fact that the appellant had been able to obtain a tertiary education in Pakistan where he had studied accountancy and that he had been able to gain employment in Pakistan and to further his studies abroad.  The evidence before the RRT disclosed that the appellant had a Master of Business Administration which he obtained in Manila in 1997, having left Pakistan in 1995 and resided in Manila for two years before his departure for Australia. 

10. The RRT found that the appellant's evidence did not indicate that he had been subject to serious mistreatment in Pakistan and the RRT was satisfied that if he returned to Pakistan there was no real chance that the applicant would be persecuted based on his race.

11. As to the claimed fear of persecution on the ground of his political opinion and support of the MQM, the RRT observed that the appellant's own evidence was that he was not a member of the organisation.  The RRT found that the appellant's evidence clearly indicated that he was involved in the MQM only at a very low level.  The RRT also found that the applicant's involvement was only peripheral.

12. The RRT noted that the appellant had lived in Pakistan at the same address for the whole of his 25 years before his departure from Pakistan and pointed out that the fact that he was able to do so indicated that he was not of any interest to the authorities.  The RRT found that the appellant's evidence did not suggest that he had any problems with the authorities.  He did not claim to have been questioned, detained or arrested nor did he claim to have been targeted by other political groups.

13. The RRT also noted that the appellant's evidence was that he was not involved with the MQM in Australia and that he did not intend to be involved with the MQM if he returns to Pakistan.  The RRT therefore considered that the chance that he would be targeted on return to Pakistan was remote.  The RRT also pointed out that although it was not obliged to consider the issue of relocation within Pakistan it would be reasonable for the appellant to move to a city other than Karachi, where he had previously lived, if he returns to Pakistan.

14. The Federal Magistrate's decision was delivered ex tempore on 12 September 2003.  The learned Magistrate set out the five arguments that were made by the appellant when he appeared at the hearing.  I do not think it is necessary to set out the arguments that were dealt with and rejected by the Magistrate in paragraphs 6 to 10 of his reasons for judgment.  It is sufficient to say that most of the arguments were no more than an endeavour to canvass the merits of the decision made by the RRT.  In short, the learned Magistrate could find no jurisdictional error to have been committed by the RRT.

15. In my view the learned Magistrate was correct.  I can see no error of law let alone jurisdictional error in the reasons for the decision of the RRT.  In my view, it follows that the appeal should be dismissed with costs.

16. Accordingly, the orders I will make this morning are that the appeal be dismissed with costs. 

17  I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Date:               11 March 2004

No appearance for the applicant
Counsel for the Respondent:	R Bromwich
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	11 March 2004
Date of Judgment:	11 March 2004