SZDBY v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1604

FEDERAL COURT OF AUSTRALIA

SZDBY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1604

SZDBY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1220 of 2004

ALLSOP J
6 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1220 of 2004

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN:	SZDBY APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	6 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs.

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	NSD 1220 of 2004

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

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

JUDGE:	ALLSOP J
DATE:	6 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders of a Federal Magistrate made on 23 July 2004 in which the learned Federal Magistrate dismissed an application made under s 39B of the Judiciary Act 1903 (Cth) for statutory writs in relation to a decision of the Refugee Review Tribunal (the “Tribunal”) made on 12 September 2000 and handed down on 28 September 2000.

2. The matter was called on at 9.30 a.m. this morning.  There has been no appearance by the appellant.  In these circumstances, I propose to proceed as provided for by Order 52 rule 38A(1)(d), that is, proceed with the hearing generally.  The matter was set down for hearing today by me at a directions hearing on 7 September 2004.  At that directions hearing the appellant appeared in person with the assistance of a Punjabi interpreter.  Ms Crawley appeared for the Minister.  Detailed directions were made on that day which are on the file.  One of those directions was that the matter be stood over for hearing to 6 December 2004 at 9.30 am.  The report of listing prepared by my associate indicates, as is my recollection, that the matter took some time.  Her note of the directions hearing was that the matter took 25 minutes.  It took 25 minutes because I explained to the appellant the nature of the appeal, the possibility of a direction by the Chief Justice that one Judge rather than three Judges could hear the matter, that he was required to file all his submissions by 11 November 2004 together with any written submissions on the appeal and any written submissions as to whether one Judge or three Judges should hear the appeal.  This was after a time identified for the Minister's solicitor to file an affidavit with an exhibit book containing the original application, the original court book and the reasons for judgment of the Federal Magistrate. 

3. The Court was not provided with any submissions from the appellant.  The appellant's notice of appeal does not contain any identifiable valid ground of appeal.  It states in substance that the Federal Magistrate erred in failing to hold that the Refugee Review Tribunal decision under review was in error and that the respondent, meaning, one takes it, the Tribunal, did not take into account the appellant’s refugee claim and country independent reports.

4. In short form, the facts are as follows.  The applicant is a citizen of Pakistan.  He arrived in Australia in July 1998 and applied for a protection class AZ visa on 7 September 1998.  On 31 October 1998, a delegate refused that application and on 25 November 1998, the applicant lodged an application for review, which was dealt with in September.  The facts as to the claim of persecution were set out succinctly by the learned Magistrate in paragraphs 2, 3, 4, 5 and 6, which were in the following terms:

   …The applicant's claim to have a well founded fear of persecution for the convention reason of religious belief arises from his membership of the Sunni sect and the fact that he lived in an area of Pakistan in which the Shiite sect, which is the minority sect in that country, was in the majority.

   The applicant's uncle was a district leader of the Sunni minority in that area and the applicant claims that he had an association with him in relation to his uncle's activities on behalf of the Sunnis. In 1995, the applicant's uncle was shot dead and in the applicant's belief, this was because of his association and leadership of the Sunni movement. After the murder of his uncle, the applicant came forward as a witness. No other witnesses came forward. However, as a result, certain persons were arrested and detained for this crime. The applicant told the Tribunal that he believed that his name was on the Shiite hit list.

   So he left the district and went into Brunei, where he stayed between November 1995 and July 1998. He did return, he says, in 1997 to see his family and claimed before the Tribunal (but not at any earlier stage) that during that time he was assaulted. The applicant agreed with the Tribunal that he did not report the attack on him in 1997 to the police, saying that this was because "they had not done any justice in his uncle's case". After questioning from the Tribunal, the applicant conceded that there was not much that the police could do considering that he was not there to give evidence.

   The applicant claims that if he returns to Pakistan, he will be sought out by the local Shiites and they will do violence to him. He claimed that he could not re-locate to another area of Pakistan where the Sunnis were in the majority and that was why he sought the protection of the Australian Government. The Tribunal accepted the murder of the applicant's uncle but determined that in so far as the applicant himself was concerned, it did not accept that he had been attacked in 1997. The Tribunal reasoned that such a serious matter would have been contained in the applicant's original assertions either in writing or to the delegate.

   That being the case, the only persecution that the applicant feared was what might happen to him if he returned to give evidence against the perpetrators of the murder of his uncle.

5. The learned Federal Magistrate noted that the Tribunal took the view that the  concerns of the appellant could not be characterised as based on imputed political or religious opinion and that the Tribunal concluded on available country information that even if what he had said about the threats made against him were correct, he would be provided with State protection in Pakistan.  The gist of the claim was that as a Sunni Muslim in the particular part of Pakistan where his family lived, he was in fear of violence from Shiite Muslims, who he said had killed his father. 

6. The respondent filed an outline of submissions.  Those submissions will remain with the file.  They helpfully identify the background to the appeal and the approach of the Tribunal in some detail.  I have not been assisted with any submissions from the appellant.  The appellant's notice of appeal gives no coherent ground of appeal.  I have read the Tribunal's decision and reasons and I have read the decision of the learned Federal Magistrate.  Unassisted by any argument as to what conceivably might be the jurisdictional error, I am unable to identify any such jurisdictional error and I am unable to identify any error in the learned Federal Magistrate's reasons or approach.  For those reasons the appeal should be dismissed.

7. I note that the Chief Justice has made a determination pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) and that this appeal be heard by a single Judge.

8. The orders of the Court are:

   1.  The appeal be dismissed.
     2.  The appellant pay the respondent's costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            9 December 2004

No appearance by the appellant.
Counsel for the Respondent:	Mr P S Braham
Submissions were prepared by Ms R Francois.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	6 December 2004
Date of Judgment:	6 December 2004