SZDXC v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDXC v MINISTER FOR IMMIGRATION [2005] FMCA 887

MIGRATION – RRT decision – Pakistani Shia feared persecution by extremist Sunnis – did not attend Tribunal hearing – no error found.

Migration Act 1958 (Cth), ss.424A, 424B, 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Applicant: SZDXC

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1917 of 2004

Judgment of: Smith FM

Hearing date: 9 June 2005

Delivered at: Sydney

Delivered on: 9 June 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Mr Z Chami

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs in the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1917 of 2004

SZDXC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) which challenges a decision of the Refugee Review Tribunal dated 13 May 2004 and handed down on 3 June 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.

2. Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act 1958 (Cth). As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied the decision was affected by jurisdictional error. I do not myself have power to decide whether the applicant should be believed or whether he qualifies for a refugee visa.

3. In the present case, the applicant came to Australia in 1997 under a student visa from Pakistan.  He returned there on visits, and his last arrival in Australia was in 1999.  He applied for a protection visa on 21 August 2003, assisted by a migration agent.

4. No information about his claims was contained in his application, which referred to a statement of claim.  A two-page unsigned statement was forwarded later by his agent.  In it, the applicant claimed to fear that he would be killed by Sunni Muslim extremist members due to his belonging to the Shia sect of the Muslim faith.  His claims were, in my opinion, sufficiently summarised by the Tribunal in its reasons:

   The applicant is aged in his late thirties.  According to the details in his original application he completed a…