SZDZK v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 430

FEDERAL COURT OF AUSTRALIA

SZDZK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 430

MIGRATION – appeal from Federal Magistrates Court – whether Tribunal failed to consider a claim – whether Tribunal made a jurisdictional error

Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(i)
Migration Act 1958 (Cth)

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 referred to

SZDZK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1983 of 2004

BRANSON J
19 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1983 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDZK APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	19 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed. 

2.The orders of the Federal Magistrates Court be set aside and the matter remitted to the Refugee Review Tribunal for consideration according to law.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1983 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDZK APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	19 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a decision of the Federal Magistrates Court which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The written reasons for decision of the Tribunal bear the date 30 January 1996 but other material before the Court suggests that the decision of the Tribunal was in fact made on 30 January 1997.

2. The decision of the Tribunal affirmed a decision of a delegate of the respondent to refuse the appellant a protection visa.

   BACKGROUND

3. The appellant is a citizen of Pakistan and a Mohajir (ie a descendent of those who migrated from India at the time of the creation of Pakistan in 1947).  In a statement annexed to his application for a protection visa the appellant made the following claims.  He completed his schooling in Pakistan in 1975 and worked in that country until he left to work in Saudi Arabia in 1978.  When he returned to Pakistan in late 1983 he endeavoured to start a small business.  He cultivated relationships with members of the Peoples Party (presumably the Pakistan People’s Party or PPP) in an endeavour to assist the development of his business.  However, his business was not successful and he sought and obtained employment as an Accounts Assistant.  Thereafter he sought to withdraw from the company of members of the PPP but this resulted in his being harassed and asked to support the PPP as an active member.  In the meantime, the Mohajir Quami Movement (‘MQM’) was emerging as a strong opposition party and its members were unhappy that he, as a Mohajir, was associated with the PPP.  He realised that his life was in danger and he started his attempts to leave Pakistan.  He visited a number of western countries in an attempt to find employment.  Eventually he travelled to Australia on a visitors visa after being told that there were good employment opportunities here.  He arrived in Australia in 1987 and has resided here ever since.

4. As mentioned above, a delegate of the respondent refused the appellant’s application for a protection visa. 

5. The appellant was represented by a firm of solicitors in respect of his application to the Tribunal.  The initial written submissions presented to the Tribunal on behalf of the appellant are not readily understood, but they do not appear to advance new bases upon which the appellant claimed to have a fear of persecution in Pakistan.  However, by a letter dated 2 January 1997, apparently drafted and sent to the Tribunal by the appellant himself, the appellant claimed to have learnt from his mother that his house in Pakistan was being regularly raided, not only by the PPP and the MQM, but also by the Pakistani Army.  He asserted that he had been very prominent and vocal in Pakistan in the cause of, in effect, social justice and that his family had been told that his name was on the execution list of the Pakistani Army.  He claimed that he would be killed either by the political parties or the army if he returned to Pakistan.

   DECISION OF THE TRIBUNAL

6. The decision of the Tribunal refers to the appellant’s claims to have been harassed and abused by the PPP and the MQM prior to leaving Pakistan in 1987.  It does not refer to the letter dated 2 January 1997 or its contents.  I consider that it is more likely than not that the Tribunal overlooked the appellant’s letter of 2 January 1997. 

7. The critical portion of the written reasons for decision of the Tribunal is contained in the following paragraphs:

   ‘The Tribunal does not believe that there is a real chance of persecution with respect to the Applicant for Convention reasons should he return to Pakistan.

   His primary concern is over a failed business relationship with concerned individual members of the PPP rather than the organisation itself.  From the Applicant’s account, members of the MQM have done nothing more than threaten him.  They had ample opportunity to put their treats [sic] into effect before he left but did not.  The degree of harm feared does not in the view of the Tribunal amount to Convention‑based persecution.

   The Applicant did not convince the Tribunal that his claims were genuine in view of the combination of his travel to Europe which did not result in him seeking refugee status, and the length of time he waited in Australia before lodging a claim.  The reasons he put forward for delaying his application did not appear genuine to the Tribunal.’

8. As mentioned above, the Tribunal affirmed the decision not to grant the appellant a protection visa.

   DECISION OF THE FEDERAL MAGISTRATES COURT

9. The appellant became a member of the group on whose behalf Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (see (2002) 190 ALR 601) were instituted. It is unnecessary to set out in detail the history of these and a related proceeding so far as the appellant is concerned. However, on 2 July 2004 the appellant applied for judicial review of the decision of the Tribunal. The respondent did not press an objection to the competency of the application.

10. Notwithstanding the failure of the Tribunal to give consideration to the letter dated 2 January 1997, a matter about which the appellant complained to the Federal Magistrates Court, the learned Federal Magistrate dismissed the application for review of the Tribunal’s decision.  His Honour’s reasons are encapsulated in the following passage:

    ‘… It is quite clear that the basic reason why the Tribunal rejected the applicant’s contentions was on the basis of credibility.  On page 39 of the Court book, in the second full paragraph, the Tribunal sums up the reasons for that rejection in one paragraph and I quote:

    The applicant did not convince the Tribunal that his claims were genuine in view of the combination of his travel to Europe which did not result in him seeking refugee status, and the length of time he waited in Australia before lodging a claim.  The reasons he put forward for delaying his application did not appear genuine to the Tribunal.

    That then is the basic reason why the Tribunal refused the applicant’s claim.  It was a question of credibility.  The concern that the Tribunal obviously had was that if the applicant left Pakistan in 1987 in fear of his life, why then, the Tribunal asked, did he not seek protection in the United Kingdom which he visited twice, Switzerland, France or the Netherlands.  All of those countries are parties to the Refugees Convention.  To my mind, the evidence before the Tribunal did not provide an answer to that, and it was perfectly open to the Tribunal to form that adverse conclusion.’

    CONSIDERATION

11. The appellant’s notice of appeal from the decision of the Federal Magistrates Court complains of that court’s failure to find that the Tribunal made an error of law or a jurisdictional error or that it denied the appellant procedural fairness.  It provides no particulars of these complaints.  The appellant did not comply with a direction made by me on 8 February 2005 that he file an amended notice of appeal providing particulars of his grounds of appeal.

12. The respondent very fairly did not apply to have the appeal dismissed for failure to comply with a direction of the Court (see s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth)). Nor did the respondent contend that the appellant’s submission that the Federal Magistrate erred by not upholding the appellant’s complaint concerning the Tribunal’s failure to give consideration to the appellant’s letter of 2 January 1997 fell outside the ambit of the notice of appeal. I therefore turn to give consideration to whether the Federal Magistrate did err in this regard.

13. It is necessary to set out a significant portion of the letter of 2 January 1997:

    ‘My house is being regularly raided my [sic] members of the parties and more regularly by the Army.

    My mother visited me in June 1996 and returned to Pakistan in August. (Copy of Passport attached).

    On her return the raids have been on a weekly basis and on occasions on a daily basis.

    The members of both the parties belief [sic] that I am back in Pakistan and are looking for me.  The Army also belive [sic] that I am back in Pakistan and have told my family to surrender myself to the Army.  For some reason the Army think that I am carrying unrest in Pakistan and that I organise riots.

    My family have been to [sic] told that my name is on the execution list of the Army.  It may be hard for one to belive [sic] but in Pakistan things of this nature is [sic] common.

    I have been very prominent and vocal while in Pakistan.  I have always belived [sic] in Justice truth and equal rights.  For this reason I have always helped and supported people of other religions in Christians, Hindus and Buddhists living in Pakistan.  Many people dislike me of this reason as Pakistan is not free country.

    All the raids by the Army and the Political parties mean that if I return to Pakistan I will be killed.’

14. In my view the letter of 2 January 1997 is intended to convey that things have significantly worsened for the appellant in Pakistan since he last left that country.  In particular, it appears intended to convey that between June 1996 and the date of the letter his home in Pakistan was being regularly raided on a weekly basis and occasionally on a daily basis.  While it was, no doubt, open to the Tribunal to be sceptical about the truth of the content of the letter of 2 January 1997, it was not an answer to the claims made by the letter that the appellant had travelled in Europe during the 1980s without seeking refugee status and then, after arriving in Australia, delayed for some period before seeking refugee status.  The letter of 2 January 1997 refers to information apparently obtained by the appellant from his mother, or some other person or persons, in about June 1996 and thereafter.  That information concerned events claimed to have occurred in Pakistan well after both the time that the appellant spent travelling in Europe and the time of his arrival in Australia.

15. Short (perhaps) of a finding by the Tribunal that the credibility of the appellant was so poor that it would not accept anything that he said in his own interest, the Tribunal was, in my view, required to give consideration to the claims advanced in the appellant’s letter of 2 January 1997.  Had it accepted the truth of the content of the letter it may have revised its view that the appellant’s claims were not genuine.  Alternatively, it may have accepted that the appellant was a refugee sur place.

16. I conclude that by ignoring the letter of 2 January 1997 the Tribunal failed to give consideration to a material aspect of the claims made by the appellant.  It therefore failed properly to exercise the jurisdiction vested in it by the Migration Act 1958 (Cth) to review the decision of the delegate of the respondent. In my respectful view, the learned Federal Magistrate erred in concluding that, because the decision of the Tribunal was based on its findings as to the appellant’s credibility, the Tribunal was not required to give consideration to the claims advanced by the letter of 2 January 1997.

    CONCLUSION

17. The appeal will be allowed.  The orders of the Federal Magistrates Court will be set aside and the matter remitted to the Tribunal for consideration according to law.

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

Associate:

Dated:             19 April 2005

Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the Respondent:	K Morgan
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	7 April 2005
Date of Judgment:	19 April 2005