SZFOM v Minister for Immigration and Multicultural Affairs

[2006] FCA 1795

FEDERAL COURT OF AUSTRALIA

SZFOM v Minister for Immigration and Multicultural Affairs & Anor
[2006] FCA 1795

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 222 ALR 411

SZFOM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

NSD 1466 OF 2006

DOWNES J
13 DECEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1466 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFOM
Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE OF ORDER:	13 DECEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Appeal dismissed with 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 1466 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFOM
Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE:	13 DECEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

DOWNES J:

1. The appellant is a Pakistani citizen whose parents originated from the disputed territory of Kashmir.  He arrived in Australia on 16 November 2003.  His application for a protection visa was refused on 20 February 2004.  The Refugee Review Tribunal confirmed that decision on 17 December 2004.  On 24 January 2005 the appellant applied to the Federal Magistrates Court for judicial review of the decision of the Refugee Review Tribunal.  Federal Magistrate Raphael dismissed the application on 17 July 2006.  The appellant appeals to this court.

2. The appeal was originally listed for hearing on 21 November 2006.  On 17 November the appellant sent a letter to the court seeking an adjournment because of “back pain.”  He said he could not stand up and walk.  The letter was accompanied by a WorkCover New South Wales medical certificate given by Dr Sarjit Jassal saying he was unfit to work from 15 November to 18 November 2006.  On 20 November the appellant sent the court a medical certificate signed by Dr Jassal saying that for the next two to three weeks he would be unable to attend any court matter.

3. Before the appointed date was reached, the hearing was vacated and rescheduled for 10.15 am today.  Yesterday, the appellant again sought an adjournment for a further one month.  He furnished a further certificate from Dr Jassal saying that he would be unfit for court during that period.  In his first certificate, Dr Jassal said that the appellant sustained an injury with severe pain on 15 November 2006 while lifting.  His second certificate referred to a severe injury of his low back.  The most recent certificate does not give any details.

4. In a letter accompanying the latest certificate, the appellant refers to back pain.  He says “Now doctor refer me to specialist doctor and he will come in Lakemba Medial [I think he meant Medical] Centre on 14.12.2006 for examine me [sic]”  It seems to follow from this that Dr Jassal has not previously considered it necessary to refer the appellant to a specialist and that tomorrow the appellant will go to see a specialist at the Lakemba Medical Centre.  That suggests a certain degree of mobility.

5. I note the following statement in the reasons of the Refugee Review Tribunal in this matter, referring to delays which had occurred in the appellant obtaining documents supporting his claim.

   ‘Given this information and taken together with the continual requests for postponements before the application was heard in October 2004 I can only conclude that the applicant wished to delay the resolution of his matter’.

6. I was not prepared a second time informally to vacate the hearing date in this matter without persuasive medical evidence addressing the appellant’s position in detail.  The appellant was accordingly informed that the matter would proceed today unless a further application supported by such evidence was made.  When the matter was called on for hearing this morning, there was no appearance for the appellant.  However, a friend of his appeared and produced an envelope.  I opened the envelope and discovered that it contained two documents.

7. The first document is a handwritten letter from the appellant to which is attached the second and third of the three medical certificates to which I have just referred.  The handwritten letter from the appellant sought an adjournment of the matter.  The second document in the envelope was a two and a half page document containing written submissions on behalf of the appellant. 

8. I do not think that it is appropriate for me to grant an adjournment.  I note that the medical certificates accompanying the letter from the appellant are simply medical certificates which the court already has before it and which caused me, when consulted about the possibility of an informal adjournment being granted yesterday, to decline that adjournment.  In all the circumstances it seems to me that the appropriate course is for the appeal to proceed.  I bear in mind in coming to this conclusion some of the remarks I will make when dealing with the substance of the appellant’s appeal.

9. The appellant is a university educated businessman who, apart from overseas business trips, has lived in Pakistan all his life.  He is married with three children.  His wife and his children continue to live in Pakistan.  The appellant claims to have a well-founded fear of being persecuted for reasons of political opinion and race.  He claims to fear persecution from the intelligence and security authorities of the Pakistani Government because he was an active member and office bearer of the Jammu and Kashmir Liberation League.

10. The Refugee Review Tribunal did not accept that the appellant was ever an office bearer of the JKLL.  For reasons it explained, it gave no weight to documents the appellant relied upon to support the claim.  The Tribunal did not accept that the appellant was detained or tortured because of a role within the JKLL.  Again, it gave no weight to documents relied upon as supporting the claims of detention and torture.  The Tribunal additionally found that Pakistani authorities had no adverse view of the JKLL and did not target members as it was essentially a non-violent organisation.

11. The Tribunal summarised some of its major findings as follows:

    ‘I have found that the applicant was not an office bearer of the JKLL and that he did not suffer any mistreatment at the hands of Pakistani authorities before his arrival in Australia.  I also do not accept that the applicant has a genuine fear of persecution’.

12. No cogent ground of appeal appears from the notice of appeal.  The material there set out merely asserts that the Tribunal made the wrong findings of fact.  It does seek to base the claim on ‘race and nationality’ as well as ‘political thoughts’; but that is the basis upon which the Tribunal assessed the claim, namely, that the appellant, whose family origins were in Kashmir, supported Kashmiri independence.  There was no separate claim based merely upon the appellant’s Kashmiri origins, nor any suggestion that Kashmiri origins alone could give rise to any fear of persecution.  In any event, the findings of the Tribunal answered any such claim to the extent that it was made. 

13. It will be apparent from the fact that I have been able to give my reasons for decision so far without the need to reserve my decision that I took the trouble of reading carefully the decisions of the Refugee Review Tribunal and the Federal Magistrates Court before coming to the hearing.  I did this because the appellant was likely to be unrepresented and it seems to me appropriate to adopt that course in cases where there is no representation for a party because there is a higher obligation in those circumstances on the court to be satisfied it understands the potential issues in the appeal.

14. I saw the written submissions I referred to earlier only when I opened the envelope produced on behalf of the appellant.  I accordingly took the course of adjourning to enable me to read those submissions with care.  It seems to me that the submissions broadly raise issues of fact alone and I will make some observations in a moment about the role of this court so far as findings of fact are concerned.  When I turned my mind to the question of whether there was something which might amount to an error of law which established jurisdictional error, I found only two matters that should be considered.  The first was an assertion that the Tribunal did not satisfactorily investigate the case itself.  The second was a claim that an apparent refusal of an adjournment to enable further documents to be procured amounted to a denial of natural justice.

15. So far as the first matter is concerned I am conscious of the fact that in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 222 ALR 411 at 419 (para [26]), the High Court of Australia, for the first time, suggested that there are occasions when Administrative Tribunals might have an obligation to inquire. It is not clear that the court actually, in its decision in that matter, was suggesting that a positive obligation to make discrete inquiries in fact existed but there is at least the possibility that that was the court’s view. That is the first occasion in which an Australian court has suggested that there might, in some circumstances, be such an obligation. However, when I look at the facts in this case revealed by the material in the appeal book, it seems to me that even if there can in some circumstances be an obligation to make some inquiry, this is not such a case.

16. I have referred above to a passage in the decision of the Refugee Review Tribunal relating to requests for postponements.  An examination of the papers in the appeal book show that, in the present case, there were very many applications for postponements, nearly all of which were successful.  One of these applications, made by a letter dated 31 May 2004, was on the ground of illness.  The other applications seem to have been on the ground that the appellant wished to procure further documents.  I will not catalogue the adjournments.  It is sufficient to say that there were a number of them and to my mind, along with the Refugee Review Tribunal, they gave the appellant every opportunity to procure the material he wished to procure in support of his case.  I note that further material was in fact filed with the Tribunal after the hearing had concluded pursuant to a letter from the Tribunal dated 14 October 2004 giving a further three weeks to submit documents and I further note that the Tribunal dealt with those documents in its decision.

17. The Tribunal having given the appellant every opportunity to procure material supporting his case, this does not seem to me to be a case in which it could be suggested that the Tribunal had any obligation to make any inquiries of its own.  It seems to me, notwithstanding the remarks of the High Court in Applicant VEAL of 2002, that it will be a very rare case in which a Tribunal such as the Refugee Review Tribunal has a positive obligation to make inquiries and there still remains a question to my mind as to whether the High Court in the words it used in that decision was really intending to suggest that there are circumstances in which such a positive obligation might arise.

18. The matter I have just referred to deals also with the second matter raised in the written submissions on behalf of the appellant, namely that he was denied natural justice because of his inability to provide in time yet further material.

19. The system of refugee law in Australia, as determined by the Parliament of Australia, gives refugee claimants two independent opportunities to make out their claims on the facts and merits.  The first is to the Minister for Immigration and Multicultural Affairs, generally through her delegate.  The second is to the Refugee Review Tribunal.

20. The Tribunal is in no way bound or influenced by the decision of the delegate.  Applicants can start all over again before that Tribunal.  However, the appeal from the Tribunal is not an appeal from the Tribunal’s findings of fact, unless there has been an error of law, or more accurately, jurisdictional error.  The system of refugee law in Australia gives the two opportunities I have referred to, to present a case on the facts and gives an appeal in the case of jurisdictional error, but does not give a third or later opportunity to revisit the facts unless there has been some jurisdictional error.

21. I do not consider that there was any error of law or jurisdictional error in this case and as the Tribunal’s findings relating to persecution are not appealable, they must stand.  It is not open to this court to reconsider the issues of fact that were before the Tribunal and to redetermine them for itself.  For all these reasons, the appeal must be dismissed and will be dismissed with costs.

    I direct that my decision be not entered for seven days.

I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

Associate:

Dated:        13 December 2006

No appearance by the appellant
Counsel for the Respondent:	Ms D Watson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 December 2006
Date of Judgment:	13 December 2006