SZFTZ v Minister for Immigration

[2006] FMCA 1409

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFTZ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1409

MIGRATION – RRT decision – Pakistani avoiding police investigation – Tribunal found no Convention nexus – application dismissed for absence from hearing – no arguable jurisdictional error – application for reinstatement refused.

Migration Act 1958 (Cth), ss.91R, 424A(1), 425

SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2

Applicant: SZFTZ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 506 of 2005

Judgment of: Smith FM

Hearing date: 12 September 2006

Delivered at: Sydney

Delivered on: 12 September 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr Cox

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The applicant’s application under r.16.05(2)(a) to set aside orders made on 20 July 2006 is refused.

2. The applicant must pay the first respondent’s costs in the sum of $350 in addition to the costs ordered on 20 July 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 506 of 2005

SZFTZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application under r.16.05(2) of the Federal Magistrates Court Rules seeking an order setting aside an order which I made on 20 July 2006. My order dismissed the applicant’s substantive application under r.13.03A(c), due to his absence from a hearing.

2. His substantive application had been filed on 25 February 2005, and sought orders by way of judicial review of a decision of the Refugee Review Tribunal dated 17 March 2004 and handed down on 8 April 2004.  The Tribunal affirmed a decision made by a delegate on 17 October 2003 refusing to grant a protection visa to the applicant on his application made on 30 September 2003.

3. The applicant has had more than ample time to find grounds of review to support his substantive application.  His case was listed before a Registrar in March 2005, and he was there given an opportunity to file an amended application after obtaining free legal advice.  He did file an amended application which I shall refer to below.  His case also was listed before me in August 2005 when the Minister sought summary dismissal.  However, I did not dismiss his case summarily, but allowed his hearing to proceed to a hearing on 20 July 2006.  As I have indicated above, the applicant failed to attend on that day. 

4. His application to set aside the default order was filed on 10 August 2006, and is supported by a brief affidavit which says:

   1.I was suffering from serious fever, that’s why I am unable to attend hearing.  I ring Federal Magistrate court about this matter.

   2.I tried my best to find my medical certificate at home but could not find it.  Is misplace somewhere at home.

5. No supporting evidence for the claim of medical incapacity is provided by the affidavit, nor was tendered today by the applicant.  From the bar table he said, inconsistently with his affidavit, that the doctor had only given him a prescription which he had thrown away.  I am left unpersuaded that he can properly account for his absence from the hearing.

6. However, the Minister’s representative did not wish to cross-examine the applicant, and I consider that there is a clearer reason for me to refuse to set aside my previous order.  This is my opinion that his substantive application has no prospect of success if I allowed it to be reinstated.

7. The applicant’s application for a protection visa was presented without the assistance of an agent and lacked any supporting documents. 

   
   

   The applicant gave a brief account for fearing to return to his country of nationality, Pakistan.  He claimed that some of his friends were involved in selling drugs and had “... been doing robbery as well.”

8. He said that in 2003:

   One guy ... he killed someone and I am eye witness.  They threatened me and I tell them I will tell the police.  Next day (the killer) pay some money to police inspector to wrote FIR against me and they come to my home and I manage to escape.

9. He claimed to have been placed on a police wanted list and to have come to Australia because:

   Police are searching me, once they get me, then they will put me in gaol and I might get gaol forever.

10. The delegate’s reasons for refusing the application was based on a clear finding:

    The harm feared by the applicant is criminally motivated.  It has no nexus with the Convention.  His fear of harm is not for any of the reasons stated in the Convention.

11. When the applicant attended a Tribunal hearing on 15 March 2004, the Tribunal put this issue clearly to the applicant.  Its reasons state:

    The Tribunal then asked the applicant why he considered himself to be a refugee.  The applicant twice told the Tribunal that in the light of the definition of refugee and the Tribunal’s explanation, he accepted that he did not fall within the definition of a refugee and was therefore not a refugee.  The Tribunal repeated the applicant’s response to him three times and he confirmed the correctness of his response, and that he had nothing more to say.

12. The applicant appears to have confirmed to the Tribunal the account of his claims which was in his visa application.  He did not present to the Tribunal any further document or details.

13. The Tribunal’s statement of reasons gives brief ‘findings and reasons’:

    The essence of the Applicant’s claim for refugee status is that he has a well-founded fear of persecution in Pakistan because he was witness to a murder and those who had committed the crime bribed the police to file false allegations against him.

    As I explained to the Applicant at the Tribunal hearing held on 15 March 2004, the central issue in this case is that: even if I accept his story to be true, is there a Convention-nexus to his claims?

    Although given every opportunity to do so, as well as promising (in his primary visa application) to do so, the Applicant did not produce any documents to either the delegate or the Tribunal which would substantiate his claims that F.I.Rs or a warrant for his arrest had been issued in Pakistan. When asked by the Tribunal whether he had any further documents to give the Tribunal, the Applicant said he did not have any and did not offer to produce any at a future time. I am therefore satisfied that he has no such documents. Moreover, in the light of his answers in his primary visa application relating to criminal charges pending etc., I am satisfied that no such documents exist.

    In the light of his uncorroborated and unsubstantiated claims; the lack of detail and general vagueness of his story in his primary visa application; the ease with which he legally obtained a passport and departed Pakistan; and the lack of impediment in his recent application for another passport, I am not satisfied that the Applicant’s story that he is wanted by the police in Pakistan because he has (albeit falsely) been accused of murder is plausible. Neither do I believe the claim made in his application for review that “his life is in danger with government parties in Pakistan” as he neither made this claim in his primary visa application nor repeated it to the Tribunal at the Tribunal hearing.

    However, as I pointed out to the Applicant at the Tribunal hearing, (and the Applicant accepted) even if his story about being a witness to a crime and being wrongly accused of committing it were to be believed, there is no Convention nexus to this claimed fear of persecution. The Applicant accepted that he does not fall within the definition of a refugee.

    After careful examination of the evidence before me, I am satisfied that the Applicant has never suffered persecution in Pakistan for a Convention-related reason, and does not a well-founded fear of so suffering in the reasonably foreseeable future.

14. I discussed with the solicitor for the Minister whether the Tribunal’s reference to the applicant’s “answers in his primary visa application relating to criminal charges pending, etc” gave rise to obligations on the Tribunal under s.424A(1) of the Migration Act 1958 (Cth).

15. It is unclear whether this reference formed any part of the Tribunal’s reasoning, but it possibly explains the Tribunal’s reference in the following paragraph to “his uncorroborated and unsubstantiated claims” which informed part of the Tribunal’s doubts about the applicant’s credibility.

16. However, in my opinion, the Tribunal’s reasons undoubtedly presented an independent basis for its decision on the assumption that his story was to be believed (c.f. SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [233]). That basis was that it did not reveal a Convention “nexus”. In that respect I can see no misapprehension of the applicant’s claims, nor of the definition of ‘refugee’ which the Tribunal was obliged to apply.

    
    

    I therefore can see no arguable jurisdictional error affecting the Tribunal’s ultimate decision to affirm the delegate’s decision.

17. The applicant’s original application in this Court made unparticularised claims of denial of procedural fairness, error of law and failure to consider claims.  I am unable to give these any substance. 

18. His amended application filed on 28 June 2005 contained six paragraphs under the heading, “Grounds of Review”. The first paragraph does not allege any identified jurisdictional error. 

19. The second paragraph challenges the relevance of the Tribunal’s reference to the applicant’s application to renew his passport, when explaining why it was not satisfied that the applicant’s story was plausible.  However, I do not consider that this reference was to an irrelevant consideration, and in any event as I have indicated above it occurs in a part of the Tribunal’s reasons which can be put to one side.

20. Paragraph three of the amended application appears to challenge the fairness of the Tribunal’s putting to the applicant that he had not made a Convention claim. However, I can see nothing unfair in the Tribunal doing that. The applicant was also put on notice of that problem by the delegate’s decision, and I can see no arguable basis that he was denied the opportunity required to be given under s.425 of the Act, if this is the implication.

21. Paragraph four of the amended application makes an obscure reference to s.91R of the Migration Act, but I can see no arguable ground that the Tribunal misapplied that provision.

22. I find similarly in relation to the reference in paragraph five to a failure “to apply s 91S”.  I cannot see the relevance of that section to the Tribunal’s decision or the applicant’s claims.

23. Paragraph six of the amended application claims that “the Tribunal ignored and misunderstood the applicant’s evidence” that he was trying to obtain documents.  However, the Tribunal’s reference to the absence of documents was, in my opinion, based upon reasoning which was open to it.  Additionally, as I have indicated above, it occurred in a part of the Tribunal’s reasoning which can be put to one side due to the separate basis for its conclusion.

24. The applicant today had no argument to present to show any arguable jurisdictional error affecting the Tribunal’s decision.  After considering all the material before me, I am not persuaded that there is any purpose in allowing his case to be reinstated for a further hearing, and I therefore refuse the application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  21 September 2006