SZFVE v Minister for Immigration and Multicultural Affairs

[2006] FCA 1008

FEDERAL COURT OF AUSTRALIA

SZFVE v Minister for Immigration & Multicultural Affairs [2006] FCA 1008

SZFVE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

No NSD 767 of 2006

FINN J
4 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 767 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFVE
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FINN J
DATE OF ORDER:	4 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal. 

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 767 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFVE
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FINN J
DATE:	4 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a decision of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal refusing an application for a protection visa under the Migration Act 1958 (Cth).

2. The appellant, a Pakistani national, is not legally represented.  His Notice of Appeal is uninformative and unparticularised.  It alleges first that the Federal Magistrate “wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution” and by so doing “made denial of natural justice and therefore committed jurisdictional error”;  and secondly, the Tribunal “failed to follow proper procedure in accordance with the law and procedure and thereby committed jurisdictional error”.  Though directions were given as to the filing of written submissions, none have been filed by the appellant.  He nonetheless made oral submissions at the hearing of this appeal to which I will refer below.

   THE TRIBUNAL’S DECISION

3. The appellant’s claim was that he was a member of a faction of the MQM Party in Pakistan;  that he was attacked and kidnapped by members of an opposing political party or faction;  and that he could not get protection from the authorities or police, hence he left Pakistan.  He claimed he will be killed by the opposing party members if he returns to Pakistan. 

4. In reasons which bordered on the unduly brief, the Tribunal rejected the appellant’s application.  It accepted that (i) he was a member of a faction of the MQM Party and that he carried out activities and worked for that party;  (ii) there was inter-party violence between different political factions/parties in Karachi;  and (iii) the applicant was attacked on two occasions in or before 1998 and was kidnapped and detained for a day in March 2000 by political opponents.

5. The Tribunal did not accept that the appellant left Pakistan and cannot return there because he feared, and fears, he will be harmed because of political opinion.  The reasons for this rejection was that:

   “… on his own evidence the applicant lived in Karachi for over four years before coming to Australia, and he has worked in a clothing business for 5-6 months during that time, without a serious incident occurring.  Although the applicant said that he lived like an animal during that time he gives no evidence of further incidents occurring after he returned to Karachi at the end of 1999. The applicant states that he moved around within Karachi and was in hiding after he returned to Karachi at the end of 1999 until he left his country in 2004 but in the Tribunal’s view the length of time that the applicant says he stayed/lived in each area is not consistent with the applicant’s claim that he was in hiding during this time.  The shortest time he stayed in an area was one year and the longest time was two – two and a half years.  Also although the applicant said that he stayed at the clothing factory where he worked sometimes, he also said that he returned to his family home regularly and this was occurring until he left to come to Australia.  The Tribunal does not accept that the applicant was in hiding when he lived in Karachi from the end of 1999 until he came to Australia.  The Tribunal finds that the applicant lived safely in Karachi during that time and there is no plausible evidence that he would not continue to do so if he returned to Pakistan.”

6. Accordingly it concluded there was no persuasive evidence before it to enable it to conclude that there was a real chance that the appellant would face serious harm for a Convention reason either presently or in the reasonably foreseeable future if he returned to Pakistan. 

   THE FEDERAL MAGISTRATE’S DECISION

7. As is the case on this appeal, the Federal Magistrate was confronted with an application that was not particularly helpful.  It had two grounds.  The first ground of the application before the Federal Magistrate alleging jurisdictional error appears from its particulars to be based on the misconception that a finding in relation to a degree of past incidents must necessarily lead to a conclusion that a well-founded fear of persecution exists.  That ground was dealt with by the Federal Magistrate properly on the basis that incidents that had occurred up until the year 2000 did not of themselves show that the appellant had a well-founded fear of persecution in January 2005 were he to return to Pakistan.  There was evidence for the Tribunal’s conclusion to that effect which was reflected in its finding as to the appellant’s continued residence in Karachi from 2000.  The appellant equally challenged the inference the Tribunal drew that he was able to live with safety in Karachi in that period.  Clearly the Federal Magistrate accepted that there was ground for making this factual finding, the finding itself was not subject to judicial review. 

8. The second ground of the appellant’s application to the Magistrate was a blurring of allegations concerning s 430 of the Migration Act (relating to how the Tribunal was to record its reasons) and an allegation of illogicality in the decision. The Federal Magistrate found again, correctly, that the Tribunal complied with the obligations imposed on it by s 430 as also that the Tribunal’s decision was based on evidence that would allow it to reach the conclusion it did, hence it was not illogical. I would add that to the extent that complaint is made of the Tribunal’s failure to refer to uncontroversial evidence in its reasons relating to his father’s death, it is misconceived. The Tribunal was under no obligation to refer to that evidence: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79]. Accordingly, the application was dismissed.

   THE PRESENT APPEAL

9. I am satisfied that no appealable error has been disclosed in the Federal Magistrate’s decision.  The essence of the appellant’s complaint seems to relate to the Tribunal’s findings that he had been kidnapped and persecuted but nonetheless thereafter that he lived with safety in Karachi. 

10. In his oral submissions the appellant challenged this finding.  In so doing he attempted to advance a factual case that differed significantly from that put to the Tribunal especially as it was revealed in the transcript of the hearing.  The appellant’s submissions were in substance designed to secure no more than merits review of the Tribunal’s decision with which he expressed dissatisfaction.  I would have to say that much in his submissions was falsified by what he said and agreed to at the Tribunal hearing.  I emphasise in this that his submission in this Court alleged that the Tribunal member misrepresented his evidence.  That allegation should never have been made. 

11. While it can be said that the Tribunal was economical in the reasons for its conclusions relating to the appellants being safe in Karachi, that finding clearly was open to it on the material before it.  In those circumstances the conclusion falls squarely within the proper domain of the Tribunal as a fact finding body.  It cannot itself in the circumstances be the subject of judicial review.

12. Having regard to the fact that the appellant is unrepresented, I have considered for myself whether or not either the Tribunal’s decision betrays a jurisdictional error and whether any error is apparent in the decision of the Federal Magistrate.  I am satisfied that a negative answer must be given in each instance. 

13. Accordingly, I will order that the appeal be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn J.

Associate:

Dated:        4 August 2006

Counsel for the Appellant:	The Appellant appeared in person.
Solicitor for the Respondent:	Mr A Cox
Date of Hearing:	4 August 2006
Date of Judgment:	4 August 2006