SZGZL v Minister for Immigration and Multicultural Affairs

[2007] FCA 601

FEDERAL COURT OF AUSTRALIA

SZGZL v Minister for Immigration and Multicultural Affairs [2007] FCA 601

SZGZL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 2214 OF 2006

ALLSOP J
2 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2214 OF 2006

BETWEEN:

SZGZL
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	2 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Time be extended to file a notice of appeal in the form of the draft notice of appeal provided to the Court under cover of an email from counsel dated 15 March 2007.

2.The formal filing of such notice of appeal be dispensed with and the said draft notice of appeal stand as the notice of appeal.

3.The appeal be dismissed.

4.The appellant pay the first respondent’s costs including the costs of the application to extend time for the filing of a notice of 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 2214 OF 2006

BETWEEN:

SZGZL
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE:	2 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application to extend time for the filing and serving a notice of appeal from orders made by the Federal Magistrates Court made on 12 October 2006 dismissing the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 29 June 2005 to affirm a decision of a delegate of the respondent Minister made on 4 February 2005 to refuse a protection visa to the applicant.

2. The applicant sought to file his notice of appeal in the Registry six days out of time.

3. The application came before me on 15 February 2007.  At that time, there was a handwritten draft notice of appeal and two affidavits that had been filed by or on behalf of the applicant.  One of those affidavits (filed 30 November 2006) sought to explain the confusion as to filing and the applicant’s belief, based on what he had been told by “friends”, that he had 28 days to appeal.  In fact, of course, he had 21 days.  Another affidavit (filed 8 November 2006) sought to explain the complaint of the applicant with the decision of the Tribunal.  It did so in terms that were substantially identical with the handwritten draft notice of appeal, as follows:

   In the hearing with the Refugee Review Tribunal, I was asked questions and answered these questions directly and truthfully.  During this hearing I was never told that I had not given sufficient [details] for my risk to be properly assessed as being a refugee.

   During the hearing, the Refugee Review Tribunal claimed that my circumstances were good and there was no problem in Pakistan.  However, this is not the situation as there are people in my situation who have been arrested on trumpeted [sic] up charges.  The Refugee Review Tribunal has not looked at my claims in relation to the historical truth of the situation in Pakistan.

   After, the hearing with the Refugee Review Tribunal, I supplied evidence in relation to my matter as requested by the Refugee Review Tribunal.  However, in the Decision Record, the Refugee Review Tribunal claimed that my claims were not substantiated and accordingly must not have considered my documents.

4. On 15 February 2007, I also had before me a set of directions that had been made by a Deputy District Registrar on 16 November 2006; the directions had been made in chambers and sent to the parties by mail.  Amongst other things, these directions called for the filing and serving of a draft notice of appeal setting out particularised grounds of appeal within ten days and for the filing and serving of written submissions, if any, no later than five working days before the hearing.

5. By 15 February 2007, no further draft notice of appeal and no written submissions had been filed.  The first respondent, had, however, filed (on 23 January 2007) careful and full submissions on why the applicant’s application should be refused.  In those submissions, the Minister did not take any particular issue about the short (six day) period by which the applicant was out of time.  The Minister’s submissions were principally directed to demonstrating that the appeal (if an extension were granted) was bound to fail.  So, it was said, there should be no extension.

6. On 15 February 2007, I was concerned that the applicant did not understand that the primary task for him was to persuade the Court that there was utility in granting the extension of time – in other words, that there was any basis to consider that his appeal had any prospect of success.  The Court directions had not made that clear.  An informed reading of the Minister’s submissions would have made it clear, but the applicant was without legal representation.  On 15 February 2007, the experienced solicitor for the Minister told me that he shared my concern.  For that reason, he, very properly, made no objection to the course that I took on 15 February 2007.

7. On 15 February 2007, I made clear to the applicant, through an interpreter, that on the material before me I could see no ground of appeal having any prospect of success and so I could see no utility in any appeal.  I emphasised to him that explaining the six day delay was not his problem, rather the need to disclose an arguable point was his problem.  A migration agent was in the courtroom and put some submissions on the applicant’s behalf.  (Though he had not sought formally to appear for the applicant.)

8. In an attempt to ensure that the applicant had an opportunity to put any conceivable ground of appeal forward that was legitimately open, I made directions on 15 February 2007, at the conclusion of the hearing, as follows:

   1.On or before 1 March 2007 the applicant file and serve:

   a.   any affidavit deposing to facts and annexing documents said to be relevant to the application;

   b.   full written submissions on the merits of the appeal, should time be extended. 

   2.On or before 15 March 2007 the first respondent file and serve any further written submissions on the application and on the appeal should time be extended.

   3.The application stand over for hearing to Monday 26 March 2007 at 2.15 pm on the understanding that if time be extended the appeal will be heard on that day.

   4.Costs of today be costs reserved.

9. As a single Judge of the Court, I am authorised by s 25(1AA)(a) to exercise the appellate jurisdiction of the Court to hear the appeal should I extend time.

10. On 15 March 2007, there was sent to my chambers (with a copy to the Minister’s solicitors) a fresh draft notice of appeal and an outline of the applicant’s submissions.  These were drawn by Ms Walker, of counsel.  In answer to these, the first respondent filed further submissions dealing with this further material drawn by Mr Lloyd, of counsel.  I am indebted to both counsel (and Mr Lloyd’s solicitors) for their careful attention to the relevant issues.

11. The Minister’s position is that time should not be extended because (a) the new draft notice of appeal raises grounds not argued below and for which fresh evidence would be required, (b) no application to file fresh evidence has been made, (c) if it were, it would be refused and (d) there appears to be no prospects of success of the points in any event.

12. The appeal was argued on 26 March 2007.  Ms Walker appeared for the applicant.  The argument was presented on the basis that had been foreshadowed in the directions made on 15 February 2007 – full argument on the appeal took place for the two purposes of considering whether time should be extended, and, if it were to be, of considering the appeal.

13. Ms Walker accepted that I need only deal with the submissions put in writing by her on 15 March 2007 as elaborated upon by her orally at the hearing of the appeal.

14. The applicant is a Pakistani national who was born on 10 January 1978.  He arrived in Australia on 6 November 2004 and on 14 December 2004 lodged an application for a Protection (Class XA) Visa.  His claims for protection under the Refugees Convention were set out in a lengthy typed statement that was before the delegate and the Tribunal.

15. The applicant claimed to have been the Area Vice President of the Pakistan Muslim League (the “PML’) in the Bounken area, Sialkot in Pakistan.  He was appointed to this position on 17 May 1999 by the Area President Mr Ghazanfar Ali who had some influence with Mr Mian Shahbaz Sharif, the former chief Minister of Punjab Province, who was the brother of the former Prime Minster Mian Nawaz Sharif.  The statement then discussed in some detail the construction of a road in the Bounken area.  The applicant claimed to be involved in the selection and appointment of contractors to build the road and in the obtaining of permission for the road to be built.

16. The applicant said that Bounken was a poor area in need of this road as an important piece of infrastructure.  When work commenced nearby householders objected and obtained a court order staying the construction pending a final hearing.  The contractor, apparently, ignored the stay order.  The applicant claimed that the builder, Mr Ghazanfar Ali and the applicant were arrested for contempt of court.  The applicant stated that the builder said that his former wife was the sister of the judge.  The three were remanded in custody for over two weeks.  The applicant claimed to have been beaten and tortured while they were in gaol.  He then said that he was released on bail.  The statement then described events in 2003 concerning the murder in prison of some visiting judges.  Apparently the head of the construction company was charged with murder.  The applicant claimed that he was implicated because of his association with the head of the construction company.  He claimed that this had occurred because of his membership of the PML.

17. The delegate, after describing the claims of the applicant, stated the following:

    The applicant stated that he was implicated in the murder of two judges which occurred in July 2003.  The applicant implied that he was linked in this case because the government wanted to eliminate persons like him who had links with the PML.  However, had the applicant been suspected of such a serious case which happened in July 2003, the action against him should have been done much sooner.  Besides, I do not accept that he would be allowed to leave Pakistan in November 2004 if there ware lingering suspicion that he was involved in the murder of the two judges.  The applicant’s claim that the police visited his house after he left Pakistan looks implausible.  I do not accept that the police would act against a suspect in a celebrated murder case more than one year after the event happened.  I therefore do not accept that the applicant will face persecution on return to Pakistan in the form of a fabricated murder case made against him.

    The applicant states that he fears being persecuted by the current government on account of his membership of the Pakistan Muslim League in the past.  Whilst I accept that the current government has arrested several ranking PML leaders in the past including a leading oppositionist named Makhdoom Javed Hashmi (refer to B6) in 2003, there is no information to indicate that the arrest of PML leaders was followed by arrest and detention of PML members and supporters.  There is no credible information to indicate that the current government has engaged in a systematic persecution of its political opponents.  I therefore have doubts as to the credibility of the applicant’s claim that he was harassed and targeted because of his involvement with the Pakistan Muslim League.

    …

    The applicant’s ability to leave Pakistan without any difficulty indicates that he was not of interest to the authorities when he left Pakistan.  His membership of the PML has not resulted in him being targeted by the current regime in Pakistan.  I therefore do not assess that he will be targeted for persecution should he return to that country.  His fear of persecution has no basis.

18. An outline of the reasons of the Tribunal are recorded in [5] of the reasons of the Federal Magistrate, as follows:

    …

    1)Accepted that the applicant was the Area Vice-President of the PML in his home area (Bounken area in Sialkot) in Pakistan (CB 94.3).

    2)Accepted that the applicant’s position as Vice President of PML and secretary of the Bounken Welfare Society gave rise to his involvement in certain road works in the area (CB 94.4).

    3)Accepted that the conflict that arose over the road construction works gave rise to an escalating series of events including various court proceedings, a court order to stay the road works, and police investigations, which may have involved a raid on his house, his arrest and detention (CB 94.5).

    4)Considered it plausible that the applicant’s business partner was in a Sialkot prison at the time of a riot resulting in the deaths of judges and prisoners (CB 94.6).

    5)Was unconvinced that the applicant’s business partner was implicated in this riot, or that he himself was implicated through his business partner. It found the applicant’s evidence in this respect to be “unsubstantiated and far-fetched” (CB 94.7).

    6)As discussed with the applicant at the hearing before it, was unable to discern a Convention nexus in these events (CB 94.8).

    7)Noted that the applicant’s evidence before it provided little detail as to his political profile, activities, or motivations in respect of his claimed experiences of past harm, or fear of harm (CB 94.9 to CB 95.1).

    8) Noted further that, in oral evidence given to the Tribunal, the applicant did not suggest any Convention reason in respect to past experiences of his fear of arrest by the Pakistani authorities on his return (CB 95.2).

    9) Did not accept that the harm which the applicant claimed to have experienced in the past, or the harm he claimed to fear in the future (in regard to the road construction incident) was essentially, or significantly, for reason of his political opinion and/or membership of the PML (CB 95.5).

    10)Did not accept that the applicant would face harm on his return to Pakistan by reason of his association with the PML given that he did not face arrest in the past by reason of the position he held with the PML and his political affiliation (CB 95.7).

    Having considered the evidence as a whole the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason if he were to return to Pakistan.

19. The grounds of appeal are contained in the amended draft notice of appeal put forward by Ms Walker in the form annexed to these reasons.

20. For the reasons that follow I do not think that these grounds can be made out.  The Tribunal accepted that the applicant was an Area Vice President for the PML.  It accepted that partly as a result of this he became involved in the undertaking of road works, that a conflict arose about this which led to litigation, as a result of which there was a brief period of detention.  The Tribunal also accepted that there was a riot that led to the deaths of judges and prisoners.  What the Tribunal did not accept, and it was a question of fact for it, was that there was any relevant Convention connection in these events.

21. The Tribunal noted that there had been a change of government in 1999 and that the applicant had not faced harm at that time or since.  The Tribunal was not persuaded that the applicant was at risk of harm in the future.

22. There is no direct evidence of what was said at the Tribunal hearing.  No application was made to receive fresh evidence.

23. From the available reasons of the Tribunal it is apparent that the Tribunal did raise with the applicant its concern about a lack of Convention nexus.  Though not entirely clear, it also appears that the Tribunal questioned the applicant about his membership of the PML.

24. Having read and considered the delegate’s reasons and the Tribunal’s reasons, there does not appear to be any issue upon which the Tribunal decided the matter which diverged in any real way from the broad approach of the delegate.

25. I do not consider that there is a basis to conclude that the Tribunal denied the applicant procedural fairness in the way outlined in the draft notice of appeal and as argued by Ms Walker.  On this basis, I could simply refuse the application for an extension of time in which to file a notice of appeal.  Given, however that I have heard full argument, I think the appropriate course is to deal with the appeal.

26. Therefore, the orders that I make are as follows:

    1.Time be extended to file a notice of appeal in the form of the draft notice of appeal provided to the Court under cover of an email from counsel dated 15 March 2007.

    2.The formal filing of such notice of appeal be dispensed with and the said draft notice of appeal stand as the notice of appeal.

    3.The appeal be dismissed.

    4.The appellant pay the first respondent’s costs including the costs of the application to extend time for the filing of a notice of appeal.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:
Dated:       2 May 2007

Counsel for the Applicant:	Ms N Walker
Counsel for the Respondents:	Mr S Lloyd
Solicitor for the Respondents:	Sparke Helmore
Date of Hearing:	26 March 2007
Date of Judgment:	2 May 2007

ANNEXURE A