SZGZM v Minister for Immigration and Citizenship
[2007] FCA 701
•14 May 2007
FEDERAL COURT OF AUSTRALIA
SZGZM v Minister for Immigration & Citizenship [2007] FCA 701
SZGZM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 408 OF 2007EDMONDS J
14 MAY 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 408 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZGZM
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
14 MAY 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s 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 408 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZGZM
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE:
14 MAY 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal from the Federal Magistrates Court (Cameron FM) dismissing an application for review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) refusing an application for a protection (class XA) visa.
BACKGROUND
The appellant, a citizen of Pakistan, arrived in Australia on 25 October 2004 and applied for a protection (class XA) visa on 30 November 2004. On 9 March 2005 a delegate of the Minister refused the application. On 5 April 2005 the appellant applied to the Tribunal for a review of the delegate’s decision.
The Tribunal, as first constituted, affirmed the delegate’s decision. On 30 March 2006 that decision was set aside by Federal Magistrate Emmett and the matter remitted to the Tribunal.
The Tribunal, as subsequently constituted, invited the appellant to attend a hearing on 8 September 2006. The appellant attended the hearing on that day. By letter dated 8 September 2006, the Tribunal wrote to the appellant inviting him to comment on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision of the delegate. The appellant did not respond to that letter.
THE APPELLANT’S CLAIMS
The appellant claimed to have a well-founded fear of persecution for his membership of the political party the Pakistan Muslim League (Nawaz) (‘the PML(N)’). The appellant claimed to have become a member in 2001 and to have been the deputy president of one of their branches. The appellant claimed that a ‘First Information Report’ (‘FIR’) was registered against him by the police on 12 May 2004. The appellant also claimed that he was on a hit list of secret agents of Musharraf.
IN THE TRIBUNAL
The Tribunal expressed doubts about the truth of the appellant’s claims and it indicated that it had ‘good reasons for doubting that the applicant is telling the truth’. Those reasons were as follows:
(a)the appellant claimed the FIR, which was dated 12 May 2004 and presented to the Tribunal, was registered against him to prevent him going to welcome Nawaz Sharif’s brother, Shahbaz Sharif. This was inconsistent with the fact that according to press reports Shahbaz Sharif attempted to return to Pakistan on 11 May 2004;
(b)the inconsistency between the appellant’s protection visa application, in which the appellant stated that he had been arrested, and his oral evidence given to the two Tribunal hearings at which he said that he had not been arrested;
(c)the inconsistency regarding the appellant’s claim to have been in hiding. On the one hand, the appellant said that he continued working up until his departure from Pakistan and, on the other hand, he stated that he was in hiding from May 2004 until his departure from Pakistan;
(d)the appellant’s return to Pakistan on a passport in his own name. This fact cast doubt on the appellant’s claim to be wanted by the authorities and would be ‘eliminated’ if he were to return to Pakistan;
(e)the fact that the appellant claimed that the PML(N) candidate Khawaja Asif had lost the election whereas, in fact, Mr Asif had won and had been elected to the National Assembly; and
(f)country information which indicated that, whilst there had been harassment of PML(N) members in 2002, such harassment had decreased, the public was free to discuss issues and that, while leaders may have problems, activists and party members do not.
The Tribunal did not accept that the documents submitted by the appellant were genuine because independent country information indicated that document fraud in Pakistan was frequent and the Tribunal had doubts about whether the appellant was telling the truth. The two letters, which purported to be from the vice-president of the PML(N) in District Sialkot and from the appellant’s parents, were in the same typeface and contained identical phrases.
The Tribunal concluded that it did not accept that the appellant was telling the truth or that his documents were genuine and it rejected the totality of his claims. It concluded that the appellant did not face a real chance of being persecuted for reasons of his real or imputed political opinion or for any other Refugees Convention reason, now or in the reasonably foreseeable future, if he were to return to Pakistan.
IN THE COURT BELOW
The appellant’s application for review raised three grounds alleging procedural error:
1.The Tribunal asked the wrong question when examining the FIR by asking the appellant’s opinion of the report and not how it affected the appellant’s fear and risk.
2.The Tribunal did not look at the difference between the FIR and criminal charges and seemed to believe they were one and the same.
3.The Tribunal did not examine the risk to, nor whether any harm came to, people who met or attempted to meet Shahbaz Sharif on his attempted return to Pakistan on 11 May 2004.
His Honour found that the Tribunal did not ask a wrong question in relation to the FIR. Further, his Honour found that the Tribunal’s finding that the FIR was not a genuine document had evidentiary support.
To the extent that the appellant alleged that the Tribunal erred in failing to make enquiries about the FIR, his Honour correctly found that there was no duty on the Tribunal to enquire. His Honour also correctly found that the Tribunal did consider the difference between the FIR and criminal charges.
His Honour found that the Tribunal considered whether the appellant would face persecution by reason of his alleged connection with, and support of, Shahbaz Sharif. There is no error in his Honour’s finding in this regard, or at all.
THE APPEAL TO THIS COURT
The appeal was listed for hearing on Friday, 11 May 2007. Both parties were notified by the Court of this listing by letter dated 5 April 2007 and, in the case of the appellant, the letter was sent to his recorded address for service. When the matter was first called for hearing, there was no appearance by or on behalf of the appellant. The Minister appeared by his instructing solicitor. I stood the matter down for thirty minutes during which time Court registry staff attempted to telephone the appellant on the phone number recorded on the Court file, but there was no answer. The matter was called again on resumption and again there was no appearance by or on behalf of the appellant.
The Minister’s solicitor made no oral submissions, content to rely on the submissions contained in the written outline filed on behalf of the Minister.
In summary, the appellant’s notice of appeal alleges that his Honour below erred in not finding that the Tribunal committed jurisdictional error by reason of:
(a)the Tribunal’s failure to accord the appellant procedural fairness in respect of the processes undertaken to conclude that the applicant was not a credible witness (‘Ground 1’);
(b)the Tribunal’s failure to consider all of the appellant’s claims (‘Ground 2’);
(c)the Tribunal’s failure to consider the difference between the FIR and criminal charges and the fact that the Tribunal considered the two to be the same, which was never put to the appellant for comment (‘Ground 3’); and
(d)the Tribunal’s failure to consider the implications for the appellant of the FIR and the potential for future harm (‘Ground 4’).
Ground 1
Ground 1 alleges that his Honour erred in failing to find that the Tribunal committed jurisdictional error in making its credibility finding. No contentions were put to his Honour in this regard and, accordingly, the appellant requires leave to rely on this ground.
The Minister submits that leave should be refused because the contention that the Tribunal committed a jurisdictional error in making its credibility finding is without substance. I agree.
A credibility finding is a matter for the Tribunal par excellence. Due to the inconsistencies and implausibilities in the appellant’s evidence, it was entirely open for the Tribunal to conclude that the appellant was not a credible witness. Ground 1 cannot be sustained.
Ground 2
Ground 2 alleges that the Tribunal failed to consider the appellant’s claim that he feared persecution on the basis of his attempt to meet Shahbaz Sharif. As was correctly found by his Honour, the Tribunal clearly considered this claim and accordingly this ground cannot be sustained.
Ground 3
Ground 3 must also fail. As was correctly found by his Honour, the Tribunal did understand and consider the difference between the FIR and the alleged criminal charges. Further, to the extent that the appellant alleges that he was not given an opportunity to comment on this issue, the Minister submits that such an allegation is without merit. I agree. Based on the Tribunal’s written reasons, it is clear that the Tribunal discussed the issue of the FIR and the alleged criminal charges with the appellant at the hearing. Further, the Tribunal put to the appellant in writing its concerns regarding the FIR and the alleged criminal charges filed against the appellant and asked him to comment on this information.
Ground 4
In relation to Ground 4, the Tribunal did not accept that the FIR was a genuine document or that criminal charges had ever been laid against the appellant. Accordingly, the Tribunal was not required to consider the implications for the appellant in respect of the FIR or the potential for future harm based on the FIR.
CONCLUSION
The Tribunal’s decision is not infected with jurisdictional error and I can discern no appellable error in his Honour’s judgment below.
The appeal must be dismissed with costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 11 May 2007
Counsel for the Appellant: The appellant appeared in person Solicitor for the First Respondent: Clayton Utz
Date of Hearing: 11 May 2007 Date of Judgment: 14 May 2007
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