SZICT v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 1144

FEDERAL COURT OF AUSTRALIA

SZICT v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 1144

SZICT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1229 OF 2006

JACOBSON J
16 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1229 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZICT
Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	16 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave to appeal is refused.

2.The Applicant pay the First Respondent’s costs of the application

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 1229 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZICT
Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE:	16 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal from a judgment and orders of Federal Magistrate Smith given on 13 June 2006. The learned Federal Magistrate summarily dismissed an application for judicial review made by the applicant. The application in the Federal Magistrates Court sought judicial review of a decision of the Refugee Review Tribunal handed down on 15 December 2005. The Federal Magistrate dismissed the application pursuant to rule 44.12 of the Federal Magistrates Court Rules because he found that the application did not raise any arguable case for relief.

2. The applicant is a citizen of Pakistan who arrived in Australia on 6 June 2005.  He applied for the issue of a protection visa but this was refused by a delegate of the Minister.  The applicant claimed to have a well-founded fear of persecution by reason of his political opinion; in particular, his membership of the Pakistan Muslim League during the period from about 1992 to 1998.  He claimed that a false case had been brought against him in 1998 and as a result, that he went into hiding for a period of seven years before he came to Australia.  The applicant’s claims were summarised by Federal Magistrate Smith at [4] to [5] and it is unnecessary to reproduce those paragraphs.

3. The RRT did not accept as credible that he went into hiding in May 1998.  The RRT relied on independent country information to support the finding.  The RRT also found that it could not accept that the applicant would have been able to evade the authorities for a period of about seven years.  The RRT’s reasoning on these issues is set out at [7] to [9] of the decision of the learned Federal Magistrate who reproduced the critical paragraphs from the reasons given by the RRT.

4. Federal Magistrate Smith found at [10] that he was unable to see any arguable ground of jurisdictional error affecting the RRT’s conclusion or procedures.  His Honour said that the decision turned clearly upon the RRT’s rejection of the credibility of the applicant’s claims.  His Honour also said at [16] that the RRT had clearly identified the claims made by the applicant.  Although his Honour observed that he could understand the applicant’s concerns about the findings, the learned Federal Magistrate was of the opinion that the claims had been addressed by the RRT.  He said that the finding of the RRT was to reject the claims based upon a finding of credibility which was in Federal Magistrate Smith’s opinion open to the RRT on the material before it.

5. The principles upon which leave to appeal are granted are well known and need not be repeated; see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

6. The applicant filed a notice of appeal stating three grounds. The first was that the Federal Magistrate did not take into account an error made by the RRT in failing to have regard to the serious harm contemplated under section 91R of the Migration Act1958 (Cth). However, this ground is merely an invitation to the court to reconsider the factual basis of the applicant’s claimed fear of persecution. It is well established that this is not a ground of jurisdictional error.

7. The second proposed ground of appeal is that the RRT did not take account the dynamics of the political system in Pakistan and did not take into account the relevant country information.  However, it is clear from the RRT’s decision that it did take into account country information.  The weight that it gave to particular items of country information and its analysis of that information was a factual matter within the jurisdiction of the Tribunal.  No jurisdictional error is disclosed on this ground.

8. The third proposed ground of appeal is that the Federal Magistrate failed to take into account what is said to be the incorrect finding of the Tribunal in refusing to accept the applicant as a credible witness.   The complaint was also made that no concrete reasons were given.  However, it is plain that the RRT did give reasons and I can see no error in the Federal Magistrate’s view that the finding was open to the RRT on the material before it.  It is well established that credibility findings are findings of fact par excellence for the RRT to make.

9. The applicant filed written submissions in support of his application for leave.  Reference was made in the submissions to two High Court cases, ApplicantNABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. Nothing that was said by Hayne and Heyden JJ in NABD, in the passages to which reference was made, touches upon the subject matter of the present application, nor is the decision in S395 on point. 

10. The appellant asserted at [5] that the RRT failed to give “proper, genuine and real consideration” to the merits of his case. This would appear to be a reference to the phrase adopted by Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292. However, in my view that head of judicial review is limited to the ground of inflexible application of policy. To go beyond this would be to embark upon impermissible merits review; see Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [59] to [66]; see also Bruce v Cole (1998) 45 NSWLR 163 at 185-186. There can be no suggestion that this ground of appeal is enlivened in the present case.

11. The remaining paragraphs of the written submissions were directed at the sufficiency or accuracy of the RRT’s fact finding.  They do not identify any ground of jurisdictional error; see NABD at [165].

12. The applicant appeared in person this afternoon.  He was assisted by an Urdu interpreter.  His principal ground of complaint seems to be that the RRT did not consider his case.  The learned Federal Magistrate specifically found that the RRT had clearly identified the claims and had addressed them.   The other matters put to me this afternoon consist, for the most part, of complaints about the accuracy of the RRT’s fact finding. 

13. The appellant also submitted that the RRT did not consider a letter from his lawyer but it is clear from the RRT’s reasons that it did consider the letter.   It found that the letter which was produced was written in English and that it was created specifically to provide support for the application for a protection visa. 

14. No question of the application of the decision of the High Court in SAAP v MIMIA (2005) 215 ALR 162 arises. The country information which the RRT took into account on this question was discussed with the applicant during the RRT hearing and the RRT was not required to give written particulars of it because it fell within the exception contained in s 424A(3)(a) of the Migration Act.

15. I am satisfied that the decision of the Federal Magistrate is not attended by doubt.  Accordingly, I propose to refuse the application for leave to appeal with costs.  The orders of the court will, therefore, be that leave to appeal is refused and the applicant is to pay the costs of the first respondent. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson J.

Associate:

Dated:       16 August 2006

The Applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 August 2006
Date of Judgment:	16 August 2006