SZIFI v Minister for Immigration

[2007] FMCA 2036

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIFI v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2036

MIGRATION – RRT decision – Pakistani applicant claiming fear of political persecution – further claims made to Tribunal – disbelieved by Tribunal – no arguable case – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

Applicant: SZIFI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2820 of 2007

Judgment of: Smith FM

Hearing date: 27 November 2007

Delivered at: Sydney

Delivered on: 27 November 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms M Palmer

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.

2. The applicant must pay the first respondent’s costs in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2820 of 2007

SZIFI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant has applied for a protection visa against return to his country of nationality, Pakistan. In his visa application he claimed that he had been “the most senior worker” of the Pakistan Muslim League, Nawaz Group, in his town, and had been a “front line worker” in demonstrations and other activities against the military dictatorship. He claimed that he had been made a target to be persecuted by leaders of other parties and by the army secret service. He claimed to have been arrested and bashed by the police and threatened with false cases.

2. A delegate refused the application on 18 October 2005, and that decision was affirmed by the Refugee Review Tribunal in a decision handed down on 23 August 2007.

3. The Tribunal reviewed the evidence given by the applicant to it at a series of hearings, and the applicant’s response to a letter inviting comments in relation to new claims he made to the Tribunal at its last hearing. In these claims, he told the Tribunal that another reason why he had left Pakistan was that he had an association with people who were Ahmadis, and were his partners in a business. He claimed to have been beaten up by his friends and otherwise harassed because of that association. At the end of the hearing when he was asked what he thought would happen if he returned, he told the Tribunal “that he thought he would be killed because of his problems from political parties and because of his association with Ahmadis.  If he stopped his association with the Ahmadis, the Ahmadis would become his enemy”.

4. He also told the Tribunal: “another problem is that his girlfriend’s husband had threatened to kill him”. That claim had also been made for the first time at the end of the last hearing.

5. The Tribunal thought that the making of the new claims reflected adversely on the applicant’s general credibility. It did not accept that he in fact had a genuine fear of persecution as a result of an extra‑marital affair, but said that, in any event, any harm feared in relation to such a matter would not be directed at him for a Convention reason.

6. In relation to his claimed Ahmadi connections, the Tribunal did not accept that the applicant had any significant such association, due to the lateness of this claim, and also because his evidence about it was “vague, inconsistent and confused”. The Tribunal found that the applicant was “not telling the truth about having been subjected to harassment and discrimination amounting to persecution because of an association with Ahmadis”, and was satisfied that he did not have a well‑founded fear of persecution for reason of an actual or imputed association.

7. In relation to his claimed political opinions and activities, the Tribunal found his evidence to have been “vague and inconsistent”, and to have shown little knowledge about the history of the party he claimed to have been active in. It did not accept that he “was involved with the PML‑N to any significant extent”, and therefore did not accept that he “faced any adverse consequences amounting to persecution”. It also regarded his account of his claimed past persecution to have been “inconsistent, vague and generally unsatisfactory”. It had doubts whether he had been a member of the party at all, and said that it did not accept “certainly” that he was a member of “such significance that his departure from the party would be of concern to other members”. It found that the applicant did “not have a well founded fear of persecution in Pakistan for reason of his political opinion or activity”.

8. I have considered the procedures and reasoning of the Tribunal, and am unable to identify any arguable jurisdictional error affecting its decision.

9. In the applicant’s application, he asks the Court to set aside the Tribunal’s decision and to order it to reconsider his claims. The application has been listed today to consider whether it raises an arguable case for the making of these orders. The applicant has been given an opportunity to amend the grounds of his application and to file further evidence, after receiving a bundle of relevant documents and a referral for free legal advice. He has not filed an amended application, but has presented a written submission maintaining the truth of his refugee claims.

10. In his application, there are unparticularised contentions that the decision of the Tribunal suffered from “legal errors”, that it did not consider “the facts and the law”, and that there were breaches of “sections 91R and other sections”. I have been unable to identify any arguable ground referrable to those contentions.

11. The application also appeared to complain that the Tribunal misconstrued the claims made by the applicant. It contends:

    2.…  The applicant did not claim that he fears as he has the friends from the Ahmadies group. 

    3.The RRT has taken the matter of the applicant to an area, where the applicant did not claimed.  … 

12. I am unable to give any substance to this argument. As I have indicated above, the applicant appears clearly at the last hearing held by the Tribunal to have raised new claims to fear persecution in Pakistan by reason of an association with Ahmadis. It was, in my opinion, proper for the Tribunal to address those claims, and it was plainly open to it to draw adversely from their timing and content.

13. I have considered all the material before me, and the submissions of the applicant, and am not satisfied that the application raises an arguable case for the relief claimed. I consider it appropriate to dismiss the application under r.44.12(1)(a).

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  7 December 2007