SZIHT v Minister for Immigration - [2006] FMCA 840

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIHT v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 840

MIGRATION – Review of decision of Refugee Review Tribunal – citizen of Pakistan – Pakistan Muslim League – invited to attend Tribunal hearing – did not attend Tribunal hearing – material not put to the Tribunal – inaction of migration agent – no arguable case – no jurisdictional error – application dismissed.

Migration Act 1958, ss.425, 426A, 476
Federal Magistrates Court Rules, rule 44.12

Applicant:

SZIHT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 411 of 2006

Judgment of:

Mowbray FM

Hearing date:

28 April 2006

Delivered at:

Canberra

Delivered on:

28 April 2006

REPRESENTATION

Counsel for the Applicant:

In person

Advocate for the First Respondent:

Mr A Chand

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application filed on 9 February 2006 be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001.
The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

SYG 411 of 2006

SZIHT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an ex tempore judgment which has been revised and edited from the transcript. It concerns a decision of the Refugee Review Tribunal made on 3 January 2006 and handed down on 24 January 2006, affirming the decision of the delegate of the first respondent, the Minister, to refuse the applicant a protection visa.
I have before me an application for an order to show cause why relief should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of that decision.
The applicant is a citizen of Pakistan who arrived in Australia on

13 August 2005. He lodged an application for a protection visa with the Minister’s Department in September 2005. The application was refused by a delegate of the Minister on 13 October 2005. On

1 November 2005 the applicant sought merits review before the Tribunal. The Tribunal affirmed the decision of the delegate.
An application was made to this Court on 9 February 2006, accompanied by an affidavit. Following orders made by Driver FM on 9 March 2006 an amended application was filed on 12 April 2006. Driver FM set the matter down for a show cause hearing today pursuant to rule 44.12 of the Federal Magistrates Court Rules.
As noted above the applicant is a citizen of Pakistan. He claims that he would be persecuted because of his involvement in the Pakistan Muslim League. He said in his application to the Department that after finishing his college education he became more active in national politics. This active involvement with the Pakistan Muslim League made his life horrible and insecure when the government of General Musharraf came to power in October 1999.
The applicant provided no further material in support of his claims when he applied to the Refugee Review Tribunal on 1 November 2005.
On 11 November 2005 the applicant was sent a letter from the Tribunal inviting him to attend a hearing on 15 December 2005. That letter advised him that if he did not attend the hearing and the Tribunal did not postpone the hearing, the Tribunal could make a decision on his case without further notice. He did not attend that hearing. Today he told the Court that he had received the invitation but he had been advised by his agent that he need not attend.
The Tribunal in its findings and reasons noted that the applicant had only provided a brief outline of his claims. They were vague and lacking in detail. They amounted to little more than an assertion that he was involved with the Pakistan Muslim League and that he faced unspecified problems as a result of that involvement after General Musharraf came to power in 1999.
Because of this lack of evidence, the Tribunal was unable to be satisfied that the applicant was involved with the Pakistan Muslim League or that he held genuine fears that he would be persecuted. In its reasons at page 10 of the Court Book the Tribunal said:
I am likewise unable to be satisfied on the evidence before me that there is a real chance that the Applicant will be persecuted for reasons of his claimed involvement in the PML if he returns to Pakistan now or in the reasonably foreseeable future.
The Tribunal found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention.
The amended application filed on 12 April 2006 sets out three grounds. The first two grounds do not identify any legal error in the Tribunal decision but rather make certain factual claims, much of which was not put before the Tribunal.
The third ground asserts, amongst other things, that the Tribunal failed to consider a number of matters. The three principal matters are:
·that the applicant was arrested by the police and afterwards kept in a lock-up for about one week
·that he was harassed at the hands of the opposition party
·that his business was closed down.
The applicant also talks about constant harassment of his family.
The applicant says that the Tribunal did not make findings in relation to these claims and whether these events might occur again.
I asked the applicant today where in the material that he put to the Tribunal or to the Department he mentioned these events, particularly the arrest and the closure of his business. He could not point to anything in the material in the Court Book. But he said that he told his migration agent who failed to put this information before the authorities.
As this information has never been provided to the Tribunal, clearly any failure by the Tribunal to consider it could not amount to a jurisdictional error.
I have considered whether any other jurisdictional errors may be apparent from the material before the Court. I have also had regard to the grounds, presumably superseded, set out in the original application to show cause. I have not been able to discover any legal error.
I have further noted two matters raised by the applicant today:
·that he did not attend the hearing before the Tribunal – the migration agent apparently advised him that he did not have to attend the hearing
·that the migration agent had not provided all the material to the relevant authorities.
I am satisfied that the Tribunal complied with its obligations under s.425 of the Act to invite the applicant to a hearing. As the applicant failed to attend, the Tribunal was entitled under s.426A to make a decision without taking any further action to allow the applicant to appear before it.
Insofar as the applicant complains about the inactivity and dereliction of his agent, I note that in none of the documents before the Court is there any mention of an agent. The applicant indeed concedes that he did not nominate any agent on the appropriate form. He states merely that he used a Bangladeshi who was in Bankstown or Mascot. Furthermore the applicant only provided his own address to both the Department and the Tribunal. All appropriate documents were sent to that address.
As the courts have made clear, any concerns the applicant has about the actions of his agent cannot amount to jurisdictional error by the Tribunal.
The Tribunal’s decision flowed inevitably from the applicant’s failure to provide any detailed claims in support of his application. In these circumstances the Tribunal was bound to find that it was not satisfied that the applicant had a well founded fear under the Convention and was owed protection obligations by Australia.
The grounds put forward by the applicant in this case are unarguable. The application before this Court has not raised an arguable case for the relief sought.
The application must therefore be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate: Natasha Werner

Date: 10 August 2006