SZIHU v Minister for Immigration and Multicultural Affairs

[2006] FCA 1675

FEDERAL COURT OF AUSTRALIA

SZIHU v Minister for Immigration and Multicultural Affairs & Anor
[2006] FCA 1675

Migration Act 1958 (Cth) s 91S
Acts Interpretation Act 1901 (Cth) s 23(b)

VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104

SZIHU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR

NSD 1674 OF 2006

DOWNES J
20 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1674 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIHU
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE OF ORDER:	20 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Appeal dismissed with 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 1674 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIHU
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE:	20 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

DOWNES J:

1. The appellant is a Pakistani.  He arrived in Australia on 13 August 2005 and applied for a protection visa on 27 September 2005.  He ultimately raised two grounds for claiming that he had a well-founded fear of persecution within the Refugees Convention.  The first relates to fears of persecution by the parents of a girl he wished to marry because they did not approve of the marriage.  The second relates to fears of persecution as the result of a land dispute involving a member of his family. In truth, the appellant does not seem to have separately raised the second matter even in this appeal. However, he furnished material to the Refugee Review Tribunal which was capable of raising the issue and the Tribunal accordingly addressed it. 

2. The Refugee Review Tribunal, constituted by Giles Short, found that the applicant did not have a well-founded fear of persecution for a convention reason.  It determined that any fear relating to the parents of his proposed wife was ‘for reasons purely personal to him.’  Although the appellant had referred to his being ‘…from a poor family’, it found that this was not the basis of his claim, which was that the alleged conduct of the parents was motivated by their disapproval of the appellant as the husband of their daughter. That he was poor may have been a factor but the Tribunal found as a fact that the reason for any persecution was the parents’ objection to the marriage. Turning to the second ground, the Tribunal found that the land dispute did not involve a convention reason and should accordingly be disregarded by reason of s 91S of the Migration Act 1958 (Cth).

3. The appellant sought judicial review of the decision in the Federal Magistrates Court which dismissed the application.  From that decision, the appellant appeals to this court.  The appeal must be dismissed. 

4. The Refugee Review Tribunal was plainly correct in its decision and reasons.  Smith FM in the Federal Magistrates Court was plainly correct in dismissing the appeal.  Neither claim is based on a Convention reason. 

5. The Tribunal considered that s 91S was applicable to the alternative claim because the origin of any fear of persecution by the appellant’s family as a social group was not Convention based. The object of the section is to exclude such claims.

6. Smith FM held that the Refugee Review Tribunal was correct, including that the ground associated with the parents of the woman he proposed to marry was not a Convention ground. Turning to the second ground, he considered a semantic question as to whether the section only applied when the original claim related to one person and not to more than one member of the family. Smith FM rejected the argument by reference to subs 23(b) of the Acts Interpretation Act 1901 (Cth). In this he was correct. He might, in addition, have rejected it on the basis that where more than one member of a family experiences persecution it remains true that each of them separately experience persecution and s 91S must operate separately with respect to each person.

7. The Notice of Appeal in this court can be read to raise two particular matters.  First, the parents were motivated by a belief in the validity of “honour killings”.  Secondly, that the Tribunal relied on out of date country evidence.  As to the first, that was not the way the appellant put his case before the Tribunal but in any event, it does not affect the reasoning of the Tribunal.  As to the second, the decision of the Tribunal was not based on country information, new or old and, in any event, reliance upon one body of country information over another is not jurisdictional error (VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104). Of course, the factual basis for a claim that there is relevant country information which was new or old before the Tribunal, is not made out.

8. The appellant appeared before me and gave evidence.  He told me he fears for his life if he returns to Pakistan. However, while this claim and other matters he referred to might potentially address a claim to refugee status, they did not do so in any way which would satisfy the terms of the Convention and they did not address the only question I can determine which is the correctness of the decision of the Federal Magistrates Court.  The appeal must be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

Associate:

Dated:        20 November 2006

The appellant appeared in person

Counsel for the Respondents:	Ms S A Sirtes
Solicitor for the Respondents:	Clayton Utz Solicitors
Date of Hearing:	20 November 2006
Date of Judgment:	20 November 2006