SZIIZ v Minister for Immigration and Multicultural Affairs

[2006] FCA 1448

FEDERAL COURT OF AUSTRALIA

SZIIZ v Minister for Immigration and Multicultural Affairs [2006] FCA 1448

MIGRATION LAW – appeal dismissed

SZIIZ v Minister for Immigration & Multicultural Affairs & Anor [2006] FMCA 939 affirmed

SZIIZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1297 OF 2006

GYLES J
31 OCTOBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1297 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIIZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GYLES J
DATE OF ORDER:	31 OCTOBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent, assessed at $5000.

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 1297 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIIZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GYLES J
DATE:	31 OCTOBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the decision of Scarlett FM made on 16 June 2006 (SZIIZ v Minister for Immigration & Multicultural Affairs & Anor [2006] FMCA 939) dismissing an application for judicial review of a decision of the Refugee Review Tribunal to refuse the appellant a protection visa. The appellant is a national of Pakistan who is a Shia Muslim claiming a well-founded fear of persecution in that country by reason of his association with a group known as the TNFJ.

2. After the refusal of his application by a delegate of the Minister, the appellant lodged an application with the Refugee Review Tribunal.  On 21 November 2005, the Tribunal advised the appellant that as it was unable to make a decision in his favour on the information before it, he was invited to an oral hearing.  The appellant signed a Response to Hearing Invitation form indicating he did not wish to attend the hearing.  Consequently, no hearing was conducted and the Tribunal affirmed the decision of the delegate.  Naturally, an important aspect of that finding was the fact that the appellant had not attended the hearing in order to supplement the information which the Tribunal had before it.

3. The appellant then filed an application in the Federal Magistrates Court seeking relief in the nature of prerogative relief to set aside the Tribunal’s decision.  Scarlett FM affirmed the decision of the Tribunal on 16 June 2006 and it is from that judgment that this appeal is brought.

4. The grounds of appeal are as follows:

   ‘... I was born on 06/12/1976 in the city of Mian Channu in district Khanewal of Punjab province Pakistan.  I hail from a religious family and we have all the affiliations with Tehrik Nafaed Faqia Jafaria (TNFJ) mian channu district.

   My father is a head of the Mian Channu TNFJ committee of the TNFJ within the district of Khanewal.  As I am a born Shia Muslim and very soon I was a front line worker and preacher of the shia faith within the TNFJ.  SSP is also a very strong in our area and they are very strong hardliner militant people and they use to create disturbance in our meeting many times.  The SSP workers in Khanewal kidnapped me in the month of February.  I was blindfolded and was taken to a place far away from Khanewal city.  It was almost a jungle.  They took me to a house where I saw the armed men and there the SSP people mercilessly beat me.

   I need protection for my life because my family in Pakistan facing high level of mental and physical torture I the upcoming hearing I will provide death certificate of my cousin who was killed by the SSP.  After that shocking death of my cousin the SSP lodged an police report (FIR) against my brother.  This is a vital proof of religious heated Sunni society.  I am going through a great level of stress; my family members are hiding because of fear of Sunni hardliners approach.  As a Shia Muslim I need a protection visa.’

   The grounds do not identify or isolate any error in the judgment of the learned Federal Magistrate and identify no ground of appeal in a conventional sense at all.  

5. The appellant’s written submissions do not fill that gap but expand further upon the factual bases for the claim to a protection visa and, as with his oral submissions, seek to invite this Court to consider fresh material as, indeed, the appellant had also invited the learned Federal Magistrate to consider fresh material.

6. I have read the decision of the learned Federal Magistrate.  It is perfectly conventional in form and points out the fundamental difficulty which this appellant has by reason of his failure to attend the Tribunal’s hearing.

7. In my opinion, the appeal is totally without merit and should be dismissed.  The orders of the Court are:

   (1)the appeal is dismissed;

   (2)the appellant is to pay the costs of the first respondent, assessed at $5000.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:        13 November 2006

The Appellant appeared in person
Counsel for the First Respondent:	Mr MP Cleary
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	31 October 2006
Date of Judgment:	31 October 2006