SZIKN v Minister for Immigration
[2006] FMCA 980
•20 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIKN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 980 |
| MIGRATION – RRT – Pakistani applicant – consented to decision without hearing – no arguable case – application dismissed at show cause hearing. |
| Migration Act 1958 (Cth), s.476 Federal Magistrates Court Rule 13.10(c), 44.05, 44.12(1)(a) |
| Applicant: | SZIKN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 596 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 20 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Counsel for the First Respondent: | Ms N Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed under Rule 44.12 on the ground that it does not raise any arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 596 of 2006
| SZIKN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under rule 44.05 filed on 24 February 2006. It seeks an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal dated 18 January 2006 and handed down on 9 February 2006. The Tribunal affirmed the decision of a delegate refusing to grant a protection visa to the applicant.
The application had a first court date before me on 21 March 2006. The applicant attended on that day and was assisted by an Urdu interpreter. The nature of the proceeding in this Court was explained to him by me and in an information sheet, and I made orders allowing him to file an amended application and affidavits after receiving a bundle of relevant documents and a referral to a free legal adviser. When listing the matter for today, I warned the applicant that his application might be dismissed if I were not satisfied that it raised an arguable case for the relief claim.
The applicant has, prior to today, received a written outline of submissions from the Minister's solicitor explaining the Minister's contentions in support of the dismissal of the application.
The applicant's application for a protection visa contained statements explaining why he sought protection in Australia against return to his country of nationality, Pakistan. He made general claims to have belonged to the Pakistan People's Party, and to have held positions in its student sections of the party. He claimed to have incurred the hostility of sections in the party and the government of Pakistan, and to have been “arrested by the police on different counts, the applicant was called by the authorities and was advised that the applicant should leave these activities”, referring to his political activities. He claimed that his goldsmith shop was looted, and that the authorities declined to assist him. He claimed to have been "harassed by the workers and the hostile workers of the PPP many times, the applicant was bashed in front of people. The applicant's house was under attack by the said workers of the said group, the family of the applicant were also harassed by these acts." However, details of these events was not provided to the Department, nor was supporting evidence provided to it or to the Tribunal upon review.
The applicant's application for review did not appoint an agent or authorised recipient, but requested the Tribunal to send correspondence to his stated residential address at Lakemba.
By letter dated 7 December 2005 sent to that address, the Tribunal invited the applicant to attend a hearing on 18 January 2006. The letter informed the applicant:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The letter invited the applicant to return a ‘response to hearing invitation form’, and to “send us any new documents or written argument you want the Tribunal to consider.”
On 13 January 2006 the Tribunal received a response to hearing invitation signed by the applicant, which indicated that he did not want to attend a hearing. It said:
I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.
On the same day, the Tribunal received an unsigned statement, repeating the claims of the applicant which had been set out in the visa application but without further detail or support.
In its decision, the Tribunal referred to the applicant's consent, and said:
This matter has, therefore, been determined on the evidence available to the Tribunal.
The Tribunal referred to the warning that had been given to the applicant that it had been unable to make a favourable decision on the information, and noted that the applicant had not provided further information and had not given the Tribunal an opportunity to explore aspects of his claims with him at a hearing.
The Tribunal's conclusions were:
The applicant made a number of claims regarding his political allegiance, profile and activities and the consequences for him arising there from. I would have wished to explore all of these with him at hearing, especially since he has submitted no corroborating material at all in support of his claims. The claims he made, furthermore, lack important detail, such as names and dates. In the absence of such material and of an opportunity to discuss his political beliefs and activities with him, I am not satisfied that the applicant is a member of the Pakistan People’s Party and General Secretary of the Party in his unit, as claimed. I am not satisfied that he has taken a leading position in attempting to end a split in the party or that he has been threatened, harassed, beaten or in any other way persecuted for so doing or that there is any prospect at all of such things occurring should he return to Pakistan.
Accordingly, I do not accept that there is a real chance of the applicant suffering harm amounting to persecution for reason of his political opinion or for any other Convention reason, should he return to Pakistan in the foreseeable future.
I find that the applicant does not have a well-founded fear of persecution for reason of his political opinion or any other Convention reason now or in the reasonably foreseeable future if he returns to Pakistan.
I have considered the procedures followed by the Tribunal and its reasoning and am unable to find any arguable ground of jurisdictional error.
The application filed by the applicant states:
1.That the RRT did not consider the claim, the RRT has not accepted the applicant’s political activities. The RRT has refused the fact that the applicant belongs to PPP. The RRT has denied the whole claim of the applicant. The Minister’s delegate accepted that the applicant belongs to PPP. This has resulted in the denial of justice.
2.The delegate of the minister accepted the applicant’s political views. The RRT has gone beyond its limits by denying all the claims of the applicant. The whole claim of the applicant was denied by the RRT. The amount of the persecution and harm was not given any weight.
3.That the applicant suffered a lot by the hands of authorities as the applicant had formed a group to reunite the PPP, as to get rid of military regime the applicant was harassed, arrested and bashed by the opponents and workers of the ruling party. This has resulted in unfairness decision made by the RRT
In my opinion, these grounds do not show any argument of substance, taking into account the actual reason followed by the Tribunal which I have set out above. In my opinion, the applicant does not have an argument that the Tribunal did not consider his claims nor address them in accordance with law. It was under no obligation to accept any finding previously made by the delegate, but was obliged to conduct its own assessment. The applicant’s disagreement with the outcome of his application, and his continued maintenance of his refugee claims cannot provide him with good grounds in this Court.
The applicant also filed an amended application. I am inclined to accept the submission of the Minister's representative that this has adopted a precedent which was not formulated with reference to the applicant's own circumstances. For example, it makes complaints about the Tribunal's reliance on country information, which plainly did not happen in this case.
However, I have carefully considered all the contentions in the amended application. Essentially, it contends that the Tribunal failed to address the refugee claims made by the applicant. However, as I have indicated above, I do not consider that this is reasonably arguable by the applicant. He has not, in this document or any other document or submission, identified any particular aspect of his claims which he wishes to show has been ignored.
The applicant attended today today’s hearing, but had no submissions to make to me.
I am not satisfied that his application has raised an arguable case for the relief claimed, and I consider it is appropriate for me to dismiss it at an interlocutory stage under r.44.12(1)(a).
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 10 July 2006
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