SZINJ v Minister for Immigration and Citizenship

[2007] FCA 1742

FEDERAL COURT OF AUSTRALIA

SZINJ v Minister for Immigration and Citizenship [2007] FCA 1742

SZINJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD1667 OF 2007

COLLIER J
14 NOVEMBER 2007
BRISBANE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD1667 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZINJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	14 NOVEMBER 2007
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD1667 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZINJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	14 NOVEMBER 2007
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal from the decision of Nicholls FM of 7 August 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 30 January 2006. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

2. The appellant is a citizen of Pakistan who arrived in Australia on 25 July 2005. On 8 September 2005 the appellant lodged an application for a protection visa with the then Department of Immigration and Multicultural Affairs. On 14 September 2005 a delegate of the first respondent refused the application for a protection visa. On 17 October 2005 the appellant applied to the Tribunal for a review of that decision. On 30 January 2006 the Tribunal affirmed the decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

3. The appellant claimed to have well-founded fear of persecution because of his political opinion. The appellant claimed he had been a member of the Pakistan People’s Party (PPP) since 1991 and was the “Sector in charge of PPP” for his local area. He claimed he was opposed mainly by the Pakistan Muslim League (PML) who continually suppressed supporters of the PPP. He claimed that under this political climate he was frightened for his life. He claimed that false allegations were filed by the police and PML against him and some of his followers, alleging they were organising an attack against the PML. The appellant claimed that he was arrested on 9 June 2004 and detained for a month, for plotting to disrupt a rally organised by the PML. The appellant also indicated that he had beaten a PML member who had spied on him and was fearful of revenge from the PML. He stated that the police and PML searched his home on several occasions, and as a result he left his local area and remained hidden before leaving for Australia.

   THE DECISION OF THE TRIBUNAL

4. The Tribunal was satisfied that evidence of the appellant was not credible in respect of certain key claims. It found his evidence unpersuasive and lacking in detail. Given the ambiguity of the documents provided to the Tribunal it found there was insubstantial evidence to establish the appellant’s claim that he had been arrested and was being sought by the authorities of Pakistan.

5. On the basis of his membership card the Tribunal accepted that the appellant was a member of the PPP. However, the Tribunal did not accept that the appellant was a leader or had a prominent role in the party in view of his limited grasp of relevant political events in Pakistan, which were inconsistent with his claims of being a local political leader. Further, the Tribunal did not accept the appellant was involved in the beating of a member of the PML, or that the brother of that PML member was looking for the appellant to wreak revenge on him. In light of these findings, the Tribunal did not accept that the appellant would face harm by the PML for reason of his activities with the PPP and conflict with the PML.

6. Finally, the Tribunal found the appellant’s evidence as to his arrest and prosecution was unclear and ambiguous. The Tribunal was not satisfied that the appellant had been arrested or otherwise pursued by the authorities of Pakistan in the past or that he would face harm from them if he returned there.

7. Accordingly, the Tribunal affirmed the decision of the delegate of the first respondent.

   GROUNDS BEFORE THE FEDERAL MAGISTRATE

8. On 16 May 2006 an amended application was filed for judicial review of the decision of the Tribunal which asserted grounds that appeared in the form of submissions. That application mostly asserted matters of a factual nature but grounds that can be discerned from it include:

   ·     that the Tribunal failed to apply the relevant legal tests

   ·     that the Tribunal did not give consideration to the appellant’s evidence

   ·     that the Tribunal relied upon out of date country information

   ·     that the Tribunal failed to provide natural justice to the appellant

   ·     that the Tribunal failed to take into account relevant considerations.

   THE DECISION OF THE FEDERAL MAGISTRATE

9. Nicholls FM held that findings of fact were for matters for the Tribunal, and that the court was unable to undertake a merits review of the decision. His Honour found the Tribunal had applied the relevant tests in determining whether the appellant had a well-founded fear of persecution. There was no evidence to show the Tribunal had failed to deal with each element of the appellant’s claims. His Honour considered that the Tribunal had relied on country information and there was no evidence that the Tribunal had ignored more recent country information that had been referred to it. His Honour noted that s 422B Migration Act 1958 (Cth) had been applied and that the appellant was invited to a hearing, given an opportunity to provide further information and given an opportunity to address the determinative issues. The Federal Magistrate noted that the Tribunal had found the appellant not to be a credible witness particularly with respect to key aspects of his claims, and had discussed this issue with the appellant. His Honour found there was no jurisdictional error and dismissed the application.

   NOTICE OF APPEAL

10. On 21 August 2007 the appellant filed a notice of appeal seeking the following orders:

    “1.The appellant be allowed to remain in Australia till the decision of this case.

    2.The Decision made by the RRT be declared as null and void.

    3.The cost of the appeal may kindly be allowed to the appellant.”

11. The appellant also filed an affidavit sworn 15 August 2007 in support of the notice of appeal.

12. The appellant raised the following grounds of appeal:

    “1.That the Learned Federal Magistrate simply endorsed the decision of the RRT, the RRT has totally ignored the requirements of s 36(2) read with s 422B and as such had committed the Jurisdictional and legal errors.

    2.That the Appellants submitted the bundle of evidence before the RRT, the RRT did not gave (sic) any consideration, instead the appearance of the (sic) was said to not (sic) plausible, as such the evidence was not taken in to consideration, the appellant made out a case which really requires the judicial inference of this honourable Court to meet the ends of justice.

    3.That the Respondents have failed to assess the claims made by the appellant as per the refugee laws as laid down by the hand book of the UNHCR. The real threat to the life of the Appellant was not considered in the instant case.”

13. These grounds can be summarised as:

    ·     the Federal Magistrate did not properly consider the appellant’s application

    · the Tribunal did not properly apply ss 36(2) and 422B in this case

    ·     the Tribunal did not properly consider the claim of the appellant or the evidence before it.

14. I propose to deal with each of these grounds in turn.

    HEARING BEFORE ME

15. At the hearing the appellant was self-represented. The respondent was represented by counsel.

16. The appellant did not file written submissions. By way of oral submissions he said that he feared persecution in his home country and that his life would be in danger if he returned there.

17. The respondent filed written submissions on which it relied.

    CONCLUSIONS

18. In my view the first ground of appeal cannot be substantiated. It is plain on the face of his Honour’s judgment that Nicholls FM carefully considered the applicant’s claim before him (in particular at [6]) and the decision of the Tribunal (in particular at [5], [6], [15]-[29]). Affirming the decision of the Tribunal does not equate to “rubber-stamping” the Tribunal’s decision. Accordingly this ground of appeal fails.

19. With respect to the second ground of appeal, I note first that:

    · section 36 Migration Act provides, inter alia, that Australia has protection obligations towards a non-citizen who has a well-founded fear of persecution in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion (s 36(3)); and

    · the effect of s 422B Migration Act is that Pt 7 Div 4 of the Act is taken to provide a comprehensive procedural code with detailed provisions for procedural fairness. Common law rules of natural justice with respect to conduct of hearings are excluded, although other aspects of the common law of natural justice such as the bias rule are not: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 at 225, VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562, SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64.

20. The appellant sets out factual claims at length in his affidavit, complains that the Tribunal did not take into account evidence he submitted to it, and complains that the Federal Magistrate relied on the findings of the Tribunal. However:

    · the claim of the appellant is misconceived to the extent that he believes that either the Federal Magistrates Court or this Court can review findings of fact of the Tribunal. The only basis upon which an appeal lies from a privative clause decision within the meaning of s 474 Migration Act is on the basis of jurisdictional error of the Tribunal - not alleged errors of fact: S157/2002 v Commonwealth (2003) 211 CLR 4. To that extent, it is appropriate for the Federal Magistrates Court and this Court to rely on the factual findings of the Tribunal except to the extent that a finding is not based on any evidence: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36]

    · the appellant has not particularised the alleged breach of s 422B Migration Act. However in any event there is no evidence before me that the Tribunal failed to apply procedural fairness as required by the provisions of Pt 7 Div 4 of the Migration Act, including consideration of relevant material before it, in deciding whether the appellant was a person to whom Australia owed protection obligations within s 36(3). I accept the submission of the respondent that the Tribunal questioned the appellant about issues in respect of which the appellant presented evidence which the Tribunal considered vague and/or unsatisfactory, and allowed the appellant every opportunity to present information and his full case

    ·     in relation to the claim of the appellant in his affidavit that the “respondents did not bother to look into” a relevant claim, it is clear that the Tribunal is under no duty to inquire: Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21-22

    ·     although the appellant claimed that there was a denial of natural justice by the Tribunal in using “its traditional wording for refusal of the case”, this is not a competent basis for appeal.

21. Finally, the allegation of the appellant that the Tribunal did not properly investigate his claims is not substantiated. There is no evidence that the Tribunal ignored or otherwise failed to take into account material before it tendered by the appellant. Accepting this claim is particularly difficult in the absence of particularisation of the evidence allegedly ignored by the Tribunal. The decision of the Tribunal demonstrates a detailed consideration of his claims. However it also demonstrates that the Tribunal did not accept the appellant’s claims. It was following this consideration of the evidence and in light of the Tribunal’s conclusions as to the credibility of the appellant’s claims that the Tribunal found that it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason if he were to return to Pakistan. Findings in respect of the credibility of the appellant are matters for the Tribunal, and not susceptible to review by the Court: McHugh J in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423.

22. Accordingly the appropriate order is that the appeal be dismissed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        14 November 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	P Silver
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	14 November 2007
Date of Judgment:	14 November 2007