SZIQO v Minister for Immigration and Citizenship

[2007] FCA 390

FEDERAL COURT OF AUSTRALIA

SZIQO v Minister for Immigration and Citizenship [2007] FCA 390

SZIQO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2238 OF 2007

GRAHAM J
6 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2238 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIQO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	6 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be altered to read ‘Minister for Immigration and Citizenship’.

2.The date ‘28 November 2006’ in paragraph 1 of the Notice of Appeal filed 10 November 2006 be altered to read ‘25 October 2006’.

3.The date ‘28/11/06’ in paragraph 2 of the Notice of Appeal be altered to read ‘25/10/06’.

4.The appeal be dismissed.

5.The appellant pay the respondent Minister’s 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 2238 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIQO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	6 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant was born in Pakistan on 9 October 1977.  He is a Punjabi who practices the religion of Islam.  On or about 26 February 2004 he was issued with a passport in Pakistan, and he travelled to Australia arriving in this country on 10 August 2005.  His passport included stamps suggesting that he may, at some stage, have travelled to Malaysia and to Ireland or obtained a right to do so.  On 3 November 2005 he applied for a Protection (Class XA) Visa.  His Application for such a Visa was refused by the Minister’s delegate on 22 December 2005.  On 9 January 2006 the appellant filed an Application for Review of the Minister’s delegate’s decision in the Refugee Review Tribunal.

2. On 20 January 2006 the Tribunal wrote to the appellant inviting him to a hearing of the Tribunal to give oral evidence and present arguments in support of his claims on Wednesday, 15 February 2006.  In the letter the Tribunal stated:

   ‘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.’  (emphasis added)

3. On 24 January 2006, the appellant wrote a letter to the Tribunal requesting a change of hearing date, requesting that it be changed to the end of March 2006.  On 30 January 2006 the Tribunal wrote to the appellant indicating that it was unable to agree to the lengthy postponement requested but indicating that a new hearing would take place at Level 11, 83 Clarence Street, Sydney at 2 pm on Thursday 2 March 2006.  Without further contact from the appellant the Tribunal, constituted by Mr J C Blount, made himself available for a hearing at which the appellant could give oral evidence and present arguments in support of his claims.  However, the appellant did not appear at the appointed time and place.

4. The Tribunal proceeded to decide the appellant’s Application for Review on the basis of the evidence already before it.  The Tribunal’s decision of 3 March 2006 affirmed the decision of the Minister’s delegate not to grant a Protection Visa to the appellant.  That decision was handed down on 23 March 2006. 

5. On 5 April 2006 the appellant filed an Application in the Federal Magistrates Court of Australia seeking relief in respect of the decision of the Tribunal.  The grounds expressed in that Application were recorded as follows:

   ‘1.THAT THE FINDINGS OF THE TRIBUNAL DOES NOT REFLECT THE FINDINGS IN ACCORDANCE WITH LAW.  THE FINDINGS OF THE RRT SUFFERS FROM A VARIETY OF LEGAL ERROR.   THE DECISION OF THE RRT OTHERWISE SUFFERS FROM THE PRINCIPLES OF LAW.

   2.THAT THE APPLICANT HAS FACED A REAL CHANCE OF PRESECUTION (sic).  THIS IS NOT MERELY AN ASSERATION (sic), BUT IS BASED ON THE FACTS.  THE AMOUNT OF HARM WAS NOT GIVEN ANY WEIGHT, RATHER THEY WERE DISMISSED ON THE SO CALLED COUNTRY INFORMATIONS, WHICH IS AGAINST LAW.

   3.THAT THE APPLICANT HAS SUFFERED BY THE HANDS OF AUTHOROTIES (sic) IN THE COUNTRY.  THE APPLICANT WAS BASHED ARRESTED.  THE APPLICANT HAD A REAL FEAR OF HIS LIFE BEING TAKEN AWAY.  THE APPLICANT OPPOSED THE ARMY REGIME THE RRT HAS COMMITTED AN JUDICITIONAL (sic) ERROR.’

6. On 23 June 2006 a typed Amended Application seeking constitutional writ relief was filed by the appellant in the Federal Magistrates Court.  That Amended Application came before Scarlett FM on 28 September 2006.  The appellant did not appear and an order was made dismissing the Application.  A further order was made that the appellant pay the respondent Minister’s costs fixed in the sum of $2000.

7. On 13 October 2006 the appellant applied to the Federal Magistrates Court to have the orders made in his absence set aside.  On 25 October 2006 that Application came before Scarlett FM who proceeded to set aside his order of dismissal of 28 September 2006.  He proceeded to deal with the Application for Review and dismissed same, ordering the appellant to pay the respondent Minister’s costs fixed in the sum of $900.  In the course of his ‘REASONS FOR JUDGMENT’ Scarlett FM said:

   ‘I do not propose to set aside order number (2).’

   namely, the order with respect to costs made by him on 28 September 2006. 

8. On 10 November 2006 the appellant filed a Notice of Appeal in this Court, which has been amended during the course of the hearing of the appeal today.  The appellant appeals from the judgment of Scarlett FM of 25 October 2006.  The ground of appeal recorded in the Notice of Appeal is expressed as follows:

   ‘THAT THE LEARNED FEDERAL MAGISTRATE VIDE (sic) THE ORDERS DATED 25/10/06 DID NOT GO INTO THE QUESTION OF LAW THAT THE APPELLANT & HIS FAMILY HAVE CLOSE TIES WITH MR NAWAZ-SHARIF EX PRIME MINISTER OF PAKISTAN.  THE APPELLANT HAD TO SUFFER A LOT BY THE HANDS OF THE AUTHOROTIES (sic).  THE APPELLANT HAS UNDERGONE LOT OF PERSECUTION MISTREATMENT & THE LIFE OF THE APPELLANT IS IN DANGER.’

9. Under s 65 of the Migration Act 1958 (Cth) (‘the Act’) the Minister is to grant a visa after considering a valid application for same if satisfied that, amongst other things:

   ‘… the other criteria for it prescribed by this Act or the regulations have been satisfied; …’

   If not so satisfied, the Minister is to refuse to grant the visa.

10. A criterion for a Protection Visa, such as that for which the appellant has applied, is that the applicant be:

    ‘… a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967’ (‘the Refugees Convention’).

11. Article 1 of the Refugees Convention provides that the term ‘refugee’ shall apply to any person who:

    ‘(2) … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …’

12. In the appellant’s Application for a Protection (Class XA) Visa, the appellant recorded extensive reasons in manuscript form in response to the questions, ‘Why did you leave that country?’, ‘What do you fear may happen to you if you go back to that country?’, and ‘Who do you think may harm/mistreat you if you go back?’  The appellant claimed to be an educated man with a Bachelor of Arts degree from the University of Punjab.  He described his background as being an industrial one, he indicated that he was an export manager for a family business and indicated that his family maintained a friendship with a former President of Pakistan, Mr Nawaz-Sharif. 

13. The appellant suggested that after Mr Sharif left office and went into exile in Saudi Arabia the then governing party sought to prevail upon the appellant and his family to join their party which, in the appellant’s case, he declined to do.  He contended that there was infiltration of his family business with ‘fake union leaders’ who were supporters of the governing party.  He also asserts that there were burdens placed on the family business in the form of heavy duties and other government charges. 

14. In the course of his expression of his claims the appellant said ‘we were arrested on the false charges, we were bashed, I was kept in the confinements many times’.  He also said ‘I left the home, because I have a fear of my life’.  He continued:

    ‘There are real chances that I shall be done to death because due to the political intolerance, and my particular political opinion I shall be prosecuted there is a real chance that I shall be persecuted, and I shall be faced to systemic harrassment (sic).’

15. Somewhat curiously, the claims of the appellant which were in the first instance expressed in the first person are claims which at the end of the answer are expressed in the third person where the appellant goes from being ‘I’ to being ‘the applicant’.  Nothing relevantly turns on the distinction. 

16. The problem confronting the Tribunal was simply that it did not have material before it to enable it to be satisfied that the appellant faced a real chance of persecution for any Convention reason on return to Pakistan.

17. In the Tribunal’s ‘FINDINGS AND REASONS’ the appellant’s claims were recorded as:

    ‘… essentially that he faces a real chance of persecution at the hands of the Pakistan authorities and of the mainstream Pakistan Muslim League party - PML(Q) - which is associated with the present Pakistan Government, because of the involvement by his family with the opposition party PML(N) and in particular their claimed close association with former Prime Minister, Nawaz Sharif.’

18. In the course of the Tribunal’s ‘FINDINGS AND REASONS’ expressions such as ‘He has not provided details …’, ‘He has not provided any detailed information …’, ‘… he does not say just what is meant by this …’, ‘… does not say precisely who was arrested, when, on what particular charges and with what result’, ‘… no detail is provided in relation to general assertions about having being detained and bashed’, ‘Nor did the Applicant provide any evidence or persuasive detail to back up his assertions that he or his family were personally close to Nawaz Sharif’, ‘Nothing at all has been provided in the way of concrete details or corroboratory evidence or documentation’, ‘… the Applicant has not explained …’ and so on.

19. It was for the appellant to satisfy the Tribunal that he had a well-founded fear of persecution which brought him within the meaning of ‘refugee’ in the Refugees Convention.  The Tribunal said:

    ‘In the circumstances, and on the evidence before it, the Tribunal is not satisfied that the Applicant’s experiences and circumstances are as claimed, nor that the Applicant is targeted by, or faces a real chance of persecution by, the Pakistan authorities or an associated political party.’

20. As indicated earlier, the Tribunal affirmed the decision of the Minister’s delegate not to grant a Protection Visa. 

21. When invited to speak to the ground of appeal contained in his Notice of Appeal, the appellant indicated that he had nothing to add.  In relation to general matters he relied upon a document filed in the Court on 28 February 2007, entitled, ‘Written Comments of The Applicant’.  In essence, all that is sought by the appellant is a merits review, which the Court may not provide.

22. In the course of his written submissions the appellant asserted, amongst other things, with some reading between the lines, that the Tribunal did not take into consideration the real meaning of a well-founded fear of persecution; that the appellant’s case was ‘not given any weight’; that the Country Information relied upon by the Tribunal was unreliable; that the appellant’s claims of persecution and harassment were ‘totally ignored’; and that the Tribunal ignored violations of human rights in Pakistan.  It was asserted that the Tribunal did not make findings in relation to the appellant’s claims and that ‘[i]n these circumstances , the tribunal decision involved jurisdictional error’. 

23. It is blindingly obvious that nothing which has been advanced by the appellant constituted jurisdictional error on the part of the Tribunal.  In the circumstances the appropriate order is that the appeal be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        20 March 2007

The Appellant appeared in person.
Counsel for the First Respondent:	Mr S J Free
Solicitor for the First Respondent:	DLA Phillips Fox
The Second Respondent did not appear.
Date of Hearing:	6 March 2007
Date of Judgment:	6 March 2007