SZIYE v Minister for Immigration and Citizenship

[2007] FCA 1248

FEDERAL COURT OF AUSTRALIA

SZIYE v Minister for Immigration and Citizenship [2007] FCA 1248

SZIYE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 786 OF 2007

BUCHANAN J
20 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 786 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SZIYE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	20 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is 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 786 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SZIYE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	20 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. This judgment deals with an application for an extension of time in which to file an appeal against a judgment of the Federal Magistrates Court of Australia which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘RRT’).

2. The applicant is a citizen of Pakistan.  He arrived in Australia on 19 October 2005.  On 7 November 2005 he applied for a protection (Class XA) visa.  His application was refused by a delegate of the first respondent on 6 December 2005.  He applied to the RRT for a review of the delegate’s decision on 30 December 2005.  On 16 May 2006 the RRT affirmed the decision of the delegate.

3. The content of documents provided by the applicant to the RRT caused it to doubt that the documents were genuine. In turn these matters caused the RRT to feel that a question arose as to the applicant’s credibility. These matters were advised to the applicant in writing in accordance with s 424A of the Migration Act 1958 (Cth) (‘the Act’).

4. The applicant attended an oral hearing before the RRT on 7 February 2006. At the hearing he was provided with a further letter pursuant to s 424A drawing attention to discrepancies between his claims for a protection visa and certain information provided in support of his initial application for a visitor visa (that he was a sports reporter coming to Australia to cover the Johnnie Walker Super Cricket Series) and other matters arising from the RRT investigation of his claims.

5. The applicant later provided further documents in the form of three purported references.  The RRT then wrote again to the applicant expressing doubt about the authenticity of the references and drawing attention to information in the possession of the RRT which seemed to contradict the applicant’s claims and suggest the documents were fraudulent and accordingly cast doubt on his credibility.

6. In its decision, having regard to the matters advanced by the applicant and the other matters to which the RRT drew his attention, the RRT stated that it did not accept any of his claims.  It explained why.  It concluded that his documents were fraudulent.  It concluded that he had been a party to falsifying information to obtain his visitor’s visa.  It found that the applicant was not credible.  It was not satisfied he faced a real chance of persecution in Pakistan then or in the foreseeable future.

7. All these matters were, unless some jurisdictional error was involved, matters for assessment by the RRT.  They are not subject to judicial review.

8. The applicant, however, on 15 June 2006, applied to the Federal Magistrates Court of Australia for judicial review of the RRT decision.  Lloyd-Jones FM observed in his judgment (SZIYE v Minister for Immigration and Citizenship [2007] FMCA 478) delivered on 5 April 2007 that the applicant, in the hearing before him ‘did not specifically identify errors in the Tribunal decision but in effect sought a merits review of the Tribunal decision’. He found, correctly in my view, that no jurisdictional error appeared from the reasons of the RRT and dismissed the application for judicial review.

9. The applicant did not appeal to this Court within the time allowed by Order 52 rule 15 of the Federal Court Rules.  He now seeks an extension of time in which to do so.  Under O 52 r 15 time may be extended if there are ‘special reasons’ for doing so.  None have been suggested.  In any event in my view an appeal, if an extension of time was granted, has no prospects of success.  No jurisdictional error appears in the decision of the RRT and none is raised by the application for an extension of time which, in reality again seeks a merits review of the RRT decision.  None of the matters raised by the applicant in support of his application for an extension of time or mentioned in his oral submissions before me, through an interpreter, raised any issue touching upon the validity of the RRT decision.  Those matters involved a repetition of the applicant’s claims to have been harassed by authorities in Pakistan and deprived of protection.  He also suggested the RRT had not bothered to look at his claims or give importance to his documents.  It is clear however, from the RRT’s decision, that the claims were evaluated and the significance of the documents was assessed.  The insurmountable difficulty facing the applicant is that the evaluation and assessment contributed to the rejection of his application in a way which is beyond the scope of judicial review.

10. There is no arguable case raised that Lloyd-Jones FM was in error to dismiss the application for judicial review.

11. The application for an extension of time to bring an appeal to this Court will be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice BUCHANAN J.

Associate:
Dated:        20 August 2007

The Appellant	The appellant was self represented
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	10 August 2007
Date of Judgment:	20 August 2007