SZJAW v Minister for Immigration and Citizenship

[2007] FCA 976

FEDERAL COURT OF AUSTRALIA

SZJAW v Minister for Immigration & Citizenship [2007] FCA 976

SZJAW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD205 OF 2007

EMMETT J
7 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD205 OF 2007

BETWEEN:

SZJAW
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	7 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to Minister for Immigration and Citizenship.

2.The Application be dismissed.

3.The Applicant pay the Minister’s costs of the Application.

4.Orders 2 and 3 be stayed up to and including 1 June 2007.

5.The matter be listed for Directions on 1 June 2007 at 9:30 am.

6.The First Respondent notify the Applicant as soon as practicable, in writing, the orders as made today.

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	NSD205 OF 2007

BETWEEN:

SZJAW
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

EMMETT J

DATE:

7 MAY 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. This is an application for extension of time within which to file a notice of appeal from orders of the Federal Magistrates Court.  By those orders, the Federal Magistrates Court ordered that an application for judicial review of the decision of the Refugee Review Tribunal be dismissed.  The matter was fixed for hearing before me on Friday, 4 May 2007.  When the matter was called on for hearing, the applicant appeared in person with the assistance of an interpreter.  He requested the Court’s leave to be represented by a Mr Solaiman, who has no right to practise but who informed the Court that he was a law student.  The Minister’s solicitor did not oppose Mr Solaiman being heard and I, in effect, granted him leave to appear as a McKenzie Friend. 

2. In the course of the hearing, it became apparent that Mr Solaiman was not prepared.  Therefore, I stood the matter down to give him some time to consult with the applicant.  When the matter was called on again, the applicant was not present, having left the Law Courts Building, apparently to obtain some documents.  Accordingly, I stood the matter down again until the end of the day.  At that stage, Mr Solaiman was again struggling and I suggested that, notwithstanding that it was inconvenient to the Minister’s solicitor, the matter be stood over to today and that, in the meantime, Mr Solaiman could formulate any further grounds of appeal on which the applicant wished to rely. 

3. When the matter was called on again, shortly after 2.15 pm today there was no appearance from the applicant.  The Minister, therefore, asks that the proceeding be dismissed.  Before dealing with that application, however, I propose to say something briefly about the claims made by the applicant before the Refugee Review Tribunal, and the Federal Magistrates Court.

4. The applicant is a citizen of Pakistan.  He arrived in Australia on 28 September 2005.  On 30 December 2005, the applicant applied for a protection (Class XA) visa, under the Migration Act 1958 (Cth) (the Act). A delegate of the Minister for Immigration and Multicultural Affairs, as the Minister was then known, decided to refuse to grant a visa on 3 March 2006. On 27 March 2006, the applicant applied to the Refugee Review Tribunal (the Tribunal) for a review of the Delegate’s decision. On 13 June 2006, the Tribunal affirmed the decision not to grant a protection visa and the applicant then commenced a proceeding in the Federal Magistrates Court. On 8 August 2006, an amended application was filed in the Federal Magistrates Court. On 22 January 2007, the Federal Magistrates Court ordered that the proceeding be dismissed, with costs. A notice of appeal was filed on 14 February 2007 and is, therefore, out of time.

5. In his affidavit in support of the application for an extension of time, the applicant said that he does not speak English, but was informed by his friends that he had 28 days, from the date of the decision of the Federal Magistrates Court, to lodge an appeal.  He also claimed that he spoke to an officer of the Minister’s department, who also said that he had 28 days to lodge an appeal.  The applicant’s delay in filing his notice of appeal was short.  However, unless there is some prospect of success in the appeal, there would be no utility in extending time to appeal.  The Minister contends that, even if an extension of time were granted, the appeal should be heard forthwith.

6. The applicant claimed, before the Tribunal, to fear persecution in the form of arrest or death as a result of his political activities.  The Tribunal, in its reasons, said that, when repeatedly pressed as to what those activities were, the applicant’s answers were very vague.  Initially, he said only that people thought he could do this or that.  Finally, he said that he was always talking about the Muslim League (Nawaz Group) party of which he claimed his whole family were members.  When asked about the history of that party, the applicant’s response indicated to the Tribunal that his knowledge was thin and that he knew nothing of recent reporting on the activities and policies of the head of the party.

7. On the basis of the applicant’s limited knowledge of the party, the Tribunal was prepared to accept that he is a supporter of the party.  However, the Tribunal characterised the applicant as not being an educated man and clearly knowing nothing about the party’s platform and little about its history.  The Tribunal, therefore, did not accept that the applicant has had any role in proselytising on behalf of the party, or any other role or position that would bring him to the notice of political or religious elements opposed to the party.

8. In the course of the hearing, the Tribunal discussed with the applicant his first arrival in Australia on 4 May 2005, and subsequent return to Pakistan on 22 June 2005, before his return to Australia on 28 September 2005.  The applicant told the Tribunal that he had been given an assurance that everything would be okay.  However, when he returned, he found he could not live in his village.  He claimed that he lived in hiding with relatives and then came back to Australia.  The Tribunal pointed out that the applicant had said earlier that he had been called in front of some people a few times, and that this had happened before he left for Australia the first time.  The applicant replied that it happened both before and when he returned. 

9. The Tribunal did not accept that the applicant had been called to appear before anyone, or that there was a real chance of such a thing happening in the future.  It did not accept that the applicant was in hiding or living away from his home when he returned to Pakistan between June and September 2005.  The Tribunal did not consider that returning to Pakistan was the act of a person with a fear of arrest or death.  Accordingly, the Tribunal did not accept that there was a real chance that the applicant would suffer harm amounting to persecution for reason of his religion or his political opinion or for any other Convention reason, should he return to Pakistan in the foreseeable future.

10. The amended application filed on 8 August 2006 asserted that the Tribunal made jurisdictional errors as follows:

    1.The Tribunal did not fully understand the applicant’s unfortunate circumstances in which he had to flee Pakistan.

    2.The Tribunal failed in its duties not to send to the applicant under section 424 of the Act an invitation to comment on the Tribunal’s observations during his oral evidence.

    3.The applicant should have been given a chance to clarify his vague situation and his role in the party.

    4.The Tribunal ignored two very important aspects of the situation in observing that the applicant knew nothing of recent reporting on the activities and policies of the head of the party.

    5.The Tribunal ignored, and thus failed in its duties to act according to the law, that people like the applicant were systematically persecuted and chased by governmental authorities in such a way that they are not able to think or do anything about the party organisation.

    6.The Tribunal did not understand that the applicant feared serious harm, as explained in s 91R(1)(b) of the Act, and systematic and discriminatory conduct under s 91R(1)(c).

    7.The applicant fears serious harm for political reasons.

11. In his notice of appeal, proposed to be filed if an extension of time were granted, the applicant raises eight grounds as follows:

    1.The Federal Magistrate failed to find error of law, judicial error, procedural fairness and relief under s 39B of the Judiciary Act 1903 (Cth).

    However, no basis for making such a finding is specified.

    2.Grounds of relief are very much similar with the High Court judgments in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30.

    Those cases have no bearing at all on any issue that arose in the proceeding before the Federal Magistrates Court or in the decision of the Tribunal.

    3.The Federal Magistrate made an error in failing to consider the real state of affairs of the applicant’s persecution in Pakistan and failed to consider the prevailing circumstances.

    That ground does not disclose any available ground of appeal, but is, in effect, an application for merits review outside the jurisdiction both of this court and of the Federal Magistrates Court.

    4.Section 474 of the Migration Act is ineffective as per recent decisions of the High Court of Australia, and the Federal Magistrate failed to consider that in favour of the applicant.

    This ground also appears to be misconceived. The legal issue raised in relation to recent decisions concerning s 474 appear to have no bearing whatsoever on the current proceeding.

    5.The Federal Magistrate failed to consider that the applicant will face torture and risk persecution in Pakistan.

    It is quite clear that the Tribunal considered that matter.  It was not for the Federal Magistrates Court to consider such a question; the task of that Court was to inquire into any jurisdictional error alleged on the part of the Tribunal:  it did so.

    6.The Federal Magistrate failed to take into account a piece of country information that the applicant contends supported his claims.

    No such claim was raised before the Federal Magistrates Court, and appears to be an application for merits review.

    7.The Federal Magistrate failed to apply positive factors of the Refugee  Protocol.

    The applicant discloses no available ground of appeal but appears to make factual assertions that were expressly rejected by the Tribunal.

    8.The applicant is a law-abiding, decent, family man, and the Federal Magistrates Court failed to accept his oral evidence and provide natural justice, by turning down his application.

    Once again, the ground reveals a misconception as to the role of the Federal Magistrates Court, which had no jurisdiction to overturn the decision of the Tribunal on its merits. 

    9.The Tribunal disbelieved the applicant’s claims to be the sort of member of his political party who might be persecuted by the government and political opponents.

    The Tribunal’s conclusion was based on the vagueness of the applicant’s description of his party activities, and his ignorance of the sort of information that such an activist would be likely to know. 

12. It has not been demonstrated that there was any flaw in the reasoning of the Tribunal, nor has it been demonstrated that there is any error on the part of the Federal Magistrates Court in dismissing the application.

13. While the delay, as I have said, is short, and there has been some explanation for it, nothing has been advanced on behalf of the applicant to suggest that there is even a slight prospect of success in the appeal.  There is, therefore, no utility in extending the time and, accordingly, the application should be dismissed, with costs. 

14. After I had embarked on giving my reasons for my decision to dismiss the application, the applicant appeared in Court.  He does not speak English and, because it was contemplated that Mr Solaiman would be appearing for him, no arrangements were made for an interpreter to be present.  The applicant was unable to make any submissions. 

15. In the circumstances, I consider that it may be appropriate to stay any order that I propose to make, for 21 days, to enable the applicant, if he is so inclined, to get advice.  During that time, if he makes an application to set aside the order, that could be dealt with on its merits if and when it is made.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       2 July 2007

Counsel for the Applicant:	The Applicant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 May 2007
Date of Judgment:	7 May 2007