SZJAW v Minister for Immigration and Citizenship No 2

[2007] FCA 977

FEDERAL COURT OF AUSTRALIA

SZJAW v Minister for Immigration & Citizenship No 2 [2007] FCA 977

SZJAW v MINISTER FOR IMMIGRATION & CITIZENSHIP AND ANOR

NSD205 OF 2007

EMMETT J
4 JUNE 2007
SYDNEY

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

BETWEEN:

SZJAW
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	4 JUNE 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant pay the costs of the proceeding.

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 & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	4 JUNE 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding has had a slightly chequered career.  On 7 May 2007, for reasons that I then gave, I ordered that the application for an extension of time to file a notice of appeal be dismissed.  I ordered that the applicant pay the Minister’s costs of the application.  However, for reasons that I then gave, I stayed those orders up to and including 1 June 2007.  I directed that the matter be listed for directions again on 1 June 2007.  The purpose was to enable the applicant, if so advised, to move the Court for rescission of the two orders in question if, having obtained legal advice, he was able to persuade the Court that there was some utility in permitting him to file a notice of appeal out of time.

2. When the matter was called on Friday, the applicant produced written submissions raising a new ground of appeal.  The submissions raised a ground that had not been ventilated before the primary judge and was not in the draft notice of appeal that had been filed in connection with the application of an extension of time.  Due to the fact that the Minister’s solicitor had not had an opportunity of considering the applicant’s new submissions, and because I was otherwise committed during the course of Friday, I stood the matter over to today in order to enable the Minister the opportunity of considering the applicant’s written submissions.  The applicant indicated at that stage that he would not be able to remain in Sydney to engage in further argument today, but took no objection to the course that I proposed.  I therefore extended the stay up to and including today and stood the matter over to this morning.  When the matter was called this morning, there was no appearance for the applicant. 

3. The further ground that the applicant now seeks to ventilate is that the Tribunal failed to assess a particular element of his claims.  The submission asserted that the applicant had claimed that, because he was a member of a particular social group, variously described as Citizens of Pakistan, Politicians in Pakistan, Supporters of Political Parties in Pakistan and Uneducated Supporters of the Pakistan Muslim League (Nawaz), as well as Political Activists and Supporters in Pakistan and Political Party Supporters in Pakistan, the Tribunal was under some obligation to deal with such a claim.

4. The submission asserts that the applicant had claimed that, because he was a member of such a group, upon his return to Pakistan he would be exposed to a risk of persecution for which there is a lack of State protection.  The submission asserted that he claimed to fear persecution upon return to Pakistan for reasons relating to membership of a social group variously so described.  However, on the material before the Tribunal, there is no evidence that mere supporters of the Pakistan Muslim League faced a real chance of harm for that reason.  There was certainly no material before the Tribunal to suggest that such persons formed an identifiable particular social group in Pakistan.

5. The Tribunal rejected the applicant’s assertions to be an active member of the Pakistan Muslim League, although it was prepared to accept that he was a supporter.  However, the Tribunal did not find that the applicant was active in any way as a supporter.  The Tribunal rejected the applicant’s claims on the basis of a number of adverse credibility findings.  In particular, it found that his voluntary return to Pakistan from his first visit to Australia in 2005 was not consistent with his alleged fear of persecution.  The Tribunal’s overall finding that the applicant lacked a subjective fear of persecution logically precludes the present claim that the Tribunal erred in failing to consider another possible basis for such a fear of persecution.

6. The Tribunal did not fall into jurisdictional error by failing to consider a claim that was never made and which did not arise on the evidence before the Tribunal.  The additional ground now raised has no prospects of success in an appeal.  There would, therefore, be no utility in extending the time to appeal, notwithstanding the shortness of the delay.  In all of the circumstances, there would be no point in treating the presentation of the further written submission as an application for rescission of the orders that I made on 7 May 2007.  Accordingly, I propose to take no further steps other than to confirm the order that I made that the applicant pay the costs of the proceeding.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       2 July 2007

The Applicant did not appear.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 June 2007
Date of Judgment:	4 June 2007