SZJJT v Minister for Immigration - [2006] FMCA 1938

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJJT v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1938

MIGRATION – RRT decision – Applicant claimed political persecution in Pakistan – did not attend Tribunal hearing – consented to decision without further invitation – no arguable case – application dismissed at show cause hearing.

Federal Magistrates Court Rules 2001 (Cth), rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.425(2)(b), 426A(1), 476

Applicant:

SZJJT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2668 of 2006

Judgment of:

Smith FM

Hearing date:

20 December 2006

Delivered at:

Sydney

Delivered on:

20 December 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms M Jolley

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2668 of 2006

SZJJT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 20 September 2006, in which the applicant applies for an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 15 August 2006 and handed down on 5 September 2006. The Tribunal affirmed the decision of a delegate made on 18 May 2006 refusing to grant a protection visa to the applicant.
The application was returnable before me at a first court date on 24 October 2006. The applicant attended and was assisted by an Urdu interpreter. I made orders allowing the applicant to file an amended application and any affidavits by 8 December 2006, after receiving a referral for free legal advice and a bundle of relevant documents. The applicant was warned that his application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant has received legal advice, and has today filed an amended application in Court. I shall address its merits below.
The applicant arrived in Australia in January 2006 and applied for protection on 9 March 2006. He did not disclose any assistance in his application. In the visa application, he gave a general history explaining why he sought protection against return to Pakistan. He claimed that his relatives had held positions in the Pakistan Muslim League, and that he had been an officer of the Muslim Student Federation at his college. He claimed to have participated in an election in 1997 and to have worked for the party in his district. As a result, he had been persecuted by the Pakistan People’s Party, and had also been warned by the current authorities that he should not involve himself in activities seeking the restoration of democracy. He also claimed that he had made speeches in the last six months against religious groups, and had been threatened as a result. He claimed that he had great fear for his life because of his secular views.
Details of many of these claims were not provided to the Department, nor was any corroborative evidence given to either the Department or the Tribunal on review.
In his application for review by the Tribunal, the applicant gave his address for correspondence as a post office box at Auburn. The Tribunal sent to the applicant at that address a letter dated 28 June 2006 informing the applicant that “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”.
The letter invited the applicant to attend a hearing on 4 August 2006, “to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons”. The letter advised the applicant that if he did not attend the Tribunal could make a decision without further notice. The letter invited the applicant to send any new documents or written arguments he wanted the Tribunal to consider and enclosed a brochure explaining the hearing.
In its statement of reasons, the Tribunal said that the applicant did not attend the hearing, but that on 9 August 2006 the Tribunal received “a completed ‘Response to Hearing Invitation’ form indicating that he did not want to come to a hearing and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it”. A copy of that response signed by the applicant is in the Court Book. The Tribunal then proceeded to make its decision.
In its statement of reasons, the Tribunal referred to aspects of the applicant’s claims which were vague and lacking in detail. The Tribunal said:
I am unable to be satisfied on the evidence before me that the Applicant or other members of his family were involved in the PML(N), as he claims, that he was persecuted by the PPP, that he was warned by the authorities not to distribute literature or make speeches against the present regime, that he was targeted by religious groups or parties or that these groups or parties attacked him many times. I am unable to be satisfied, therefore, that there is a real chance that the Applicant will be persecuted by the PPP, the authorities or religious groups or parties for reasons of his real or imputed political opinion, his real or imputed religious beliefs or his membership of the particular social group constituted by his family if he returns to Pakistan now or in the reasonably foreseeable future.
I am unable to be satisfied on the evidence before me that the Applicant has a well‑founded fear of being persecuted for a Convention reason if he returns to Pakistan. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the Applicant does not satisfy the criterion set out in paragraph 36(2)(a) of the Migration Act for the grant of a protection visa nor is he the spouse or a dependant of a person who holds a protection visa as required by paragraph 36(2)(b).
I can see no arguable jurisdictional error in the Tribunal proceeding in this manner, nor in it reasoning from its inability to be satisfied as to the applicant’s refugee claims. The Tribunal was clearly empowered to follow that procedure, whether under s.425(2)(b) or s.426A(1).
The applicant’s application to this Court contains grounds which amount to no more than a reassertion of his claim to be a refugee. However, as has been explained to the applicant, it is not the Court’s function to decide that matter.
It also suggests that his claims were not considered and “assessed in accordance with the law”. However, no particulars are provided, and I do not consider that this has arguable merit.
The applicant’s amended application largely consists of statements which re‑present his refugee claims in greater detail. It also contains assertions of error by the Tribunal, including that the Tribunal did not consider the applicant’s claims and that it erroneously relied upon country information. However, there is no arguable substance to either of these contentions. The Tribunal plainly identified the claims which had been made by the applicant in his protection visa application, and concluded that it could be satisfied as to their truth. The Tribunal did not reason from country information at all.
I have considered the arguments presented by the applicant and do not think they raise any arguable ground of jurisdictional error. The applicant today had no submission which did this. His oral submission was an assertion that he believed that his life was at risk if he returned to Pakistan.
For the above reasons, I am not satisfied that the application has raised an arguable case for the relief claimed, and I consider it is appropriate to dismiss the application under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 12 January 2007