SZJTY v Minister for Immigration and Citizenship

[2007] FCA 804

FEDERAL COURT OF AUSTRALIA

SZJTY v Minister for Immigration and Citizenship [2007] FCA 804

SZJTY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 549 OF 2007

TRACEY J
25 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 549 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJTY
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	25 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be refused with costs fixed at $1,000.

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 549 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJTY
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	25 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of a Federal Magistrate given on 16 March 2007: see [2007] FMCA 414. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) made on 13 October 2006 and handed down on 7 November 2006 to refuse to grant a protection visa to the applicant.

2. The applicant is a citizen of Pakistan who arrived in Australia on 1 February 2006.  On 15 March 2006 the applicant lodged an application for a protection visa.  A delegate of the first respondent refused the application on 5 June 2006.  On 6 July 2006 the applicant applied to the Tribunal for a review of that decision.

3. The applicant claimed to have well-founded fear of persecution based on his political activities and involvement with establishing a workers’ union in 1997.  The applicant worked in what was called the Heavy Mechanical Complex.  He claimed that, in 1997, he was involved in establishing a union in the Complex.  The applicant’s claims are summarised by the Federal Magistrate at [4]:

   “The applicant states that he was threatened, harassed, and beaten by members of a rival workers group which was endorsed by the employer company. After the applicant applied to the National Industrial Relations Commission to have his union declared as a collective bargaining agent, he was arrested by military police, detained, and interrogated for a week. The applicant was told that if he did not withdraw his application to the Commission he would be tried under the Official Secrets Act. The applicant claimed he could not get state protection because there is Army Rule in Pakistan and that his employer was under the control of the Ministry of Defence”

   The applicant also said that his brother had been “shot dead” but did not state when and in what circumstances.

4. The applicant was interviewed by the delegate on 19 May 2006.

5. In a letter dated 7 August 2006, the Tribunal invited the applicant to a hearing scheduled for 13 September 2006.  The applicant responded in a letter dated 27 August 2006 that he did not wish to attend.  On 15 September 2006, the Tribunal invited the applicant to comment on information in his application, including information from the interview with the delegate.  On 9 October 2006 the applicant provided a letter from the Heavy Mechanical Complex.  It said only that the applicant was a member of the union “within his organisation”, that he “was sacked” and “that he faced a lot of court proceedings.”

6. The Tribunal noted that the applicant had only provided a brief outline of his protection visa claims and found important aspects of his claims were general and lacking in detail.  The applicant had provided little information about the nature and activities of his union and he demonstrated little knowledge about trade union activities in Pakistan.  The applicant had also provided little evidence regarding the alleged threats, detention and his subsequent release.  He did not explain to the Tribunal’s satisfaction how he could have worked without further threats or incidents in the same company between 1999 and April 2005 if he feared harm from the rival union.  In relation to his brother’s death, he had failed to explain how the death was linked to his (the applicant’s) union activities.  Further, the Tribunal was unable to test the evidence at a hearing.  The Tribunal considered the letter from the applicant’s former employer, but was not satisfied that it established that the applicant was an active union member or leader or was threatened by a rival union.  The Tribunal could not be satisfied as to the applicant’s claims, including his inability to obtain state protection, and was not satisfied that the applicant had well-founded fear of persecution for a Convention reason.

7. On 30 November 2006 the applicant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.  The original application asserted a breach of natural justice.  An amended application was filed on 20 February 2007 which gave further details of his claims.  He complained that the Tribunal did not make findings in relation to these additional claims.

8. His Honour found that there was clear authority that an applicant must establish his case to the satisfaction of the Tribunal. Further, there was no arguable breach of the requirements of natural justice and, specifically, no arguable breach of the provisions of Div 4 Part 7 of the Migration Act 1958 (Cth) (“the Act”). The court held that the applicant’s grounds of appeal sought to challenge the factual findings and did not raise an arguable case. The application was dismissed under r 44.12(1)(a) of the Federal Magistrates’ Court Rules.

9. The applicant seeks leave to appeal to this Court.  The draft notice of appeal annexed to his affidavit, filed on 2 April 2007, contains three grounds.  They are that:

   ·the Tribunal had committed jurisdictional and legal errors;

   ·the applicant has an arguable case; and

   ·the respondents failed to assess the claims against the laws referred to in the UNHCR handbook.

10. The applicant appeared in person.  He had the assistance of an interpreter.

11. He told the Court that the affidavit filed in support of his application had been drafted by a “friend”. So too had been the draft notice of appeal.  When asked to identify the jurisdictional and legal errors referred to in the notice he was unable to do so.  Nor could he identify any alleged legal error on the part of the Federal Magistrate.

12. I have read the Federal Magistrate’s reasons for decision and cannot discern any legal error in them.  The decision is not attended with sufficient doubt so as to warrant it being considered by this Court.

13. The application should be refused with costs.

I certify that the preceding fourteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

Associate:

Dated:        25 May 2007

Litigant in Person
Counsel for the Respondent:	Mr Rohan White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	25 May 2007
Date of Judgment:	25 May 2007