SZJYP v Minister for Immigration and Citizenship
[2008] FCA 761
•16 May 2008
FEDERAL COURT OF AUSTRALIA
SZJYP v Minister for Immigration & Citizenship [2008] FCA 761
CORRIGENDUM
SZJYP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 2533 OF 2007
REEVES J
16 MAY 2008 (CORRIGENDUM 29 MAY 2008)
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2533 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZJYP
Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE OF ORDER:
16 MAY 2008
WHERE MADE:
SYDNEY
CORRIGENDUM
1.This judgment has been replaced in its entirety.
I certify that the preceding one (1) paragraph
is a true copy of the Corrigendum to the
Reasons for Judgment of his Honour Justice ReevesAssociate:
Dated: 29 May 2008
FEDERAL COURT OF AUSTRALIA
SZJYP v Minister for Immigration & Citizenship [2008] FCA 761
Migration Act1958 (Cth)
SZJYP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 2533 OF 2007
REEVES J
16 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2533 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZJYP
Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE OF ORDER:
16 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs fixed in the sum of $ 2252.25.
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 2533 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZJYP
Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE:
16 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal against a judgment of Federal Magistrate Lloyd-Jones dated 14 December 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 14 December 2006. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.
PROCEDURAL HISTORY
The appellant is a citizen of Pakistan who arrived in Australia on 23 June 2006 on a business visa. On 7 July 2006, the appellant lodged an application for a protection visa (class XA). A delegate of the first respondent refused that application on 11 September 2006 and the appellant then applied to the Tribunal for a review of that decision.
The appellant originally claimed that he feared persecution in Pakistan due to his membership of the Pakistan Muslim League (Nawaz). However, the appellant gave evidence at his hearing before the Tribunal to the effect that these claims were invented by his former migration agent. He claimed instead that he feared arrest and possibly death in Pakistan as his brother had framed him on a charge of stealing money.
THE TRIBUNAL DECISION
The Tribunal accepted the appellant had paid money to a Pakistani person in Australia who represented himself as a lawyer and/or migration agent. The Tribunal further accepted that this person had ignored the appellant’s concerns about returning to Pakistan and concocted the claims contained in the protection visa application. It accordingly proceeded to assess the appellant’s application on the basis of his direct claims and evidence at the hearing before it.
In relation to these claims, while the Tribunal accepted that there may have been ‘bad feelings’ between the appellant and his brothers the Tribunal did not accept that his brothers had reported him to the police, or that they had made any attempt to frame him, or that the police were searching for him, or that he would be arrested if he were to return to Pakistan.
The Tribunal went on to observe that even if it accepted that his brothers had acted against him in this way, there was nothing in the appellant’s evidence to suggest that ‘such actions would have arisen from anything more than domestic disputes within his family’. On that basis, the Tribunal was not satisfied that any harm he may conceivably fear was Convention-related.
In summary, the Tribunal was not satisfied that the appellant would suffer harm if he returned to Pakistan, nor that he had a well-founded fear of persecution for a Convention-related reason should he return, nor, therefore, that he was a refugee.
THE COURT BELOW
Before the Federal Magistrate the appellant raised eight grounds of review in his amended application – though I note that there are two grounds numbered ‘3’. Ground one sets out the detail of how the appellant’s adviser at the time prepared and lodged his original application with claims that were not true. This information is repeated in ground six. The remaining grounds set out details of the appellant’s dispute with his brothers in Pakistan and related fears for his life and safety. Significantly, none of the grounds alleges any error, much less any jurisdictional error, on the part of the Tribunal.
In relation to each of these eight grounds of appeal, his Honour found that the Tribunal had rejected the appellant’s claims because it was not satisfied that any harm he may fear was Convention-related, but rather was part of a family dispute between himself and his siblings, with no nexus to the Convention. His Honour found further that the manner in which the Tribunal conducted the review process did comply with all the relevant requirements of the Migration Act1958 (Cth) (‘the Act’) and did not give rise to any jurisdictional error on the part of the Tribunal. The application was accordingly dismissed with costs.
THE PRESENT APPEAL
The Notice of Appeal filed in this Court on 24 December 2007 alleges the following:
‘That the learned Federal Magistrate has failed to determine the actual harm to which the appellant is faced with the facts and evidence given by the appellant before the RRT respondent No 1. The appellant was arrested by the police on the instigation of the appellants brothers on the allegations that the appellant has stolen a large amount of the Pakistani rupees. The appellant was subjected to serious harm, the appellant was kept in police custody, and was beaten. The most important issue which remains undressed, the learned FM simply upheld the decision that the appellant has no arguable case. This is jurisdictional error and mistake of law.
That the appellants submitted the whole of his evidence before the RRT, the RRT did not believe the appellant, the appellant was and is a truthful witness, as the appellant disowned a false story written by one of his friend, which contained that false elements of the political thoughts. The appellant also gave a full account of his sufferings in the amended application before the Federal Magistrates Court of Australia. The Honourable Court did not took into the consideration which resulted in jurisdictional error in this case.
That the respondents did not applied the proper law and procedure, this has resulted in the error of law.’
At the hearing of the appeal before me the appellant appeared in person unrepresented but assisted by an interpreter. He guilelessly submitted that this was not a refugee case but a family dispute case. Mr Cleary, who appeared for the Minister, relied upon the written submissions that he had earlier filed with the Court. In those written submissions he submitted:
·Grounds two and three were not raised before the Federal Magistrate and the appellant should not be permitted to raise them before the Court now.
·None of the grounds established appellable error on the part of the Federal Magistrate nor jurisdictional error on the part of the Tribunal.
·Neither this Court nor the Federal Magistrates Court can review the factual findings of the Tribunal - in this case the finding that the appellant did not have a well-founded fear of persecution - and neither can they conduct a merits review of the Tribunal’s decision including any review of a finding of credit made by the Tribunal.
The Tribunal did not accept the appellant’s version of the events in respect of the consequences of his dispute with his brothers in Pakistan. The Tribunal concluded that, even if it were to accept that version, any fear the appellant may hold following such a dispute would arise from a domestic dispute within his family, and not from any Convention-related reason. All of these conclusions fall squarely within the Tribunal’s fact-finding role and are not matters that either this Court or the Federal Magistrates Court can review. I therefore agree with Mr Cleary’s submission that the appellant is seeking impermissible merits review of the Tribunal’s decision.
It follows, in my view, that Federal Magistrate Lloyd – Jones was correct to conclude that the Tribunal had complied with all the relevant requirements of the Act in conducting its review of the delegate’s decision and that the Tribunal had not committed any jurisdictional error.
I therefore order that this appeal be dismissed and the appellant pay the first respondent’s costs fixed in the sum of $ 2252.25.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice REEVES. Associate:
Dated: 30 May 2008
Counsel for the Appellant: In Person Counsel for the First Respondent: Mr M P Cleary
Date of Hearing: 15 May 2008 Date of Judgment: 16 May 2008
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