SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816
SZLVZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1442 OF 2008
MIDDLETON J 18 NOVEMBER 2008 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1442 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLVZ Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
JUDGE:
MIDDLETON J
DATE OF ORDER:
18 NOVEMBER 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1442 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLVZ Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
JUDGE:
MIDDLETON J
DATE:
18 NOVEMBER 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal against a judgment of Federal Magistrate Lloyd-Jones of 29 August 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 13 December 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.
BACKGROUND
The appellant is a citizen of Pakistan who arrived in Australia on 6 December 2006. On 21 December 2006 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 8 March 2007. On 23 March 2007 the appellant applied to the Tribunal for a review of that decision.
The appellant claimed to fear persecution in Pakistan from the Jamaat-e-Islami (‘JI’) and Muttahida Majlis-e-Amal (‘MMA’) and other religious fundamentalists because of his memberships with the International Human Rights Commission (‘IHRC’) and the Pakistan Muslim League, NAWAZ Sharif Group (‘PMLN’). He claimed that the police visited him every three months since he joined the PMLN and he was arrested on several occasions for his involvement in rallies against the government. He claimed that he organised a rally in support of a legislative bill amending Pakistan’s rape laws. During that rally he was kidnapped and bashed for three days by fundamentalist JI and MMA members. The appellant claimed that while he was in Australia, his home in Pakistan was attacked and his family threatened. He also claimed that he was dismissed from his employment because of his political activities, and was depressed and suffered memory and concentration problems as a result of his torture.
The appellant also claimed to fear persecution based on his membership of the particular social group of his family, given his relationship to his brother, and due to his brother’s…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816
Case
[2008] FCA 1816
Decision Date
CaseChat Overview and Summary
The appeal in SZLVZ v MIAC arose from a decision of the Federal Magistrate Lloyd-Jones, which dismissed an application for judicial review of the Refugee Review Tribunal's decision to affirm the delegate's refusal to grant a protection visa to the appellant, a Pakistani citizen. The appellant had claimed to fear persecution in Pakistan due to his memberships with the International Human Rights Commission and the Pakistan Muslim League, NAWAZ Sharif Group, and the political activities associated with these affiliations. The Tribunal found the appellant's claims insufficient and upheld the delegate's decision, leading to the appellant's appeal to the Federal Court.
The legal issues before the court included whether the Tribunal had erred in its interpretation and application of relevant legislation, particularly in assessing the credibility of the appellant's evidence and the likelihood of persecution if he returned to Pakistan. Additionally, the court considered whether the Tribunal adequately assessed the appellant's claims under the 'real chance test', which examines the probability of persecution upon return.
The court found that the Federal Magistrate's decision was well-reasoned and consistent with established legal principles. The Tribunal's assessment of the appellant's credibility and the likelihood of persecution was thorough and appropriately based on the evidence presented. The court also agreed that the Tribunal had correctly applied the 'real chance test', determining that the chances of persecution were remote. Therefore, the appeal was dismissed, and the Federal Magistrate's decision was upheld.
The final orders of the court were to dismiss the appeal and for the appellant to pay the costs of the first respondent. This outcome underscores the importance of the Tribunal's detailed and reasoned approach in reviewing claims for protection visas, ensuring that decisions are made in accordance with the law and based on a comprehensive assessment of the evidence.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the costs of the first respondent.
Note:
Background
Background to the litigation
This is an appeal against a judgment of Federal Magistrate Lloyd-Jones of 29 August 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 13 December 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.BACKGROUND The appellant is a citizen of Pakistan who arrived in Australia on 6 December 2006. On 21 December 2006 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 8 March 2007. On 23 March 2007 the appellant applied to the Tribunal for a review of that decision. The appellant claimed to fear persecution in Pakistan from the Jamaat-e-Islami (‘JI’) and Muttahida Majlis-e-Amal (‘MMA’) and other religious fundamentalists because of his memberships with the International Human Rights Commission (‘IHRC’) and the Pakistan Muslim League, NAWAZ Sharif Group (‘PMLN’). He claimed that the police visited him every three months since he joined the PMLN and he was arrested on several occasions for his involvement in rallies against the government. He claimed that he organised a rally in support of a legislative bill amending Pakistan’s rape laws. During that rally he was kidnapped and bashed for three days by fundamentalist JI and MMA members. The appellant claimed that while he was in Australia, his home in Pakistan was attacked and his family threatened. He also claimed that he was dismissed from his employment because of his political activities, and was depressed and suffered memory and concentration problems as a result of his torture. The appellant also claimed to fear persecution based on his membership of the particular social group of his family, given his relationship to his brother, and due to his brother’s lengthier and more involved political involvement with the PMLN and the IHRC. Since the declaration of a state of emergency in Pakistan, and in the current climate for supporters of Nawaz Sharif, the appellant and his brother claim to fear being arrested and detained by the police in relation to their political activities.BEFORE THE TRIBUNAL The appellant and his brother attended a Tribunal hearing and gave evidence on 6 June 2007. The appellant’s adviser also made several written submissions and submitted various supporting documents and country information on his behalf. On 18 July 2007 the Tribunal wrote to the appellant pursuant to s 424A of the Act inviting him to comment on information and inviting him to inform the Tribunal if he wished to have a further hearing to give additional oral evidence. On 30 July 2007 his adviser responded to the invitation to comment, and did not indicate that he wished to have a further hearing. On 19 October 2007 the Tribunal wrote a second letter inviting the appellant to comment on information. His adviser responded on 25 October 2007.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
MIDDLETON J
Finally, as to the allegation that the Tribunal failed to carry out the ‘real chance test’, this ground was raised as part of ground 10 in the amended application to the court below. I agree with the reasons and conclusion of the Federal Magistrate that this ground cannot be sustained. The Tribunal found that the chances of persecution should the appellant return to Pakistan were remote and clearly articulated its reasons for this conclusion.CONCLUSION In my opinion, the approach of the Federal Magistrate and his Honour's conclusion were correct. The appeal should be dismissed.