SZMDU v Minister for Immigration and Citizenship

[2008] FCA 1861

FEDERAL COURT OF AUSTRALIA

SZMDU v Minister for Immigration & Citizenship [2008] FCA 1861

SZMDU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1214 of 2008

EDMONDS J
12 DECEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1214 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMDU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	15 OCTOBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

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 1214 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMDU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	12 DECEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from the orders of the Federal Magistrates Court (Scarlett FM) given on 16 July 2008, dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) made on 20 March 2008 and handed down on 25 March 2008 that affirmed a decision of the delegate of the first respondent (‘the Minister’) to refuse to grant the appellant a protection (Class XA) visa.

   BACKGROUND

2. The appellant is a 28 year old citizen of Pakistan. He arrived in Australia on 28 July 2003.  He originally held a number of student visas.  The last student visa expired on 9 September 2006.  He was then issued with successive bridging visas until being brought into immigration detention on 6 November 2007.  On 26 November 2007, the appellant applied for a protection visa.

3. The appellant claimed to fear persecution on the basis of his political opinion and activities in Pakistan.  This included his alleged participation in anti-Musharraf and anti-government demonstrations.  He claimed he had also been targeted and persecuted by military and intelligence authorities.  The appellant claimed that he had been arrested twice by the police for his involvement in demonstrations and also charged.   He claimed that police had tortured him and that he received threats from the army that caused him to fear for his safety.

4. The appellant had been interviewed by a delegate of the Minister on 11 December 2007.  He provided further details about the persecution he claimed that he had suffered in Pakistan and the reasons why he had not applied for a protection visa sooner.  On 7 January 2008, the delegate decided to refuse to grant the appellant a protection visa.

5. On 11 January 2008, the appellant sought review of this decision by the Tribunal. On 6 February 2008, the Tribunal wrote to the appellant’s authorised recipient inviting comments on information pursuant to s 424A of the Migration Act 1958 (Cth) (‘the Act’), and sought further information pursuant to s 424. On 14 February 2008, he provided a substantive response. On 29 February 2008, the Tribunal received a further submission from his adviser.

6. On 3 March 2008, the appellant appeared before the Tribunal, accompanied by his adviser. On 6 March 2008, the Tribunal sent a further s 424A letter. A response sent to the Tribunal on the appellant’s behalf was received on 13 March 2008. On 18 March 2008, further material was submitted by the appellant to the Tribunal.

7. On 25 March 2008, the Tribunal affirmed the delegate’s decision to refuse to grant the appellant a protection visa.

   THE TRIBUNAL’S DECISION

8. The Tribunal accepted that the appellant’s application was prepared in haste and that this had been the cause of the inconsistencies between his oral and written evidence.  The Tribunal said that it would place no weight on such inconsistencies.

9. The Tribunal was prepared to accept that the appellant had shown interest in the political affairs of Pakistan, including rallies, demonstrations and the distribution of pamphlets, and that he contributed to an internet discussion.  The Tribunal also found that he did not have a high profile politically, and that he was not a member of any political party or organisation.  The Tribunal concluded that any adverse attention by the authorities that the appellant had suffered was the direct result of his participation in individual political activities, and not because he was targeted as the result of any characteristic or profile, or his overall political standing.  The Tribunal accepted that he may have been detained following such rallies or activities, but did not accept that he had been detained on other occasions, or physically mistreated while in detention.

10. The Tribunal accepted that the appellant would continue to engage in political activities if he returned to Pakistan, including political demonstrations and other activities.  Despite this, the Tribunal was of the view that recent changes in the political situation in Pakistan negated any existence of a real chance of persecution in the foreseeable future.

11. The Tribunal did not accept that false charges had been laid against the appellant or that he had been forced to sign a confession.  The Tribunal considered the appellant’s willingness to remain in Pakistan to be inconsistent with the existence of a genuine fear of persecution arising from false charges or other matters claimed by the appellant.

12. The Tribunal also thought it significant that the appellant had returned to Pakistan in 2005 and had spent several weeks there.  The fact that he had decided to take the risk of returning, because he would not be involved in any political activities for the duration of his visit, indicated to the Tribunal that the appellant’s fear was for any harm he might suffer from his participation in political activities and not from any outstanding charges.  The Tribunal did not accept that the police or army intelligence maintained any interest in the applicant due to his political involvement.

13. The Tribunal was not satisfied as to the genuineness of certain facsimile police documents.  The Tribunal did not believe that there were any outstanding charges against the appellant and found that he had not been truthful with respect to such claims.

14. The Tribunal, looking at the claims singularly and cumulatively, found that there was no real chance that the appellant would be persecuted for a Convention reason if he were to return to Pakistan then or in the reasonably foreseeable future.

    THE FEDERAL MAGISTRATES COURT

15. The appellant commenced proceedings in the Federal Magistrates Court by application and affidavit filed on 16 April 2008.  That application raised four grounds of review:

    (1)The Tribunal failed to give sufficient weight to the current situation in Pakistan.

    (2)The Tribunal overlooked the fact that when first leaving Pakistan for Australia the method chosen was the only one known at the time.

    (3)The Tribunal failed to follow the guidance on the assessment of credibility.

    (4)The Tribunal failed to consider internet activity, such as blogs, as evidence.

16. The Federal Magistrate rejected each of these four grounds.

    PROCEEDINGS IN THIS COURT

17. The appellant appeals from the decision of the Federal Magistrate by a Notice of Appeal filed on 5 August 2008. The Notice of Appeal raises three grounds.

18. On 17 September 2008, the appellant sought an adjournment to obtain legal representation. I granted this adjournment and made orders for the filing of any amended process or pleadings.

19. At the hearing of the appeal on 15 October 2008, the appellant sought a further adjournment to obtain legal representation.  He stated to the Court that he had retained a solicitor and informed the solicitor of the hearing date, but no further action has been taken.  Counsel for the first respondent indicated that this had been a pattern in the Federal Magistrates Court.  Having regard to the appellant’s explanation of his delay, I came to the firm conclusion that the appellant had not been telling the truth. I proceeded to hear the substantive appeal.

    First Ground of Appeal

20. The first ground of appeal claimed that the Tribunal failed to comply with s 411 of the Act when it did not consider the documents and evidence provided by the appellant with the application. The Minister submitted that this was not a ground raised before the Federal Magistrate.

21. It is not clear which ‘application’ is referred to in this ground. Nevertheless, the Minister argued that the Tribunal considered all of the material that the appellant had submitted to both the Minister’s Department and the Tribunal directly.  The Tribunal recounted in extensive detail all of the material before it in its decision.  It is far from evident that it failed to consider any of the evidence that the appellant had submitted.  I agree with this submission.

22. In addition, the Minister submitted that s 411 of the Act is not relevant to this particular matter. It is a section by which the Act prescribes those classes of decisions that are reviewable by the Tribunal.

23. This ground of appeal must be rejected.

    Second Ground of Appeal

24. The second ground of appeal alleged that the Federal Magistrate ‘did not follow the guidance on the assessment of credibility’.  This was the third ground raised below.  The Federal Magistrate rejected that ground.

25. It is unclear precisely what is meant by ‘guidance on the assessment of credibility’. The Federal Magistrate was referred to an authority dealing with certain guidelines issued in 2006 within the Department (at [41]).  No such guidelines were in evidence in this case.  In any event, his Honour concluded that there was no indication that the Tribunal had not followed any such guideline in this case, and even if it had failed to do so, that would not of itself constitute jurisdictional error.

26. The Minister submitted that there was no guideline on the assessment of credibility that was mandatory, in the sense that it was a jurisdictional requirement for the Tribunal to follow it.  Equally, there was no evidence that if such a guideline existed, and applied, that the Tribunal had failed to follow it.  I agree that the Federal Magistrate had been correct in rejecting this ground and no error has been demonstrated in his Honour’s reasoning.

27. This ground of appeal must be rejected.

    Third Ground of Appeal

28. The third ground of appeal claimed that his Honour erred by failing to find that the Tribunal overlooked the fact that when first leaving Pakistan, the method chosen was the only one known at the time.  This was the second ground dealt with by the Federal Magistrate and explained at [37] of his reasons.  The Minister submitted that his Honour’s conclusions on this ground at [38] – [39] were plainly correct.  I agree that no error has been demonstrated in those conclusions.

29. It is apparent that the appellant disagrees with the Tribunal’s conclusions on the facts.  As the Federal Magistrate correctly held at [38], that does not evidence jurisdictional error: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10].

30. This ground of appeal should also be rejected.

31. The Federal Magistrate’s decision does not exhibit any error.

32. The appeal must be dismissed with costs.

I certify that the preceding thirty-eight (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:        12 December 2008

Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Mr JAC Potts
Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	15 October 2008
Date of Judgment:	12 December 2008