SZMWY v Minister for Immigration and Citizenship
[2009] FCA 882
•17 August 2009
FEDERAL COURT OF AUSTRALIA
SZMWY v Minister for Immigration and Citizenship [2009] FCA 882
MIGRATION – Refugee law – Review of decision of a Federal Magistrate – Whether the Federal Magistrate was correct in holding that there was no error of law in a decision of the Refugee Review Tribunal
Migration Act 1958 (Cth) ss 425A, 441A
SZMWY v Minister for Immigration and Citizenship [2009] FMCA 226, upheld
SZMWY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
VID 221 of 2009
TRACEY J
17 AUGUST 2009
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 221 of 2009
GENERAL DIVISION
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMWY
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
17 AUGUST 2009
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed with 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
VICTORIA DISTRICT REGISTRY
VID 221 of 2009
GENERAL DIVISION
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMWY
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE:
17 AUGUST 2009
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an appeal against a judgment of a Federal Magistrate delivered on 18 March 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 7 October 2008: see SZMWY v Minister for Immigration and Citizenship [2009] FMCA 226. 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. The appellant entered Australia on 12 February 2008 on a UC subclass 456 (temporary business) visa. On 12 March 2008 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 10 June 2008. On 27 June 2008 the appellant applied to the Tribunal for a review of that decision.
The appellant claimed that he had a well-founded fear of persecution on the basis of his political opinion due to his involvement with the Shaheed Bhutto Group (“PPP-SB”), a breakaway faction of the Pakistan Peoples Party (“PPP”). He claimed that he had been an active member since he was a student and that PPP workers would interfere with his activities. He claimed his party and its workers were suppressed, as Mustaza Bhutto was murdered by the chairperson of the PPP. He claimed that all candidates were either forced to withdraw or made to quit the most recent general election held in Pakistan. He further claimed that he was arrested and bashed by the police, and that, after he was released, he was attacked by opposition workers. He claimed that he was unable to get protection from the authorities and that he fled to Australia because he feared for his life.
REFUGEE REVIEW TRIBUNAL
The Tribunal sent an invitation to the appellant on 10 July 2008 advising that it had considered all the material before it but was unable to make a favourable decision on that information alone and invited him to give oral evidence and present arguments at a hearing scheduled for 20 August 2008. The Tribunal was satisfied that the invitation was sent in compliance with ss 425A and 441A(4) of the Migration Act 1958 (Cth) (“the Act”).
On 14 August 2008 the Tribunal contacted the appellant by telephone to enquire as to why he had not replied to the Tribunal’s hearing invitation. The Tribunal decision records that the appellant advised that he would attend the hearing and return the completed invitation form. On 19 August 2009 the appellant returned the invitation form to the Tribunal, having marked the box which indicated that he did not want to come to a hearing and consented to the Tribunal proceeding to make a decision on review without taking further action to facilitate his appearance before it.
The appellant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear and the Tribunal decided to make its decision on the review without taking any further action to enable the appellant to appear before it, pursuant to s 426A of the Act.
The Tribunal found the appellant’s claims lacking in detail and noted that it had been unable to explore his claims with him. The Tribunal could not be satisfied as to the veracity of his claims. As a result, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.
FEDERAL MAGISTRATES COURT
On 3 November 2008 the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court. On 30 January 2009 the appellant filed an amended application which contained three grounds which largely restated his claims to fear persecution. The appellant also claimed that the Tribunal failed to take into account the element of well-founded fear and failed to consider his claims, including his membership of a political party and the lack of state protection.
Federal Magistrate Emmett correctly described the grounds of the amended application (at [33]) as an “unhelpful mixture of claims and submissions interspersed with bare assertions or error unsupported by relevant particulars.” Her Honour stated that, at the heart of the appellant’s complaints, appeared to be a complaint that the Tribunal did not accept the veracity of his claims. Her Honour stated that such a complaint invited a merits review which the Court could not undertake.
Her Honour stated that, peppered throughout the appellant’s amended application, were three suggested complaints: the Tribunal failed to investigate his claims; the Tribunal relied on country information rather than his claims; and the Tribunal did not take into consideration “the fact that the applicant was an active member of the political party, and is a person of importance as far as the acts of violence against the applicant are concerned.”
The Federal Magistrate stated that there was no positive duty on the Tribunal to investigate the appellant’s claims, nor to make out his claims for him. Her Honour held that the Tribunal’s decision record did not suggest that there was material available that was centrally relevant to the decision to be made.
In relation to the assertion regarding country information, her Honour noted that the Tribunal did not refer to any country information, but rather was not satisfied that the appellant met the criteria for being a refugee based on his own evidence. Her Honour stated (at [40]) that, in failing to appear at the hearing, the appellant was taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of his evidence would be considered by the Tribunal without an opportunity for him to explain or clarify them. Her Honour stated that, in those circumstances, he could not complain if his application was rejected because, amongst other reasons, he failed to take up the opportunity to appear.
Finally, her Honour was satisfied that the Tribunal accurately summarised the appellant’s claims in its decision, and applied the appropriate principles in determining whether the appellant had well-founded fear of persecution for a Convention reason.
Having found that the Tribunal decision was free from jurisdictional error, her Honour dismissed the application.
APPEAL TO THIS COURT
The notice of appeal to this court was filed on 7 April 2009. The notice of appeal contained three grounds. The first ground contends that the Federal Magistrate “simply endorsed” the decision of the Tribunal and that the Tribunal totally ignored the requirements of s 36(2) read with s 422B of the Act.
The second ground contends that the Tribunal did not consider the evidence submitted by the appellant, instead finding that it was not plausible.
The third ground contends that the Tribunal failed to assess the appellant’s claims in accordance with the UNHCR handbook and failed to consider the real threat to the appellant’s life.
The appellant appeared in person on the hearing of the appeal. He had the assistance of an interpreter.
At the hearing the appellant relied on his written submissions. These submissions canvassed the merits of his claim. He made some short oral submissions to the effect that the current situation in Pakistan was well known and that it should be accepted that he faced a risk to his personal safety should he return.
Although the appellant claimed to have been the author of the notice of appeal to this Court, he was unable to offer any coherent elaboration of ground one when asked.
In my opinion the decision of the Federal Magistrate was plainly correct for the reasons which she gave. No error in the Federal Magistrate’s decisions has been demonstrated.
The appeal should be dismissed with costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 17 August 2009
Counsel for the Appellant: The appellant appeared in person Counsel for the Respondents: Ms R Hamnett Solicitor for the Respondents: DLA Phillips Fox
Date of Hearing: 17 August 2009 Date of Judgment: 17 August 2009