SZOTX v Minister for Immigration and Citizenship

[2011] FCA 648

FEDERAL COURT OF AUSTRALIA

SZOTX v Minister for Immigration and Citizenship [2011] FCA 648

Citation:		SZOTX v Minister for Immigration and Citizenship [2011] FCA 648
Appeal from:		SZOTX v Minister for Immigration [2011] FMCA 37
Parties:		SZOTX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 155 of 2011
Judge:		FOSTER J
Date of judgment:		8 June 2011
Legislation:		Migration Act 1958 (Cth), s 424A
Cases cited:		SZOTX v Minister for Immigrationand Citizenship [2011] FMCA 37 related
Date of hearing:	4 May 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	32
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the First Respondent:	Ms B Rayment of Sparke Helmore
Solicitor for the Second Respondent:	The Second Respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 155 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOTX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	8 JUNE 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of and incidental to the appeal.  

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 155 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOTX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE:	8 JUNE 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate delivered on 31 January 2011 (SZOTX v Minister for Immigration and Citizenship [2011] FMCA 37) in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 18 October 2010 and handed down on 19 October 2010.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the delegate) to refuse to grant a Protection (Class XA) Visa (protection visa) to the appellant.

2. The appellant is a citizen of Pakistan who arrived in Australia on 5 April 2009.  On 16 February 2010, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department).

3. Amongst the papers provided to the Department as part of his application for a protection visa, the appellant furnished to the Department a two page typed statement in which he set out the basis of his claims for protection.  In that document, the appellant claimed that he had been a political advisor to the Pakistan Muslim League Nawaz Group (PML(N)) and that he was seeking protection because he had been persecuted by the opposition party, the Pakistan People’s Party (PPP).  The appellant claimed to be a former member of the PPP who had left that party in protest at corruption amongst party leaders.  He claimed that, during an election campaign, he had been dragged from a polling booth and beaten mercilessly.  During this beating, he had dislocated his shoulder.  The appellant also claimed that one of his party colleagues had been kidnapped by PPP party members and has not been seen since.  According to the appellant, on one occasion, members of the PPP came to his home and assaulted his wife and children.  He said that this particular incident was serious and that his wife had been bleeding from the mouth after being beaten.  The appellant also claimed that, during this incident, his home had been ransacked and certain valuables stolen.  He said that his wife had been grabbed by the hair.  He also claimed that his life had been threatened.  Some essential features of his account were supported by a document called “Registration of Case” which had been lodged by the appellant’s uncle with the local Police Station.

4. The delegate refused the appellant’s protection visa application on 29 June 2010.  The delegate concluded that the appellant did not have a well-founded fear of persecution for a Convention related reason.  The delegate noted that the appellant had delayed approximately 10 months following his arrival in Australia before applying for a protection visa.  The appellant, when interviewed, had said that he had come to Australia to earn money for his children back in Pakistan.  He had disclosed his intention to immigrate to Australia.  These factors led the delegate to believe that the appellant did not hold a subjective fear of persecution, let alone a well-founded fear of persecution for a Convention related reason if he should return to Pakistan.  The delegate noted the existence of the Registration of Case document.  That document did not mention any reason for the death threat which had been referred to by the appellant. 

5. The delegate was not satisfied that the appellant would suffer persecution because of his political opinions.  For this reason, the delegate refused the appellant’s application for a protection visa.

   PROCEEDINGS IN THE TRIBUNAL

6. On 15 July 2010, the appellant applied to the Tribunal for a review of the delegate’s decision.

7. In a letter dated 6 August 2010, the Tribunal invited the appellant to appear before it for the purpose of giving evidence and presenting arguments relating to the issues in his case.  That letter indicated that the hearing of the appellant’s application for review was scheduled to take place on 10 September 2010.  That letter also enclosed a form entitled “Response to Hearing Invitation” which enabled the appellant to confirm the hearing and to make any requests or attach any additional information for the Tribunal to consider.  A completed Response to Hearing Invitation Form was received by the Tribunal from the appellant on 27 August 2010.  In that Form, the appellant stated that he required an interpreter who could interpret English to the Urdu language and vice versa.

8. The hearing of the appellant’s application for review took place, as scheduled, on 10 September 2010.  It was conducted with the aid of an Urdu interpreter. 

9. On 19 October 2010, the Tribunal notified the appellant of its decision to affirm the delegate’s decision and to dismiss his application for review of that decision.

10. In its Statement of Decision and Reasons, the Tribunal gave a brief history of the appellant’s dealings with the Department and the progress of his protection visa application.  Departmental officers had interviewed the appellant on 2 February 2010 after he was found to have been working unlawfully in a restaurant.  During that interview, the appellant stated that he had come to Australia to make money and that he had lost money during the global financial crisis.  The appellant also informed those Departmental officers who were interviewing him that he had attempted to use a migration agent to obtain a visa but that the fees had been too expensive.  The appellant said that he was thinking of applying for a visa as a refugee.

11. At the hearing, the Tribunal questioned the appellant about his political affiliation with PML(N) and why he had joined that party.  The appellant stated that the people who were involved with the PML(N) were mostly businessmen and that they looked after other businessmen.  The PML(N) had won the seat for the electorate in which he had lived.  The appellant claimed at the hearing that members of the PPP had wanted revenge on him because he had been in the PPP and had left it to join the PML(N).  The Tribunal observed that these events occurred more than two years before the hearing before the Tribunal.  At [50] of its Statement of Decision and Reasons, the Tribunal recorded that it had directly confronted the appellant with the proposition that he had come to Australia because he had suffered a big financial loss in his business in Pakistan and had wanted to make money to support his family.  The Tribunal suggested to the appellant that he had not come to Australia to escape persecution.

12. The Tribunal found inconsistencies in the appellant’s evidence.  Ultimately, it concluded that the appellant did not fear persecution.  The Tribunal remarked that the appellant had remained in Pakistan after he had allegedly experienced the home invasion about which he had provided information in his protection visa application.  He had not pointed to any subsequent incidents between the date of that incident (which apparently took place in February or March 2008) and April 2009 when he left Pakistan.  The Tribunal also questioned the appellant about whether or not he could be adequately protected by Police in his local area.  The Tribunal suggested to him that the Police in his local area were both willing and able to protect him from violent and unlawful attacks.

13. The Tribunal did not accept the appellant’s evidence regarding his political involvement in Pakistan.  The Tribunal took the view that, had the appellant seriously been concerned about his welfare in Pakistan, he would have sought protection from the authorities.  The Tribunal concluded that the real purpose for his entering Australia was to make money for his family in Pakistan.  The documentary evidence which the appellant provided to the Tribunal was not sufficient to persuade the Tribunal that his claim for protection was genuinely based.

14. The Tribunal concluded that the appellant did not have a well-founded fear of persecution for any Convention related reason and therefore affirmed the delegate’s decision.

    THE DECISION OF THE FEDERAL MAGISTRATE

15. On 15 November 2010, the appellant sought judicial review in the Federal Magistrates Court of the Tribunal’s decision.  In his Application for Review, the appellant relied upon the following grounds:

    Grounds of Application

    The grounds of the Application are:

    1.My point is that despite having attended in the hearing, it became imperative that, before the Tribunal made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order to fully compliance of s424A as decided by the majority of High Court in SAAP.

    2.That the decision of the Refugee review Tribunal was effected by jurisdictional error in that the Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant claims:

    3. The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.

    Particular of Grounds

    a. The tribunal did not consider the applicant who had been under immense and intimidating pressure from PPP members and harassed because of the applicant had left the PPP and had joined the PML(N) on 8 January 2008.

    b. In relation to above the Tribunal did not consider the applicant claim that if he has to go back to Pakistan in near future, the PPP members will seriously harm him.

    4.The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.

    5.The Tribunal not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final out come.

16. The application in the Federal Magistrates Court was supported by a short affidavit. 

17. At [12] of his Reasons, the Federal Magistrate recorded the fact that, when the appellant’s Application for Review had first come before him on 6 December 2010, he had told the appellant that, if he wished to pursue allegations of bias, he would need to serve an Amended Application pleading that allegation fully with particulars.  The Federal Magistrate also noted in his Reasons that he told the appellant on the same occasion that, if the bias allegation was to be pursued, he would expect to see evidence in support of it.

18. No Amended Application for Review was filed in the Federal Magistrates Court and no further evidence was filed by the appellant.

19. The Federal Magistrate held that there was no evidence of bias and that that ground of challenge should be rejected.

20. The Federal Magistrate also observed that it was no part of his function to review the merits of the appellant’s case.

21. The Federal Magistrate also dismissed the appellant’s claim that the Tribunal breached s 424A of the Migration Act 1958 (Cth). That claim had not been particularised. It was not at all clear what information the Tribunal allegedly failed to disclose or ought to have disclosed to the appellant. The Federal Magistrate held that some disclosures were made by the Tribunal at the hearing although he doubted whether the subject matter of those disclosures had truly necessitated the disclosures which were, in fact, made.

22. As far as grounds 2 and 3 relied upon by the appellant were concerned, his Honour noted that, although the Tribunal had not accepted the appellant’s claims, the Tribunal had considered them.  The Tribunal had rejected the appellant’s claims that he had suffered harm on the basis of his political beliefs and that if he returned to Pakistan there was a real chance he would be targeted for his political opinions (real or imputed). 

23. The Federal Magistrate rejected ground 4 relied upon by the appellant upon the basis that the Tribunal did not have a duty to investigate aspects of the appellant’s claims.  His Honour noted that the appellant was unable to articulate what inquiry the Tribunal should have undertaken.

24. As to the allegation that the Tribunal misused country information, the Federal Magistrate held that allegation had not been made out.  He found that the weight to be given to country information was a factual matter and thus a matter for the Tribunal.  He held that he could not detect in the Tribunal’s reasons any inappropriate use of country information.

25. In the end, his Honour concluded that the Tribunal decision was free from jurisdictional error.

    THE APPEAL IN THIS COURT

26. On 18 February 2011, the appellant filed a Notice of Appeal in this Court.  In that Notice, the appellant sought to overturn the decision of the Federal Magistrate.  He also sought consequential relief.  The grounds of appeal relied upon in this Court are:

    1.The Hon. FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claims and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act.  The Tribunal failed to observe this obligation amounted to a breach of a Statutory Obligation.

    2.The Hon. FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences. 

    CONSIDERATION

27. The appellant did not argue manifest unreasonableness before the Federal Magistrate.  He did not seek to support this contention before me.  There is no basis for upholding such a contention and I reject it.

28. As far as ground 2 is concerned, it does no more than raise merits review.  This is impermissible.  I also reject ground 2.

29. I have carefully considered the decision of the Federal Magistrate in order to satisfy myself that it is not infected with any appellable error.  I have done this in light of the grounds of appeal raised by the appellant and notwithstanding the fact that he made no effort at all to support those grounds of appeal by argument before me, either in writing or orally. 

30. I discern no appellable error in the decision of the Federal Magistrate.

31. For this reason, the appeal must be dismissed with costs.

32. There will be orders accordingly.

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

Associate:

Dated:       8 June 2011