SZQEC v Minister for Immigration and Citizenship

[2011] FCA 1091

FEDERAL COURT OF AUSTRALIA

SZQEC v Minister for Immigration & Citizenship [2011] FCA 1091

Citation:		SZQEC v Minister for Immigration & Citizenship [2011] FCA 1091
Parties:		SZQEC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
File number:		NSD 1602 of 2011
Judge:		BUCHANAN J
Date of judgment:		20 September 2011
Catchwords:		MIGRATION – refugee claim – urgent injunction – application for an extension of time in which to appeal –  whether any error of law identified – application dismissed
Cases cited:		Plaintiff M61 (2010) 272 ALR 14 SZQEC v Minister for Immigration & Anor (2011) FMCA 543
Date of hearing:	20 September 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	14
Counsel for the Applicant:	Mr J F Gormley
Solicitor for the First Respondent:	Mr A Markus, Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1602 of 2011

BETWEEN:

SZQEC
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	20 SEPTEMBER 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for an extension of time in which to appeal and for an injunction is         dismissed with costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1602 of 2011

BETWEEN:

SZQEC
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	BUCHANAN J
DATE:	20 SEPTEMBER 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. It is now 9.20 pm.  The applicant is due to be removed from Australia tomorrow morning at 10 am.  An application has been made to restrain the Minister for Immigration and Citizenship from removing him from the country.  The applicant is at present being held in the Villawood detention centre.  The principal documents provided to the Court, apart from the application with which I am dealing and an affidavit in support, are a statement of reasons by Mr Michael Griffin AM who conducted an independent merits review (the statement of reasons bears the date 14 March 2011) and the judgment of the Federal Magistrates Court of Australia delivered on 1 August 2011 (SZQEC v Minister for Immigration & Anor (2011) FMCA 543) from which the applicant now wishes to appeal. An extension of time is necessary.

2. The matters which emerge from the history revealed by the documents include the following.  The applicant first arrived in Australia by boat in 1999.  He was given a temporary protection visa under a different name with a different younger claimed age, after claiming to have been mistreated by the Taliban in Afghanistan.  In 2001, he was notified that consideration was being given to the cancellation of his visa.  Arising from his response to those processes, he provided information to the effect that he was born in Pakistan and produced a copy of a Pakistani passport.  In 2002, his temporary protection visa was cancelled and in November of that year, he departed Australia for Pakistan.

3. In 2005, in Pakistan, he made an application for a special humanitarian visa, claiming to have been born in Pakistan and to be a Pakistani citizen.  That visa was not granted to him.  The applicant came again to Australia by boat in 2009 and was taken to Christmas Island in September 2009.  On 10 December 2009, he received a negative assessment of his claims for a protection visa.  On 23 March 2010, an independent merits review recommended that he not be recognised as a refugee.  After the judgment of the High Court, in Plaintiff M61 (2010) 272 ALR 14, the Minister directed a further independent review. On 14 March 2011, the second review, carried out by Mr Griffin, recommended that the applicant not be recognised as a refugee.

4. An application for judicial review was made to the Federal Magistrates Court of Australia.  The applicant was represented in those proceedings by counsel.  On 1 August 2011, the application for judicial review was dismissed, the reasons for judgment being those set out in the judgment to which I earlier referred.  There was no appeal to this Court at that time or until late this afternoon.  Late this afternoon an application was made for an extension of time in which to appeal.  The grounds of appeal, as expressed in a draft notice of appeal, which accompanied an affidavit made by the applicant, were that the decision of the Federal Magistrates Court was affected by legal error and the decision of Mr Griffin was affected by legal error.  The explanation for the delay in bringing the application for an extension of time given by the applicant in his affidavit was stated in this way:

   I do not have good English and have no knowledge of legal rights.  I did not understand that I had a right to appeal to the Federal Court.  I did not receive any advice that I could appeal.

5. The applicant also said:

   I am not a citizen of Pakistan.  I am Afghani.  I have told the Immigration Department that I am Afghani and I have evidence to prove that.

6. The proceedings in the Federal Magistrates Court did not challenge a number of findings which had been made by Mr Griffin.  The judgment of the Federal Magistrates Court recorded the following at paragraphs 6 to 7:

   6.no challenge was made before me to Mr Griffin’s conclusion “that the claimant was born in Pakistan and not in Afghanistan and that Pakistan is the country of reference for assessment of his claims for protection”.  Nor was any challenge made on grounds of error of law, including rights of procedural fairness, to Mr Griffin’s conclusions but the applicant “is not a witness of truth”, and that his claims personally to have encountered persecution or threats of persecution in Pakistan and elsewhere “are fabrications”.

   7.The applicant challenges the legality only of how Mr Griffin addressed whether the applicant had a well founded fear of persecution if he returned to Pakistan, based upon his findings that the applicant was a nationality [sic] of that country and had not previously personally encountered convention related persecution.  In short, the present grounds of review concern how Mr Griffin addressed whether the applicant faced a risk amounting to a real chance of future convention related persecution if he returned to his previous life in Pakistan merely by reason of attributes of Hazara ethnicity and Shia religion.

7. There is no reason to doubt that for the purpose of the proceedings before the Federal Magistrates Court of Australia and in the conduct of those proceedings, the applicant had the benefit of conscientious advice and capable assistance.  Three specific challenges were made to Mr Griffin’s reasons.  They were identified at paragraph 9 of the judgment.  In the light of the course of proceedings before me, it will not be necessary to deal with those matters in any detail.  However, it is appropriate to record that the Federal Magistrates Court of Australia did deal in some detail with the challenges which were relied upon before that court.  Each of the challenges was rejected for reasons which were comprehensively stated. 

8. At the hearing before me this evening, no challenge has been made to those aspects of the judgment of the Federal Magistrates Court.  Rather, attention has been focused upon a matter which the Federal Magistrates Court was not asked to deal with.  That matter is the claim expressed by the applicant in his affidavit that he is Afghani and not a citizen of Pakistan and the finding made by Mr Griffin that was referred to in paragraph 6 of the judgment of the Federal Magistrates Court which I quoted a short time ago but will state again for convenience:

   that the claimant was born in Pakistan and not in Afghanistan and that Pakistan is the country of reference for assessment of his claims for protection.

9. The matters upon which it is now intended the applicant would rely if an extension of time in which to appeal was granted, were dealt with in some detail in Mr Griffin’s report dated 14 March 2011.  At paragraphs 17 to 19 of that report, Mr Griffin outlined the circumstances in which the applicant came to Australia in 1999, the claims that he made in support of his initially successful application for a temporary protection visa, the circumstances in which those claims came under review and the fact that the applicant declared a different position before being eventually taken from Australia on 9 November 2002. 

10. Mr Griffin also records at paragraph 21 of his report that after his arrival at Christmas Island in September 2009, the applicant told interviewers that he had been born in Afghanistan and, thereafter, from the age of about 11 had for some 33 years lived in Pakistan.  It is apparent from paragraphs 27 to 30, that Mr Griffin gave direct and specific attention to inconsistencies in the applicant’s claims at various times concerning the place of his birth and the date of his birth.  Those inconsistencies were resolved in paragraph 31 which contains the finding set out above that the applicant wishes to challenge if an extension of time in which to appeal is granted to him. 

11. It seems to me that the conclusion is inevitable that the resolution of those matters in the hands of Mr Griffin, and by way of his report and recommendation, involved the resolution of factual issues and the resolution of matters which concern the merits of the applicant’s claim to be entitled to protection in Australia.  Despite Mr Gormley’s efforts to persuade me to a different view of those matters, I am unable to see in such matters, any question of law which would arise for legitimate consideration in an appeal to this Court from the judgment of the Federal Magistrates Court, even if permission was given to deal with matters on appeal which had not been debated (and which had, indeed, been eschewed) in the proceedings in the Federal Magistrates Court. 

12. I would not hesitate to grant an injunction if this was an appropriate case in which to grant leave to appeal out of time, so that the processes of this Court in relation to the appeal could take an orderly course and the applicant could remain in Australia while those processes were completed.  However, I cannot see, on the papers which I have or with the benefit of counsel’s assistance, any foundation upon which it would be proper to grant an extension of time in this case.  It follows that there do not appear to me to be any grounds upon which I should restrain the Minister from the action which is proposed tomorrow morning.  The application will, therefore, be dismissed.

13. The Minister sought costs.  Counsel for the applicant was unable to say anything against that application.

14. The application for an extension of time in which to appeal and for an injunction is dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        21 September 2011