SZQSH v Minister for Immigration and Citizenship
[2012] FCA 876
•8 August 2012
FEDERAL COURT OF AUSTRALIA
SZQSH v Minister for Immigration and Citizenship & Anor
[2012] FCA 876
Citation: SZQSH v Minister for Immigration and Citizenship & Anor [2012] FCA 876 Appeal from: SZQSH & Ors v Minister for Immigration & Anor [2012] FMCA 255 Parties: SZQSH, SZQSI, SZQSJ, SZQSK and SZQSL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 640 of 2012 Judge: NICHOLAS J Date of judgment: 8 August 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 18 Counsel for the First Appellant: The First Appellant appeared in person with the assistance of an interpreter Counsel for the Second, Third, Fourth and Fifth Appellants The Second, Third, Fourth and Fifth Appellants did not appear Solicitor for the First Respondent: DLA Piper Counsel for the First Respondent: D Godwin
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 640 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQSH
First AppellantSZQSI
Second Appellant
SZQSJ
Third AppellantSZQSK
Fourth AppellantSZQSL
Fifth AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
8 AUGUST 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The first and second appellants pay the first respondent’s costs of the appeal.
Note:Settlement and entry of orders is dealt with in Rule 39.32 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 640 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQSH
First AppellantSZQSI
Second Appellant
SZQSJ
Third AppellantSZQSK
Fourth AppellantSZQSL
Fifth AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE:
8 AUGUST 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Revised from Transcript)
In this matter the appellants appeal against the judgment of Federal Magistrate Driver, delivered on 20 April 2012. The first appellant, his wife, and three of his dependent children sought judicial review of a decision of the Refugee Review Tribunal (Tribunal), affirming the decision of the delegate of the first respondent not to grant them protection visas. The Tribunal held that it did not have jurisdiction in relation to a fourth child, who was apparently born after the delegate’s decision was made. The Federal Magistrate dismissed the application, holding that the appellants had failed to establish a case of jurisdictional error by the Tribunal.
At the commencement of the hearing the first appellant, who was assisted by an interpreter qualified in the Urdu language, applied for an adjournment of the hearing of the appeal. I refused that application. I did so because I am satisfied that the appeal has no prospects of success.
The notice of appeal in this matter was filed on 8 May 2012. It appears that notice of the date of the hearing of the appeal was given to the parties in June 2012. The first appellant informed me today that he requires an adjournment in order that he may obtain legal assistance provided by a legal aid body in relation to his appeal. He told me that he has an appointment to obtain such assistance in the near future. No real explanation was offered as to why legal assistance could not have been obtained well before today. An important feature of the present proceeding is that the appellants were represented by counsel in the proceeding heard by the Federal Magistrate.
While there were two grounds of review raised in the application for review filed on behalf of the appellants, only one of those grounds was pressed before the Federal Magistrate. It was rejected for reasons which I will shortly explain. Ordinarily, of course, the appellants would not be permitted to raise additional grounds of review which were not pressed before the learned Federal Magistrate.
In the present case, it seems to me that the only ground of review open to be raised by the appellants (unless leave to raise some ground not argued below is granted) involves an argument that was rejected by the Federal Magistrate for reasons with which I fully agree.
The notice of appeal filed in this matter does not raise any specific grounds of appeal, but merely refers to, in the most general terms, “error of fact and law”. Having read the Tribunal’s reasons for decision and the reasons for decision of the Federal Magistrate, there is nothing to suggest that the appellants have any arguable ground of appeal against the decision of the Federal Magistrate.
The first appellant, in his application for protection visas, claimed that he was a Sunni Muslim from Pakistan whose first marriage had broken down. He claimed that his current wife and he married in 2004, but that she was a Shia Muslim, and her relatives were unhappy with the marriage and wanted him to convert to her religion. He claimed that he did not wish to convert, and that his wife’s relatives threatened to kill him. He further claimed that he fled to the United Kingdom where he claimed protection, but his wife’s relatives called him back to discuss reconciliation and, on that basis, he returned to Pakistan in 2006.
He further claimed that he fled to Australia in 2009, that his wife’s relatives again called him back to discuss reconciliation, and that, on that basis, he again returned to Pakistan. He claimed that upon his return, his wife’s relatives kept threatening him, and so he returned again to Australia and lodged applications for protection visas in relation to himself, his wife and his children. The first appellant claimed that members of his wife’s family were determined to kill him because he would not change religion. He further claimed that state authorities will not assist him, he having applied for a restraining order which was refused on the basis that it was not a civil or criminal matter, but a religious matter.
As I have said, the appellants were represented by counsel at the hearing before the Federal Magistrate. The only point raised on their behalf before the Federal Magistrate was that referred to in the second ground of the application for review which was as follows:
2.The Tribunal made jurisdictional error in relation to the nature and meaning of persecution at [159] of its decision requiring that persecution in relation [sic] religious conversion must be either;
(a) State Sponsored; or
(b) Community based.
The only issue argued before the Federal Magistrate concerned the proper interpretation of the following paragraph of the Tribunal’s reasons for decision (para [159]), which is as follows:
I have considered the situation for the applicants if they return to Pakistan. As they are Sunni Muslims I do not accept that they are at any risk of Convention based religious persecution if they return to Pakistan. Sunni Muslims constitute a majority in Pakistan and whilst there is country information indicating sectarian conflict between Sunnis and Shias in some locations the information indicates that the Shia minority are usually the victims of such conflict and that police and state authorities have been criticised for protecting the Sunni participants in such conflicts and not providing adequate protection to the Shias. There is no information suggesting that Sunni Muslims are targeted for harm by Shias for reasons only of their religious beliefs. I have considered the claim made by the applicants that they face harm because the applicant wife was a Shia who changed to Sunni Islam after her marriage. There is no country information before me and I do not accept that a person who has converted to become a Sunni would face either state sponsored or community based persecution in Pakistan for reasons of conversion.
Accordingly the Tribunal did not accept that the first appellant or his wife or children had a genuine fear of persecution for reasons of religion, or that the first appellant, his wife or children had been threatened or mistreated for reasons of religion. In particular, the Tribunal also rejected any suggestion that the first appellant, his wife or children had any genuine fear of persecution for reasons of religion arising out of his wife’s conversion to Sunni Islam, either at the hands of his wife’s relatives or at the hands of members of an extremist group known as Sipah-e-Mohammed.
It is clear that the Tribunal was not satisfied that the first appellant’s evidence concerning either his fears or his dealings with his wife’s relatives in the past was reliable, and the decision as a whole turned largely upon the Tribunal’s assessment of the first appellant’s credibility and its view as to the unreliability of his account of his past dealings with his wife’s family.
It is apparent that the Tribunal’s views as to the reliability of the first appellant’s evidence were significantly influenced by evidence before the Tribunal as to his movements between the United Kingdom, Pakistan and Australia. In this regard, it is apparent that the Tribunal had considerable difficulty accepting why the first appellant would be returning to Pakistan first from the United Kingdom and then from Australia in circumstances where he claimed that his wife’s family were intent on killing him.
The Federal Magistrate noted that it was the appellant’s contention that the Tribunal fell into error in two respects. First, it was said that the Tribunal wrongly confined the relevance of non-State sponsored persecution in Pakistan in the appellants’ case to community-based persecution, and secondly, thereby limited its forward-looking assessment of the risk of persecution faced by the appellants. In paragraph [159] of its reasons, the Tribunal said that it did not accept that a person who had converted to become a Sunni would face either State sponsored or community-based persecution in Pakistan by reason of such conversion.
The Federal Magistrate accepted the submission on behalf of the first respondent that, read in the context of the Tribunal’s reasons as a whole, the reference to “community-based” persecution was simply a reference to persecution at the hands of non-State actors including, but not limited to, members of the second appellant’s family and the extremist group known as Sipah-e-Mohammed. A reading of the Tribunal’s reasons indicates that the Tribunal’s focus was upon the risk of persecution on religious grounds at the hands of the second appellant’s family and the Sipah-e-Mohammed group. The references to “community based” persecution in para [159] of the Tribunal’s reasons for decision must be understood in that light.
Accordingly, I agree with the Federal Magistrate’s reasons for rejecting the ground of review relied upon by the appellants below. I do not consider that the Federal Magistrate erred in any relevant respect. I agree with his conclusion and his decision to dismiss the application for review. In the result the appeal must be dismissed with costs.
The first respondent only sought a costs order against the first and second appellants.
In the result, the appeal will be dismissed. The first and second appellants must pay the first respondent’s costs of the appeal.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 21 August 2012
0
0