VWOM v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1248

FEDERAL COURT OF AUSTRALIA

VWOM v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1248

MIGRATION – protection visa – application for leave to raise grounds of appeal not before primary judge – new grounds unarguable

Migration Act 1958 (Cth) s 427(1)

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, (2005) 215 ALR 162, referred to.

VWOM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 218 OF 2005

MARSHALL J
7 SEPTEMBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 218 OF 2005

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

VWOM
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

7 SEPTEMBER 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal is added as a respondent to the appeal.

2.The appeal is dismissed.

3.The appellant pay the first respondent’s costs of the appeal.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 218 OF 2005

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

VWOM
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MARSHALL J
DATE:	7 SEPTEMBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This matter is an appeal from a judgment of Federal Magistrate Riethmuller given on 15 March 2005.  His Honour dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”).  The RRT affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the appellant a protection visa.

   Background

2. The appellant is a citizen of Pakistan.  He entered Australia on 26 March 2003 and on 5 May 2003, applied to the Minister for a protection visa.  A delegate of the Minister refused that application on 16 July 2003.  The appellant sought a review of that decision before the RRT.  The RRT dismissed the application on 31 May 2004.

3. The appellant claimed that he had a well founded fear of persecution if returned to Pakistan in the foreseeable future, by reason of his membership of the Pakistan Muslim League (“the PML”), his Sunni Muslim religion and his support of former Prime Minister Nawaz Sharif.  He claimed that he would be persecuted by Shi’a Muslims or Pakistani authorities.

4. Amongst other claims, the appellant alleged that he took certain documents critical of the current Pakistani leader (General Musharraf) to Saudi Arabia to allow Pakistanis in Saudi Arabia to read them.

   The RRT’s findings

5. The RRT found the appellant’s evidence, at the hearing before it, to be “inconsistent and inherently unconvincing”.  It made strong adverse credibility findings in respect of the appellant.

6. The RRT did not accept that the appellant genuinely feared being persecuted by Shi’a Muslims for religious reasons.  It did not accept that he had been harmed or mistreated by supporters of General Musharraf for the appellant’s support of the PML.  Further, it did not accept that Pakistani police had questioned him, or friends of his, about his support of the PML.  It also considered that there was no reason why the appellant could not relocate from his local area to Lahore, and that the costs involved in so doing would not be important if he feared persecution in his home town.

   The Court below

7. The appellant represented himself before his Honour.  He identified as the “true issue”, his claim that he faced persecution as a Sunni Muslim.

8. The learned Federal Magistrate observed that the RRT “found against the [appellant] on a matter of credit”.  He detected no error of law in the reasons for decision of the RRT, or any procedural error in the way the RRT undertook its task.  He dismissed the application for judicial review.

   The grounds of appeal

9. On appeal, the appellant claimed in his written submissions that his Honour erred in finding that the appellant was not denied procedural fairness.  The appellant did not raise that issue before the primary judge.  A question arises as to whether he should have leave to raise the new ground.  Leave will be refused if the new ground is unarguable.

   The procedural fairness complaint

10. The appellant, in his written submissions, claimed that the RRT failed to consider certain country information provided to it by him, or on his behalf.  There is no substance in this point.  The RRT specifically said that it did consider that information.  

11. The appellant next claimed that the RRT failed to consider evidence relating to the documents taken to Saudi Arabia.  This point is hopeless.  The RRT referred to those documents in its reasons for decision.

12. The appellant then claimed that at the hearing before the RRT, the RRT:

    ·           failed to consider the help given by the appellant to Nawaz Sharif;

    ·           unreasonably considered the appellant could relocate within Pakistan; and

    ·           failed to consider the appellant’s genuine fear of persecution by Shi’a Muslims.

13. There was no claim made by the appellant that he personally provided help to Nawaz Sharif of such a kind that would lead to him being persecuted.  The RRT’s finding about the possible re-location of the appellant in Pakistan was one which was open to it on the evidence, as a matter of merit.  In any event, it was not relevant to its decision that the appellant had no subjective fear of persecution for a Convention reason. Finally, the RRT did consider whether the appellant had a genuine fear of persecution for the reasons advanced by him and held that he did not.

14. The last new point sought to be raised on appeal, in the appellant’s written submissions, is whether the RRT failed to comply with s 427(1) of the Migration Act 1958 (Cth) (“the Act”) “by failing to make necessary investigations into certain important matters with respect to the review of the Appellant’s application”.

15. The new submission based on s 427(1) of the Act is also unarguable. It is not for the RRT to make out a case for an applicant before it. The RRT found the appellant not to be a credible witness. It had no further obligation to enquire on the appellant’s behalf to find a possible basis upon which he may succeed on review.

    Disposition

16. Having regard to the foregoing, the new proposed ground of appeal, and each of its component parts, is unarguable. No other grounds of appeal, which allege any error in the judgment below have been advanced. In his oral submissions, the appellant confined himself to matters going to the merits of the decision of the RRT and raised concerns about going back to Pakistan in circumstances where conflict exists between Shi’a Muslims and Sunni Muslims. This is not a matter which the Court can consider in its appellate function, nor was it a matter on which the Court below could identify a judicially reviewable error. Accordingly the appeal must be dismissed, with costs.  Consistent with the judgment of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, (2005) 215 ALR 162, the RRT will be added as a respondent.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:            6 September 2005

The appellant appeared for himself.
Counsel for the Respondents:		Mr S D Hay
Solicitor for the Respondents:		Clayton Utz
Date of Hearing:		6 September 2005
Date of Judgment:		7 September 2005