FEDERAL COURT OF AUSTRALIA

SBGD v Minister for Immigration & Multicultural Affairs [2006] FCA 1175

MIGRATION – application for leave to appeal – summary dismissal – where applicant failed to appear before Federal Magistrates Court

HELD – application refused

MLGXAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 966 - cited

SBGD v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

SAD 128 OF 2006

MANSFIELD J

22 AUGUST 2006

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application is refused.

2.                  The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Pakistan. He arrived in Australia in August 2005 and promptly applied for a protection visa under the Migration Act 1958 (Cth) (the Act). His application was refused by a delegate of the first respondent on 8 September 2005 and subsequently by the Refugee Review Tribunal on 14 November 2005. The applicant applied to the Federal Magistrates Court for an order to quash the decision of the Tribunal for jurisdictional error, that being the only ground upon which such an application could have been made.

2                     Unfortunately he did not attend the hearing of that application on 6 April 2006. Because he did not attend, his application was dismissed pursuant to r 13.03A(c) of the Federal Magistrates Court Rules. The applicant then applied to this Court for leave to appeal from the judgment of the Federal Magistrates Court on 4 July 2006. Leave is required because the judgment is interlocutory. See s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and MLGXAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 966.

3                     In addition, because that application for leave to appeal was not brought within 21 days, the time specified by O 52 r 5(2) of the Federal Court Rules, the applicant also seeks an order that compliance with that rule be dispensed with. I do not propose to explore the reasons why the applicant failed to make that application promptly or why he did not attend before the Federal Magistrates Court. The grant of the application for leave to appeal is, of course, discretionary. One matter of significance is that the Court should be satisfied that there is at least some arguable basis on which the appeal might succeed if leave to appeal is granted. It is to that topic that I turn.

4                     As the applicant did not attend the Federal Magistrates Court hearing and his application was dismissed for non-attendance, there are no reasons of the Federal Magistrate dealing with the merits of his application. I propose, nevertheless, to look at the Tribunal decision to see whether there is any prospect of the applicant succeeding on an appeal from that decision, assuming the events in the Federal Magistrates Court may be ignored. That is an assumption very much in the applicant's favour. So too is my preparedness to treat as a neutral factor in the exercise of my discretion his failure to appear at that Court and his delay in making his application to this Court.

5                     Before the Tribunal, the applicant made five claims upon which he said he had a well founded fear of persecution for a convention reason. Upon one or more of those claims he therefore asserted that he was a person to whom Australia owed protection obligations under the Refugees Convention, as amended by the Refugees Protocol so as to satisfy the criterion for the grant of a protection visa specified in s 36(2) of the Act. It was upon the satisfaction or otherwise of the existence of that criterion that the Tribunal affirmed the decision not to grant him a protection visa.

6                     The Tribunal was not satisfied that the applicant has a well founded fear of persecution for a convention reason if he returns to Pakistan in respect of any of the five grounds upon which he asserted the existence of such a fear. Those grounds were, firstly, that he had converted from Islam to Christianity and that if he were to return to Pakistan he would be persecuted for apostasy. Secondly, he claimed that he and his family had been targeted by Jihadi organisations since at least 1993 and that if he were to return to Pakistan he would be further persecuted by those organisations, the more so because he would be perceived as having changed his religion so as not to have to pay those organisations money.

7                     He also claimed to have a well founded fear of persecution if he were to return to Pakistan by reason of having made an unsuccessful application for a protection visa, by reason of having breached Pakistani laws, by jumping ship when the ship on which he was working docked in Australia in August 2005 and because he had become accustomed to a western way of life as a result of having lived abroad and would be so recognised in Pakistan and persecuted because of that appearance.

8                     As I have said the Tribunal rejected all of those claims. It did not accept that he had converted to Christianity from about May 2005 as he claimed, and it gave reasons for that decision. As a consequence, it did not accept that he had told his wife, or others, that he had converted to Christianity because that was not, as the Tribunal found, the fact and so there was no basis to conclude that he would be persecuted by reason of his conversion if he were to return to Pakistan and no basis upon which a fatwa would have been issued against him.

9                     It regarded his conduct in attending church and apparently taking steps to enhance his knowledge of Christianity whilst he was in Australia as information which the Tribunal could not take into account by reason of s 91R(3) of the Act, because it was not satisfied that he had engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee.

10                  The Tribunal also rejected the applicant's claim that he would be persecuted for reasons of his real or imputed political opinion or his previous dealings with Jihadi organisations if he were to return to Pakistan. It noted that, on his evidence, in the period of about two years from December 2002 to December 2004, he had worked in Karachi operating a phone shop without any difficulties. As it did not accept that he had converted to Christianity, there was no reason to think that those organisations would be the more interested in him by reason of such a conversion.

11                  The Tribunal also rejected the other claims made by the applicant on the information available to it. An unsuccessful protection visa applicant returning to Pakistan would not be vulnerable to persecution by reason of that status. If he were vulnerable to any punishment for having jumped ship to arrive in Australia, that would simply be an enforcement of a law of general application and he would be treated according to Pakistani law equally with any other Pakistani person and would not be singled out for persecution by reason of any convention reason.

12                  Finally, the Tribunal did not accept that in the past he had been exposed to persecution by having adopted western ways whilst working on ships in previous years. It found that there was no independent information to support the applicant’s claim that he would be vulnerable to persecution for that ground. In my view each of those conclusions was reasonably open to the Tribunal. It is not shown to have misdirected itself in law. It has, in essence, made adverse findings on credibility on the applicant's two principal claims for the reasons which it recorded but principally because of relatively subtle differences in the accounts given by the applicant in statements to the Tribunal when he first made his protection visa application and in his oral evidence, together with his inability to explain in any detail any knowledge of Christianity, even up to the time of the Tribunal hearing.

13                  I have considered the material the applicant has submitted comprising, in particular, his affidavit filed on 4 July 2006, his proposed notice of appeal and a subsequent letter dated 17 July 2006. Those matters are re-assertive of certain of the claims to which I have referred. They do not identify, in any respect, errors which might be described as jurisdictional errors on the part of the Tribunal. As I said to the applicant in the course of his submissions, it is the limited role of the Court on an application such as the present to determine whether the decision of the Tribunal was made through jurisdictional error.

14                  I have also considered the Tribunal's reasons for decision myself. One piece of information which the Tribunal took into account as indicating to a degree some inconsistency in his evidence was contained in a letter from Sister Pat Sealey, dated 1 November 2005, and provided to the Tribunal after the hearing. The applicant was not given a notice pursuant to s 424A of the Act about that information; that is, was not given particulars of that information and the opportunity to comment upon it. In my judgment it was not obliged to do so because s 424A(3) exempts from its operation information that the applicant gave for the purpose of the application. That letter was provided to the Tribunal by the applicant through his representative under cover of a letter of 3 November 2005.

15                  Although the Tribunal was obliged by s 91R(3) to disregard conduct engaged in Australia unless satisfied that it was otherwise than for the purpose of strengthening the applicant's claim to be a refugee, and although that provision therefore precluded the Tribunal on the basis of its other findings from having regard to his conduct in attending Christian services and courses in the detention centre, I also considered whether the Tribunal may have erred in not accepting the applicant's fear that two persons who had been with him in Australia and were aware of his church attendance may have told the Pakistani authorities about his apparent conversion.

16                  I have not fully considered whether those events, if established, would fall within the scope of s 91R(3). However, I am satisfied, upon consideration of the Tribunal's reasons, that there was no jurisdictional error in the Tribunal not accepting the applicant's claimed fear that those two persons may have told the Pakistani authorities, or people in general, about the applicant's claimed conversion. Consequently, there is no foundation upon which jurisdictional error might be established.

17                  The reason why the Tribunal simply did not accept that claimed fear in the case of one of the persons is because, on the applicant's own evidence, he believed that person had gone to England rather than to Pakistan. In the case of the other person, the applicant claimed that that he may have told the authorities of the applicant's interest in Christianity to save himself upon his return to Pakistan. However, the Tribunal's questioning of the applicant indicated that that was purely speculative. Moreover, it was on an assumption which was not made out, namely, that that other person had been deported to Pakistan when in fact, so far as the Tribunal was informed, that other person had returned voluntarily to Pakistan, so that there was no reason why he would have needed to have fear for his own safety upon his return.

18                  In all the circumstances, I can see no basis at all upon which there is any prospect of an appeal succeeding, if leave to appeal is granted. In those circumstances, I exercise my discretion to refuse the application. The applicant must pay the first respondent's costs of the application.

Associate:

Dated: 8 September 2006