FEDERAL COURT OF AUSTRALIA

SZIKN v Minister for Immigration and Multicultural Affairs [2006] FCA 1461

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Federal Magistrates Court Rules rr 44.11 and 44.12

House v King (1936) 55 CLR 499

MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1075

SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543

SZIKN v Minister for Immigration & Anor [2006] FMCA 980

SZIKN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 1319 OF 2006

NICHOLSON J

9 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal dated 10 July 2006 be refused.

2.                  The applicant pay the first respondent’s costs of the application fixed in the sum of $1200.

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

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from a judgment of aFederal Magistratemade on 20 June 2006: SZIKN v Minister for Immigration & Anor [2006] FMCA 980. The judgment dismissed the applicant’s application. The application sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) of 18 January 2006, delivered on 9 February 2006, to refuse to grant a protection (class XA) visa to the applicant. Leave is required because the orders of the Federal Magistrate were interlocutory: Federal Court of Australia Act 1976 (Cth) s 24(1A); Federal Magistrates Court Rules rr 44.11 and 44.12.

2                     The applicant is a citizen of Pakistan who claims a fear of persecution by reason of his political membership of, and his activities as the general secretary for, his unit of the Pakistan Peoples Party (PPP). The applicant claimed he protested against some PPP leaders who joined with the military regime and formed an active group to bring these leaders back to the party. Following a meeting with these leaders his group issued a press release saying these leaders were using the party for their own ends. The applicant claims that as a consequence these leaders arranged for the applicant to be arrested, his shop was looted and the authorities said they were unable to help him. He claims he was assaulted and harassed by the employees of these persons and the authorities would do nothing to protect him.

3                     On 3 November 2005 a delegate of the first respondent refused to grant the applicant a protection visa. He then sought review by the Tribunal.

4                     The Tribunal invited the applicant to attend a hearing on 18 January 2005 and notified him that it could not make a more favourable decision on the information before it. The applicant responded in writing that he did not wish to give oral evidence and consented to the Tribunal proceeding to make the decision. The Tribunal said in its reasons and findings that the applicant did not give the Tribunal the opportunity to explore his claims regarding his political profile, allegiance, activities and any consequences arising from these. The claims the applicant made lacked important details such as names and dates. The Tribunal was not satisfied the applicant had a leading position in attempting to end a split in his party. As a result, the Tribunal found that the applicant did not have a well-founded fear of persecution.

5                     The applicant appealed to the Federal Magistrates Court. At the hearing on 21 March 2006, the applicant was expressly put on notice that his application could be dismissed if the Court was not satisfied that it raised an arguable case for the relief claimed (MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1075 per Black CJ at [14]). He was given an opportunity to obtain legal advice under the Court’s panel advice scheme and to amend his application.

6                     Before the Federal Magistrate the applicant asserted the following grounds:

1.                  the Tribunal did not consider the claim;

2.                  the Tribunal did not accept the applicant’s political activities;

3.                  the Tribunal refused the fact that the applicant belonged to the PPP;

4.                  the Tribunal denied the whole claim;

5.                  the Minister’s delegate accepted that the applicant was a member of the PPP;

6.                  this has resulted in a denial of justice; the Tribunal has gone beyond its limits by denying all the applicant’s claims; and

7.                  the applicant has suffered a lot at the hands of authorities as a result the Tribunal decision was unfair.

7                     The Federal Magistrate dismissed the application on the basis that it did not raise an arguable case for the relief claimed. The applicant’s grounds did not show any argument of substance and his argument that the Tribunal did not consider his claims nor address them according to law could not be sustained. The Tribunal was under no obligation to accept the findings of the delegate as its review is de novo. The Federal Magistrate found that the applicant’s amended application was not formulated with reference to his own circumstances. His Honour also carefully considered the applicant’s grounds of appeal and found that the grounds essentially contended that the Tribunal failed to address the applicant’s claims. The Federal Magistrate did not consider this contention to be reasonably arguable, the applicant having failed to particularise which, if any, of his assertions was ignored by the Tribunal.

8                     If an appeal would be doomed to fail, or if no arguable ground of appeal is raised by the applicant, or if the judgment below is not attended by sufficient doubt to warrant allowing an appeal to go forward (the ground of refusal is variously expressed), there will be no grant of leave to appeal: see SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 per Lindgren J. Relevantly, for the appeal to be successful (so as to justify the grant of leave), the applicant must at least establish that there was some error made in the exercise of the Federal Magistrate’s discretion: see House v King (1936) 55 CLR 499 at [504]-[505].

9                     In support of the present application for leave, the applicant filed an affidavit and a draft notice of appeal in which the applicant provided two typewritten pages that recounted his claims and gave his assessment of the political situation in Pakistan leading up to the 2002 elections. The applicant does not raise any special circumstances to show why matters raised now could not have been raised in the prior proceedings. At the hearing the applicant did not make any additional submissions.

10                  The affidavit repeats the applicant’s claims and does not advance his case. Similarly the draft notice of appeal only makes claims concerning the political environment in Pakistan. No error in the reasoning of the Federal Magistrate is made apparent.

11                 It follows that the applicant has failed to establish any arguable ground upon which leave to appeal could be sustainable.

12                  Accordingly, the application for leave to appeal must be refused with costs.

Associate:

Dated: 9 November 2006