FEDERAL COURT OF AUSTRALIA

SZIWM v Minister for Immigration & Citizenship [2007] FCA 361

SZIWM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2209 OF 2006

BENNETT J

22 FEBRUARY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The name of the first respondent be changed to the ‘Minister for Immigration and Citizenship’.

2.                  The Refugee Review Tribunal is joined as the second respondent.

3.                  The appeal is dismissed.

4.                  The appellant is to pay the first respondent’s costs.

5.         Leave is granted to the first respondent to forward to my chambers within 3 three days evidence upon which any application for fixed costs is to be based.

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

REASONS FOR JUDGMENT

1                     The appellant is a citizen of Pakistan who claims to have a well-founded fear of persecution in that country by reason of his political beliefs.  He claims that he was an active member of the Pakistan Muslim League Nawaz Group and suffered persecution because of his membership of that group. 

2                     This is an appeal from a decision of Federal Magistrate Scarlett, who dismissed an application pursuant to r 44.05 of the Federal Magistrates Court Rules 2001 (Cth) (‘the Rules’) for an order to show cause why a remedy should not be granted in respect of a decision by the Refugee Review Tribunal (SZIWM v Minister for Immigration & Anor [2006] FMCA 1627).  The Tribunal, in its decision, affirmed a decision of the Minister’s delegate to refuse the appellant a Protection (Class XA) visa.  His Honour did not state in his reasons whether he proceeded to dismiss the application under r 44.12(1)(a) or (c) of the Rules.  The parties have proceeded on the understanding that his Honour’s judgment was final rather than interlocutory and I am satisfied that it is appropriate to proceed on that basis. 

3                     The appellant had notified the Tribunal that he did not wish to take the opportunity to appear personally before it.  The Tribunal accepted that the appellant is a citizen of Pakistan but otherwise found that his claims ‘lack[ed] detail’.  The Tribunal set out those claims in its reasons for decision and concluded that:

‘Given the lack of detail contained in [the appellant’s] protection visa application, the Tribunal is unable to make findings of fact in relation to [the appellant’s] claims.’

4                     Federal Magistrate Scarlett dealt with the grounds in the application before him.  His Honour concluded that the Tribunal appeared to have summarised the appellant’s factual claims concisely and to have found that it was not satisfied on the basis of the inadequacy of the evidence (at [15]).  As there was no evidence that the Tribunal failed to consider a claim or any part of a claim made by the appellant, the appellant’s submission that ‘[t]he [Tribunal] ignored the amount of fear in the case of the applicant’ was rejected.  His Honour read the Tribunal’s decision independently of the appellant’s application and concluded that there was no jurisdictional error on the part of the Tribunal (at [23]).

The appeal to this Court

5                     The appellant appears in person assisted by an interpreter.  He stated both before and after the Minister’s submissions that he wishes to rely only on his notice of appeal.  The ground set out in the notice of appeal is:

‘That learned Federal Magistrate vide his judgment did not appreciated (sic) the four key element[s] of being a refugee.  The respondents also failed to appreciate the amount of mistreatment + harm to which the appellant shall be faced (sic).  The appellant was an active member of the political party + printed the anti government literature + was persecuted to the last degree of persecution in his country.’

6                     It is not entirely clear what is encompassed within the ground as stated and there are no particulars.  It seems to me that the ground can be said to contain the following elements:

(1)        the Federal Magistrate did not consider the failure of the Tribunal to consider the claims of the appellant in terms of the four key elements of the Convention definition;

(2)        the appellant seeks merits review of the Tribunal decision;

(3)        there is a restatement of the claims of the appellant.

7                     The second and third elements need not be addressed further as they deal only with factual matters.  To the extent that the appellant seeks merits review, that is not within the jurisdiction of the Court.  The appellant did not provide any particulars of any claims made to the Tribunal that he says were not dealt with.  There is nothing in the Tribunal’s reasons for decision to suggest that there was any relevant failure on its part to consider the appellant’s claims.

8                     The Tribunal’s reasons state the correct test for the definition of a refugee under the Convention.  There are no particulars to explain how the appellant says the Tribunal erred in this regard.  No error is apparent.

9                     The Tribunal noted information set out in the appellant’s application for a protection visa in its decision.  Although it was not raised as a ground of appeal, for the sake of completeness I will deal with any suggestion that the Tribunal was obliged under s 424A of the Act to put that information in writing to the appellant.  I am satisfied that the Tribunal was not so obliged.  The reason for its decision was its inability to be satisfied because of the insufficiency of evidence before it that the appellant had a genuine, well-founded fear of persecution for a Convention reason (SZEZI v Minister for Immigration & Multicultural Affairs [2005] FCA 1195 at [29]; SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 at [12]; SZCCF v Minister for Immigration & Multicultural Affairs [2006] FCA 1089 at [21]). 

10                  It follows that the appellant has not established any error on the part of the Federal Magistrate or jurisdictional error on the part of the Tribunal.  The appeal should be dismissed. The appellant is to pay the first respondent’s costs.  The first respondent seeks costs in a fixed sum.  I grant leave to the first respondent to forward to my chambers within three days evidence upon which any application for fixed costs is to be based. 

Associate:

Dated:         15 March 2007

The appellant appeared in person.