FEDERAL COURT OF AUSTRALIA

SZLBT v Minister for Immigration & Citizenship [2008] FCA 362

SZLBT v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2143 of 2007

GOLDBERG J

29 FEBRUARY 2008

SYDNEY

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

THE COURT ORDERS THAT:

1.                     The application for leave to appeal be dismissed.

2.                     The applicant pay the First Respondent’s costs of the application fixed in the sum of $1,700.00.

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

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

REASONS FOR JUDGMENT

1                          The application before the Court is an application made on 29 October 2007 for leave to appeal from the decision of the Federal Magistrates Court on 11 October 2007 dismissing the applicant’s application which was made pursuant to Rule 44.12 of the Federal Magistrates Court Rules.  The dismissal was on the ground that the application did not raise an arguable case for relief.  The applicant’s application before the Federal Magistrates Court was for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) on 8 June 2006, which was handed down on 29 June 2006, affirming the decision of the delegate of the Minister for Immigration and Citizenship (“the Minister”) refusing to grant the applicant a Protection (Class XA) Visa.

2                          The applicant, a citizen of Pakistan, arrived in Australia on 29 August 2005.  On 25 November 2005, he applied for a Protection (Class XA) Visa.  On 17 February 2006, the delegate of the Minister refused his application for a visa.  On 22 March 2006, the applicant applied to the Tribunal to review the delegate’s decision.  The applicant attended a hearing of the Tribunal on 24 May 2006, and, as I noted earlier, the Tribunal made its decision on 8 June 2006, which it handed down on 29 June 2006. 

3                          The applicant was born on 25 March 1977.  He claimed that he and his family supported and assisted the Pakistan Peoples Party.

4                          He said he became a member of the Pakistan Peoples Party in 1996 and he said he was attacked at rallies and on polling day.  He was granted a temporary Australian visa in Islamabad and he now fears harm from political opponents and authorities.  He also fears harm from people smugglers.

5                          The Tribunal did not accept his claims to have had recent involvement with the Pakistan Peoples Party, nor did the Tribunal accept that he had been subjected to acts of violence, arrest or threats in recent times.  The Tribunal reached this finding on the basis of his written and oral evidence before the Tribunal.  The Tribunal was critical of this oral evidence and described it as nondescript and equivocal, as well as being vague and noncommittal.  The Tribunal made the following finding:

“In light of the paucity of the Applicant’s evidence in respect to both his recent political activities and his claims of harm the Tribunal does not accept that the Applicant has faced threats to his life from political opponents and that his life is in danger should he return to Pakistan because of his political opinion.”

The Tribunal made other findings, which are summarised in paragraphs 19 to 22 of the Federal Magistrate’s reasons.  The Tribunal was not satisfied that the applicant had a well‑founded fear of persecution as a member of a social group.  Before the Federal Magistrate the applicant relied on a ground of review based on jurisdictional error.  That breach was not particularised.  The Tribunal had dismissed the application on the basis of the credibility of the applicant’s oral evidence to the Tribunal and on the basis of his written submissions.

6                          The Federal Magistrate found that there was no arguable case for relief made out, that there was no arguable breach of s 424A of the Migration Act 1958 (Cth) made out and that no jurisdictional error had been established.  In his draft notice of appeal before this Court the applicant has set out grounds which are not particularised.  He claims that the Federal Magistrate failed to “find error of law, jurisdictional error or lack of procedural fairness”.  Those grounds are not particularised and I am satisfied that no such errors can be discerned in either the Federal Magistrate’s reasons or the Tribunal’s reasons.

7                          In a further ground of appeal the applicant says that his case is very much similar to that before the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601.  There was no material before the Federal Magistrate nor is there any material before me which enlivens the principles in that High Court decision.  Similarly, the applicant raises in his grounds of appeal the decision of the High Court in the matter of Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and the decision of the Federal Court in the case of AGDB v Minister for Immigration and Multicultural Affairs, (which I take to be a reference to SGDB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 59).  I am satisfied that there is nothing in the Tribunal’s decision or in the reasons of the Federal Magistrate which enlivens the principles set out in those cases.

8                          The applicant has not explained why he relies on all of those cases and I cannot see why he does so.  The applicant needs leave to appeal from a decision of the Federal Magistrate because the decision of the Federal Magistrate under Rule 44.12 is an interlocutory or intermediate decision.  Accordingly, the applicant needs to show that the Federal Magistrate’s decision is attended with sufficient doubt as to warrant review or reconsideration and that an injustice would be done were the decision of the Federal Magistrate incorrect.  I am quite satisfied that the Federal Magistrate’s decision is not attended with sufficient doubt as to warrant its review or reconsideration.  I am satisfied that the Federal Magistrate made no error of law.  Nor did he fail to apply proper principles of law in reaching his decision. 

9                          Accordingly, the order of the Court will be that the application for leave to appeal is dismissed and the applicant pay the first respondent’s costs of the application fixed in the sum of $1,700.00.

Associate:

Dated:         17 March 2008