FEDERAL COURT OF AUSTRALIA

SZLZS v Minister for Immigration and Citizenship [2008] FCA 1690

MIGRATION - application for a protection visa

Held: Appeal dismissed

Migration Act 1958 (Cth)

Minister for Immigration v SBAA [2002] FCAFC 195

Minister for Immigration v Yusuf (2001) 206 CLR 323; [2001] HCA 30

SZLZS v Minister for Immigration & Anor [2008] FMCA 1092

SZLZS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1272 OF 2008

JAGOT J

12 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant is to pay the first respondent’s costs fixed in the amount of $3,000.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal against an order of the Federal Magistrates Court dismissing the appellant’s application for judicial review in connection with refusal of a protection (class XA) visa under s 65 of the Migration Act 1958 (Cth) (SZLZS v Minister for Immigration & Anor [2008] FMCA 1092).  Under s 36(2) of the Act the criterion for a protection visa is that the applicant for the visa is (relevantly) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (meaning, in accordance with s 5(1), the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees).  Section 474 of the Migration Act protects “privative clause decisions” (defined to include decisions with respect to protection visas) from challenge other than on the grounds of jurisdictional error. 

2                     The appellant is a citizen of Pakistan.  He arrived in Australia on 27 April 2007.  On 4 June 2007 the appellant applied for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application on 31 August 2007.  On 11 October 2007 the appellant applied to the Tribunal for a review of that decision.  The Tribunal affirmed the delegate’s decision on 14 January 2008.

3                     On 13 August 2008 the appellant filed a notice of appeal to this Court from the orders of the Federal Magistrates Court.  The notice of appeal specifies only one ground, namely, that the Federal Magistrates Court should have held that on the evidence before the Tribunal, it was open to it to find that the appellant was a refugee within the meaning of the Migration Act.  The particulars to this ground stated that the Court should have found the Tribunal erred by not giving the appellant the benefit of the doubt despite entertaining the possibility that the appellant’s claims were plausible. 

4                     This appeal ground is misconceived.  The fact that it might have been reasonably open to the Tribunal to find that the appellant was a refugee within the meaning of the Migration Act does not mean that the contrary decision made by the Tribunal (namely, it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention) was affected by jurisdictional error.  The further submission also involves an invitation to review the merits of the appellant’s claims which is impermissible. 

5                     Before the Federal Magistrates Court the appellant claimed that there was no basis for the Tribunal to find that his evidence was fabricated.  The primary judge said that the Tribunal had not so held; it simply was not satisfied with respect to the applicant’s claims.  Consistent with the trial judge’s approach it was open to the Tribunal on the evidence not to be so satisfied.

6                     The appellant also claimed that the Tribunal misconstrued the Convention definition of “refugee” by holding that there was no real chance that he would suffer persecution for religion or any other Convention reason.  To the primary judge this appeared to “be a request that the court provide him with a merits review because there are no particulars of the misconstruction given that would indicate it is a question of law rather than fact.” 

7                     The appellant next claimed the Tribunal failed to consider his claim that he was a member of Tahreek-e-Jafria (a Shia militant group banned by the government of Pakistan).  The primary judge observed that the appellant had perhaps confused the word “consider” with the word “accept”, since the Tribunal certainly considered the appellant’s claims but did not accept them. 

8                     The appellant claimed that the Tribunal failed to record its decision in accordance with s 430 of the Migration Act.  The primary judge identified that a failure to comply with s 430 does not constitute a ground of review (citing Minister for Immigration v SBAA [2002] FCAFC 195 and Minister for Immigration v Yusuf (2001) 206 CLR 323; [2001] HCA 30).  In any event, and as the primary judge observed, the Tribunal did set out its material findings, namely, that on the evidence it was not satisfied that the appellant had a well-founded fear of persecution.

9                     The appellant claimed that the Tribunal failed to determine the chances that he would be persecuted should he return to Pakistan.  The primary judge also rejected this claim as the Tribunal in fact determined that the appellant would not be persecuted. 

10                  The appellant claimed that the Tribunal’s decision was affected by actual bias because the Tribunal had not investigated his claims of persecution.  The claim of bias is unsupported by any particulars and unsubstantiated.  Further, the appellant has not identified any particular issue of central importance that the Tribunal is said not to have investigated.  It was a matter for the appellant to put his case to the Tribunal.

11                  The appellant raised similar issues in his written submissions filed 29 October 2008.  I accept the respondent Minister’s submissions about those grounds, namely (and, in summary form): - (i) paragraph 1 - the Tribunal found the appellant’s evidence not to be plausible, (ii) paragraph 2 - the Tribunal provided its reasons and findings on the facts it considered material in accordance with s 430, (iii) paragraph 3 - s 422B excludes common law procedural fairness obligations and, in any event, the Tribunal put the appellant on notice of the problems with the truth of his claims in a letter under s 424A of the Migration Act dated 5 December 2007, (iv) paragraph 4 - the adequacy of the appellant’s supporting evidence was a factual matter for the Tribunal, and (v) paragraph 5 - the Tribunal is not subject to any general duty of inquiry and there is no proper basis for the bias allegation.

12                  I cannot identify any issue of concern in the reasons for decision of the primary judge or the Tribunal.  The primary judge considered but did not accept the appellant’s submissions alleging jurisdictional error.  The primary judge also considered the Tribunal’s reasons separately from the appellant’s claims but was unable to find any ground upon which it might be said the Tribunal fell into error.

13                  The reasons of the Federal Magistrates Court do not disclose any error with the consequence that the appeal must be dismissed.

Associate:

Dated:         12 November 2008