FEDERAL COURT OF AUSTRALIA

SZRGW v Minister for Immigration and Citizenship [2013] FCA 100

THE COURT ORDERS THAT:

1.     The appeal be dismissed.

2.    The appellant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1    This appeal is from the decision in the Federal Magistrates Court dismissing the applicant’s application for review of the decision of the Refugee Review Tribunal (the Tribunal) which upheld the refusal of a protection visa by a delegate of the Minister for Immigration and Citizenship (the Minister).

2    The appellant claimed before the Tribunal that he was a supporter of the All Pakistan Muslim League (APML), a political movement founded by the former President of Pakistan, General Pervez Musharraf. He claimed that in 2010 religious fundamentalists sent him letters and made threatening phone calls to him because of his political opinions. He claimed that in the first week of January 2011, he received a letter threatening him because of his association with the APML and his political activities and that this letter was from “Molvi Hasmat Ullah Masood Commander”.

3    He said that on 20 January 2011 he was confronted by two to three men at his workplace, who demanded that he pay the ransom demanded by the letter and gave him a deadline of four days to do so. He said that on 25 January 2011, three armed men again visited him at work, demanded the money and then abducted him when he said he could not pay, forcing him into a car. He claimed that he escaped when they stopped to refuel, that the men had fired on him as he ran away and that although he reported the incident to the police on the same day, the police were not able to do anything to help him. He claimed to fear persecution from the same people if he returns to Pakistan (see SZRGW v Minister for Immigration and Citizenship [2012] FMCA 701 at [1]–[5]).

4    The Tribunal accepted some of the appellant’s claims. In particular, the Tribunal accepted that:

(a)    the applicant financially supported the APML;

(b)    the applicant was harassed through anonymous telephone calls and letters due to his association with the APML;

(c)    the applicant was targeted from January 2011 by persons who were seeking to extort money from him, resulting in his abduction and escape;

(d)    the applicant reported the matter to the police; and

(e)    the applicant had an ongoing fear of harm based on the extortion and kidnapping.

5    The Federal Magistrate noted the following (at [7]):

    The Tribunal did, however, refuse to accept that the appellant had been kidnapped for a Convention reason, particularly his political opinion.

    Rather, the Tribunal had considered that the extortion and consequent kidnapping was criminal conduct for monetary reasons and was not satisfied that the appellant risked being targeted by the same persons in the reasonably foreseeable future for a Convention reason.

    The Tribunal had also considered the appellant’s claims regarding the telephone calls and letters in 2010 but considered these events to be unrelated to the later extortion and kidnapping. While it accepted that the appellant had been harassed by telephone and letter because of his political opinion, the Tribunal did not consider this harassment to be sufficiently serious to amount to persecution.

    The Tribunal found that the appellant’s evidence did not indicate that he was still engaged in political activities so as to suggest that there was a real chance of persecution for reasons of political opinion upon his return to Pakistan.

6    The ground of the application before the Federal Magistrate concerned an alleged constructive failure on the part of the Tribunal to exercise jurisdiction. The particulars referred to documents that the appellant had attempted to provide to the Tribunal at the hearing conducted by the Tribunal. Accordingly, the Federal Magistrate’s reasons centred upon that subject matter.

7    The notice of appeal does not refer to that part of his Honour’s reasons. Rather, the appellant raises two grounds of appeal which were not directly raised in the Federal Magistrates Court. They are that:

[1]. The [Federal Magistrate] failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

[2]. The Federal Magistrate failed to consider that the Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act [errors in original].

8    The appellant has not provided any particulars or any submissions directed to these grounds of appeal. When asked if he wished to say anything in respect of them, the appellant said that he had no legal knowledge and could not do so. Rather, he referred to the evidence that he had sought to provide to the Tribunal.

9    The appellant says that it was “not right” that his case did not fit within the Convention, and that he still fears persecution on the grounds of political opinion if he returns to Pakistan. He refers again to the documents that he had unsuccessfully sought to provide to the Tribunal, in particular to a newspaper article. As noted by the Federal Magistrate (at [16]), the Minister obtained a translation of that article following the Tribunal decision. That translation was before his Honour, who considered the article and dealt with it in his reasons.

10    His Honour’s conclusion was that it did not add anything to the appellant’s case, particularly in the light of the aspects of his claim already accepted by the Tribunal. Indeed, the Federal Magistrate found that the article was consistent with the Tribunal’s conclusion that the appellant was a victim of criminal activity, not persecution for a Convention reason. His Honour said (at [36]):

In short, whilst the Tribunal fell into error by declining to accept the article, it was an error within jurisdiction. The article, if accepted, could not have affected the outcome once translated and understood.

11    The appellant has not sought to demonstrate an error in his Honour’s reasoning and none is apparent.

12    Turning to the two grounds in the notice of appeal, I note that identical grounds have been the subject of other decisions of this Court: SZROZ v Minister for Immigration & Citizenship [2012] FCA 843; SZQRD v Minister for Immigration and Citizenship [2012] FCA 874 and SZQMR v Minister for Immigration & Citizenship [2012] FCA 122. In each of these cases, the Court has observed that it is not apparent from the grounds themselves, in the absence of particulars, as to what they are addressed.

13    In SZQRD, Nicholas J said (at [34]) as to the first ground: ‘It is not apparent what aspect of section 91R the appellants are referring to in this ground or what it is that the Tribunal is supposed to have ignored’. In regards to the second ground, His Honour said (at [35]) that: ‘the notice of appeal fail[ed] to identify the requirements of the Act which the appellants had asserted that the Tribunal failed to comply with’.

14    Justice Collier in SZQMR described (at [23]) the second ground as ‘un-particularised and vague and that it was difficult to know exactly what the appellant meant by it’. Her Honour added that ‘[t]o the extent that the appellant makes a bare and unsubstantiated assertion that the decision of the Tribunal failed to comply with the Migration Act, [their argument has]… no merit’. Although her Honour found that the first ground had been made out in SZQMR, this finding was based on the facts of that case, which are not relevant here.

15    The appellant has not provided any particulars or any submissions in respect of the grounds of appeal. The Tribunal set out the appellant’s claims and stated that it was satisfied that he had provided a truthful account of his circumstances in Pakistan, including his account of attempted extortion, abduction and mistreatment and his fear of harm from “Molvi Hasmat Ullah Masood Commander” and his associates.

16    It noted that religious and political extremist groups in Pakistan are implicated in extortion and kidnappings to fund their activities. The Tribunal considered whether the appellant’s political opinion or other Convention related reasons contributed to the harm that he suffered in Pakistan, but, as I have said, was not satisfied that his political views or any other Convention related reason was a contributing factor to the extortion or kidnapping. Rather, the Tribunal concluded that he had been targeted solely for monetary reasons and that the harm that he had suffered was criminal conduct unrelated to a Convention reason. Further, the Tribunal was not satisfied that the harassment suffered by the appellant amounted to persecution.

17    I see no basis for concluding that the Tribunal acted in a manifestly unreasonable way as asserted by the appellant. I see no error in the reasoning of the Federal Magistrate.

18    The only matter that could be said to found the first ground of appeal was the document before the Federal Magistrate. His Honour dealt with that document and no error is apparent.

19    There is no support for the second ground of appeal and I adopt the observations of Collier J in SZQMR in relation to it. The matters raised by the appellant otherwise are a complaint about the findings of fact made by the Tribunal and amount to an impermissible review of the merits of his case. The Tribunal explained the basis for its conclusion and the findings of fact were open to it on the material presented by the appellant.

20    It follows that the appeal should be dismissed.

Associate:

Dated:    28 February 2013