SZEPW v Minister for Immigration & Multicultural Affairs [2006] FCA 141 (9 February 2006)

SZEPW v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 2112 OF 2005

MADGWICK J
9 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2112 OF 2005

BETWEEN:	SZEPW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	9 FEBRUARY 2006
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2112 OF 2005

BETWEEN:	SZEPW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	MADGWICK J
DATE:	9 FEBRUARY 2006
PLACE:	SYDNEY

1 This is an appeal from a decision given by the Federal Magistrates Court on 17 October 2005. By that decision, Federal Magistrate Smith declined to grant orders in the nature of constitutional writs in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) adverse to the appellant which was handed down by the Tribunal on 23 September 2004.

2 The appellant’s parents were Muslims who had lived in the area which, before the partition of India in 1947, was the princely state known as Jammu and Kashmir, being a part of India. Upon partition, India occupied that area, to the discontent of many people there, particularly Muslims, and to the discontent of Pakistan. Since then, there has been, of course, conflict in relation to the region. As between Pakistan and India, Pakistan now occupies, controls and protects against Indian incursion, a part of that area. That part is now known as Azad Kashmir. Before he came to Australia, the appellant lived in an area called Sialkot within Azad Kashmir. The appellant entered Australia on a Pakistani passport. He had travelled outside Pakistan on a Pakistani passport and returned to Pakistan before obtaining an Australian visa and coming here in November 2003, whereafter he soon applied for refugee status.

3 The appellant’s case was, as I understand it, somewhat complex. He belonged to, and claimed to have been a leader of an organisation of Jammu and Kashmir people who held the view that Jammu and Kashmir should be internationally recognised as an independent nation state. He claimed that this had attracted the unwanted attentions of the Pakistani intelligence agency known as the ISI. He claimed to have suffered torture and harassment at their hands, and also that of the ordinary police, on account of his political affiliation. His case therefore was that he feared serious harm from the Pakistani authorities for Convention reasons. However, presumably as part of his political viewpoint, he was adamant that, although Pakistan had deemed him to have Pakistani nationality and circumstances had constrained him to travel on a Pakistani passport, in truth he was not a Pakistani national at all. Rather, he asserted that either he was a national of the unrecognised and inchoate state of Jammu and Kashmir, or he was a stateless person by reason of the lack of achievement of international recognition as a state and lack of full control of their own affairs, including defence and foreign relations, by the people of Jammu and Kashmir.

4 His first complaint against the Tribunal was that it failed to grapple with and understand what he was saying about his nationality. The Tribunal in fact concluded that he was a national of Pakistan. It is not clear to me that the Tribunal Member understood that what the appellant was saying may have founded an alternative case for him under Article 1A(2) of the Convention relating to the Status of Refugees done at Geneva, on 28 July 1951 (1954 ATS 5), in that he may have been, in the concluding words of that paragraph, a person ‘who, not having a nationality and being outside the country of his former habitual residence..., is unable or, owing to such fear, is unwilling to return to it’. If that were all that were involved in the case, and if the fact, as found by the Tribunal, that he had Pakistani nationality were the reason that the Tribunal had refused his claim, there might well have been an arguable case that there had been jurisdictional error by the Tribunal. However, that was not the basis on which the Tribunal refused his application.

5 The essential basis on which the Tribunal refused his application was that the Tribunal relied on allegedly independent materials in the nature of ‘country information’ from the agencies of other governments to the effect that the party or organisation to which the appellant belonged was not a revolutionary one but was suffered to take part in lawful political processes in Azad Kashmir by the Pakistani authorities. Contrary to the appellant’s claims, the Tribunal Member did not accept that he would be at risk of any violence on account of his political opinion from any of the Pakistani authorities. In reliance on that country information and having regard to various criticisms that the Tribunal Member had of the appellant’s evidence, the Member simply disbelieved the appellant.

6 That disbelief, and that reliance on generalities expressed by ‘outside’ commentators, as the appellant put it, are the subject of the appellant’s second ground of complaint against the Tribunal. However, all of those factual matters are entirely in the domain of the Tribunal Member and, if there were any error in relation to those matters, it is not of a kind that would have enabled the Federal Magistrates Court, or this Court, to intervene by way of judicial review. Matters of fact have been delegated by the Parliament to the Tribunal.

7 The consequence is that, if the Tribunal did make an error in not understanding or properly grappling with the appellant’s claims about his own actual nationality, that would be an error without practical consequence for him. That is, even if his claim about his nationality had been fully understood, given the Tribunal’s rejection of the appellant’s claim of past persecution and his claim to fear future persecution as having no foundation in fact, the result must, in any event, inevitably have been the rejection of his application to the Tribunal.

8 The third major complaint that the appellant has is that the Tribunal did not give him an adequate opportunity to present his case.

9 In accordance with its usual practice, the Tribunal wrote to the appellant on 16 April 2004 telling him that the Tribunal had considered the material then before it but was ‘unable to make a decision in your favour on this information alone’ and he was invited to come to a hearing ‘to give oral evidence and present arguments in support of your claims’. He was also asked to ‘send us any new documents or written arguments you want the Tribunal to consider; please note any documents ... you send should be in English or translated by a qualified translator’. The appellant did not respond to this until 21 June 2004, two days before the date then fixed for his interview/hearing. The appellant, through his immigration consultant, advised the Tribunal that he had ‘given all the documents in original which were in Urdu language to [a named translator] who has gone to Overseas and will come back to Australia in the last week of July, 2004 [sic]’. It was further said that ‘all the original documents along with the translation are with the translator’. The letter concluded: ‘It is submitted that the applicant’s review application may kindly be adjourned till first week of August 2004, keeping in view the ends of the justice.’

10 The Tribunal Member agreed to that request and fixed a new hearing date for Monday, 2 August 2004. On 29 July, a letter from the immigration consultants was sent to the Tribunal telling it that the translator had not yet arrived from overseas and ‘the applicant is not still sure’ as to when he would come back to Australia. An adjournment of a ‘minimum period of one and a half months’ was sought. The Tribunal Member indicated he would not vacate the scheduled hearing on 2 August 2004.

11 At the hearing on 2 August 2004, according to the Tribunal Member, ‘the Applicant said that he had confirmed that the translator would be back within 15 days’ and that the documents that he wished to produce to the Tribunal ‘were all the documents related to his case and letters from the organisation of which he was a member’. The Tribunal Member gave the appellant until 23 August 2004 to produce the documents to which he had referred. They were sent to the Tribunal under cover of a letter of 20 August 2004 which said ‘the applicant has now received some of the documents and, as such the applicant is sending these documents so obtained by the applicant along with the submission to this Tribunal’. No further adjournment or time to produce further documents was sought.

12 In submissions today the appellant was unable to say that there were any other documents that might have assisted his case that he would have produced and, in response to a question from me, indicated that by 23 August 2004, the Tribunal had received all the documents that the appellant wished to put forward. On that basis, there can be no substance in the complaint that he did not have a fair opportunity to put before the Tribunal everything that he wished. In any case, the sequence of events and the timeframes involved indicate, to my mind, that the learned Federal Magistrate was right in rejecting the claim that there had been any denial of procedural fairness to the appellant.

13 It follows that, even having regard to the question of the appellant’s nationality and putting the most favourable view on that for him, the decision of the learned Federal Magistrate was nevertheless correct, and the appeal must be dismissed with costs, assessed in the sum of $3,600.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Solicitor for the Appellant:	The appellant appeared in person

Counsel for the Respondent:	Ms S A Mason

Solicitor for the Respondent:	Phillips Fox

Date of Hearing:	9 February 2006

Date of Judgment:	9 February 2006

Federal Court of Australia

SZEPW v Minister for Immigration & Multicultural Affairs [2006] FCA 141 (9 February 2006)