SZGOU v Minister for Immigration and Multicultural Affairs [2006] FCA 1509 (10 November 2006)

Last Updated: 15 November 2006

FEDERAL COURT OF AUSTRALIA

SZGOU v Minister for Immigration and Multicultural Affairs [2006] FCA 1509

MIGRATION – no point of principle – appeal dismissed.































SZGOU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1491 OF 2006




LANDER J
10 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1491 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZGOU Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	10 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1491 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZGOU Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LANDER J
DATE:	10 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against an order of a Federal Magistrate made on 21 July 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) given on 16 May 2005 and handed down on 2 June 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the appellant.

2 The appellant was unrepresented at the hearing before me. He provided written submissions. He did not seek to add anything to those written submissions at the hearing.

3 The appellant is a citizen of Pakistan who arrived in Australia on 18 October 2004. On 29 November 2004 he applied for a Protection (Class XA) visa. Before the Tribunal the appellant claimed to have a well-founded fear of persecution due to his work against drug lords in Pakistan. The appellant claimed he founded a social organisation in the city of Rawalpindi to fight against drug dealers. He distributed anti-drug literature. He said he received a warning from the drug lords who were so powerful that the police could not protect the appellant. Even though he reported the warning to the police, they did nothing.

4 On 17 March 2003 the appellant went to United Arab Emirates (UAE) to protect himself against the drug dealers and drug lords. When he returned to Pakistan he was kidnapped, beaten and threatened that unless he stopped his work he would be killed. He said again that he reported those matters to the police but the police refused to register the complaint because nobody would give evidence against any drug dealers. The appellant said he continued his work but was again persecuted. On 13 January 2004 he returned to the UAE and remained there for eight or nine months. However, when he was chased by drug lords in the UAE he left for Australia to save his life.

5 On 19 April 2005 the Tribunal wrote to the appellant advising him that it had considered his case but could not make a favourable decision on the material before it. The appellant was invited to give oral evidence, however, the appellant declined the invitation. The Tribunal therefore proceeded to determine the appellant’s claim on the material before it which consisted of the Department’s file which included the appellant’s application and the delegate’s decision record.

6 The Tribunal identified a number of deficiencies in the appellant’s claims. The Tribunal found the appellant did not provide details of his claims, such as how his organisation was formed and structured, how many members it had, how it operated and how it obtained funding. It found that if the appellant feared drug lords he had not explained why he returned twice to Pakistan and why, after obtaining his visa to Australia in the UAE, he visited Pakistan before he travelled to Australia. Further, it found the appellant provided no details about his claim that he hid in Pakistan. It found he did not indicate how his claims related to any Convention ground. The Tribunal affirmed the delegate’s decision not to grant a protection visa.

7 The appellant applied to the Federal Magistrates Court for a review of that decision relying on the following grounds:

1. That the Tribunal did not appreciate the evidence and claims of the appellant to the effect that the appellant fears persecution in Pakistan because the appellant worked against the drug lords in Pakistan. The appellant set out the facts upon which the appellant says that he feared persecution.
2. That the Tribunal did not deal with the appellant’s case in accordance with the law. The appellant set out further facts to support his claim of persecution.
3. That the Tribunal did not place any importance on the claim or evidence of the appellant and that it did not make findings in relation to the appellant’s claim, specifically whether the events might recur and whether the appellant had a well-founded fear of persecution on that basis.

8 The appellant also made a number of assertions about the Tribunal’s findings of fact and reasserted his claims made to the Tribunal.

9 The Federal Magistrate found that the Tribunal had accurately detailed the appellant’s claim. He found that the Tribunal had promptly notified the appellant about the deficiencies in his application but the appellant had not taken the opportunity to give oral evidence and develop his claims. The Federal Magistrate found that the Tribunal’s decision was unaffected by jurisdictional error and therefore a privative clause decision.

10 The notice of appeal to this Court raised the following grounds:

1. That the learned Federal Magistrate ignored the fact that the law (i.e. the Migration Act) was not properly applied as the appellant gave the amended application before the Federal Magistrates Court;
2. The Tribunal did not address the legal issues as it was required to do. The first respondent did not deal with the issues as required under the law;
3. The learned Federal Magistrate did not appreciate the law that was applicable to the appellant’s case;
4. The amount of persecution was not taken into consideration;
5. The handbook of the UNHCR was not followed by the respondents.

11 I have considered the appellant’s written submissions. The submissions address the merits of the appellant’s claim. The submissions contain factual material not put before the Tribunal or the Federal Magistrate. It is too late for the appellant to raise new factual matters. He should have used the opportunity given him by the Tribunal and raised those matters with the Tribunal. It is not clear either from the notice of appeal or from his written submissions what errors of law the Federal Magistrate is said to have made.

12 It is quite unclear what legal issues it is asserted the Federal Magistrate failed to address or law that was applicable. The reference to the UN handbook by itself is not helpful. The UN handbook may be helpful in construing the Refugee’s Convention but it is not clear what its relevance is in this case. The submissions do not identify any jurisdictional error on the part of the Tribunal, more particularly as this is an appeal from the Federal Magistrates Court. They do not identify any error on the part of the Federal Magistrate.

13 The appellant claims the Tribunal did not appreciate the evidence and claim of the appellant relating to persecution in Pakistan. As I have already said, the Tribunal addressed the claims in evidence in its reasons and this submission is no more than a submission about the merits. In his written submissions, the appellant claims in passing that the case was not dealt with according to law because he was a member of a social group and therefore was a refugee within the meaning of the Convention.

14 There was no claim that the appellant was a member of a particular social group before the Tribunal nor was this ground raised before the Federal Magistrate. The appellant has not identified the social group to which he says he belongs nor the persecutors of that group, or how being a member gives rise to a well-founded fear of persecution. In my opinion, boiled down, the appellant’s appeal raises only the question of merit. The appeal must be dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:
Dated: 14 November 2006

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Mr Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	10 November 2006
Date of Judgment:	10 November 2006