SZIAU v Minister for Immigration and Multicultural Affairs [2007] FCA 899 (15 June 2007)

Last Updated: 20 June 2007

FEDERAL COURT OF AUSTRALIA

SZIAU v Minister for Immigration and Multicultural Affairs [2007] FCA 899

SZIAU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1306 OF 2006

ALLSOP J
15 JUNE 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1306 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	ALLSOP J
DATE OF ORDER:	15 JUNE 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The notice of appeal filed on 6 July 2006 be treated as an application for leave to appeal from the orders of the Federal Magistrates Court made on 22 June 2006.
2. Time be extended for the filing and serving of such application for leave to appeal up to and including 6 July 2006.
3. The said application for leave to appeal be dismissed.
4. The appellant to the notice of appeal being the applicant to the said application for leave to appeal pay the first respondent’s costs of the appeal treated as said application.

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 1306 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	ALLSOP J
DATE:	15 JUNE 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This proceeding was commenced by the filing of a notice of appeal against the orders of the Federal Magistrates Court made on 22 June 2006. For the reasons given below, the appeal is incompetent, given that leave was required. The matter was treated by the Minister as an application for leave to appeal, an application for an extension of time and as a substantive appeal.

2 The proceeding was called on for hearing before me on Friday 2 March 2007. During the days before 2 March 2007, the appellant had made an application for an adjournment based on a medical certificate indicating some back problems. I refused this informal application made without proper notice. On 2 March 2007, I gave reasons for that refusal. The appellant renewed his application for an adjournment on 2 March 2007. With the assistance of an interpreter he agreed to his substantive application being dealt with on the papers. I gave the parties an opportunity to file further written submissions which both parties took up.

3 The application for review before the Federal Magistrates Court was in respect of a decision of the Refugee Review Tribunal (the "Tribunal") made on 28 November 2005 and handed down on 15 December 2005, affirming a decision of the delegate of the Minister not to grant a protection visa.

4 On 19 October 2005, the Tribunal wrote to the appellant advising him that, on the material before it relating to his application, the Tribunal was unable to make a finding that was favourable to him. The Tribunal therefore, as it was obliged to do, invited the appellant to attend, and give oral evidence and present arguments, at a proposed hearing on 24 November 2005. On 21 November 2005, shortly prior to that hearing date, the appellant in writing advised the Tribunal that he did not wish to give oral evidence and that he consented to the Tribunal proceeding to make a decision. He also indicated that he would "submit a submission in the meanwhile". No such submission was provided to the Tribunal, which proceeded to deal with the matter.

5 On pages 4 to 6 of its reasons, the Tribunal summarised the appellant’s claims as it understood them. They can be summarised as follows: The appellant is a citizen of Pakistan. Before the Tribunal the appellant claimed to have well-founded fear of persecution because of his membership of the Pakistan Peoples Party (the "PPP"). The appellant claimed to have been an important member of the PPP who took part in all elections and participated in demonstrations against the President of Pakistan’s actions to dismiss the PPP government. When the Pakistan Muslim League ("the PML") won elections, the appellant was targeted because the PPP had previously been in opposition to the PML. Although the PML and PPP united to fight against the military dictatorship, the appellant claimed to have had false cases brought against him by the regime in Punjab and was unable to obtain police protection as the Interior Minister in Punjab was from the PML. The appellant’s claims also included being detained, tortured, shot, having his shoulder dislocated and having his restaurant closed because of his political opinion.

6 The Tribunal’s reasons were expressed as follows:

I accept that the applicant is a national of Pakistan. However, I have a number of problems with his claims. For example, although the applicant asserts that he was an important member of the PPP, he has provided little detailed information concerning his political activities. In relation to this, the applicant claimed to have been involved in elections, for instance, but has not provided details of his role in these elections. The applicant has also failed to provide details of the alleged false cases against him, or when, where and under what circumstances he was allegedly interrogated or arrested. The applicant stated that he went to Muscat, but has not explained what he did in Muscat, how long he remained there, or how he was able to return to leave and return to Pakistan if he was of adverse interest to the Pakistani authorities.

Overall, there is insufficient detail in the protection visa application to allow me to make findings of fact. As I am unable too make findings of fact in relation to the applicant’s claims, I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.

CONCLUSION

Having considered the evidence as a whole, I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. He therefore does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

7 The application to the Federal Magistrates Court was amended after a directions hearing. The terms of the documents were set out in the reasons of the Federal Magistrate at [6] and [7]:

[6.] The applicant filed an application on 3 January 2006 under s.39B of the Judiciary Act setting out the following three grounds:

1.    That the RRT did not gave the applicant a fair chance of hearing.  The RRT failed to appreciate the evidence and the claim of the applicant.
2.    That the RRT did not took in to consideration the amount of the persecution to which the applicant has to face and the threat of life and liberty of the applicant is in danger.
3.    That the applicant’s claims self-explanatory as the interior minister is after the applicant.  The RRT has erred in law and facts, the procedural unfairness was committed by the member of the RRT. (copied without alteration or correction)

[7.] The applicant attended first directions on 14 February 2006, and was granted leave to file an amended application.  The amended application was filed on 13 April 2006 and contained the following three new grounds:

1.    That the applicant was an active member of Pakistan Peoples Party working for the party from very beginning while he was a student.  The interior minister of the previous regime who was than in the Pakistan Muslim League Nawaz Group was very personal against the applicant, after the army coup he her joined the ruling party namely PML (Q) group.  As the applicant was working for the restoration of the democracy, the said minister who is in the power, the applicant was tortured and was open to persecution.  The applicant was arrested many a times, and was bashed by the police under the instructions of the authorities.  The applicant joined the above party while he was a student, the applicant use to take out the processions against the present regime working under the army authorities.
2.    That the applicant being an active member of the party took part in the general elections in Pakistan.  The applicant was known for his activities in the politics, the applicant use to take part in the demonstrations which were made against the present regime.  The applicant was the president of the youth wing of the party within his own area, this shows the importance of the applicant.  The applicant was open to persecution even before when the PML Nawaz group was in power and Pakistan Peoples Party Sialkot dated 15/01/2006.  The president of the party was in the jail previously when the applicant requested before, the President of the Sialkot district party mentioned this in his letter, the applicant is attaching this letter with the amended application.  This letter which is enclosed with this amended application bears the signature of the president duly dated 15/01/2006.  The applicant was arrested many a times, the applicant was bashed by the hands of the police, the applicant was also many a times bashed by the workers of the opposition.  The applicant was running a small hotel which was attacked many a times by the opposition, the ruling party.  They have the full support of the ruling party as such the applicant was not given any type of remedy by the authorities despite the fact that the applicant many a times requested the authorities to give him the protection.
3.    The Refugee Review Tribunal gave the verdict that the case of the applicant does not falls within the refugee law, it is submitted that in the refugee law and in the general laws of the refugee any person who can not be given protection in any way can be given the protection.  The applicants family was under the constant harassments of the authorities concerned.  The RRT did not took in to consideration the fact that the applicant was an active member of the political party, and is a person of importance as far as the acts of violence against the applicant are concerned.  In the month of May 2005 the applicant was again arrested by the police, the applicant was kept in the lock up, the applicant was released after three days, the applicant took out the procession against the ruling party, The applicant was kidnapped by the workers of the ruling party, the applicant tried his beset to get the remedy, but the applicant could not get the remedy.  The applicant left for Muscat to save his life for sometimes, the applicant came back to his country to see the situation, the applicant was again put to persecution, the applicant was again harassed by the hands of the opposite party, again the state protection was not available to the applicant, despite the request made to them.   The applicants hotel was closedown as the opposite workers of the ruling party use to always attack on the said business place of the applicant.  The case of the applicant falls well within the definition that any person who can not be given the protection can be given the protection.  The applicant is not an criminal as such the applicants case was not considered by the RRT.

The Tribunal did not make findings in relations to these claims, specifically whether the events might occur again and whether the applicant had a well founded fear of persecution on this basis.  In these circumstances, the tribunal decision involved jurisdictional error. (copied without alteration or correction)

8 The application to the Federal Magistrates Court was for an order:

...that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act 1958 in respect of the following decision.

9 Rule 44.12 of the Federal Magistrates Court Rules 2001 deal with a show cause hearing in the following terms:

(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed -- dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed -- adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory.

10 The Federal Magistrate came to the view that there was no foundation to conclude that there was any error in the Tribunal’s approach. He accepted the submissions of the first respondent that there was no breach of s 424A of the Migration Act 1958 (Cth) citing WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266; (2002) 124 FCR 276; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195; and SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238.

11 Relying on these cases, the Federal Magistrate concluded that the reason for the affirmation of the decision of the delegate was, and was only, the lack of any assistance to enable the Tribunal to reach a state of satisfaction required to grant a visa. The Tribunal could not be satisfied that Australia had protection obligations without further assistance. The appellant declined to give that assistance.

12 The Federal Magistrate was of the view that the application and amended application so clearly lacked merit that he should dismiss the application under rule 44.12(1)(a). This was clearly an interlocutory decision, as confirmed by rule 44.12(2).

13 The notice of appeal stated that the Federal Magistrate erred in concluding that the application and amended application did not disclose an arguable case. In submissions filed on 19 February 2007, the appellant set out his factual claims for asylum. The complaint enunciated in those submissions was that the Tribunal failed to make findings in relation to the claims there set out. This overlooks the fact that the Tribunal was unable, on the material submitted by the appellant, to reach a state of satisfaction favourable to the grant of a visa for the purposes of s 65 of the Migration Act 1958 (Cth). In these circumstances there was no obligation on the Tribunal to make findings of fact one way or the other as to the material put forward. If the Tribunal was not satisfied by that material that Australia had protection obligations, it was obliged to invite the appellant to a hearing to provide more information. It did so. The invitation was declined. It was then obliged to say why it was not so satisfied. It did so.

14 In submissions filed on 28 March 2007, the appellant stated that he was not given "a chance for hearing before" the Tribunal. Reliance was also placed on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. No coherent basis was put forward for either contention. The appellant was offered a hearing and declined it. The Tribunal did not in any way deny the appellant procedural fairness.

15 There was no arguable error in the Federal Magistrate’s reasons. There was no arguable error attending the decision of the Tribunal. There is no basis for granting leave to appeal.

16 The orders of the Court will be:

1. The notice of appeal filed on 6 July 2006 be treated as an application for leave to appeal from the orders of the Federal Magistrates Court made on 22 June 2006.

2. Time be extended for the filing and serving of such application for leave to appeal up to and including 6 July 2006.

3. The said application for leave to appeal be dismissed.

4. The appellant to the notice of appeal being the applicant to the said application for leave to appeal pay the first respondent’s costs of the appeal treated as said application.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated: 15 June 2007

The Appellant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	Ms R Pepper
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	2 March 2007
Date of Final Submissions:	28 March 2007
Date of Judgment:	15 June 2007