SZFNA v Minister for Immigration and Citizenship [2008] FCA 182 (28 February 2008)

Last Updated: 5 March 2008

FEDERAL COURT OF AUSTRALIA

SZFNA v Minister for Immigration and Citizenship [2008] FCA 182

SZFNA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2036 OF 2007

KENNY J
28 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	2036 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFNA Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	KENNY J
DATE OF ORDER:	28 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal fixed in the sum of $1,300.









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	2036 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFNA Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	KENNY J
DATE:	28 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a judgment of the Federal Magistrates Court given on 26 September 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). That decision affirmed a decision of a delegate of the first respondent (‘the Minister’) refusing an application for a protection visa.

2 The appellant is a citizen of Pakistan who arrived in Australia on 12 August 2004. On 25 August 2004 the appellant lodged an application for a protection visa. A delegate of the first respondent refused the application for the visa on 21 September 2004. On 12 October 2004 the appellant applied to the Tribunal for a review of that decision.

3 The Tribunal affirmed the decision of the delegate on 2 December 2004. The appellant sought judicial review of the Tribunal’s decision and, on 10 April 2006, the Federal Magistrates Court made orders by consent quashing the decision and remitting the matter to the Tribunal.

4 In support of his protection visa application, the appellant claimed to be homosexual and to fear "serious torture" in Pakistan on the ground that he was a member of a particular social group (i.e., homosexual men). He attended a hearing before the Tribunal on 18 August 2006 and gave evidence. At the hearing, he said that he had been assisted in preparing his application by a migration agent and that he had not known that some of the statements made on his behalf were untrue. The Tribunal accepted that some of the appellant’s claims had been the work of his migration agent. Ultimately, the Tribunal stated that it was not satisfied that the appellant was homosexual or that he had a well-founded fear of persecution for a Convention reason.

5 In the Federal Magistrates Court, the appellant raised four grounds of appeal. They were that the Tribunal: (1) failed to comply with the rules of natural justice; (2) failed to apply the "real chance test"; (3) committed jurisdictional error in its determination of what amounted to serious harm under s 91R(2) of the Migration Act 1958 (‘the Act’); and (4) was biased.

6 The learned Federal Magistrate dismissed the judicial review application. His Honour found that: (1) the Tribunal had not breached the rules of natural justice; (2) the "real chance" test had no application in the circumstances of the case, because the Tribunal had dismissed the appellant’s claims on credibility grounds; (3) the Tribunal’s rejection of the appellant’s factual claims negatived the need to apply s 91R(2) of the Act; and the appellant had not presented any evidence of bias, and the Tribunal record disclosed none.

7 Additionally, the Federal Magistrate noted:

The Applicant told the Court in what was described by Ms Watson who appeared for the First Respondent Minister with refreshing honesty that he had not told the truth to the Refugee Review Tribunal and that his account of seeking protection because he feared persecution on the basis of homosexuality was in fact not the truth. He said that this was a story that had been concocted for him by his then migration agent who I note is Mr MD Zahirul Hoq Mollah.

I propose to refer a copy of this decision to the Migration Agents Registration Authority (‘MARA’). I am not sure whether Mr Mollah is currently registered as a migration agent but in my view this is a matter that the MARA should investigate.

8 On 12 October 2007, the appellant filed a notice of appeal in this Court seeking to raise grounds of appeal. In summary, they were: (1) that the Federal Magistrate was not fair with the appellant ‘for his honesty’; and (2) that the appellant had a better future in Australia than in Pakistan.

9 The appellant spoke to these matters at the hearing this morning with apparent honesty and fairness. He reiterated his admission concerning his claim. The first respondent relied on written submissions filed prior to the hearing.

10 In discussion, I sought to explain to the appellant that his notice of appeal did not disclose any valid ground of appeal.

11 The Tribunal’s decision essentially turned on its finding that the appellant was not, in fact, a homosexual and that he had fabricated his claims in order to obtain a protection visa. The appellant does not contest this finding. He admits that it is true. The Federal Magistrate also noted the appellant’s admission. There was little more that his Honour could have done. There is simply no basis for the suggestion that the Federal Magistrate was not fair with the appellant ‘for his honesty’. In any event, this could not constitute a valid ground of appeal.

12 The appellant’s belief that he may have a better life in Australia than Pakistan was not a matter that could bear upon the decision in the Federal Magistrates Court. It cannot constitute a valid ground of appeal in this Court.

13 I note further that the Federal Magistrate considered each of the appellant’s review grounds and his rejection of them discloses no relevant error.

14 There is therefore no basis upon which to attribute error to the Federal Magistrate in this case. I would dismiss the appeal, with costs.

15 I note that the first respondent’s representative stated that the first respondent will inform the appellant as to how he may contact the Minister’s Department’s Ministerial Intervention Unit.

16 I further note that, at the hearing, the first respondent’s representative advised that she did not know whether the appellant’s former migration agent, Mr Mollah, remained a registered migration agent or if the Federal Magistrate’s reasons for judgment had been conveyed to the Migration Agents Registration Authority (‘MARA’). In this circumstance, I too propose to refer copies of my reasons, with those of the Federal Magistrate, to MARA.

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

Associate:

Dated: 28 February 2008

The Appellant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 February 2008
Date of Judgment:	28 February 2008