SZMLL v Minister for Immigration and Citizenship [2009] FCA 127 (20 February 2009)

Last Updated: 20 February 2009

FEDERAL COURT OF AUSTRALIA

SZMLL v Minister for Immigration and Citizenship [2009] FCA 127

SZMLL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1801 OF 2008

SIOPIS J
20 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1801 OF 2008

BETWEEN:

SZMLL Applicant

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

JUDGE:	SIOPIS J
DATE OF ORDER:	20 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for extension of time within which to file and serve a notice of appeal is dismissed.
2. The appellant pay the first respondent’s costs to be taxed or agreed.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1801 OF 2008

BETWEEN:

SZMLL Applicant

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

JUDGE:	SIOPIS J
DATE:	20 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal from a decision of a Federal Magistrate of 8 October 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 27 May 2008. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the applicant.

BACKGROUND

2. The applicant is a citizen of Pakistan who arrived in Australia on 2 November 2007. On 14 December 2007, the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department). A delegate of the first respondent refused the application for a protection visa on 30 January 2008. On 20 February 2008, the applicant applied to the Tribunal for a review of that decision.
3. In his application for a protection visa, the applicant claimed that in 2007 he had been visiting friends in a part of Pakistan and was asked to go and meet a man called Mula who was the leader of an Islamic fundamentalist group who was recruiting young men by force to be his supporters. The applicant did not wish to be a supporter of this man as he was not a fundamentalist, and considered the group to be very dangerous. He refused to join the group and ran away to Rawalpindi. The applicant claimed that by reason of the refusal to join the fundamentalist group, his life was in danger and that the Pakistani government could not protect him.

THE TRIBUNAL DECISION

4. The Tribunal did not accept that the applicant had a well-founded fear of serious harm amounting to persecution and did not accept that there was a real chance that Mula or his followers would be interested in the applicant or would be able to track him down in order to harm him because he refused to participate in their organisation. At [48] of the Tribunal’s reasons, the Tribunal rejected the applicant’s claim that he had a well-founded fear of serious harm arising from his refusal to join the fundamentalist group led by Mula, on credibility grounds. The Tribunal said that the applicant could not remember the precise date in mid 2007 when the incident in which he was allegedly threatened occurred. Further, the Tribunal did not accept that the applicant would have stayed in Pakistan for a further four months after July 2007, as he did, if the applicant was in fear of his life as he alleged before the Tribunal.
5. The Tribunal then went on to say that, in any event, if the applicant did not wish to return to his parents’ home in Rawalpindi because of his fears, then it would be reasonable for him to live elsewhere in Rawalpindi, or indeed elsewhere in Pakistan, in safety without there being a real chance that he would be subject to serious harm amounting to persecution.
6. The Tribunal was satisfied that there was not a real chance that the applicant would be subject to serious harm amounting to persecution for a Convention related reason if he returned to Pakistan and was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention.

THE FEDERAL MAGISTRATES COURT

7. The applicant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. The applicant claimed that:

(i) The Tribunal breached s 424A of the Migration Act 1958 (Cth) (the Act) because it used information from the applicant’s original application for a tourist visa held by the Department and did not disclose the information to the applicant.

(ii) The Tribunal failed to afford natural justice and procedural fairness to the applicant by asking the applicant incorrect questions “which prejudiced the Tribunal” and made incorrect assertions about the protection available to persons in Pakistan. It was also contended that the Tribunal did not make any reasonable effort to understand the applicant’s claim.

(iii) The Tribunal incorrectly applied the definition of a refugee as defined in the Convention.

8. The Federal Magistrate dismissed the application on 8 October 2008.
9. In respect of ground one, the Federal Magistrate held that the applicant’s original application for a tourist visa was not caught by s 424A(1) of the Act, as there was nothing to suggest that the Tribunal relied on that information as a reason, or a part of the reason, for affirming the decision under review by undermining the applicant’s credibility or the veracity of his claims. In any event, the Federal Magistrate was satisfied that the Tribunal followed the procedure under s 424AA of the Act. Consequently, s 424A(2A) applied and there was no breach of s 424A of the Act.
10. In respect of ground two, the Federal Magistrate found that this contention did not disclose any jurisdictional error, but merely sought to challenge the factual findings of the Tribunal. Further, the Federal Magistrate held that a fair reading of the Tribunal’s decision showed that the Tribunal did consider the applicant’s claim that he was not safe anywhere in Pakistan.
11. In respect of ground three, the Federal Magistrate found that the Tribunal correctly applied the facts to the definition of refugee as set out in the Act.

THE APPLICATION TO EXTEND TIME

12. On 19 November 2008, the applicant filed an application for the extension of time within which to appeal. In a draft notice of appeal attached to the applicant’s affidavit filed in support of the application for extension of time, the applicant relied upon the following proposed grounds of appeal:

(i) The Tribunal failed to accord the applicant natural justice.

(ii) The Tribunal identified the wrong issue and/or relied on irrelevant material and/or ignored relevant material.

(iii) The Tribunal failed to exercise its jurisdiction under the Act and/or acted in excess of its jurisdiction.

13. No particulars were provided in the draft notice of appeal of the grounds relied upon. At the hearing of the application before me, the applicant expanded upon the grounds in a written submission.
14. In support of ground one, the applicant complained that the Tribunal had not placed any weight on a copy of a newspaper article which he provided to the Tribunal to the effect that “Islamic fundamentalists were very strong and they were able to do what they want [sic] to do”.
15. In support of ground two, the applicant submitted that the Tribunal acted in excess of its jurisdiction by concluding that there was not a real chance that the applicant would be subject to serious harm amounting to persecution for a Convention related reason if he were to return to Pakistan. This, said the applicant, occurred notwithstanding that he had told the Tribunal that he feared that if he was forced to return to Pakistan he would be persecuted because Mula and his followers had become his enemies.
16. Further, in the written submission the applicant took issue with the Tribunal’s comment that it would be reasonable for him to live elsewhere in Rawalpindi or Pakistan in safety without there being a real chance that he would be subject to serious harm amounting to persecution from Mula and his followers. The applicant did not relate this complaint to any specific ground of appeal.
17. In support of this complaint, the applicant contended that the Tribunal had erred in concluding that it would be reasonable for the applicant to relocate from Rawalpindi to another location in Pakistan. The applicant referred to the case of Al-Amidi v Minister for Immigration and Multicultural Affairs [2000] FCA 1081; (2000) 177 ALR 506 in support of his contention that in concluding that it would be reasonable for him to relocate, the Tribunal had not taken into account the applicant’s personal circumstances.
18. For the applicant to succeed in obtaining leave to extend the time for the filing and serving of the notice of appeal, it is necessary that the applicant explain the reason for the delay in making an application to appeal; and to demonstrate that the merits of the appeal are sufficient to justify the granting of leave.
19. The applicant has failed to give any explanation for the delay in filing the notice of appeal in time.
20. Further, the applicant has not demonstrated that there is sufficient merit in the proposed appeal to warrant the granting of an extension of time.
21. As to the first proposed ground of appeal, the applicant seeks to challenge the weight which the Tribunal placed upon evidence. The weight to be placed upon evidence is a matter which is peculiarly within the jurisdiction of the Tribunal. Accordingly, the complaint of the applicant as to the weight placed by the Tribunal on evidence, does not identify any jurisdictional error. To the extent that this was a matter before the Federal Magistrate, the Federal Magistrate did not err in failing to find jurisdictional error. There is no merit in this proposed ground of appeal.
22. As to the second proposed ground of appeal, the submissions advanced by the applicant in support of this proposed ground of appeal amount to no more than an attack on the merits of the findings of the Tribunal. The submissions do not demonstrate jurisdictional error. Therefore, to the extent that this was a matter before the Federal Magistrate, the Federal Magistrate did not err in failing to find jurisdictional error. There is no merit in this proposed ground of appeal.
23. As to the relocation point, the Tribunal rejected the applicant’s application for a protection visa on an entirely independent ground from that related to the ability of the applicant to relocate within Pakistan. As mentioned in [4] above, the Tribunal rejected the applicant’s claim that he had a well-founded fear of persecution arising from his refusal to join Mula’s fundamentalist group, on credibility grounds. Thus, even if there was arguable merit in the applicant’s claim in respect of relocation, there would be no utility in extending the time for the applicant to raise this as a ground of appeal, because even if the applicant succeeded on that ground, the Tribunal’s decision is supportable on an independent basis.
24. In any event, however, it is apparent that the Tribunal did take into account the applicant’s personal circumstances in determining whether it was reasonable for the applicant to relocate within Pakistan. This is apparent from [39] of the Tribunal’s reasons where the Tribunal indicated that it took into account the applicant’s age and work experience in determining whether it would be possible for the applicant to live elsewhere in Pakistan.
25. Accordingly, to the extent that this was an issue before the Federal Magistrate, the Federal Magistrate did not err in rejecting it. In my view, the relocation point does not have sufficient merit to warrant the grant of an extension of time within which to appeal.
26. Otherwise, the proposed grounds of appeal, identified in the draft notice of appeal, are stated at such a high level of generality, it is not possible to conclude that there is sufficient merit in the appeal to warrant the extension of time.
27. The application is dismissed.
    

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated: 20 February 2009

Counsel for the Applicant:	The Applicant appeared in person.
Counsel for the First Respondent:	Ms C Kelso
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	16 February 2009
Date of Judgment:	20 February 2009