SZMKE v Minister for Immigration and Citizenship [2009] FCA 128 (20 February 2009)

Last Updated: 20 February 2009

FEDERAL COURT OF AUSTRALIA

SZMKE v Minister for Immigration and Citizenship [2009] FCA 128

SZMKE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1783 of 2008

SIOPIS J
20 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1783 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMKE Appellant

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

JUDGE:	SIOPIS J
DATE OF ORDER:	20 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The 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 1783 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMKE Appellant

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

JUDGE:	SIOPIS J
DATE:	20 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Pakistan who arrived in Australia on 25 October 2007. On 5 December 2007, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 28 December 2007. On 29 January 2008, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The Tribunal affirmed the decision of the delegate. The appellant then applied for judicial review of the Tribunal’s decision in the Federal Magistrates Court. That application was dismissed. The appellant has appealed against that decision to this Court.
2. In his written application for a protection visa, the appellant claimed that he is a Muslim from a religious family and was associated with the TNFJ Political Party. He claimed that he would be killed by the Sunni extremist party, the SSP, should he return to Pakistan. He claimed that he was followed by the SSP on numerous occasions and that he was bashed and badly beaten by the group. He claimed that both his father and his two brothers were killed by the SSP. He stated that the SSP attacked his mosque with bombs and firearms. He claimed that he survived, and decided to leave for Thailand and worked for a firm there, and through that work he visited many countries. He felt he was not safe in Thailand as the SSP knew he was residing there so he came to Australia.

THE TRIBUNAL

3. After being invited to a Tribunal hearing the appellant advised in writing that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision without a hearing.
4. In its decision, the Tribunal observed that by reason of the non attendance of the appellant at the hearing, it was unable to explore the appellant’s claims with him. It also mentioned that it had been unable to explore with the appellant the circumstances in which the appellant had visited many countries including China, Thailand, Laos, Malaysia, Singapore, South Africa, Switzerland and Canada. Further, it said that it was unable to explore with the appellant why he believed he was unsafe living in Thailand and had come to Australia and why it is not safe for him to return to Pakistan. The Tribunal found there was such a lack of detail in the evidence before it that it could not be satisfied as to the veracity of the appellant’s claims or that there was a real chance of persecution.

THE FEDERAL MAGISTRATES COURT

5. On 16 June 2008 (and by amended application filed on 16 September 2008), the appellant sought judicial review in the Federal Magistrates Court, claiming inter alia, that:

(i) The Tribunal’s decision was in jurisdictional error.

(ii) The appellant satisfied the four key elements of being a refugee.

(iii) The Tribunal did not consider the claims of the appellant.

6. The Federal Magistrate dismissed the application, noting that there was no discernible jurisdictional error in the decision of the Tribunal.

THE PRESENT APPEAL

7. On 14 November 2008, the appellant filed a notice of appeal in which the appellant contended that:

(i) The Federal Magistrate failed to determine the actual harm which the appellant is faced with and failed to consider the situation now prevailing in Pakistan.

(ii) The Tribunal failed to take into account the appellant’s circumstances.

(iii) The Tribunal did not apply the proper law and procedure and that the appellant fulfilled all four key elements of being a refugee.

8. At the hearing of the appeal before me the appellant made submissions which went to the merits of his claim to be a refugee. It appears that the essence of the appellant’s complaint is that the Federal Magistrate did not consider the merits of his claim to be a refugee, and that the Tribunal did not properly consider his claim and should have found that he was a refugee.
9. As to the first ground of appeal, the function of the Federal Magistrates Court in exercising its powers of judicial review is to determine whether the decision of the Tribunal is attended with jurisdictional error. The Federal Magistrate was correct in not embarking upon an examination of the merits of the appellant’s claim to be a refugee. This ground of appeal is dismissed.
10. As to the second and third grounds of appeal, it was up to the appellant to present sufficient evidence to enable the Tribunal to reach the requisite state of satisfaction. There were matters in the appellant’s visa application which required explanation. The Tribunal gave the appellant an opportunity to explain these matters at a hearing but the appellant declined to attend the hearing. The Federal Magistrate examined the decision of the Tribunal and stated that he was satisfied that the Tribunal had considered the appellant’s application and that it had explained in “an appropriate way why it was unable to reach the state of satisfaction required”. The Federal Magistrate concluded that there was no jurisdictional error. In my view, there was no error in the manner in which the Federal Magistrate reached his decision. These grounds of appeal are dismissed.
11. The appeal is, accordingly, dismissed with costs.
    

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated: 20 February 2008

Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the First Respondent:	Mr G Johnson
Solicitor for the First Respondent:	DLA Phillips Fox

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