MZXPW v Minister for Immigration and Citizenship

Federal Court of Australia|2008-05-20|Before: Tracey J

Background 1 This purports to be an appeal against a judgment of a Federal Magistrate delivered on 3 March 2008 dismissing an application for reinstatement of an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 23 February 2007 (see: MZXPW v Minister for Immigration and Citizenship [2008] FMCA 480). The Tribunal had affirmed a decision of a delegate of the Department of Immigration and Multicultural Affairs, as it was then known, to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of Pakistan who arrived in Australia on 30 March 2006. On 24 May 2006 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. A delegate of the first respondent refused the application for a protection visa on 8 August 2006. The appellant applied to the Tribunal for a review of the delegate's decision on 29 August 2006.

REFUGEE REVIEW TRIBUNAL 3 In his protection visa application the appellant claimed that he came to Australia with his employer in 2006 and, when he told his employer that he had converted from one form of Islam to another, he was sacked and was left in Australia without his ticket and passport. He claimed that his family treated him poorly when he told them of the conversion. He also claimed that he could be harmed by Sunni followers in Pakistan due to his religion. He asserted that some of his cousins were members of extreme Sunni groups who considered Shi'a (to which he had converted) liable to death, and that they had threatened his life. He claimed that the authorities would not protect him and that there were Shi'a members being killed everyday in Pakistan. 4 At the hearing before the Tribunal the appellant claimed that he converted five to six years ago when he fell in love with his uncle's wife's sister, and that his family forced him to leave the family home. He also claimed that he was repeatedly beaten by members of Sipah‑e-Sahaba and that his cousin had threatened him and had once tried to shoot him. 5 The Tribunal was not satisfied that the appellant was a credible witness due to his vague and inconsistent evidence, primarily regarding the timing of his alleged conversion to Shi'a. As a result the Tribunal found that the appellant had never converted as claimed, and had not been forced out of home, beaten or threatened. The Tribunal was therefore not satisfied that the appellant had a well-founded fear of persecution.

Federal Magistrates Court 6 On 13 April 2007 the appellant filed an application seeking judicial review of the Tribunal's decision in the Federal Magistrates Court. 7 The appellant sought an adjournment of the hearing in a letter sent to the Court via facsimile transmission. The Federal Magistrate refused the adjournment. The appellant did not attend the hearing. On 29 November 2007, his Honour made orders dismissing the application for non appearance pursuant to rule 13.03A(c) of the Federal Magistrate Court Rules 2001 (Cth) (see: MZXPW v Minister for Immigration and Citizenship [2007] FMCA 2044). 8 On 18 December 2007 the appellant filed an application seeking reinstatement of his application on the ground that he was unable to attend the hearing because there was a misunderstanding about the hearing date. The decision in relation to this application is the subject of the present appeal. 9 The Federal Magistrate did not accept that the appellant had a reasonable explanation for his non attendance on the previous occasion. The Federal Magistrate noted that this, in itself, would not bar a person from relief if he or she otherwise had "an apparently arguable case with reasonable prospects". Accordingly, the Federal Magistrate considered whether the appellant had an arguable case (see: MZXPW v Minister for Immigration and Citizenship [2008] FMCA 480). 10 The application for judicial review, filed on 18 December 2007, did not identify any specific grounds for review. The appellant told the Federal Magistrate that he wanted more time to provide further evidence to the Tribunal. The Federal Magistrate noted that the Tribunal had, at the appellant's request, given the appellant an extension of time to provide such additional evidence to it. 11 The appellant also claimed that the Tribunal was effectively biased. The Federal Magistrate found no evidentiary foundation for this claim. 12 The Federal Magistrate reviewed the Tribunal's decision and found that the appellant did not have an arguable ground for review and dismissed the application.

Appeal to this Court 13 The notice of appeal to this Court was filed on 18 March 2008. The appellant claimed he was not given sufficient time to "submit all the documents which [he] had", and he restated his claim of persecution. 14 When the appeal was called on in this Court this morning the appellant was not present. The solicitor acting on behalf of the Minister applied for orders dismissing the appeal as incompetent, there being no leave granted to file the appeal from what was plainly an interlocutory decision of the Federal Magistrates Court. I had commenced to give my reasons for decision when the appellant appeared in Court. I interrupted the delivery of the reasons and provided him with an opportunity to make such submissions as he may wish in support of an application for leave to appeal. 15 The appellant told the Court that he did not wish to return to Pakistan at present, but would be prepared to do so at some date in the future. He reiterated that he wanted to present further evidence to support his claim and he said that he wished to present it to the Court soon. 16 I am prepared to treat the appellant's submissions as an application for leave to appeal and deal with it accordingly. It is, as I explained to the appellant, well established that the Court will only grant leave to appeal from an interlocutory decision of the Federal Magistrates Court if the person seeking that leave can show that there is sufficient doubt as to the correctness of the judgment of the Federal Magistrates Court to warrant review and, secondly, assuming the judgment below to be wrong, that substantial injustice would be suffered by the applicant if leave to appeal were refused: see Decor Corporation Proprietary Limited v Dart Industries Inc (1991) 33 FCR 397. 17 The Court is only in a position, when hearing appeals from the Federal Magistrates Court, to act on the evidence that was before the Tribunal and that was, in turn, considered by the Federal Magistrates Court. This Court is not, save in exceptional cases, in a position to receive additional evidence that was not placed before the Tribunal. It is concerned to determine whether, in conducting the judicial review of the Tribunal's decision, the Federal Magistrates Court erred in law. 18 The appellant's notice of appeal, which I will treat as a draft notice of appeal, alleged that the Federal Magistrate erred because, first, the appellant was not given enough time to submit all the documents which he had. Secondly, that he considered the decision given by the Federal Magistrates Court was "inappropriate". Thirdly, that the circumstances in which the country of Pakistan has recently found itself led to him feeling very threatened for his life. He asked that this Court review his case "deeply". Whilst one may have a good deal of sympathy with an appellant who comes from a country such as Pakistan where there is considerable political turmoil at present, it can only intervene, as I have already said, if it finds error on the part of the Federal Magistrate. 19 I have carefully read the Federal Magistrate's decision and can find no error in it, much less error that would warrant the intervention of this Court. Accordingly, it is inappropriate that leave to appeal should be granted. There will be orders that the application for leave to appeal be dismissed and that the costs of the application incurred by the first respondent be paid by the appellant. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Solicitor for the First Respondent: Australian Government Solicitor

Federal Magistrates Court Rules 2001(Cth)r 13.03A(c)

Federal Magistrate Court Rules 2001(Cth)

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