SZADO v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application seeking an extension of time in which to file and serve a notice of appeal from a judgment of the Federal Magistrates Court given by Federal Magistrate Driver as long ago as 16 July 2003. The grounds of the application are said to be a fear of persecution if the applicant is returned to his home country, Pakistan. 2 The applicant was a member of the Pakistani Army from 1993 until 2000. In 2000, he came to Australia to box in the Olympic Games and sought asylum claiming refugee status once here. The matter ultimately came before the Refugee Review Tribunal ('Tribunal') which made a decision adverse to him on 28 November 2002, the reasons later being handed down on 7 January 2003. The application before his Honour was for judicial review of that Tribunal decision. 3 There is an aspect of the Tribunal's reasons which, as Ms Rayment's submissions for the respondent correctly recognise, might cause some concern. The Tribunal member generally did not accept that the applicant was at risk of persecution for reasons of his adherence to his Shi'ite religion, as he claimed, or for reasons of political opinion, and took the view that he simply feared going back to Pakistan to face whatever punishment might await him for being absent without leave from the army, or as it might be viewed, for desertion from the army. 4 The learned Member dealt with the matter as far as I can see quite unexceptionably, except that she said: 'During the hearing the applicant stated that he had made a mistake by remaining in Australia. His evidence was that his problem in returning to Pakistan is not really his religion, but the fact that he did not return to Pakistan after the Olympics, deserted from the Army and thus broken military law. The independent evidence before me indicates that desertion is an offence under the Pakistan Army Act. The punishment for desertion depends on the circumstances. In the applicant's particular case, I am not persuaded that the applicant would be considered to have actually deserted from the Army as opposed to being absent without leave. I am informed by a colleague with lengthy experience as an Australian Army officer and lawyer that in his view the most likely punishment to be given the applicant in his particular circumstances would be a dishonourable discharge. I place weight on my colleague's opinion and consider it relevant to this case in view of the evidence before me indicating that Pakistani military law comes from a common law tradition, as does Australian military law.' 5 With great respect to the Tribunal Member concerned, whose work in general I might say commands respect, the course that she embarked upon is quite inappropriate and wrong. It was likely to put her in breach of section 424A of the Migration Act 1958 (Cth). It would have been a breach, quite apart from that section, of the rules of natural justice, for not giving the applicant a right to be heard on a matter which she said she gave weight to. Further, despite her colleague's experience in Australian Army law and practice, it might have invited criticism as completely illogical to draw any inference from that as to what might happen in the Pakistani Army which has for some years imminently faced actual hostilities arising out of Pakistan's disputes with India: see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12, per Gummow and Hayne JJ at [37] - [38]. I discussed this question in SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995 at [48] - [58]. 6 However, the error, it is fortunate, did not have an operative consequence against the applicant. The Tribunal Member continued: 'In any event, whatever punishment the applicant faces on return to Pakistan, I am of the view that this will be imposed on him because he has breached military law, and not because of his religion or any other Convention reason.' 7 She went on to decide the case on that basis. That seems to me to indicate that the error, though serious, was one without a practical adverse consequence for the applicant. 8 So much indicates that even if the applicant were to be enabled to appeal so long out of time against the judgment of Federal Magistrate Driver, he would not have any arguable case for success. There would therefore be no injustice to him in refusing leave to appeal. 9 There is also the consideration that there has been absolutely no explanation given of the very long delay in now seeking to appeal. If there is any prospect that the applicant might be shot for desertion if returned to Pakistan that is a matter no doubt that could be urged upon the Minister as a factor enabling her to use her exceptional powers on a humanitarian basis in the Australian public interest. As it is, there is nothing that this Court can or should do to assist the applicant. The application for leave to appeal will be refused with costs, assessed in the sum of $1,500.