SZNRG v Minister for Immigration and Citizenship

Federal Court of Australia|2010-02-26|Before: Bennett J

REASONS FOR JUDGMENT 1 By an application filed on 7 December 2009, the applicant seeks an extension of time to file and serve a notice of appeal in respect of the orders of Barnes FM made on 2 November 2009. Her Honour published written reasons in SZRNG v Minister for Immigration [2009] FMCA 1126. 2 The applicant notes that he was present at the hearing before her Honour but did not have legal representation. He says that he was advised to wait for an official letter which he received from the Federal Magistrates Court on 20 November 2009. This was eighteen days after judgment was given. He took the letter to the Office of Migrant Settlement Services in Griffith where he was told that he had twenty one days from the date of the letter to lodge an appeal. He lodged his application for an extension of time to file and serve a notice of appeal on 7 December, some fourteen days outside the prescribed period. 3 The applicant seeks an order pursuant to O 52 r 15(2) of the Federal Court Rules which provides that the Court or a judge for 'special reasons may at any time give leave to file and serve a notice of appeal'. The Minister submits that no such special reasons exist even with the explanation and that even if that requirement is met, the application ought to be refused on discretionary grounds. The Minister submits that there is no question of importance sought to be raised in the proposed appeal and that the proposed appeal does not have sufficient prospects of success to make it just that it should proceed. 4 Accepting the applicant's explanation for the delay, it is necessary to turn to the merits of the appeal. The applicant is a citizen of Pakistan who arrived in Australia on 9 September 2007. He lodged an application for a protection visa on 24 October 2008 which was refused by a delegate of the Minister. That refusal was upheld by the Tribunal and the applicant's claim for review in the Federal Magistrates Court was dismissed. 5 The draft notice of appeal raises two grounds: 1. The single Judge of the Federal Magistrate Court in his Honour's judgement delivered on the 2 November 2009 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903. 2. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. 6 It is apparent that no particulars or detail are given to support the asserted grounds.

The Tribunal decision 7 The applicant, a citizen of Pakistan, claimed in his protection visa application to fear harm from the Sipah-e-Sahaba and other radical Sunni Islamic organisations due to his Shia religion. He claimed that he was attacked by radical Sunni groups a number of times and that those groups threatened to kill him if he continued his support of the Shia group. He subsequently moved to Dubai but returned to Pakistan a number of times over the last twenty years where, he said, he always faced problems and could not stay in one place. He said that he feared he would be killed in Pakistan by the radical Sunni group and, as the Government of Pakistan is Sunni-dominated, that he will not be protected if he returns. He stated that he feared that he would be killed in Pakistan by radical Sunnis because he was perceived as a possible sympathiser of the Shia group. 8 The only evidence before the Court of what occurred at the Tribunal hearing is the Tribunal's reasons for decision. The Tribunal set out in detail the claims made by the applicant at the hearing and recorded that it put to him a number of issues about his claim. The Tribunal gave very detailed and comprehensive reasons for its decision. These were, in turn, set out in the reasons of the Federal Magistrate. 9 The applicant appeared at the appeal in person assisted by an interpreter. He does not take issue with most of the matters set out in the Tribunal's reasons. When asked to provide some details or particulars of his grounds of appeal, the applicant said that he gave all the information to the Tribunal and that the Tribunal did not understand his story. 10 The applicant raises two specific matters: 1. The Tribunal was not satisfied that incidents described by him in which he said that he was attacked and suffered injury did in fact occur. 2. The Tribunal was not satisfied that he had ever experienced harm at the hands of Sipah-e-Sahaba members as he claimed. The applicant says that he tried to show the Tribunal the physical consequences of the injuries that he said he had received in 1989 or 1990 and 2003, and that the Tribunal declined to examine them. 11 In concluding that the alleged incidents did not occur, the Tribunal referred to a number of matters: · The applicant claimed to have been injured in an incident in 1990 when he was in high school and was beaten up by other students, and his arm was broken. A second incident occurred during a visit to Pakistan in about 2003. · The applicant had no medical certificates regarding treatment for these injuries. · If the dramatic events as described had occurred, the applicant would have been able to describe them in some detail and would be able to state with certainty the year in which they took place. · There was 'a notable vagueness' in the applicant's evidence about the exact source of the harm he feared. · There were inconsistencies with the account given by the applicant to the Tribunal of his treatment in three different hospitals after the alleged 2003 incident and the account the applicant had given in his Departmental interview. · Documents submitted by the applicant, which were said to relate to a complaint lodged by him with military authorities in 1990 when he complained that certain people in Pakistan were trying to kill him, related to a court case brought against the applicant for an apprehended breach of the peace. The applicant appeared unsure about the identity of the person with whom he was said to have had the dispute referred to in those documents. 12 Apart from the applicant's assertion in this application, made without supporting evidence, that he had been prevented by the Tribunal from displaying the consequences of his injuries, there is nothing in the Tribunal's reasons to support that assertion. In any event, I am not satisfied that the Tribunal rejected the fact that the applicant had sustained injury. The real question for the Tribunal was whether it accepted the applicant's claims. That decision was based upon whether the applicant had suffered injury in the way he described and for the reasons he claimed. 13 The Tribunal was not satisfied of the truth of the applicant's claims for the reasons set out above. None of those reasons involved a rejection of the applicant having sustained injury, or were dependent upon such a conclusion. Although the applicant said that the Tribunal did not understand his story, it is clear from his explanation that he took issue with the Tribunal's decision on the merits of his claim. He has not shown that the Tribunal failed to consider his claims. 14 The applicant sought to tender in this application an Urdu original of a document that appears in the court book in English translation. It was the English translation that was before the Tribunal, which considered that translation in some detail. The document sets out the facts of the case brought in relation to the alleged court case involving the applicant and one Muhammad Iqbal. The Tribunal put to the applicant that he had given a different account of these events at the Departmental interview as at the hearing and that falsified documents are readily available in Pakistan. It rejected the applicant's claim in relation to the alleged dispute underlying the court case. The main reason for that rejection was the applicant's description of the nature of the dispute and of the person/s with whom the applicant had the dispute, whether it was with Muhammad Iqbal or his son Zafar Iqbal. In rejecting the applicant's claim, the Tribunal observed that independent country information indicates that falsified documents are readily available in Pakistan and noted that the applicant said that he could provide assurance that the documents that he had submitted were authentic. The Tribunal did not base its rejection solely on a lack of authenticity. In any event, that rejection would have applied equally to the original in Urdu as it did to the apparently stamped English translation. 15 There is no basis for an assertion that the Tribunal denied the applicant procedural fairness. It is apparent from the Tribunal's reasons that all relevant matters were put to the applicant by the Tribunal at the hearing and that he was given every opportunity to put to the Tribunal whatever he wished to say. Further, the Tribunal invited the applicant to comment on the information or to respond it in any way he liked, explaining that he could do so immediately, at an adjourned session of the hearing, or in writing, and that he could have more time to do so if he wished. The applicant replied that he believed that everything had been covered.

The Federal Magistrate's decision 16 Before the Federal Magistrate, the appellant contended that the Tribunal: · failed to comply with s 424A of the Migration Act 1958 (Cth) (the Act) as it failed to honour its undertaking to give the applicant an opportunity to make written submissions about the inconsistencies in his evidence; · incorrectly used independent country information; · made a decision which was unjust and without taking into account the full gravity of his circumstances and the consequences of his claims; and · failed to investigate his claims and was biased. 17 Federal Magistrate Barnes dealt carefully with each of those grounds. Her Honour concluded that no jurisdictional error was established from the manner in which the Tribunal appears to have conducted its hearing, or in the opportunities afforded to the applicant to respond to the issues before the Tribunal. 18 Her Honour concluded that the applicant did not make out a failure to comply with s 424A of the Act. 19 Her Honour noted that the substance of country information about falsified documents in Pakistan was discussed with the applicants at the hearing. Her Honour concluded that the Tribunal ultimately placed no weight on the documents submitted by the applicant relating to the complaint lodged by him, having regard to inconsistencies between their content and the applicant's oral evidence which, it found, cast doubt on the applicant's credibility and on the authenticity of the documents. The Federal Magistrate correctly noted (at [32]) that the choice and assessment of country information is a matter for the Tribunal, as is the weight to be given to particular items of country information (NAHI v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]; Applicant NABD of 2002 v Minister for Immigration and Multicultural Affairs (2005) 216 ALR 1 at [8] per Gleeson CJ). In any event, as Barnes FM noted, the Tribunal referred not only to the country information with regard to falsified documents but also to country information provided by the applicant. Further, as her Honour noted, the Tribunal did not simply reject documents provided by the applicant but assessed them independently and relied on inconsistencies between the documents and the applicant's oral evidence. 20 Her Honour dismissed the other grounds on the basis that they sought merits review, and that a failure on the part of a Tribunal to verify or further investigate the applicant's claims did not establish either actual or apprehended bias. Her Honour considered an additional ground, raised in an affidavit filed by the applicant, that the Tribunal failed to assess or carry out the real chance test before dismissing the claim and concluded that that contention was not made out. As her Honour noted, the Tribunal dealt with the claims put before it and rejected those claims. The Tribunal properly had regard to the probability that the applicant suffered harm in the past as he claimed in determining whether there is a real chance that a similar event will occur in the future. 21 Her Honour concluded that it was open to the Tribunal to reach its conclusion that it was not satisfied that the applicant had ever suffered harm in the past in Pakistan as he claimed for the reasons that he claimed and that the applicant did not have a well founded fear of persecution should he return to Pakistan now or in the reasonably foreseeable future because of his religion. 22 The applicant has not established that either the Tribunal or the Federal Magistrate made an error of law, or that the Tribunal decision was otherwise affected by jurisdictional error. The decision of the Tribunal and the reasons of the Federal Magistrate reveal in each case a careful consideration of the applicant's case. No error has been identified in the approach and findings of Barnes FM and no jurisdictional error has been established that affects the Tribunal decision. On this basis, an extension of time should be refused (Howard v Australian Electoral Commission [2000] FCA 1767 at [7] per Branson J). The proposed appeal must have sufficient prospects of success to make it just that it should proceed (W105/99A v Minister for Immigration and Multicultural Affairs [2001] FCA 1786 at [13] per Nicholson J; WACF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1385 at [30] per Carr J). 23 The grounds in the draft notice of appeal have no prospect of success. It follows that the application for an extension of time should be refused with costs. The Minister has sought costs in the fixed sum of $1,564 and has provided evidence that demonstrates that the sum sought is less than the amount for which the applicant would be liable on taxation. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

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