SZQRY v Minister for Immigration and Citizenship

Federal Court of Australia|2012-08-21|Before: Foster J

REASONS FOR JUDGMENT 1 The applicant seeks an extension of the time within which he might appeal from a judgment of a Federal Magistrate given on 16 May 2012 (SZQRY v Minister for Immigration and Citizenship [2012] FMCA 428) by which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). 2 The application for an extension of time was filed on 7 June 2012, one day outside the period within which the applicant was required to file any appeal from the decision of the Federal Magistrate. Such an appeal was required to be filed and served within 21 days after the date when the judgment appealed from was pronounced or the relevant order was made (r 36.03 of the Federal Court Rules 2011). That is to say, the applicant's Notice of Appeal should have been filed by no later than 6 June 2012. 3 In his affidavit filed in support of his Application, the applicant set out a number of matters, all of which go to the merits of the claims which he made both to the delegate of the first respondent (the Minister) and to the Tribunal. The affidavit does not address the reasons why his current Application was filed outside the time limited for the filing of his Notice of Appeal. However, there is a hint in some of the material before me that the applicant may well have endeavoured to file his Notice of Appeal within time (namely, on 6 June 2012) but had been unable to do so because he had failed to comply with the requirements laid down in the relevant rules of Court. 4 The delay of one day is inconsequential. No prejudice has been suffered, or is likely to be suffered, by the Minister. The Minister does not seek to rely upon the one day delay as a separate and independent justification for his opposition to the applicant's Application. However, the Minister opposes any extension of time on the ground that the applicant's putative appeal is bound to fail. Were I to conclude that the applicant's putative appeal is without merit, I would be entitled to rely upon that conclusion in considering whether to grant the requested extension of time (see Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [17]; Gallo v Dawson (1990) 93 ALR 479 at 480-481; and SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867 at [18]).

The Tribunal's Decision 5 The applicant is a citizen of Pakistan who was born on 1 January 1969. He arrived in Australia on 28 June 2007. On 18 February 2011, the applicant applied for a protection visa. A delegate of the Minister made a decision to refuse the applicant's application for a protection visa on 11 April 2011. The Tribunal affirmed the delegate's decision on 31 August 2011. 6 The applicant claimed to fear harm in Pakistan because of his race (Pashtun), political opinion, given his involvement with the Awami National Party (ANP), and membership of a particular social group (Pashtuns from Swat Valley). He claimed that his family had been targeted by the Muttahida Quami Movement (MQM) who tried to extort money from him during his last visit to Pakistan. He claimed that he is on the Taliban list of wanted persons and that, were he to return to Pakistan, he would inevitably face life threatening harm from the Taliban. He said that he would be targeted by the Taliban, religious fundamentalists, political opponents and other elements in society, including the authorities, because he was a Pashtun from the Swat Valley. 7 At [55] of its Reasons, after dealing with the background to the applicant's application for a protection visa, the Tribunal began to set out its findings and reasons in respect of the review which the applicant had initiated before the Tribunal. At [57], the Tribunal said that it accepted that the applicant is a Pashtun with family connections in the Swat Valley in Pakistan. However, the Tribunal recorded that, in its view, the applicant had fabricated his major claims in order to enhance his visa application. The Tribunal therefore concluded that it should affirm the delegate's decision to refuse the applicant's application for a protection visa. 8 The Tribunal found that the applicant's claims to have been a member of the ANP were not credible. The Tribunal concluded that he had demonstrated "limited or no knowledge" about the ANP's aims and objectives, its prominent members, its electoral achievements and significant events such as the death of a prominent member of the organisation in August 2010. The Tribunal concluded that, had the applicant had the level of involvement which he claimed, he would have known such basic information as that to which I just referred. The Tribunal took the view that the applicant had contrived his claims in order to enhance his protection visa application. 9 The Tribunal also found that the applicant's claim that he was vulnerable to particular adverse attention by the Taliban and that he was on a wanted list because he was implicated in anti-Taliban activities had been raised for the first time at the Tribunal hearing. The Tribunal said that it was not satisfied that the applicant had the profile or characteristics of a person who would be of particular interest to the Taliban in Pakistan. In coming to that conclusion, the Tribunal had regard to country information that indicated that the Taliban and other extremist groups targeted individuals who had actively participated in activities against them or who had provided information to security forces and found that these classes did not include the applicant. 10 Whilst the Tribunal accepted that Pashtuns had been injured or killed during periods of civil unrest, it did not accept, on the basis of the accepted country information, that the applicant would be targeted by any particular group, or by the authorities, merely because he was Pashtun or a Pashtun from the Swat Valley. 11 The Tribunal also found that, although the applicant may have been targeted for extortion by criminals in Karachi, it was not satisfied that he had been targeted because of his political opinion or for any other Convention reason. The Tribunal decided on the evidence before it that the applicant had simply been a victim of crime. 12 The Tribunal also rejected the applicant's claim that he had been denied protection by the authorities because of his ethnicity or political opinion. The Tribunal observed that there was widespread political and civil unrest throughout Pakistan but found that the applicant was not at risk of harm for a Convention-related reason.

The Proceedings in the Federal Magistrates Court 13 The applicant filed an Application in the Federal Magistrates Court on 4 October 2011. In that Application he relied upon the following grounds: 1. The tribunal committed error of law and or jurisdiction error when it failed to properly identify, assess and address the risk of him in respect of the applicant's particulars or social groups, failing to follow proper procedure steps/manner when dealing with social group. Particular: a. The tribunal failed to deal with the manner, social group stated Dranichnikov/sznve and other cases. 2. The tribunal committed error of law and/or jurisdictional error when he rejected the applicant's explanation, consistent with other evidence concerning the applicants, risk of persecution. Particulars: the tribunal failed to assist if there were other instance to look. 3. The tribunal committed error of law and or jurisdictional error which the tribunal failed to contradict all the factors and whether in particular tense the applicant could relocated. 4. The tribunal committed error of law/and jurisdiction error, when he totally disregarded, that the applicant was member of Anp political party just because the applicant did not have necessary evidence. Particulars: The tribunal commented that it had doubts as to whether the applicant was a politically active person in Pakistan. The tribunal commented that he appeared to have limited information regarding his former party, the ANP and he did not appear to have kept informed about the political events in Karachi. The tribunal commented that the Tribunal may find that the applicant has limited information regarding the ANP because he was not involved with the party. In the present matter, the Tribunal is not satisfied that the applicant was a political activist with the ANP in Pakistan or that he was a person of particular adverse interest to the Taliban, the MQM, other religious or political groups, or other elements in society including the authorities. (Original emphasis) 14 The Federal Magistrate found that the grounds advanced by the applicant in the Federal Magistrates Court had no substance and concluded that no jurisdictional error had been identified which affected the Tribunal's decision. 15 In relation to ground 1, the Federal Magistrate found no substance in the allegation that the Tribunal had failed to address all of the applicant's refugee claims. The Federal Magistrate was of the view that, to the best of its ability, the Tribunal had endeavoured to address those claims and fairly to attempt to give rational content to the manner in which the applicant and his agent had presented his case. The Tribunal had dealt with all of the attributes of the applicant which placed him within a particular social group and found that the applicant would not be exposed to a well-founded fear of persecution were he to return to Pakistan. 16 As far as ground 2 was concerned, his Honour was unable to identify any relevant error made by the Tribunal when it rejected parts of the applicant's story. His Honour found that the Tribunal's assessment of the evidence tendered before it was open to it and was based upon a fair assessment of what appeared to be the applicant's case before the Tribunal. The Tribunal was not required to accept the applicant's claims at face value and the weight to be given to his claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function. 17 His Honour found ground 3 impossible to comprehend. 18 In relation to ground 4, his Honour found that this ground did not describe any arguable jurisdictional error and was premised upon a misreading of the Tribunal's decision. For these reasons, the Federal Magistrate dismissed the applicant's application for judicial review.

The Proceedings in this Court 19 As I have mentioned at [2] above, on 7 June 2012 the applicant filed an Application for an extension of the time within which he might appeal to this Court, together with a draft Notice of Appeal. In his draft Notice of Appeal, the applicant relies upon the following grounds: 1. That the applicant has a case which needs the intervention of this honourable court. As the applicant has undergone a lot of harassments by the hands of the Mahajer Quami Movement, as the applicant is a Pashtoon. The applicant belongs to the NATIONAL Awami Party which is fighting for the rights of the Pashtoon minority, by reason of ethnic and political opinion. The applicant is a Pashtoon and living right in the heart of MQM Karachi which is majority Urdu speaking Mahajer area. The applicant had lots of clashes with the MQM which is a terrorist's organisation and is controlling the whole of the Karachi region. The applicant was well known due to his political and social activities, within his party Awami National Party (ANP) the target killing is very open in the Karachi, and this fact can be verified from the different resources throughout the world by means of the print and electronic media. 2. That although the applicant was a member of his own political party, yet the applicant since hails from the Swat Valley where a famous Army operation was conducted, the applicant was also working against the Taliban's in the Swat valley, the applicant was also wanted by the most extremists group the Taliban's. The applicant's family members were forced to move even beyond the borders of Pakistan. The applicant has submitted his statutory deceleration to this effect, which is a part of the file before the honourable Court. The applicant had many clashes with the MQM, The above mentioned group who is responsible for the harassments torture coupled with other atrocities committed with the applicant. And since the applicant was very vocal and active, within his own party the applicant was harassed and was put to state of persecution by the Mahajer Quami Movement (MQM). 3. That the applicant was given warnings by the MQM that his name is on the hit list and he shall be done to death and during these times the applicant was constantly chased by the MQM terrorists, they are well known for killings of their opponents. The applicant used to hide and move around places in order to save his life. That the amount of danger of life which really means in the eyes of the law was not assessed according to the law hence amount to legal and jurisdictional error. 20 These grounds seek to re-agitate the applicant's claims to be entitled to protection, being the claims which he put forward to the delegate and to the Tribunal. In none of the grounds relied upon by him in his draft Notice of Appeal does the applicant identify any appellable error on the part of the Federal Magistrate or, indeed, any jurisdictional error on the part of the Tribunal. 21 The substance of the matter is that the Tribunal has made a number of findings as to the applicant's credibility, these being findings of fact which are, par excellence, a matter for the Tribunal. These findings were open to the Tribunal on the evidence before it and the Court cannot review the merits of the Tribunal's decision in the way in which the applicant seeks to do in his draft Notice of Appeal. 22 On 17 August 2012, the applicant filed a Written Submission in support of his Application. In that submission, the applicant also sought to re-agitate the merits of his claims. 23 In addition, in that submission he raised for the first time that he had been denied natural justice, either at the Tribunal hearing or, perhaps, before the Federal Magistrate. Insofar as such an allegation is made in respect of the proceedings in the Tribunal, no such point was taken before the Federal Magistrate. It cannot be raised before me now unless I give leave to the applicant to do so. I see no reason to grant such leave in the present case. There is nothing in the materials before me which could conceivably support the applicant's assertion that he was denied procedural fairness either before the Tribunal or before the Federal Magistrate. 24 In addition, when the matter was called on for hearing this morning, the applicant sought to tender various documents which he claimed had been given to his representative with a view to being sent to the Tribunal but which his representative had failed to send to the Tribunal. This is a complaint that was raised by the applicant before the Federal Magistrate. At [39] of his Reasons, the Federal Magistrate concluded that, because the documents had not been sent to the Tribunal, the Tribunal's failure to consider them could not be classified as jurisdictional error. This decision by the Federal Magistrate was plainly correct. For the same reason, I cannot now consider those documents and rejected them when they were sought to be tendered at the hearing of the present application. 25 In my view, the applicant's putative appeal has no prospect of succeeding. For that reason, I refuse to extend the time within which he might appeal. 26 The application will be dismissed. I will order the applicant to pay the first respondent's costs of his application, as taxed or agreed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

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