VWOM v Minister for Immigration & Multicultural & Indigenous Affairs

The Court below 7 The appellant represented himself before his Honour. He identified as the "true issue", his claim that he faced persecution as a Sunni Muslim. 8 The learned Federal Magistrate observed that the RRT "found against the [appellant] on a matter of credit". He detected no error of law in the reasons for decision of the RRT, or any procedural error in the way the RRT undertook its task. He dismissed the application for judicial review.

The grounds of appeal 9 On appeal, the appellant claimed in his written submissions that his Honour erred in finding that the appellant was not denied procedural fairness. The appellant did not raise that issue before the primary judge. A question arises as to whether he should have leave to raise the new ground. Leave will be refused if the new ground is unarguable.

The procedural fairness complaint 10 The appellant, in his written submissions, claimed that the RRT failed to consider certain country information provided to it by him, or on his behalf. There is no substance in this point. The RRT specifically said that it did consider that information. 11 The appellant next claimed that the RRT failed to consider evidence relating to the documents taken to Saudi Arabia. This point is hopeless. The RRT referred to those documents in its reasons for decision.

12 The appellant then claimed that at the hearing before the RRT, the RRT:

· failed to consider the help given by the appellant to Nawaz Sharif;

· unreasonably considered the appellant could relocate within Pakistan; and

· failed to consider the appellant's genuine fear of persecution by Shi'a Muslims.

13 There was no claim made by the appellant that he personally provided help to Nawaz Sharif of such a kind that would lead to him being persecuted. The RRT's finding about the possible re-location of the appellant in Pakistan was one which was open to it on the evidence, as a matter of merit. In any event, it was not relevant to its decision that the appellant had no subjective fear of persecution for a Convention reason. Finally, the RRT did consider whether the appellant had a genuine fear of persecution for the reasons advanced by him and held that he did not. 14 The last new point sought to be raised on appeal, in the appellant's written submissions, is whether the RRT failed to comply with s 427(1) of the Migration Act 1958 (Cth) ("the Act") "by failing to make necessary investigations into certain important matters with respect to the review of the Appellant's application". 15 The new submission based on s 427(1) of the Act is also unarguable. It is not for the RRT to make out a case for an applicant before it. The RRT found the appellant not to be a credible witness. It had no further obligation to enquire on the appellant's behalf to find a possible basis upon which he may succeed on review.

Disposition 16 Having regard to the foregoing, the new proposed ground of appeal, and each of its component parts, is unarguable. No other grounds of appeal, which allege any error in the judgment below have been advanced. In his oral submissions, the appellant confined himself to matters going to the merits of the decision of the RRT and raised concerns about going back to Pakistan in circumstances where conflict exists between Shi'a Muslims and Sunni Muslims. This is not a matter which the Court can consider in its appellate function, nor was it a matter on which the Court below could identify a judicially reviewable error. Accordingly the appeal must be dismissed, with costs. Consistent with the judgment of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, (2005) 215 ALR 162, the RRT will be added as a respondent. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Date of Hearing: 6 September 2005

Date of Judgment: 7 September 2005