SZFDT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1106

FEDERAL COURT OF AUSTRALIA

SZFDT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1106

MIGRATION – no issue of principle SZFDT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 864 OF 2005 CONTI J 11 AUGUST 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 864 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZFDT

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 11 AUGUST 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant is to pay the respondent's costs assessed at $2,500.00. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 864 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZFDT

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 11 AUGUST 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction and the appellant's claims 1 This is an appeal from the orders and reasons for judgment of Scarlett FM, made and given on 11 May 2005, which dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 10 November 2004 which affirmed a decision of a ministerial delegate refusing the appellant's application for a protection (Class XA) visa. 2 The appellant is a citizen of Pakistan who arrived in Australia on 1 February 2004. He lodged an application for a protection visa on 27 February 2004. The appellant travelled to Australia on a Pakistani passport, issued in his own name, as a temporary business visitor. He did not claim to have experienced difficulties obtaining a travel document and had left Pakistan legally. In his application for a protection visa, the appellant asserted without further detail that he would be killed or kidnapped if he were forced to return to Pakistan. In a later statement received by the Minister in April 2004, the appellant claimed that he belonged to the Pakistan Muslim League (Nawaz) ('PML (N)') and that he had worked for different political personalities of that party. 3 The appellant further claimed in the April 2004 written statement that when the army dissolved the PML (N) government in October 1999, there were efforts to force him to join the Pakistan Muslim League Quaid-e-Azam ('PML (Q)'). When he refused 'they' had threatened him on the telephone and on one occasion he was physically assaulted. The appellant claimed that he decided to leave Pakistan and travelled to Australia. 4 The appellant also claimed that a person, who is the coordinator of the PML (Q) in Australia, demanded $10,000.00 from him, and in the absence of payment threatened him with return to Pakistan. The appellant referred to a statement in an Urdu language newspaper published in Australia dated 20 April 2004, which he claimed contained a statement against him made by that person. The appellant repeated that he would be killed if he returned to Pakistan or killed by the PML (Q) in Australia if he did not return to Pakistan. 5 In an additional statement accompanying his application for review to the Tribunal, the appellant claimed that he was an active member of the PML (N) and had worked for a national assembly member, Mr Ghulam Datsgir Khan ('Mr Khan'). The appellant claimed that he had been followed by government agencies as well as by an employee of the PML (Q). The appellant further claimed that his friends in Pakistan had warned him against returning because government agencies had captured many PML (N) employees and he would be arrested for having worked for the PML (N). The appellant submitted some additional documents to the Tribunal, including what appeared to be a party membership card bearing his name and photograph but which, the Tribunal concluded, had the name of the PML (N) misspelled, as well as that of its Central Committee. 6 The appellant attended a hearing before the Tribunal on 6 September 2004, during which the Tribunal explored his claims in detail. In its reasons for decision, the Tribunal divided those claims into two sections: the appellant's claims emanating from his treatment in Australia by 'Malik' and those claims associated with the appellant's fear of persecution upon his return to Pakistan. 7 The appellant told the Tribunal that when he arrived in Australia he had been given the name of a man called Malik. He said that he stayed with Malik for a week, and reiterated his claim that Malik had kept his passport and demanded $10,000 from him in exchange for arranging for the appellant to live peacefully in Australia. When the appellant did not pay the money, he claimed that Malik published an item in an Urdu-language Australian newspaper that painted the appellant in a negative light. The appellant was able to get his passport back from Malik with the assistance of an undisclosed third party. The appellant then said that he approached the Pakistan Consulate General and told the Consulate General about the activities of Mr Malik. The appellant obtained a new Pakistani passport, which he exhibited to the Tribunal at the beginning of the hearing. The Tribunal put to the appellant that his story suggested that Mr Malik had not been acting on behalf of Pakistani authorities, but rather had been 'running his own extortion racket'. The appellant agreed with the Tribunal's conclusion. 8 The appellant further claimed to the Tribunal that the current political climate was very dangerous to him in Pakistan because the PML (Q) were in government and he would be targeted by them because of his former employment as personal assistant to a PML (N) national assembly member, Mr Khan. The Tribunal put to the appellant that he no longer worked for that man but the appellant maintained that if he were to return to Pakistan, he would work for him again. The appellant stated that he had been member of the PML (Q) for a six month period leading up to his departure and had worked for them as a full-time volunteer during that period. The appellant said that he had gone to work for the rival PML (Q) because student members of that party has locked him up and tortured him in an attempt to obtain information about his boss, Mr Khan. Rather than reporting this incident, the appellant worked for the PML (Q) to ensure his protection. The appellant claimed that this was the advice given to him by his boss, Mr Khan. The Tribunal questioned the appellant about those claimed experiences in Pakistan as well as to why the printed PML (N) membership card that he received contained prominent spelling errors. The Tribunal also pointed out to the appellant inconsistencies in the letter allegedly written by Mr Khan about the appellant and it put to him country information to the effect that members of the PML (N) were not being targeted in Pakistan now. 9 The Tribunal gave the appellant a fortnight to provide additional documents, information or submissions in support of his claims. The appellant subsequently asked for, and was granted, a further two-week extension of time to provide material to the Tribunal. On 5 October 2004 the applicant forwarded some further material to the Tribunal.