SZIJK v Minister for Immigration and Citizenship [2007] FCA 141

FEDERAL COURT OF AUSTRALIA

SZIJK v Minister for Immigration and Citizenship [2007] FCA 141 SZIJK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1696 OF 2006

ALLSOP J

14 FEBRUARY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1696 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIJK

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: ALLSOP J DATE OF ORDER: 14 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to the Minister for Immigration and Citizenship. 2. The appeal be dismissed. 3. The appellant pay the respondents' costs. 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 1696 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIJK

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: ALLSOP J

DATE: 14 FEBRUARY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from orders made by the Federal Magistrates Court on 17 August 2006. Reasons were published on 24 August 2006. The appellant applied for a protection visa which was refused by a delegate of the Minister. That decision was affirmed by the Refugee Review Tribunal (the Tribunal). The application to the Federal Magistrates Court sought review of that decision by the Tribunal. The decision of the Federal Magistrates Court, from which an appeal is brought, is one dismissing that application. 2 The applicant is a citizen of Pakistan who arrived in Australia in July 2005. The Tribunal's findings and reasons were summarised by the Federal Magistrate. The Tribunal refused to accept the claims of the then applicant for reasons essentially that his evidence before the Tribunal was not believed. 3 The application for judicial review which was before the Federal Magistrate had three grounds. Summarising those grounds they were as follows: (1) that the Tribunal did not give due weight to the evidence adduced by the applicant and that the Tribunal was in error in rejecting the credit of the applicant; (2) that the applicant was the leader of the relevant student organisation discussed in the reasons of the Tribunal and that he was beaten and threatened by the authorities; and (3) that the applicant had a well-founded fear of being killed upon return to Pakistan and that the Tribunal did not take into consideration his claims. 4 As can be seen from that summary, the grounds of the application were a mixture of assertion of primary fact giving rise to the claim for asylum and the fundamental assertion that the Tribunal did not adequately assess material before it in order to conduct the review. That is how the Federal Magistrate approached the matter in his reasons for judgment. 5 In examining the matter in that way, the Federal Magistrate came to the view that the Tribunal had addressed the claims of the applicant and had not impermissibly taken advantage of any position in assessing the credit of the applicant. In other words, the Federal Magistrate came to the view that the claims of the appellant were addressed and that the rejection of the evidence of the appellant was within the province of the Tribunal. The Federal Magistrate was unable to find any jurisdictional error in the approach of the Tribunal. 6 The appeal to this Court identified the following grounds: the Federal Magistrate erred in the findings made and the Federal Magistrate had not gone into the question of the legal errors made by the Tribunal. It was further asserted that the Tribunal and the Federal Magistrate failed to appreciate the question of the well-founded fear of persecution and that the Tribunal relied upon old country information released by the authorities. It also raised the question of the proper test of refugee status by the UNHCR. 7 The written submissions filed on behalf of the appellant and signed by the appellant deal substantially with the underlying asserted facts which are said to support his claim for asylum. Before addressing the matters raised in the notice of appeal I should, for the benefit of the appellant, make it clear that neither the Federal Magistrates Court nor this Court sits as a trial court deciding the issue of asylum. The Federal Magistrates Court was exercising a function of judicial review of the findings and decision of the Tribunal. What that means is that Parliament has laid down that the function of the Court in these kinds of cases is to ensure that the Tribunal follows lawful process in reaching its executive decision. 8 The role of the Court is not to find the facts and decide for itself as to whether the applicant should be given a visa. Equally, this Court in sitting on appeal from the orders of the Federal Magistrates Court, only corrects an error of the Federal Magistrates Court undertaking that task. 9 Turning to the matters raised in the notice of appeal, having considered the reasons of the Tribunal, like the Federal Magistrate, I do not accept that the claims of the appellant were not addressed by the Tribunal. Secondly, I do not see any basis to conclude that the Federal Magistrate erred in his conclusion that the expressed credibility findings were open to the Tribunal. Credibility is a difficult issue at times. Merely because the Tribunal says that something is implausible is not necessarily the end of the question. But in circumstances whereas here the assessment is, in significant part, based on hearing the evidence of the applicant, I do not see any ground to conclude that the Federal Magistrate erred in the approach he took. 10 Thirdly, the assertion that the Tribunal used old country information does not amount to a source of jurisdictional error. The Tribunal is an expert Tribunal with resources available to it to understand the countries with which it is dealing. Within reason, and I see no basis to conclude that the choice was irrational, the choice of country information is a matter for the Tribunal. 11 Fourthly, the question of whether the refugee status as laid down by the UNHCR was not followed, is not made out in my view. The Tribunal approached the matter on the basis that is set out in the legislative framework section of its reasons, which in my view, adequately reflects a correct addressing of the question as to whether Australia has protection obligations to the appellant for the purposes of s 36 of the Migration Act 1958 (Cth). 12 I have also looked at the decision of the Tribunal from the point of view of any possible application of s 424A of the Migration Act. Early in its reasons the Tribunal appeared to indicate that it was to place some emphasis upon what appeared in an earlier statement to the Department. However, later in the reasons it became apparent that there was no reliance upon the inconsistency between that earlier statement and the material provided to the Tribunal at the hearing. 13 I am unable, from the submissions of the appellant and from my own consideration of the Tribunal's reasons, to identify any jurisdictional error. I am unable to identify any error in the approach of the Federal Magistrate. For those reasons, the orders of the Court will be that the appeal be dismissed. Before formally doing so, I should order that the name of the first respondent be amended to Minister for Immigration and Citizenship which I think is now the correct name of the relevant Minister. 14 Therefore, the orders of the Court are: (1) The first respondent be amended to Minister for Immigration and Citizenship. (2) The appeal be dismissed. (3) The appellant pay the respondents costs. The Court so orders. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.