SZIWM v Minister for Immigration & Citizenship [2007] FCA 361

FEDERAL COURT OF AUSTRALIA

SZIWM v Minister for Immigration & Citizenship [2007] FCA 361 SZIWM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 2209 OF 2006

BENNETT J

22 FEBRUARY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2209 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIWM

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BENNETT J DATE OF ORDER: 22 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be changed to the 'Minister for Immigration and Citizenship'. 2. The Refugee Review Tribunal is joined as the second respondent. 3. The appeal is dismissed. 4. The appellant is to pay the first respondent's costs. 5. Leave is granted to the first respondent to forward to my chambers within 3 three days evidence upon which any application for fixed costs is to be based. 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 2209 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIWM

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BENNETT J

DATE: 22 FEBRUARY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of Pakistan who claims to have a well-founded fear of persecution in that country by reason of his political beliefs. He claims that he was an active member of the Pakistan Muslim League Nawaz Group and suffered persecution because of his membership of that group. 2 This is an appeal from a decision of Federal Magistrate Scarlett, who dismissed an application pursuant to r 44.05 of the Federal Magistrates Court Rules 2001 (Cth) ('the Rules') for an order to show cause why a remedy should not be granted in respect of a decision by the Refugee Review Tribunal (SZIWM v Minister for Immigration & Anor [2006] FMCA 1627). The Tribunal, in its decision, affirmed a decision of the Minister's delegate to refuse the appellant a Protection (Class XA) visa. His Honour did not state in his reasons whether he proceeded to dismiss the application under r 44.12(1)(a) or (c) of the Rules. The parties have proceeded on the understanding that his Honour's judgment was final rather than interlocutory and I am satisfied that it is appropriate to proceed on that basis. 3 The appellant had notified the Tribunal that he did not wish to take the opportunity to appear personally before it. The Tribunal accepted that the appellant is a citizen of Pakistan but otherwise found that his claims 'lack[ed] detail'. The Tribunal set out those claims in its reasons for decision and concluded that: 'Given the lack of detail contained in [the appellant's] protection visa application, the Tribunal is unable to make findings of fact in relation to [the appellant's] claims.' 4 Federal Magistrate Scarlett dealt with the grounds in the application before him. His Honour concluded that the Tribunal appeared to have summarised the appellant's factual claims concisely and to have found that it was not satisfied on the basis of the inadequacy of the evidence (at [15]). As there was no evidence that the Tribunal failed to consider a claim or any part of a claim made by the appellant, the appellant's submission that '[t]he [Tribunal] ignored the amount of fear in the case of the applicant' was rejected. His Honour read the Tribunal's decision independently of the appellant's application and concluded that there was no jurisdictional error on the part of the Tribunal (at [23]).