SZIFI v Minister for Immigration & Citizenship [2008] FCA 851

FEDERAL COURT OF AUSTRALIA

SZIFI v Minister for Immigration & Citizenship [2008] FCA 851

SZIFI v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 59 of 2008

SPENDER ACJ

21 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 59 of 2008

BETWEEN: SZIFI

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SPENDER ACJ

DATE OF ORDER: 21 MAY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time within which to seek leave to appeal from the orders made by Smith FM on 27 November 2007 is refused. 2. The applicant pay the costs of the first respondent of and incidental to this application, and the application for leave to appeal filed on 14 January 2008, fixed in the sum of $1400. 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 59 of 2008

BETWEEN: SZIFI

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SPENDER ACJ

DATE: 21 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 By an application filed on 14 January 2008 the applicant seeks leave to file and serve a Notice of Appeal in respect of the orders of Smith FM given on 27 November 2007. The Federal Magistrate published written reasons in support of those orders. 2 The application for leave is filed out of time by some 27 days, and at the Court's suggestion, the applicant indicated that he now seeks an extension of time within which to seek leave to appeal. 3 While such an application requires special reasons pursuant to O 52 r 15(2) of the Federal Court Rules, I will consider the question of whether to extend time in the light of my view as to whether there is any substance in the application for leave to appeal. 4 The applicant is a citizen of Pakistan who arrived in Australia on 10 September 2005. On 29 September 2005, he lodged an application for a protection visa with the Department of Immigration and Citizenship. 5 A delegate of the Minister refused the application for a protection visa on 18 October 2005. 6 On 11 November 2005, the applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal affirmed the delegate's decision. 7 On 21 August 2006, the Federal Magistrates Court dismissed an application for review, but on 7 February 2007 the Federal Court quashed the delegate's decision and remitted the matter for reconsideration. 8 On 23 August 2007, the Tribunal handed down a decision affirming the decision of the delegate. On 13 September 2007, the applicant filed an application for review with the Federal Magistrates Court. 9 On 27 November 2007, the Federal Magistrates Court dismissed the application under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) on the ground that the application did not raise an arguable case for the relief claimed. The Federal Magistrate also ordered that the applicant pay the first respondent's costs in the sum of $2500. 10 The grounds proposed in the draft notice of appeal are: (1) The Federal Magistrate simply endorsed the decision of the Refugee Review Tribunal which had committed jurisdictional and legal errors. The applicant's legal points were not taken into account. (2) The applicant has an arguable case which requires the interference of the Court. (3) The respondents have failed to assess the claims made by the applicant as per the refugee laws as laid down by the handbook of the UNHCR. The real threat to the life of the applicant was not considered in the instant case. 11 In my judgment, there is no basis for concluding that there is an arguable case based on those grounds. 12 The first ground is not particularised and further it misstates and misconceives the decision of the Federal Magistrate, which clearly considered the Tribunal's findings and the applicant's claims. 13 The second ground does not disclose a ground of review but is argument. 14 The third ground, in essence, restates the factual claims of the applicant for refugee status. It does not identify any error made by the Federal Magistrate. 15 There is nothing in the material which indicated that the Federal Magistrate wrongly exercised the power conferred by r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). The written submissions filed on behalf of the applicant, in general, simply restate his claims for the grant of a protection visa. 16 By way of illustration, the first paragraph of the written submissions is as follows: 1. That the applicant belongs to the Pakistan Muslim League Nawaz Group, the applicant was an active worker of his party. The applicant joined the party long ago, the applicant was also very active during all this period. The applicant was also targeted by the Pakistan Peoples Party, while they were in the power. Those times the PPP was the biggest opponent of the Pakistan Muslim League (N) group. The applicant in even those days persecuted by the ruling PPP. Now both the parties have joined the hands as against General Musharrafs, along with the other parties in Pakistan, and got the so-called mandate by way of referendum, this was a great joke with the democracy in the country. As I use to take out the processions against the present regime, I use to distribute the literature amongst the public at large, as such I became the target of the agencies, the applicant was many a times was arrested by these agencies, and was persecuted due to his political opinion, the applicant was also made a target during the days when Pakistan Peoples Party was in power as I have mentioned above. (Although Mr. Nawaz Sharif has not taken part in the general elections as he was disqualified by the election commission of Pakistan.) In the real terms the Pakistan Peoples Party is now ruling in the country. Mr. Mushraff is still the head of the state, and he is ruling in the country. 17 The applicant's other written submissions, insofar as they deal with his claims for a protection visa, are in essence a request for merits review, which is impermissible. 18 His other submissions relate to criticisms of the decision of the Tribunal. Amongst other things, he complains about the weight given by the Tribunal to certain evidence in making its decision, and about the Tribunal's findings that the applicant was not politically active and had not been persecuted in Pakistan. 19 The applicant alleges that the Tribunal did not make findings in relation to his claims, in particular, whether the alleged persecutions might occur again and whether the applicant had a well founded fear of persecution. This criticism of the Tribunal's decision cannot be sustained. The findings of the Federal Magistrate deal directly with those matters. 20 Smith FM, in paragraphs 3 to 7, analysed what the Tribunal in fact found: 3. The Tribunal reviewed the evidence given by the applicant to it at a series of hearings, and the applicant's response to a letter inviting comments in relation to new claims he made to the Tribunal at its last hearing. In these claims, he told the Tribunal that another reason why he had left Pakistan was that he had an association with people who were Ahmadis, and were his partners in a business. He claimed to have been beaten up by his friends and otherwise harassed because of that association. At the end of the hearing when he was asked what he thought would happen if he returned, he told the Tribunal "that he thought he would be killed because of his problems from political parties and because of his association with Ahmadis. If he stopped his association with the Ahmadis, the Ahmadis would become his enemy". 4. He also told the Tribunal: "another problem is that his girlfriend's husband has threated to kill him". That claim had also been made for the first time at the end of the last hearing. 5. The Tribunal thought that the making of the new claims reflected adversely on the applicant's general credibility. It did not accept that he in fact had a genuine fear of persecution as a result of an extra-marital affair, but said that, in any event, any harm feared in relation to such a matter would not be directed at him for a Convention reason. 6. In relation to his claimed Ahmadi connections, the Tribunal did not accept that the applicant had any significant such association, due to the lateness of this claim, and also because his evidence about it was "vague, inconsistent and confused". The Tribunal found that the applicant was "not telling the truth about having been subjected to harassment and discrimination amounting to persecution because of an association with Ahmadis", and was satisfied that he did not have a well-founded fear of persecutioni for reason of an actual or imputed association. 7. In relation to his claimed political opinions and activities, the Tribunal found his evidence to have been "vague and inconsistent", and to have shown little knowledge about the history of the party he claimed to have been active in. It did not accept that he "was involved with the PML-N to any significant extent", and therefore did not accept that he "faced any adverse consequences amounting to persecution". It also regarded his account of his claimed past persecution to have been "inconsistent, vague and generally unsatisfactory". It had doubts whether he had been a member of the party at all, and said that it did not accept "certainly" that he was a member of "such significance that his departure from the party would be of concern to other members". It found that the applicant did "not have a well founded fear of persecution in Pakistan for reason of his political opinion or activity". 21 After that summary of the findings by the Tribunal, the Federal Magistrate concluded in para 8: 8. I have considered the procedures and reasoning of the Tribunal, and am unable to identify any arguable jurisdictional error affecting its decision. 22 In paragraph 11, the Federal Magistrate said: 11. The application [sic] also appeared to complain that the Tribunal misconstrued the claims made by the applicant. It contends: 2. The applicant did not claim that he fears as he has the friends from the Ahmadies group. 3. The RRT has taken the matter of the applicant to an area, where the applicant did not claimed. … 23 The Federal Magistrate concluded in paragraphs 12 and 13 as follows: 12. I am unable to give any substance to this argument. As I have indicated above, the applicant appears clearly at the last hearing held by the Tribunal to have raised new claims to fear persecution in Pakistan by reason of an association with Ahmadis. It was, in my opinion, proper for the Tribunal to address those claims, and it was plainly open to it to draw adversely from their timing and content. 13. I have considered all the material before me, and the submissions of the applicant, and am not satisfied that the application raises an arguable case for the relief claimed. I consider it appropriate to dismiss the application under r.44.12(1)(a). 24 The dismissal pursuant to paragraph 1(a) of r 44.12 is interlocutory and therefore leave to appeal is required. In addition, in the facts of this case, an extension of time is also required within which to seek leave to appeal. 25 I have considered everything that has been submitted by the applicant. I am satisfied that there is no merit in the application for leave to appeal and the proposed appeal would be doomed to failure. Because of that conclusion, leave to appeal would not be granted and therefore it would be futile to grant an extension of time within which to seek leave to appeal. 26 The oral application for an extension of time within which to seek leave to appeal is therefore dismissed. 27 The orders of the court are: (1) The application for an extension of time within which to seek leave to appeal from the orders made by Smith FM on 27 November 2007 is refused. (2) The applicant is to pay the costs of the respondent of and incidental to this application and the application for leave to appeal filed on 14 January 2008, fixed in the sum of $1400. I certify that the preceding twenty-seven (27) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Spender.