SZMDU v Minister for Immigration & Citizenship [2008] FCA 1861

FEDERAL COURT OF AUSTRALIA

SZMDU v Minister for Immigration & Citizenship [2008] FCA 1861

SZMDU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1214 of 2008

EDMONDS J

12 DECEMBER 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1214 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMDU

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EDMONDS J

DATE OF ORDER: 15 OCTOBER 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1214 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMDU

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EDMONDS J

DATE: 12 DECEMBER 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 This is an appeal from the orders of the Federal Magistrates Court (Scarlett FM) given on 16 July 2008, dismissing an application for judicial review of a decision of the second respondent ('the Tribunal') made on 20 March 2008 and handed down on 25 March 2008 that affirmed a decision of the delegate of the first respondent ('the Minister') to refuse to grant the appellant a protection (Class XA) visa.

Background 2 The appellant is a 28 year old citizen of Pakistan. He arrived in Australia on 28 July 2003. He originally held a number of student visas. The last student visa expired on 9 September 2006. He was then issued with successive bridging visas until being brought into immigration detention on 6 November 2007. On 26 November 2007, the appellant applied for a protection visa. 3 The appellant claimed to fear persecution on the basis of his political opinion and activities in Pakistan. This included his alleged participation in anti-Musharraf and anti-government demonstrations. He claimed he had also been targeted and persecuted by military and intelligence authorities. The appellant claimed that he had been arrested twice by the police for his involvement in demonstrations and also charged. He claimed that police had tortured him and that he received threats from the army that caused him to fear for his safety. 4 The appellant had been interviewed by a delegate of the Minister on 11 December 2007. He provided further details about the persecution he claimed that he had suffered in Pakistan and the reasons why he had not applied for a protection visa sooner. On 7 January 2008, the delegate decided to refuse to grant the appellant a protection visa. 5 On 11 January 2008, the appellant sought review of this decision by the Tribunal. On 6 February 2008, the Tribunal wrote to the appellant's authorised recipient inviting comments on information pursuant to s 424A of the Migration Act 1958 (Cth) ('the Act'), and sought further information pursuant to s 424. On 14 February 2008, he provided a substantive response. On 29 February 2008, the Tribunal received a further submission from his adviser. 6 On 3 March 2008, the appellant appeared before the Tribunal, accompanied by his adviser. On 6 March 2008, the Tribunal sent a further s 424A letter. A response sent to the Tribunal on the appellant's behalf was received on 13 March 2008. On 18 March 2008, further material was submitted by the appellant to the Tribunal. 7 On 25 March 2008, the Tribunal affirmed the delegate's decision to refuse to grant the appellant a protection visa.