FEDERAL COURT OF AUSTRALIA SZOWT v Minister for Immigration and Citizenship [2012] FCA 192 Citation: SZOWT v Minister for Immigration and Citizenship [2012] FCA 192 Appeal from: SZOWT v Minister for Immigration and Anor [2011] FMCA 540 Parties: SZOWT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1177 of 2011 Judge: GRAY J Date of judgment: 17 February 2012 Legislation: Migration Act 1958 (Cth) ss 5(1), 36, 424A, 426(3) Convention relating to the Status of Refugees done at Geneva on 28 July 1951 Protocol relating to the Status of Refugees done at New York on 31 January 1967 Cases cited: SZOWT v Minister for Immigration and Anor [2011] FMCA 540, cited Date of hearing: 17 February 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 13 Counsel for the appellant: The appellant appeared in person Counsel for the first respondent: Mr JD Smith The second respondent submitted to any order of the Court, save as to costs Solicitor for the respondents: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1177 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOWT Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAY J DATE OF ORDER: 17 FEBRUARY 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1177 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOWT Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAY J DATE: 17 FEBRUARY 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This appeal is from the judgment of the Federal Magistrates Court of Australia delivered on 27 June 2011 and published as SZOWT v Minister for Immigration and Anor [2011] FMCA 540. The learned federal magistrate dismissed an application by the appellant, seeking to review a decision of the Refugee Review Tribunal ("the Tribunal"), the second respondent to the appeal, refusing to grant to the appellant a protection visa. The federal magistrate also ordered the appellant to pay the costs of the first respondent, who is also the first respondent to the appeal, the Minister for Immigration and Citizenship ("the Minister"). The Tribunal's decision is dated 17 November 2010. The Tribunal affirmed a decision by a delegate of the Minister not to grant the appellant a protection visa. 2 By s 36 of the Migration Act 1958 (Cth) ("the Migration Act"), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to refer to those two instruments, taken together, as "the Convention". For present purposes, it is sufficient to understand that, pursuant to the Convention, Australia has protection obligations to a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country 3 The appellant is a citizen of Pakistan. He arrived in Australia on 18 February 2007 as the holder of a student visa. On 8 March 2010, he applied for a protection visa. The decision of the Minister's delegate refusing to grant that visa was given on 29 June 2010. 4 The appellant then applied to the Tribunal. The Tribunal afforded him a hearing, at which the appellant gave evidence and made submissions. By a letter pursuant to s 424A of the Migration Act, the Tribunal gave the appellant an opportunity to comment on matters that the Tribunal thought might be a reason for affirming the decision of the Minister's delegate. 5 The appellant claimed to have been an active member of a political party, known by the acronym "MQM", in his home town. The attempt of the MQM to expand its activities into the area of the appellant's home town was opposed by Islamic political parties, who were strong in the area. The appellant said that he was threatened on a number of occasions that he would be harmed if he did not cease his political activities. He said that, on one occasion, he was set upon and beaten in the street and was only rescued by one of his political colleagues and a relative. 6 Although the Tribunal thought that the appellant had exaggerated the extent of his activities on behalf of MQM, it accepted that he was an active member. It accepted that he had received threats and that those who made them had asked the appellant to cease his MQM activities. It accepted that he was assaulted and beaten in the street. The Tribunal found that, if the appellant were to return to his home town and to continue his MQM activities at the same level as he had pursued them before he left, there was a real chance that he would suffer serious harm amounting to persecution. 7 Nevertheless, the Tribunal concluded that Australia does not have protection obligations pursuant to the Convention in respect of the appellant, because it would be open to the appellant to live elsewhere in Pakistan, where he would not face persecution on the ground of activities on behalf of MQM. In particular, the Tribunal found that the appellant had become involved with MQM because his cousins who lived in Karachi were active members. Accordingly, the appellant could relocate to Karachi. Alternatively, the MQM also had strength in Hyderabad. If the appellant did not wish to live in Karachi, he could live in Hyderabad. In addition, the Tribunal pointed to the fact that the appellant's principal colleague in the MQM in his home town had moved to Rawalpindi and had apparently not experienced difficulties there as a consequence of involvement with MQM. 8 The appellant's application to the Federal Magistrates Court for judicial review of the Tribunal's decision stated that the appellant would like the court to look at the importance of witnesses in his case and issue him a favourable decision and send his case back to the Tribunal for review. He asked for this result on the ground that witnesses on his behalf had not been contacted by the Tribunal and the Tribunal had not sought statements from them although it had their complete contact details. 9 The federal magistrate identified two ways in which the appellant sought to overturn the Tribunal's decision. The first was the Tribunal's failure to contact his witnesses and to seek information from them. For three reasons, the federal magistrate held that the appellant failed on this ground. The first was the provision in s 426(3) of the Migration Act. The effect of this provision is that, if an applicant notifies the Tribunal that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice, the Tribunal is only obliged to have regard to the applicant's wishes but is not required to obtain evidence, orally or otherwise, from a person so named. The federal magistrate said that, even aside from this provision, there was nothing in the Migration Act that required the Tribunal to obtain evidence at the suggestion of an applicant. Second, the Tribunal in fact advised the appellant that, if he wished, he could provide statements of the witnesses to the Tribunal after the Tribunal hearing. The appellant did not take up this invitation. The Tribunal also told the appellant that it did not propose to contact the witnesses by telephone. The most important reason for the federal magistrate's rejection of the appellant's ground was that the Tribunal made findings favourable to him in relation to his MQM activities and the assault in the street. It was these matters about which the witnesses would have given evidence. There was no need for the Tribunal to seek evidence from them because such evidence would have done no more than confirm the findings in the appellant's favour. 10 The second ground of attack on the Tribunal's decision identified by the federal magistrate was that the appellant relied on the finding that there was a real chance that he would suffer persecution if he returned to his home town. In effect, this ground raised the correctness of the Tribunal's conclusion that the appellant could reasonably relocate within Pakistan. The federal magistrate held that this conclusion did not involve any jurisdictional error. The federal magistrate also pointed out that the appellant attempted to take issue with the Tribunal's findings by arguing that all his claims were true and correct. The federal magistrate held that she could not engage in merits review and there was no jurisdictional error on the part of the Tribunal. 11 In his notice of appeal filed in this Court, the appellant in effect raised the two grounds that he had raised in the Federal Magistrates Court. He again sought the making of a favourable decision or an order returning the case to the Tribunal for review if necessary. The appellant has appeared on the hearing of the appeal today in person, with the assistance of an interpreter in the Urdu language. He has again relied on the argument that the Tribunal failed to seek evidence from his witnesses. He has also emphasised the Tribunal's finding that he would be liable to suffer persecution if he returned to his home town, challenged the Tribunal's conclusion on relocation within Pakistan, and attempted to invite me to overturn the findings of the Tribunal. I have endeavoured to explain to the appellant that the functions of the Court, and of the Federal Magistrates Court, are limited to judicial review and that the Court cannot overturn findings of fact made by the Tribunal. 12 For the appellant to succeed in this appeal, it is necessary for him to demonstrate error on the part of the federal magistrate. The appellant has not drawn my attention to any such error and I have not been able to find any in the federal magistrate's reasons for judgment. Her Honour was correct to dismiss the principal ground of the appellant's application to the Federal Magistrates Court, particularly for the reason that it would have been entirely unnecessary for the Tribunal to seek evidence directly from the appellant's witnesses. Such evidence would have done no more than to confirm the findings in favour of the appellant that the Tribunal made. Her Honour was also correct to reject the challenge to the Tribunal's conclusion on relocation. That conclusion involved no jurisdictional error and it is only if jurisdictional error could be established that the appellant could succeed. The federal magistrate was also correct to reject the appellant's attempt to secure a more favourable decision on the facts than the Tribunal gave him. In the absence of jurisdictional error, neither the Federal Magistrates Court nor this Court can concern itself with factual findings by the Tribunal. 13 For these reasons, the appeal must be dismissed. No reason has been advanced, and I can see none, why the usual principle, that costs follow the event, should not be applied. The Minister having sought an order for his costs, such an order should be made in accordance with that principle. The Court orders that: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray. Associate: Dated: 6 March 2012