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MIGRATION - Review of decision of RRT - where applicant does not attend - where decision given without presence of applicant.

SZADN v Minister for Immigration [2003] FMCA 216 (19 May 2003)

SZADN v Minister for Immigration [2003] FMCA 216 (19 May 2003)
Last Updated: 5 June 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZADN v MINISTER FOR IMMIGRATION
[2003] FMCA 216



MIGRATION - Review of decision of RRT - where applicant does not attend - where decision given without presence of applicant.



Migration Act 1958 (Cth), s.426A(1)

Selvadurai v Minister for Immigration (1994) 34 ALD 347

Applicant:
SZADN



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 84 of 2003



Delivered on:


19 May 2003



Delivered at:


Sydney



Hearing date:


19 May 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


No appearance



Counsel for the Respondent:


R Beech Jones



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $4,250.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 84 of 2003

SZADN


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of Pakistan. He entered this country as a student in February 2001 and applied for a protection (class XA) visa on 8 April 2002. His sub-class 560 student visa, which had been valid until 20 March 2001, was renewed until 3 August 2001. On 4 August 2001 he became an unlawful non citizen, which he remained until he was granted a bridging E (class WE) visa on 15 April 2002 following his application for a protection visa.

2. The application for a protection visa was declined by the delegate of the Minister on 18 September 2002. The applicant sought review from the Refugee Review Tribunal on 4 October 2002. The Tribunal made its decision on 6 January 2003 to uphold the original decision of the delegate. It is noteworthy that the applicant did not appear before the delegate, nor did he appear before the Tribunal, which made its decision pursuant to s.426A(1) of the Migration Act 1958 (Cth). The applicant is currently in administrative detention having been discovered working in breach of his original student visa in 2002.

3. The applicant's claim to have a well-founded fear of persecution for Convention reasons arises out of his family's alleged association with a Sunni extremist group known as the SSP. It would appear that followers of the SSP offered up prayers in a mosque which his family had built and that at a time unspecified, but possibly between 1997 and 1999, there was an incident at the mosque in which people from an opposition Shia extremist group, the TFNJ, attacked people at the applicant's family mosque and there was a shooting incident.

4. The applicant claims that he received some minor injuries during that incident, and that because it was so horrific for him and his family, he left home where they feared for his life. The applicant went to the UAE where he obtained work as a computer professional. He tried to settle in the UAE but was unable to do so. He claimed that he was threatened in the UAE and could not be protected. The applicant returned to Pakistan and then left on a student visa for Australia.

5. The Tribunal considered this evidence between [CB 117-120] together with evidence it had obtained from information in the Departmental file and country information. The Tribunal noted that there was inter-sect violence in Pakistan but to a considerable extent, this had been brought under control since about 1997 with the passing of an anti-terrorism Act. The Tribunal accepted that inter-faith violence still did occur, but expressed the view that:

"While the actions of the Government have not yet succeeded in effectively curtailing sectarian murders, they have resulted in a significant reduction in sectarian killings and in fewer deaths from sectarian violence in the month of Muharram in 2001 compared with 2000. I am unable to be satisfied on the evidence before me that the Government of Pakistan will not provide the applicant with the same degree of protection as any of its other nationals, and with a level of protection sufficient to remove a real chance of his being persecuted in Pakistan by the TNFJ or the TJP."

6. The Tribunal in its decision also noted the delay by the applicant in making his application for protection and applied the dicta of Heerey J in Selvadurai v Minister for Immigration (1994) 34 ALD 347 where his Honour said that it was legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth of the applicant's claimed fear of persecution.

7. The application filed by the applicant on 6 January 2003 claimed that there was an error of judgment by the Tribunal, that the Tribunal failed to make a bona fide attempt to exercise its powers and was not acting in good faith. No real particulars of the grounds were given by the applicant and he did not file an amended application nor an affidavit in support, as he was required to do.

8. The matter came before me for hearing on 19 May 2003 where Mr Beech- Jones appeared on behalf of the Minister. I was handed a fax which was received by the Australian Government Solicitor from the applicant that stated:

"I kindly inform you that I do not want to go to Federal Court because I have to proceed this matter in a different way. I am highly obliged to you -

Signed applicant."

This is the third opportunity the applicant has had to plead his case and the third time he has declined to do so.

9. In all the circumstances, I am unable to find any jurisdictional error in the decision of the Tribunal and I dismiss the claim. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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