Applicant S1834 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 610

FEDERAL COURT OF AUSTRALIA

Applicant S1834 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 610

Federal Court of Australia Act 1976 (Cth) s 25(1A)
Judiciary Act 1903 (Cth) s 39B

Minister for Immigration & Multicultural & Indigenous Affairs v JiaLegeng (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

APPLICANT S1834 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 169 OF 2005

HELY J
22 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 169 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1834 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	22 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs.

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 169 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1834 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	22 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Scarlett given on 24 January 2005 refusing an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) made on 31 August 1999. That decision affirmed an earlier decision of the Minister’s delegate not to grant the appellant a protection visa. By direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) this appeal is to be heard and determined by a single judge.

2. The appellant is a citizen of Pakistan who claimed to have a well-founded fear of persecution by reason of his religion.  The appellant claims to be an adherent of the Shia sect of Islam.  The appellant claimed that a local leader of a Sunni religious organisation known as either the ASS or SSP was killed in his area and that the Shia organisation known as TNFJ or TJP was held responsible by the Sunnis for the murder.  The appellant claimed to be a member of the TJP and that his friends were attacked and hospitalised for nine days.  He said that when they reported this attack to the police they were detained by the police and forcibly charged with the murder of the Sunni leader.

3. A ‘First Investigation Report’ dated 12 July 1997 was produced by the appellant in support of his claim that a false charge of murder had been laid against him.  At the hearing before the RRT the appellant changed his story.  He told the member that he did in fact murder the Sunni leader as is alleged in the First Investigation Report which he produced and that the allegations made in that report were true.  The RRT found that the appellant’s evidence was confused and inconsistent and that he was not an impressive witness.  The RRT referred to the change in the appellant’s story about whether he did or did not murder the Sunni leader in this respect.  The RRT did not accept the appellant as a witness of truth.  The RRT made the following findings:

   (i)the appellant had never been a member of the TJP as he could not answer questions about the history or leadership of the party;

   (ii)the appellant did not murder the leader of the SSP in his area as he claimed at the hearing and the First Investigation Report which the appellant had produced to buttress this claim was a fabrication.  The appellant would have been unable to obtain a passport which was issued on 13 October 1997 if he was then facing a murder charge;

   (iii)if the appellant were facing a murder charge this would not be sufficient of itself to bring the appellant within the definition of a refugee.  The appellant would not be denied a fair trial by reason of his religion nor would he be punished more harshly than other persons who were convicted of murder; and

   (iv)there is no government sponsored activity against the Shia community and there is no obvious discrimination against the Shia sect.  Effective state protection would be available in relation to any threat which the appellant might face from the SSP.

   The RRT’s conclusion was that it was not satisfied that the appellant was a refugee. 

4. When the matter came before the Federal Magistrate the appellant initially told his Honour that he did not in fact admit at the hearing before the RRT that he had murdered the Sunni leader.  His Honour adjourned the proceedings to enable the transcript of the hearing before the RRT to be obtained.  The transcript was later admitted into evidence and records that the appellant in fact made the admission at the hearing which the Member attributed to him.  The appellant then told his Honour that he did make the admission attributed to him at the RRT hearing but only because he was sick and did not understand what was going on.  No evidence was called before his Honour to sustain that contention and his Honour did not accept it.  His Honour was satisfied that there was no denial of natural justice by the RRT and no bad faith on the part of the RRT at the hearing.  In his Honour’s view there was no reviewable error.

5. There is only one ground of appeal relied upon in the notice of appeal to this Court.  That ground is ‘[H]is Honour Federal Magistrate Scarlett erred in failing to hold that the decision of the Refugee Review Tribunal made on 31 August 1999 involved an error of the law being an error including an incorrect interpretation of the applicable law on incorrect interpretations of the facts as found by the Refugee Review Tribunal’.  The appellant filed with this Court on 18 April 2005 a document styled ‘Applicant’s Submission’, which I have placed with the papers so that they form part of the Court’s record.  I do not propose to summarise the contents of that document except to the extent which is necessary to explain these reasons.  There is nothing in the document which elaborates on or supports the only ground appearing in the notice of appeal.  Rather, it addresses matters not raised in that notice.

6. The appellant says in his submission that he never told the RRT Member at the hearing that he had committed murder.  He claims that the Member was confused about this and that the interpreter twisted the meaning of the Urdu language.  The following matters should be noted in relation to this claim.

   (i)the only evidence which was before the Federal Magistrate as to what occurred at the RRT hearing was the transcript of that hearing and the Member’s account of it contained in his reasons for decision.  The transcript fully supports the Member’s account of what occurred and Federal Magistrate Scarlett was clearly correct in so finding;

   (ii)no evidence was called before the Federal Magistrate of any alleged inadequacy in the interpretation services provided at the RRT hearing nor is any such inadequacy apparent on the face of the transcript.  The judgment of the Federal Magistrate does not record that anything was put to him as to the alleged inadequacy of the interpretation services; and

   (iii)the RRT afforded the appellant multiple opportunities to clarify his position as to whether or not he murdered the Sunni leader and on page 11 of the RRT transcript the appellant responded to a question from the RRT as to why he says that he would be killed if he went back to Pakistan as follows:

   ‘As the Tribunal knows that I murdered someone in Pakistan so you’ll not expect those peoples to leave me alone.’

   There is in my view no foundation for the appellant’s assertion that he was denied procedural fairness by the RRT. 

7. The appellant also claims that the RRT was biased as the decision had been made before the hearing.  The claim of bias either stands or falls upon the basis of the transcript of that hearing and the Tribunal’s reasons as no other material is relied upon.  I accept the respondent’s submission that there is nothing in the transcript or in the procedures adopted by the RRT to indicate that the RRT had a mind ‘incapable of alteration’: see Minister for Immigration & Multicultural & Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 at 532 or that would cause a fair minded lay observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434.

8. The RRT asked open questions of the appellant to give him an opportunity to explain the harm he feared.  The RRT referred to a wide variety of independent evidence including evidence indicating a recent ‘wave of sectarian violence’ and put the substance of the independent evidence to the appellant for his comment.  The RRT invited the appellant on numerous occasions to clarify his evidence and to put any further information to the RRT.  In my judgment the claim of bias is manifestly unfounded.

9. Finally, the appellant complains that the RRT ‘ignored the current situation in Pakistan’ and failed to take into account the fact that hundreds of people had been killed in sectarian violence between Shiites and Sunni.  The RRT acknowledged in its decision that there had been a ‘wave of sectarian violence’ but found that the government had introduced legislative measures intended to deal with the problem.  The appellant did not place any material before the RRT as to ‘the current situation in Pakistan’ and the claim that the RRT failed to take into account a material matter has not been established.

10. I invited the appellant to elaborate this morning, if he wished, upon the contents of his submission, but beyond saying that there had been a misunderstanding in the situation before the RRT, he did not seek to elaborate upon the terms of his written submission.  For the reasons which I have indicated, there is no substance in that submission.  No error on the part of the Federal Magistrate, or jurisdictional error on the part of the RRT, has been established and the appeal should be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             13 May 2005

The appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 April 2005
Date of Judgment:	22 April 2005