Aslam v Minister for Immigration and Multicultural Affairs

[2000] FCA 746

FEDERAL COURT OF AUSTRALIA

Aslam v Minister for Immigration & Multicultural Affairs [2000] FCA 746

WASEEM ASLAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 406 OF 2000

DRUMMOND, MADGWICK AND EMMETT JJ
2 JUNE 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 406 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WASEEM ASLAM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	DRUMMOND, MADGWICK AND EMMETT JJ
DATE OF ORDER:	2 JUNE 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of and incidental to the appeal.

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	N 406 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WASEEM ASLAM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	DRUMMOND, MADGWICK AND EMMETT JJ
DATE:	2 JUNE 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. DRUMMOND J:  This is an appeal from a judge of the Court who dismissed an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) which refused to grant the appellant a protection visa.  The appeal is brought before this Court on the ground that the learned primary judge erred in finding that the Tribunal was not biased and had not been able to make accurate findings in rejecting his appeal in respect of the Tribunal’s decision.

2. The appellant is a citizen of Pakistan.  He applied for a protection visa only after he was placed in immigration detention nearly two years after his arrival in Australia on a student visa.  The basis for his claim to the protection visa is that he is a Sunni Muslim, that he and his family lived in a suburb in his city of residence in Pakistan which was largely Shiite and that he and various of his family members have suffered various degrees of harm at the hands of his Shiite neighbours.

3. The learned primary judge said of the Tribunal’s detailed reasons reviewing the appellant’s evidence to it and the extensive country information available to the Tribunal about religious dissension in Pakistan this:

   “[10]  The conclusion of the Tribunal, being based entirely upon those issues of fact and the correct application of the relevant principles of law arising out of the Migration Act 1958 (Cth), incorporating by reference, as it does, the terms of the Refugee Convention as amended by the Refugees Protocol, there is no basis upon which this Court can review or interfere with the decision that has been made.”

4. The appellant was unrepresented before the learned primary judge but had been legally represented in the proceedings before the Tribunal.  The learned primary judge, of his own motion, considered the way the Tribunal explained itself in giving its judgment refusing the protection visa and whether that might raise the possibility that there was a ground for attacking the Tribunal’s decision on the ground that it was infected with actual bias.  His Honour considered that at some length and concluded:

   “[13]  Nothing on the material discloses a case of actual bias and the criteria for that ground have been set out in a number of recent decisions of this Court.  I think if anything, what is disclosed is the tension between the desire of the Tribunal to ensure that the applicant has a full opportunity to comment on potentially adverse findings in relation to his case and the function of the Tribunal as an impartial decision-maker.”

5. The appellant was given full opportunity to explain why the learned primary judge was in error in taking that view which he did about the question of actual bias which the learned trial judge himself had been the only one to raise.  Mr Aslam put no argument to the Court to substantiate any claim that there was actual bias on the part of the Tribunal and that the learned primary judge erred in expressing himself in the way he did on that issue.  It is apparent that Mr Aslam is very much concerned at what will happen to him if he is returned to Pakistan.  But the position is that it is the Tribunal that is charged by law with the task of determining whether Mr Aslam should have a visa and what the law then gives Mr Aslam, if he having failed to persuade the Tribunal that he is entitled to a visa, is the right to a review by a judge and then an appeal to this Court to determine whether or not there is any legal error capable of review by this Court in the Tribunal’s decision.

6. Mr Aslam failed to persuade the learned primary judge that there was any such error and he has also failed to persuade me that the learned primary judge was himself in error in the approach he took in rejecting the application for review.  I would dismiss the appeal.

7. MADGWICK J:   I agree with the order proposed by the presiding judge and with his reasons.  I would only add this.  When at length Mr Aslam was induced to speak to the ground of appeal, his submission was that, because the Tribunal rejected his claim, this showed that the Tribunal was biased.  It is apparent that he did not understand the legal basis for this appeal.  It should be understood however that the members of the Court have themselves examined closely, before coming to Court, the reasons for decision of the Tribunal and of the learned primary judge.  In particular, speaking for myself, I have sought to ensure that the Tribunal’s conclusions were founded on the evidence and the material before the Tribunal and I am satisfied that that was so.  For myself, I can find no trace of appealable legal error.

8. EMMETT J: The application originally made to this Court for review of the decision of the Tribunal disclosed no grounds at all simply saying, as the primary judge observed, that details would be sent at a later date. The reasons of the Tribunal on their face appear to examine carefully the claims made on behalf of the appellant and on their face indicate in my view no error or ground within s 476(1) of the Migration Act 1958 (Cth). The primary judge observed that he felt some disquiet at the extent of apparent cross-examination of the appellant in the course of the hearing. However, the proceeding before the Tribunal is an administrative one and the Tribunal, in effect, exercises an inquisitorial function. I do not myself consider that the reporting in the reasons of the examination is indicative of any bias. I agree, for the reasons given by the presiding judge, that the appeal should be dismissed.

9. DRUMMOND J:   The order of the Court will therefore be the appeal is dismissed.  The Court then orders that the appellant shall pay the respondent’s costs of and incidental to the appeal.  As I have mentioned, it is a matter for the Minister now as to whether he enforces the costs order.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond, Justice Madgwick and Justice Emmett.

Associate:

Dated:             8 June 2000

Counsel for the Appellant:	The appellant appeared in person.
Counsel for the Respondent:	Stephen Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 June 2000
Date of Judgment:	2 June 2000