BBQ15 v Minister for Immigration and Border Protection
[2016] FCA 182
•3 March 2016
FEDERAL COURT OF AUSTRALIA
BBQ15 v Minister for Immigration and Border Protection [2016] FCA 182
Appeal from: BBQ15 v Minister for Immigration & Anor [2015] FCCA 3042 File number(s): NSD 1443 of 2015 Judge(s): MARKOVIC J Date of judgment: 3 March 2016 Legislation: Migration Act 1958 (Cth) s 474
Federal Court of Australia Act 1976 (Cth) s 24(1A)
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Date of hearing: 17 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 45 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondents: Chloe Hillary, DLA Piper Australia ORDERS
NSD 1443 of 2015 BETWEEN: BBQ15
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
3 MARCH 2016
THE COURT ORDERS THAT:
1.The applicant’s application for leave to appeal filed 18 November 2015 be dismissed.
2.The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
INTRODUCTION
This is an application pursuant to r 35.12 of the Federal Court Rules 2011 for leave to appeal from the judgment and orders of a judge of the Federal Circuit Court of Australia (Federal Circuit Court) delivered and made on 13 November 2015: BBQ15 v Minister for Immigration & Anor [2015] FCCA 3042 (BBQ15). The primary judge dismissed, pursuant to r 44.12(1)(a) of the Federal Circuit Court of Australia Rules 2001 (FCCA Rules), an application for judicial review of a decision of the then Refugee Review Tribunal (the Tribunal) given on 25 May 2015.
As the orders were made by the primary judge pursuant to r 44.12(1)(a) of the FCCA Rules they are interlocutory and the applicant requires leave to appeal the judgment and orders in BBQ15 pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
BACKGROUND
The applicant is from Pakistan. He first arrived in Australia on 6 January 2012, returned to Pakistan on 7 August 2013 and then came back to Australia on 20 October 2013.
The applicant applied for a Protection visa on 29 November 2013. A delegate of the first respondent (the Minister) refused to grant the visa on 30 April 2014.
The applicant applied to the Tribunal for review of the delegate’s decision and on 21 May 2015 appeared before the Tribunal to give evidence and present arguments.
On 25 May 2015, the Tribunal made its decision affirming the decision under review.
THE APPLICANT’S CLAIMS
As set out at [7] of the Tribunal’s decision, the applicant is a Muslim man from Karachi who had some involvement with a radical mosque in that city and as a result fears harm from people involved with the mosque, Pakistani authorities and the Muttahida Quomi Movement (MQM).
The applicant’s particular claims and his account to the Tribunal are set out at [8] to [20] of the Tribunal’s decision. They have been summarised in the Minister’s submissions as follows:
(1)the applicant studied for a period of time at the B Mosque from 2004;
(2)in 2006 the applicant was approached by two men who tried to recruit him to study and go overseas to fight in conflicts. Because he was frightened he agreed and discovered these people were the ones who would order murders and bombings. The applicant stopped attending the B mosque, but the local mullah and the leaders of the B mosque knew that he had seen sensitive information. They said he had to work for them because they were concerned that he would leak the confidential information to MQM;
(3)the applicant also claimed that in 2006 senior people from the MQM approached him to infiltrate the B mosque and obtain information from there. The applicant refused but they continued to approach him and threatened to kill him;
(4)in August 2011, the applicant's two friends, K and N, arrived at the applicant's house saying that they needed his help and had to stay with him. They said they were in the MQM and on the orders of the party had joined and infiltrated the Pakistan Taliban. His friends stayed for a couple of days and, when they left, the Directorate for Inter-Service Intelligence (ISI) arrested the applicant. The applicant claimed that he was detained and questioned and only released after the intervention of the local mullah. The applicant was again told he had to work for B mosque and if he did not he would be put in jail or they would “disappear” him. The applicant went into hiding and left Pakistan in January 2012;
(5)while the applicant was in Australia he claimed that the ISI went to his house looking for him and only stopped when they were sure he was no longer in Pakistan;
(6)the applicant returned to Pakistan in August 2013 and was arrested at his home by the police in September. The ISI people who had previously arrested and maltreated the applicant came to the station and said that he would have to go to B mosque, study at the madrasah and undertake military training and that, if he did not, they would kill him. The applicant claimed his mother approached the local mullah to have him released and the local mullah told him to leave Pakistan or he would have to work with them or he would be dead.
THE TRIBUNAL’S DECISION
The Tribunal found that the applicant was not a witness of truth and that the account of events on which his protection claims were based was false. More particularly the Tribunal:
(1)had difficulty accepting the applicant’s evidence that, prior to attending B mosque, he was unaware that it was violent and radical;
(2)was sceptical about the applicant’s evidence that a clearly violent group would do very little in response to the applicant’s refusal to comply with its demands to join the group. The Tribunal found the applicant’s account even more fanciful when it considered the evidence that the local mullah, in the face of the applicant’s refusal to join the group, would intervene on two occasions to have the applicant released from custody;
(3)was not convinced by the applicant’s account of the MQM demanding that he go to B mosque and pass information back to the party but, in the face of his refusal to do so, they did very little in response over a number of years from 2006;
(4)based on the applicant’s evidence, understood the applicant came to Australia in 2012 to save his life, given he had recently been released from custody on the basis that he would join B Mosque but refused to do so. In those circumstances, the Tribunal was concerned that the applicant did not apply for protection after he came to Australia in January 2012. Similarly the Tribunal had difficulty accepting that he would take the risk of returning to Pakistan in his claimed circumstances, even accepting that he missed his family; and
(5)could not reconcile the evidence in his statement to the department and his account to the Tribunal about the basis on which the ISI harmed him in 2011. The Tribunal also found that his evidence on this matter was not credible.
The Tribunal rejected all of the applicant’s claims. It found that there was no credible evidence that the applicant ever suffered harm in Pakistan and no credible evidence that anybody in Pakistan wants to harm him.
The Tribunal also considered whether the applicant would suffer harm as a Sunni Mohajir man from Karachi and found, based on country information, that there was not a risk of the applicant suffering serious or significant harm on that basis.
PROCEEDINGS IN THE FEDERAL CIRCUIT COURT
The grounds of application before the Federal Circuit Court are set out at [10] of BBQ15 as follows:
1. I will be killed by the religious fundamental and extremist group due to my affiliation with these group and deny to take orders to do unlawful acts and spread hate speech
2. I was a member of political party A.P.M.S.O student wing of political party M.Q.M. I will be killed by M.Q.M because of my membership with A.P.M.S.O and deny to become the worker of M.Q.M and not to take unlawful orders of M.Q.M leaders.
3. I will be prosecute and will be put behind bars for rest of my life by the law enforcement agencies in Pakistan or will be abducted, kidnapped than killed by law enforcement agencies.
In addition, as is apparent from the judgment of the primary judge, at the hearing the applicant in oral submissions raised an allegation of bias on the part of the Tribunal.
The primary judge rejected the grounds in the applicant’s application on the basis that they were an impermissible attempt at merits review and did not identify any jurisdictional error: BBQ15 at [11].
The primary judge also rejected the applicant’s allegations of bias on the part of the Tribunal finding that there was no arguable ground of bias identified by the applicant by reference to the adverse findings of the Tribunal or by reference to the country information referred to by the Tribunal: BBQ15 at [14].
THE APPLICATION FOR LEAVE TO APPEAL
The applicant’s application for leave to appeal sets out the following grounds (as written):
1.I will be killed by the religious fundamental and extremist group due to my affiliation.
2.I was member of political party and will be killed due to not taking unlawful orders from party.
3.I will be prosecute and will be killed by the law enforcement agencies in Pakistan due to my affiliation mention in point 1 - 2.
4.Procedural Fairness denied
5.The decision maker seem to be biased.
The draft notice of appeal annexed to the applicant’s affidavit in support of the application affirmed on 18 November 2015 sets out the following grounds (as written):
2.Procedural Fairness denied.
3. The decision maker seem to be biased.
There is no ground 1 in the draft notice of appeal.
In accordance with the orders of Deputy District Registrar Morgan made on 19 November 2015 the Minister filed an affidavit affirmed by Chloe Ann Hillary on 2 December 2015 which annexed the relevant documents comprising the judgment and orders of the primary judge and the Tribunal decision. At the commencement of the hearing, upon inquiry, the applicant said he had not received Ms Hillary’s affidavit. The solicitor for the Minister tendered a letter dated 2 December 2015 addressed to the applicant at his address for service which enclosed Ms Hillary’s affidavit. I accept that the affidavit was properly served. A copy of the affidavit was provided to the applicant who informed the Court that he had previously seen the Tribunal decision but not the judgment of the primary judge. The primary judge gave an ex tempore decision. The applicant was present at the time it was delivered. I adjourned the Court for a period to allow the applicant to read the judgment.
PARTIES’ SUBMISSIONS
The applicant did not file any written submissions in support of his application. When invited to make oral submissions at the hearing, the applicant submitted that:
(1)the judgment of the primary judge is a reflection of and similar to the decision made by the Tribunal;
(2)the Tribunal did not give weight to his claims but gave weight to country information which was contrary to media reports that the applicant had obtained. The Applicant said that he did not give any such documents to the Tribunal;
(3)the Tribunal did not give proper consideration to his claims, the primary judge gave the same decision as the Tribunal, he did not consider the submissions made by the applicant about the Tribunal decision and he did not allow the applicant to tender documents about what was happening in Pakistan;
(4)the Tribunal member and the primary judge were biased. In relation to the Tribunal member the applicant submitted that he had searched the electronically available records of decisions of the Tribunal and that, as compared to other Tribunal members, the Tribunal member who heard his application has published very few decisions. In relation to the primary judge, the applicant submitted that there was media which suggested that the primary judge rarely found in favour of an applicant. I declined the tender of a print out of a media article about that matter; and
(5)the situation in Pakistan is bad.
The Minister provided written submissions. He submits that the applicant has failed to show any doubt about the correctness of the judgment below and has failed to show that substantial injustice would be suffered by the applicant if leave to appeal were refused.
In relation to grounds 1, 2 and 3 of the applicant’s application, the Minister submits that these seek to cavil with the merits of the Tribunal’s reasons. To the extent the applicant suggests that the Tribunal failed to consider the matters set out in those grounds, this was considered by the primary judge at [16] of his judgment and found not to be sustainable.
In relation to grounds 4 and 5 of the applicant’s application, which allege bias and a denial of procedural fairness, and which are the same as the two grounds in the draft notice of appeal, the Minister submits that neither ground is particularised. It is unclear if they are directed at the Tribunal or the Court below.
In relation to the allegation of bias on the part of the Tribunal, the Minister notes that this ground was addressed by the primary judge at [14] of his judgment and found not to be sustainable. The Minster submits that there is no error on the part of the primary judge in this finding.
In relation to the allegation of denial of procedural fairness by the Tribunal the Minister submits that no such allegation was raised in the Court below and thus the applicant would require leave to raise it in this Court. Nevertheless, the Minister submits that there was no breach of procedural fairness by the Tribunal.
The Minister also submits that in the event the applicant alleges bias and breach of procedural fairness in the Court below, that cannot be sustained.
In response to the oral submissions made by the applicant, the solicitor for the Minister submitted that, insofar as the applicant alleges that the judgment of the primary judge is similar to that of the Tribunal, the primary judge has set out the findings of the Tribunal in his judgment but that is by way of background and there can be no criticism of the primary judge for taking that course. Commencing at [9] of his judgment, the primary judge considers the application before the court and the claims made by the applicant in his application and at the hearing. Any suggestion that an error arises out of the decision being similar fails at a factual level.
In relation to the applicant’s submission concerning country information, the solicitor for the Minister noted that the primary judge considered the Tribunal’s treatment of country information at [14] of his judgment where he found that there was no arguable ground of bias identified by the applicant by reference to the Tribunal’s adverse findings or the country information referred to by the Tribunal. The primary judge also notes that the Tribunal referred to country information provided by the applicant but that it was a matter for the Tribunal to determine what weight to give country information.
In relation to the applicant’s submission concerning the deteriorating situation in Pakistan, the solicitor for the Minister submitted that a change in the situation in Pakistan cannot reveal an error in the decision of the primary judge or the Tribunal. The Tribunal could only consider the information that was before it at the time, which it did.
In relation to the allegation of bias against the Tribunal member, the solicitor for the Minister submitted that the primary judge had considered such a claim. Further, the number of decisions written by a tribunal member cannot lead to a finding of bias. In relation to the allegation of bias on the part of the primary judge, the solicitor for the Minister submitted that by orders made on 30 July 2015, the applicant had been given an opportunity to file an amended application, affidavit evidence and written submissions. He did not do so. The matter was heard on 13 November. The applicant was given an opportunity to make oral submissions which were considered by the primary judge. The applicant was given a fair opportunity to be heard and no allegation of bias on the part of the primary judge can be made out.
CONSIDERATION
As noted, the primary judge’s judgment is interlocutory and the applicant needs leave to appeal from it. In order to succeed on his application for leave to appeal the applicant must demonstrate that there is sufficient doubt about the correctness of the judgment of the primary judge to warrant review and that, if the judgment of the primary judge is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.
Grounds 1, 2 and 3 of the application for leave to appeal cavil with the merits of the Tribunal’s findings. I accept the Minister’s submissions that, to the extent the applicant asserts that the Tribunal failed to consider these matters, such an allegation was considered by the primary judge and found not to be sustainable: BBQ15 at [16].
Grounds 4 and 5 of the application for leave to appeal respectively allege a denial of procedural fairness and bias on the part of the decision maker. These grounds are repeated as grounds 2 and 3 of the draft notice of appeal and the applicant repeated his claim of bias in oral submissions in which he clarified that he alleged bias on the part of the Tribunal member and the primary judge.
In relation to the allegation of denial of procedural fairness, the Minister submits that no allegation of a denial of procedural fairness was raised below. So much is evident from the primary judge’s judgment. In those circumstances the applicant would require leave to raise it on appeal. However, in any event, in my view, a claim of denial of procedural fairness cannot be sustained against either the Tribunal or the primary judge. The applicant was invited to a hearing before the Tribunal to give evidence and present arguments, which he did. There is nothing to suggest on the face of the material before me that he was denied procedural fairness by the Tribunal.
If the applicant’s complaint is in relation to the proceedings in the Court below then as is evident from the primary judge’s judgment at [9] the applicant was given an opportunity to file an amended application, affidavit evidence and submissions by an order made more than three months prior to the show cause hearing. The applicant did not file any material. At the hearing, the primary judge gave the applicant the opportunity to make oral submissions, which he did. Those submissions were considered and addressed by the primary judge.
I turn then to the allegations of bias against the Tribunal and the primary judge. The onus of demonstrating bias is a heavy one and lies upon an applicant. As the High Court (Gleeson CJ and Gummow J) said in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] an allegation of bias must be distinctly made and clearly proved. In SCAA v Minister for Immigrationand Multicultural and Indigenous Affairs [2002] FCA 668 Von Doussa J said at [38] that “it will be a rare and exceptional case where actual bias can be demonstrated from the published reasons for decision”. In my opinion, the applicant has not discharged the onus placed upon him in relation to the allegation of bias against the Tribunal member or the primary judge.
The allegation of bias on the part of the Tribunal member was addressed by the primary judge who found the claim was not made out. At [13] of his judgment the primary judge observed in relation to the applicant’s allegation made “orally from the bar table that the Tribunal member was biased” that “bias must be clearly alleged and properly proved”. The primary judge addressed the claim at [14] to [16] of his judgment as follows:
14.I do not accept that there is any arguable ground of bias identified by the applicant by reference to the adverse findings by the Tribunal or by reference to the country information to which the Tribunal referred in paras.48 to 51. It is clear that the Tribunal also referred in para.51 to country information provided by the applicant. It was a matter for the Tribunal to determine what weight to give that country information.
15.Adverse findings by the Tribunal are not a basis upon which an arguable case of jurisdictional error can be made out. The adverse findings by the Tribunal and the absence of the Tribunal mentioning the applicant's own view of his credit and good standing and absence of mention of the applicant's desire to assist his son are not grounds by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.
16.There was no arguable case of bias identified on the basis of the matters raised by the applicant from the bar table….
There is no error in the approach of the primary judge. Further, the assertion by the applicant from the bar table that the Tribunal member has not made many decisions is not a matter that would, in my view, establish bias on the part of the Tribunal member.
In relation to the allegation of bias against the primary judge, the applicant has not filed a transcript of the hearing before the primary judge. There is nothing on the face of the judgment which suggests that the primary judge was biased or approached the matter with a closed mind. Nor is there anything before me to suggest that a reasonably well informed observer might conclude that the primary judge would not approach the issue with an open mind. The applicant was given an opportunity to make submissions before the primary judge. Those submissions were considered and addressed by the primary judge.
The applicant’s submission that the primary judge’s judgment is similar to or the same as the decision of the Tribunal is not factually correct and does not reveal any error in the primary judge’s judgment. The primary judge extracted parts of the Tribunal’s decision in his judgment, by way of background, and referred to the findings of the Tribunal. However, the primary judge then went on to consider the applicant’s claims as set out in his application and based on the oral submissions he made at the hearing. The role of the primary judge in considering the applicant’s application was to determine whether the Tribunal’s decision was affected by jurisdictional error: see s 474 Migration Act 1958 (Cth); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The primary judge discharged that role.
The applicant’s submission that the Tribunal did not properly consider his claims was considered and rejected by the primary judge at [16]. The applicant does not provide any particulars of how he says his claims were not properly considered by the Tribunal. In my view that claim cannot be sustained. It is apparent from a fair reading of the decision, that the Tribunal gave proper consideration to the claims made by the applicant. Similarly the applicant’s submission that the primary judge did not consider all of his submissions cannot be sustained. Once again the claim is not particularised. However, it is clear on the face of the judgment that the primary judge, having invited the applicant to make oral submissions, then addressed them.
The applicant has submitted that the Tribunal relied on country information which was contrary to media reports that he had obtained. He told me that he had not provided that material to the Tribunal. He told me that he had the material since 27 August 2015. That date post-dates the hearing before the Tribunal. If it is the case that the primary judge declined the tender of such material before him, which is not evident on the face of his judgment, that was properly because the primary judge’s role was to consider whether there was any jurisdictional error in the decision of the Tribunal. Media articles which post-date the decision of the Tribunal could not be relevant to that consideration.
In any event, it is not the case that the applicant provided no information to the Tribunal. As the primary judge observed at [14] of his judgment the Tribunal referred at [51] of its decision to references and reports submitted to the department to which the Tribunal had regard noting that it did not alter its view about the risk of the applicant suffering serious harm in Pakistan because it was consistent with the country information cited by the Tribunal earlier in its decision. As the primary judge found, the weight to be given to evidence is a matter for the Tribunal: BBQ15 at [14]. By this submission the applicant cavils with the merits of the Tribunal’s decision. It does not disclose any error in the primary judge’s decision.
The applicant submitted that the situation is bad in Pakistan. However, this is not a matter that is relevant to a consideration of the primary judge’s decision and does not disclose an error in it. To the extent that the applicant says that is the case based on events that post-date the Tribunal hearing it is not a matter that was before the Tribunal.
CONCLUSION
In my view the applicant has not demonstrated there is sufficient doubt about the correctness of the primary judge’s decision to warrant review. Nor has he shown that, if the judgment below is assumed to be wrong, substantial injustice would be suffered if leave to appeal were refused.
I will make orders that the applicant’s application for leave to appeal be dismissed and that the applicant pay the first respondent’s costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic j. Associate:
Dated: 3 March 2016
0