MZZYD v Minister for Immigration and Border Protection

[2015] FCA 60

FEDERAL COURT OF AUSTRALIA

MZZYD v Minister for Immigration and Border Protection [2015] FCA 60

Citation:	MZZYD v Minister for Immigration and Border Protection [2015] FCA 60
Appeal from:	MZZYD v Minister for Immigration and Border Protection & Anor [2014] FCCA 1894
Parties:	MZZYD v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 570 of 2014
Judge:	BARKER J
Date of judgment:	10 February 2015
Catchwords:	MIGRATION – application for protection (class XA) visa – appellant claimed to fear serious harm due to attendance at cadet college implying affiliation with government or army – appellant unable to attend hearing before Tribunal due to illness – matter remitted to Tribunal constituted by same member – adverse credibility findings made – refusal to accept further evidence – whether reasonable apprehension of bias – whether Tribunal failed to take into account relevant considerations
Legislation:	Migration Act 1958 (Cth) s 36(2)(a), s 36(2)(aa), s 426A
Cases cited:	Comcare v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497 Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 Re Refugee Tribunal; ex parte H [2001] HCA 28; (2001) 179 ALR 425
Date of hearing:	10 February 2015
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	49
Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Ms J Lucas
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 570 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZYD
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BARKER J
DATE OF ORDER:	10 FEBRUARY 2015
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant do pay the costs of the first respondent, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 570 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZYD
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BARKER J
DATE:	10 FEBRUARY 2015
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant is a male citizen of Pakistan, who applied for a protection (class XA) visa on 16 March 2011.

2. The appellant claimed to fear serious harm from the Balochistan (or Baloch) Liberation Army (BLA) and affiliated groups. He claimed that his attendance at Cadet College Batrasi in Mansehra, Pakistan (cadet college), from April 2001 to July 2004, caused the BLA to target him as a supporter of the Pakistani army and government.

3. Further, the appellant claimed the BLA targeted him because he is of Pashtun, not Baloch, ethnicity and because his father is affiliated with the anti-BLA political party, Pakhtun‑khwa Milli Awami Party.

4. The appellant claimed that his family’s house was hit by a missile on 26 August 2007, and that the BLA was responsible for this attack. He said that on 25 December 2010, following his arrival in Australia, his family in Pakistan received a threatening letter from the BLA, accusing them of supporting the army because the appellant had attended cadet college. The appellant claimed that this threat of serious harm from the BLA caused him to apply for a protection visa in Australia.

5. The appellant claimed that he could not relocate to another area of Pakistan because the BLA would still be able to attack him, or arrange for the Taliban or another extremist group to attack him.

6. On 31 October 2011, a delegate of the Minister for Immigration and Border Protection refused to grant the appellant a protection visa.

7. On 30 November 2011 the appellant sought review of this decision before the Refugee Review Tribunal (first Tribunal). The first Tribunal invited the appellant to appear before it on 14 June 2012. He failed to appear and on 15 June 2012 the Tribunal affirmed the Minister’s decision.

8. The appellant sought judicial review of the first Tribunal’s decision. On 30 July 2013 the Federal Circuit Court found that the appellant was unable to attend the hearing before the first Tribunal due to illness, and was denied procedural fairness pursuant to s 426A of the Migration Act 1958 (Cth) (Act) as a result. The Court set aside the decision and remitted the matter to the Tribunal.

9. On 21 November 2013, a Tribunal, constituted by the same member as the first Tribunal (second Tribunal), affirmed the Minister’s decision to refuse to grant the appellant a protection visa (Tribunal’s decision).

10. The appellant then sought judicial review of the decision of the second tribunal.  The Federal Circuit Court gave judgment on 12 September 2014, dismissing the appellant’s application for judicial review of the Tribunal’s decision.  See MZZYD v Minister for Immigration and Border Protection & Anor [2014] FCCA 1894.

11. The appellant now appeals from the Federal Circuit Court’s decision.

    THE TRIBUNAL’S DECISION

12. The second Tribunal accepted that that the appellant attended cadet college. However, the Tribunal did not accept that the appellant or his family had been targeted by the BLA because of his studies at the cadet college. The Tribunal found the appellant did not face a real chance of serious harm from the BLA or their affiliated groups because of his attendance at the cadet college, now or in the reasonably foreseeable future.

13. In arriving at this conclusion, the Tribunal did not give weight to the appellant’s evidence of threats and attacks perpetrated by the BLA against his family. For example, the Tribunal did not accept that the appellant’s family received a threatening letter from the BLA on 25 December 2010. The Tribunal examined a copy of the letter presented as evidence and stated that the BLA logo, written in English, appeared to have been cut and pasted onto the paper. The Tribunal also considered independent information indicating false documentation is readily available in Pakistan, and therefore did not accept the letter as credible.

14. Even if the letter was accepted to be genuine, the Tribunal found it implausible that nothing further had happened to the appellant’s family since receipt of the letter. The Tribunal also found it implausible that the BLA would wait until five years after the appellant attended cadet college to threaten his family, despite the appellant’s evidence that the BLA became more violent following the death of its leader in 2007. Additionally, the Tribunal noted the letter was addressed to the appellant’s father, who was a tribal elder, which suggested any threat was directed at the appellant’s father and not the appellant.

15. Further, the Tribunal did not accept that the appellant’s house was damaged in a missile attack by the BLA on 26 August 2007. The Tribunal found this claim to be “far-fetched”, given the appellant’s evidence suggested the BLA did not alert the appellant’s family to the fact they were being targeted until the letter of 25 December 2010.  It found the appellant’s evidence about this incident to be vague and lacking in detail, and inconsistent with the appellant’s protection visa application and statement submitted to the department on 26 September 2011. The Tribunal also found inconsistencies in the appellant’s evidence regarding how he knew the BLA was responsible for the attack and the damage done to his family’s house. The Tribunal did not give evidentiary weight to a newspaper article provided in support of the missile attack due to independent information as to the prevalence of document fraud in Pakistan, and the fact that the name and date of the newspaper were not provided.

16. The Tribunal did not accept that the appellant was subject to other attacks by the BLA or affiliated parties prior to August 2007, nor that the appellant’s brother was attacked on 13 March 2012 by the BLA. The police report the appellant submitted in relation to the incident involving his brother did not suggest the BLA was responsible for the attack and specifically referred to the assailants as anonymous and unknown motorcyclists. The Tribunal did not accept the appellant’s evidence that the BLA had targeted other cadets who lived near him.

17. Alternatively, the Tribunal did not accept that the appellant had a subjective fear of harm because of his father’s membership of the Pakhtun-khwa Milli Awami Party or because of his Pashtun ethnicity. The Tribunal noted the appellant’s evidence at the hearing that his father’s political opinion and his ethnicity were not connected to his fear of returning to Pakistan. Further, the Tribunal did not find that the appellant faced a real chance of persecution from the BLA for any other reason.

18. As such, the Tribunal was not satisfied the appellant met the refugee criterion under s 36(2)(a) of the Act, or that there were substantial grounds for believing he faced a real risk of significant harm to satisfy the complementary criterion under s 36(2)(aa) of the Act.

    JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT

19. The appellant brought an application for judicial review of the Tribunal’s decision in the Federal Circuit Court on 23 December 2013. His application asserted two grounds of review, namely that the decision of the Tribunal was affected by an error of law, and that the Tribunal did not conduct the hearing according to proper legal procedures.

20. The appellant’s written submissions filed on 7 August 2014 raised the issue of reasonable apprehension of bias because the member who made the Tribunal’s decision also constituted the first Tribunal.

21. In respect of the first and second grounds of review, the appellant claimed that the Tribunal failed to take into account relevant considerations.

22. First, the appellant submitted that the Tribunal refused to accept his offer to provide evidence of BLA attacks on other cadets who lived near him. The primary judge found that the appellant was given the opportunity to make out his case and adduce evidence, by reason of attendance at the hearing, an adjournment, and a subsequent extension.  His Honour found the Tribunal was entitled to direct the question to the appellant’s own situation, relevant to his alleged fear of serious harm or a real risk of significant harm from the BLA.

23. Secondly, the appellant made submissions in respect of the alleged missile attack on his family’s house. His Honour found that the Tribunal’s finding of fact and credit in relation to this incident involved conscious consideration of the appellant’s claim.  Further, in respect of the appellant’s submissions that the Tribunal did not accept corroborating evidence of the alleged missile attack on his family’s house in the form of a newspaper article, his Honour found the Tribunal was not obliged to undertake further investigation and made findings of fact open to it.  His Honour found the appellant’s complaints to be as to the merits of the Tribunal’s decision, and declined to conduct a review on the merits. 

24. His Honour also found it was entirely reasonable for the Tribunal, as an inquisitorial body, to insist on the appellant answering questions other than by reference to notes. His Honour found no jurisdictional error on the basis of the grounds of review.

25. To the extent the appellant alleged bias on the part of the Tribunal, the primary judge was not satisfied the claim of perceived bias, on the remittal of the matter to the same member who constituted the first Tribunal, was made out.  The appellant referred to the decision of Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39, in which the Full Court, whilst making no criticism of the Tribunal member, stated “… when decisions in judicial and administrative proceedings are set aside in toto and the matter remitted to be heard and decided again, justice is in general better seen to be done if the court or the Tribunal is reconstituted for the purposes of the rehearing” (at 43). However, his Honour noted the distinction between remitting to a Tribunal as distinct from a court, as observed by the High Court in Re Refugee Tribunal; ex parte H[2001] HCA 28; (2001) 179 ALR 425.

26. His Honour noted that the decision of the Federal Circuit Court remitting the matter for rehearing by the Tribunal made no criticism of the process, findings or behaviour of the first Tribunal. His Honour found that the first Tribunal’s reasons clearly noted the extent of and limitations of the evidence before it due to the appellant’s absence, inferring that it would have then preferred or been open to further evidence and explanation by the appellant at hearing.

27. Further, the primary judge found the second hearing allowed the appellant to give evidence, adduce further evidence and make submissions in addition to the material which was before the Tribunal at the first hearing. The appellant did not point to any particulars in the second Tribunal’s decision indicative of pre-judgment or bias and his Honour did not find bias on reading the second set of reasons.

    APPEAL TO THIS COURT

28. The appellant raises two grounds in his notice of appeal, namely that the primary decision was “affected by an error of Law”, and that the primary judge “failed to take into Account relevant considerations”.

29. The appellant in his written submissions submits that the primary judge failed to understand the fact that he criticised the findings of the Tribunal not only on the basis of medical grounds but also on the ground that there is judicial error in the Tribunal’s decision.

30. The appellant submits that the primary judge failed to consider the fact that he was told by the Tribunal member not to submit further evidence in relation to attacks carried out on other cadets who lived near the appellant, and failed to understand that the extension of time provided was not to enable him to produce evidence of these particular incidents.

31. Further, the appellant submits the primary judge failed to address the issue that the Tribunal rejected evidence provided without “legal and genuine” reasons.

32. With respect to the appellant’s claims of perceived bias, he submits the primary judge erred in failing to find judicial error in the fact that the matter was remitted to the same Tribunal member in the second hearing.

33. The appellant also submits the primary judge did not acknowledge that he claimed to have been attacked only two years, not five years, after finishing his studies at the cadet college, in August 2007. Further, he submits that the primary judge failed to address his submission that the two Tribunal decisions were inconsistent in respect of evidence of the alleged missile attack on 26 August 2007, and that his Honour did not address the appellant’s submission that the Tribunal was suspicious about the authenticity of evidence provided by the appellant regarding the alleged missile attack even before he provided that evidence, indicating the Tribunal member had a closed mind.

34. With regard to the appellant’s first ground of review, the Minister submits it corresponds to the appellant’s contention in the Federal Circuit Court that remitting the hearing to the same Tribunal member raised a reasonable apprehension of bias. The Minister submits the Federal Circuit Court correctly set out the authorities governing the test for apprehended bias, being that the appellant must establish that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to the resolution of the question to be decided (ex parte H; Comcare v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497).

35. The Minister refers to the primary judge’s finding that no criticism was made of the process, findings or behaviour of the first Tribunal, and that the first Tribunal acknowledged the limited evidence and lack of detailed information provided by the appellant at that time. The Minister also refers to the primary judge’s finding that the appellant was afforded a hearing and the opportunity to adduce further evidence and make additional submissions before the second Tribunal, submitting the appellant is unable to demonstrate any error in the Federal Circuit Court or Tribunal’s decision.

36. As to the appellant’s second ground of review, the Minister states this comprises a complaint that the Tribunal did not properly assess the appellant’s claims or afford him an opportunity to provide evidence in support of his claims.

37. The Minister again notes the Federal Circuit Court found the appellant was given opportunity to make out his case and present evidence at the hearing before the second Tribunal, and was also granted a further extension to adduce evidence. In relation to the extension, the appellant submits the Tribunal told him not to submit any material in relation to attacks on other cadets, however the Minister submits he has not adduced any evidence in support of this assertion. The Minister refers to the Federal Circuit Court’s statement that it was for the appellant to make out his case and adduce evidence, and he was afforded an opportunity to do so.

38. In response to the appellant’s submission that the Tribunal misstated the appellant’s claim that he was subjected to an attack by the BLA only two years after he had finished his studies at the cadet college, the Minister submits the appellant is unable to demonstrate any error in the approach the Tribunal took to the assessment of his claims. The Minister notes the Tribunal did deal with the appellant’s claim his family’s house was hit by a missile on 26 August 2007 (which would have been approximately two years after he completed his studies), found his evidence “vague and lacking in detail” and did not accept his account. Further, the Minister refers to the Tribunal’s finding that if the appellant’s attendance at cadet college was a concern for the BLA, it was implausible that they would wait some five years after the applicant had completed his studies to raise their objection and to threaten his father.

39. Finally, the Minister submits the appellant’s remaining complaints as set out in his written submissions constitute an attempt at merits review.

40. Generally, for the reasons submitted on behalf of the Minister, the appeal should be dismissed.  So far as the ground of appeal, that the primary decision was “affected by an error of Law” is concerned, it focusses on the fact that the member who constituted the second Tribunal was the same member who had constituted the first Tribunal. 

41. In circumstances where the first Tribunal could reasonably have proceeded to hear from the appellant, if the appellant had presented himself for interview and before the first Tribunal considered it was functus officio, the fact that the review was conducted by the same member comprising the second Tribunal, after the proceeding was remitted from the Federal Circuit Court by reason of natural justice considerations, does not bear any relevant weight.

42. As the primary judge has pointed out, there is nothing else to suggest that the relevant member was either actuated by any form of bias or that there is any reasonable apprehension of bias, having regard to the well understood principles of law in that regard.  The reasons for decision of the first Tribunal, as the primary judge noted, did not suggest in any way that the member had a closed mind on the matters in issue.  The first Tribunal simply assessed the application on the limited materials before it without the benefit of hearing from the appellant.

43. As to the broad second ground of appeal, that the primary judge “failed to take into Account relevant considerations”, there can be little doubt, having regard to the account of the second Tribunal’s reasons, set out above, that there is no substance to this complaint. The second Tribunal considered in quite some detail all the factual matters raised by the appellant and, for the reasons carefully assessed and the findings made, as set out in the Tribunal’s decision, the appellant simply failed to satisfy the Tribunal he met the refugee criterion under s 36(2)(a) of the Act, or that there were substantial grounds for believing he faced a real risk of significant harm to satisfy the complementary criterion under s 36(2)(aa) of the Act.

1. In particular, the Tribunal focussed on what harm was directed towards the appellant, including his family.  The appellant failed to adduce reliable evidence in this regard, including that his family’s home was subject to a missile attack.

2. This is one of those cases where, in substance, the second Tribunal was entitled to find in the way that it did, on the material before it, and, even if there was a factual error about how soon after he completed his studies he was personally attacked, that error does not in any way affect the reasoning of the second Tribunal.

3. The Tribunal, as the primary judge found, was under no duty to make further inquiries about matters alleged by the appellant, including as to the newspaper article and translation supplied after the hearing which was said to corroborate the missile attack on the family home.

4. Finally, the appellant did not provide any evidence before the primary judge, or this Court, to support the allegation that the Tribunal told him not to submit evidence of attacks on other cadets.

5. Accordingly, there is no basis upon which it was open to the primary judge to consider that the second Tribunal had committed any jurisdictional error.  The primary judge was not in error in so finding.

   CONCLUSION AND ORDERS

6. For the reasons given above, the following orders should be made:

   (1)The appeal be dismissed.

   (2)The appellant do pay the costs of the first respondent, to be taxed if not agreed.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated:        10 February 2015