S1436 of 2003 v Minister for Immigration and Anor (No.2) - [2005] FMCA 1987

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1436 of 2003 v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2005] FMCA 1987

MIGRATION – Review decision of Refugee Review Tribunal – citizen of Pakistan – Punjabi Christian – Christian Congress – obligation to be given certain information – omission of information – no legal error – application dismissed.

Migration Act 1958, s.424A

SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471

Applicant:

APPLICANT S1436 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG 1968 of 2004

Judgment of:

Mowbray FM

Hearing Date:

11 November 2005

Delivered at:

Sydney

Delivered on:

11 November 2005

REPRESENTATION

Counsel for the Applicant:

Ms N Walker

Solicitors for the Applicant:

Ramrakha Jenkins Solicitors

Counsel for the First Respondent:

Ms S Mason

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The Refugee Review Tribunal be joined as second respondent.
The application be dismissed.
The applicant pay the first respondent's costs and disbursements fixed n the sum of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1968 of 2004

APPLICANT S1436 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal made on 19 January 2000 affirming the decision of the delegate of the first respondent to refuse the applicant a protection visa.
At the hearing before the Tribunal the applicant agreed that the elements in his claim were (page 233 of the Court Book):
1. He had joined the Christian Congress in 1972.
2. As a consequence of an argument in which he had tried to have ten Christians included in a work agreement for one hundred workers for Kuwait he had been falsely accused under Pakistan's blasphemy laws sometime between 1975 and 1978.
3. He had been jailed for three months and his brother in law had bailed him out for ten thousand rupees.
4. He had gone back home and suffered no serious problems until 1983 when he had been attacked by six men with sticks and been hospitalised for three months as a consequence.
5. He then went back home and suffered no further consequences until March 1985 when he had again been attacked and had broken an arm and a leg. This required him to be hospitalised for two months.
6. He had then hidden in a Greek church for twenty days. He worked in this church and his mother had arranged for a passport to be issued.
7. As per his previous account a Greek boat captain had agreed to carry him if he could get on board.
8. He was smuggled on board after bribing the officer in charge and shortly after the ship sailed he had approached the captain and been taken to Indonesia and then to Australia where he was left in Fremantle.
9. A priest in Fremantle had taken a collection and the Applicant had travelled to Sydney.
The applicant is a citizen of Pakistan who arrived in Australia on 6 September 1985. As is obvious from the matters to which I have just referred from the reasons of the Tribunal, his claims centre on his status as a Christian in Pakistan.
The Tribunal's findings are accurately reflected at [10] in the respondent's submissions:
(a)T he applicant is a national Pakistan and is a Christian.
(b)The application [sic] left Pakistan in 1985 as a seaman on a ship which reached Australia.
(c)Christians in Pakistan are in a minority but can practice their religion.
(d)Pakistan has harsh penalties for the offence of blasphemy.
(e)Pakistan's population is 130 million people of which only 140 have been charged under the blasphemy laws. Of the six people who had been sentenced to death for blasphemy, all have been acquitted and released by 1996.
(f)The applicant had been aware of the content and nature of the application for a protection visa made on his behalf in 1991, despite his attempt to resile from it at hearing.
(g)The applicant's account of his departure from Pakistan was implausible and the Tribunal made the finding referred to in paragraph 10(b) above.
(h)The claim of the applicant that he had been imprisoned on charges of blasphemy ought to be rejected as it was made for the first time at the Tribunal hearing and the Tribunal found the claim to have been fabricated for the sole purposes of answering a question arising from an inconsistency in the applicant's documentary evidence which the Tribunal had put to the applicant at hearing.
(i)The applicant was not a member of the Pakistan Christian Congress or its propaganda secretary as he claimed, and had he been he would not have needed to fabricate documents in support of his claim.
(j)Whilst Christians in Pakistan, being a minority, suffer some discrimination by reason of that minority status, the applicant's own account at hearing of his education, employment, and right to worship lead the Tribunal to find that he did not suffer harm amounting to persecution in Pakistan.
(k)The applicant's profile as a Christian was such that any chance of being charged under blasphemy laws is remote, insubstantial and did not constitute a “real chance”.
(l)Even if the applicant should find himself charged under the blasphemy laws there a is [sic] legal and appellate processes in place, he would have recourse to the courts and therefore to the protection of the state.
(m)The applicant's claims were fabricated and he attempted to support them with fraudulent evidence.
After having considered the evidence as a whole the Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations.
An application was filed in this Court on 25 June 2004 seeking judicial review of the Tribunal decision. That application provided no real grounds for review. It merely recited some of the applicant’s factual claims.
On 11 January 2005 the applicant filed another document entitled “Application giving particulars of grounds to be considered” after the Court required him to file an amended application giving legal grounds and full particulars. Again that document failed to provide anything in the way of a viable legal ground for review. Consequently on

2 February 2005 I dismissed the application in chambers.
Following an application to the Federal Court my 2 February 2005 decision was set aside.
The matter came on for a substantive hearing this afternoon. At approximately 1p.m. today the Court received an “Application for Review under Judiciary Act 1903 and Migration Act 1958”. This contained two grounds – procedural fairness and jurisdictional error – and numerous particulars.
The respondent's counsel, Ms Mason, objected to the Court accepting this as an amended application as she had only received it earlier this morning. For the reasons that I gave earlier today I refused leave for that application to be filed in court. These were essentially prejudice, lateness and futility.
Today’s hearing centred principally on an issue raised by myself and addressed to some extent in the respondent's submissions: whether the Tribunal's decision in any way breached the obligations under

s.424A of the Migration Act 1958 which require the applicant to be given certain information in specific circumstances. There was a vigorous exchange of views between counsel for the applicant and counsel for the first respondent on that issue.
I raised a number of points arising from the decisions of the High Court in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, the Full Federal Court in Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 and the related decision in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471.
In VAF Finn and Stone JJ set out at [24] a number of propositions which have emerged from the case law on the meaning of the word "information" in s.424A(1). I note proposition (iii):
the word does not encompass the tribunal's subjective appraisals, thought processes or determinations, … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps…
Ms Mason has also taken me to a number of decisions that hold that inconsistencies between various pieces of information and omissions are not of themselves “information” requiring disclosure under s.424A.
I have considered carefully the submissions on whether particular pieces of information in the Tribunal's reasons for decision are “the reason, or a part of the reason, for affirming the decision”. I have also examined whether certain material falls within what their Honours in VAF and the subsequent decisions have said is not encompassed by the word "information" in s.424A(1).
I have reached the conclusion that there is nothing in the “Findings and Reasons” of the Tribunal that could be characterised as information forming “the reason, or a part of the reason” for affirming the delegate’s decision and which therefore should have been provided to the applicant in writing as required by s.424A.
In the result, having considered the various matters raised by the applicant and having read the Tribunal’s decision carefully, I am not satisfied the Tribunal made any legal error going to jurisdiction.
The application must be dismissed.

I certify that the preceding eighteen paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate: Natasha Werner

Date:27 February 2006