S1815/2003 v Minister for Immigration and Citizenship

[2008] FCA 1363

FEDERAL COURT OF AUSTRALIA

S1815/2003 v Minister for Immigration and Citizenship [2008] FCA 1363

S1815/2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 881 OF 2008

NORTH J
20 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 881 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: S1815/2003
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	20 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant to pay the first respondent’s costs of 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	NSD 881 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: S1815/2003
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	20 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 5 June 2008: S1815/2003 v Minister for Immigration & Anor [2008] FMCA 653. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 31 May 1999.

2. The reason for the long delay in finalising this matter was explained at [2] of the Federal Magistrate’s decision as follows:

   In August 1997 [the applicant] applied for a protection visa.  The application was refused and he sought review by the Tribunal.  After the Tribunal decision of 31 May 1999 the applicant sought judicial review by joining the Muin  and Lie class action in the High Court of Australia (see Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601). His application was remitted to the Federal Court of Australia. On 29 August 2006 Gyles J dismissed the application for an order nisi (Applicant S1815 of 2003 v Refugee Review Tribunal [2006] FCA 1202). Leave to appeal from that decision was refused by Nicholson J (Applicant S1815 of 2003 v Minister for Immigration & Citizenship [2007] FCA 159). The applicant commenced the present proceedings by application filed in this Court on 20 August 2007.

3. The appellant is a citizen of Pakistan and claimed a fear of persecution because of his political opinion.  He said that he was a member of the Pakistan Peoples Party (PPP) and because of his actions in that capacity, false charges had been laid against him.  As a result the appellant argued he faced imprisonment and would be killed if returned to Pakistan. 

4. The Tribunal rejected the application on the ground that the appellant was not a credible witness.  The Tribunal reviewed a large amount of evidence and concluded that the appellant was not a high official of the party but at best was a minor official with a low political profile.  The Tribunal pointed to a number of instances of exaggeration in the evidence which the appellant gave. 

5. For example, the Tribunal had before it a number of first information reports (FIRs) which were provided by the appellant to substantiate his contention that he was the subject of false charges.  The FIRs provided either with his application or at the hearing were dated 16 May 1997, 15 August 1997 and 12 September 1997.  The appellant provided another FIR dated 12 December 1998 following the hearing. 

6. The Tribunal carefully considered the evidence in relation to these documents and found in the end that they were not authentic.  A number of reasons were given for that conclusion.  In each of the cases, other than the FIR dated 15 August 1997, one problem facing the appellant was information from the Department of Foreign Affairs and Trade (DFAT) in a cable which stated:

   some suspect FIRs lodged allegedly concern a Maintenance of Public Order (MPO) 16 violation.  It should be noted that [an] MPO 16 offence relates to the ‘causing challenge to the civil peace’, a minor offence which is rarely ever brought to court. 

   In addition, the Tribunal noted that each of the FIRs were photocopies and concluded that they could not be unequivocally authenticated.  

7. Other detailed criticisms were made of the separate FIRs based on their contents.  For instance, the FIR dated 15 August 1997 dealt with allegations against three people and then departed from its subject matter and inexplicably referred to the appellant. 

8. Furthermore, in relation to the FIR dated 12 Septmeber 1997, the Tribunal relied upon independent country information provided by a representative of the Pakistan High Commission in Ottawa that FIRs in Pakistan record an initial complaint written up by the police when a police investigation is being demanded.  The FIR is not the result of an investigation but the initial information on which a decision to carry out an investigation may be based. 

9. Partly, but not entirely, based upon the analysis and assessment of the documents, the Tribunal concluded that the appellant was not a credible witness.  It found that the appellant held political opinions that were tolerated by the authorities in Pakistan.   Importantly, the Tribunal also went on to find as follows:

   However, even if the Tribunal were to accept his claims in regard to the extent of his political profile, (and the Tribunal has not done so), the Tribunal concludes, based on the independent country information, that the applicant would not face a real chance of persecution now or in the foreseeable future if he were to return to Pakistan on the basis of political opinion or imputed political opinion.

10. The appellant lodged an application for review in the Federal Magistrates Court and relied on two substantive grounds, namely:

    1. The Tribunal exceeds is [sic] jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.

    …

    3. The Tribunal applied the wrong test, by requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was in fact placing to high an onus of proof [on] the applicant and failing to give the applicant the benefit of the doubt.

11. Both of these grounds were considered in detail by the Federal Magistrate and rejected.  In particular, there was a careful analysis of the question whether the Tribunal was obliged to investigate further the authenticity of the documents produced by the appellant by reference to the judgment in M164 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16.

12. On 16 June 2008, the appellant filed a notice of appeal in this Court.  The ground stated was:

    The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that much of his claims were implausible being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

13. The particulars given were:

    The Tribunal did not inform the applicant that it would base its finding about the applicant document was internally flawed or fraudulent, yet the applicant was not given opportunity to rebut this inference.

14. The appellant appeared at the hearing of the appeal and was assisted by an interpreter in the Urdu language.  He did not seek to support the ground of appeal in the notice of appeal.  The appellant’s complaint instead was that the Tribunal had failed to accept his case.  He complained that the Tribunal was wrong in not accepting the documents he submitted, including the FIR documents.  The appellant stated that the Tribunal was wrong in concluding that he could relocate within Pakistan. 

15. The appellant asked the Court to reconsider the facts of his case and to give him justice.  This argument was an attempt to have the merits of his application revisited.  That is not a task within the jurisdiction of this Court.

16. The appellant is not legally represented, and consequently it is appropriate to examine the decision of the Federal Magistrate in order to determine whether there are any jurisdictional errors in that judgment.  In my view, no such errors can be found. 

17. It is also appropriate to give some attention to the ground raised in the notice of appeal.  As indicated earlier, the Tribunal found an alternative basis for its decision to reject the application.  It viewed the case on the basis that the evidence of the appellant had been accepted.  The Tribunal examined the situation in Pakistan and determined that, even if the appellant’s evidence had been accepted, he would not have established a case for a protection visa.

18. The appellant has made no attempt to attack this alternative basis, and it stands as an insuperable obstacle to his success on this appeal.  Furthermore, the argument raised in the notice of appeal was not raised in the Federal Magistrates Court.  The appellant would require leave to agitate the case on appeal.  As a case to support that ground would require further evidence, such leave should not be granted: H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348 at [6].

19. Even if the ground did not require the adducing of further evidence, in the circumstances of this case it would not be in the interests of justice to grant leave.  It seems that a similar argument was raised in previous proceedings where it was rejected first by Gyles J (Applicant S1815 of 2003 v Refugee Review Tribunal [2006] FCA 1202) and then on appeal by Nicholson J (Applicant S1815 of 2003 v Refugee Review Tribunal [2007] FCA 159).

20. Finally, even if the appellant were able to surmount all those obstacles, on the evidence presently before the Court the argument would be bound to fail.  The decision of the Tribunal clearly discloses that the basis upon which the FIRs were rejected was explained to the appellant.  For example, the Tribunal said:

    It was put to the applicant as per country information that the charge of MPO 16 which he claimed was on his FIRs and warrant was found on suspect FIRs.

    and later said:

    The applicant was referred to independent country information regarding the legal situation of those subject to an FIR, the conditions re bail, and if arrested, the right to an open public trial, and that there is no evidence to suggest that his judicial rights would be abused because he is a member of the PPP.

    and later again said:

    DFAT CableIS43024 of 29 September 1993 states that “some suspect FIRs lodged allegedly concern a Maintenance of Public Order (MPO) 16 violation.  It should be noted that [an] MPO 16 offence relates to ‘causing challenge to the civil peace’, a minor offence which is rarely if ever brought to court.”  Based on this country information which the Tribunal concludes is equally relevant to a Warrant based on such an [sic] FIR, as to an [sic] FIR itself, the Tribunal concludes that these documents are not authentic.  The Tribunal put this information to the applicant at the hearing.

21. Based on this country information, which the Tribunal concluded was equally relevant to a warrant based on such an FIR as to a FIR itself, the Tribunal concluded that the appellant’s documents were not authentic.  The Tribunal put this information to the applicant at the hearing. 

22. Furthermore, much of the analysis is not of a nature which would require the Tribunal to expose it to the appellant.  For instance, the fact that the FIRs were photocopies, or that in one instance they diverted from the previous subject matter, are findings available to the Tribunal on the material before it. 

23. In these circumstances, there was no denial of procedural fairness to the appellant in the way the Tribunal dealt with the documents referred to in the single ground of appeal.  As a result, the appeal must be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        4 September 2008

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the First Appellant:	Ms A Nanson for Australian Government Solicitor

Date of Hearing:	20 August 2008
Date of Judgment:	20 August 2008