SZADO v Minister for Immigration - [2003] FMCA 329

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZADO v MINISTER FOR IMMIGRATION

[2003] FMCA 329

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant a deserter from the Pakistan army – private enquiry made by the presiding member about the fate of deserters – presiding member relying upon unnamed colleague’s opinion – whether the decision of the RRT vitiated by apprehended bias – whether the Court should consider another ground of review where the applicant is legally represented and does not rely upon that other ground – whether a hearing that is procedurally unfair vitiates a decision that is otherwise properly based upon an unimpeachable conclusion.

Migration Act 1958 (Cth), ss.474, 474A

BEAJ v Minister for Immigration [2003] FCA 678
Hogan v Chief of Army (1999) ADFDAT 1
NASQ v Minsiter for Immigration [2002] FMCA 305
Re JRL; ex parte CJL (1986) 161 CLR 342

Applicant:

SZADO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ110 of 2003

Delivered on:

16 July 2003

Delivered at:

Sydney

Hearing date:

16 July 2003

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr B Levet

Solicitors for the Applicant:

Bharati Solicitors

Counsel for the Respondent:

Mr S Lloyd

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ110 of 2003

SZADO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Tribunal (“the RRT”) made on 28 November 2002 and handed down on 7 January 2003. The RRT affirmed a decision of a delegate of the Minister not to grant to the applicant a protection visa. The applicant is a citizen of Pakistan who came to Australia in 2000 as a contestant for Pakistan in the Sydney Olympics. The background to the matter is set out in paragraphs 4 to 10 of the respondent's written submissions filed on 11 July 2003. I adopt that background for the purposes of this decision:
The applicant arrived in Australia on 4 September 2000 as part of the Pakistani Olympic team. He competed in the boxing competition. At that time, the applicant was a member of the Pakistani Army.
On 1 November 2000, the applicant lodged an application for a protection visa.
The applicant attended an interview with a delegate of the Minister on 20 November 2000.
On 1 December 2000, a delegate of the Minister refused the protection visa application.
An application for review to the RRT was lodged on 19 December 2000.
The applicant attended a hearing before the RRT on 21 November 2002. Important evidence given during the hearing is set out in the RRT’s reasons (court book, pages 55-56).
The RRT handed down its decision and reasons on 7 January 2003. It may be summarised as follows:
a)The RRT accepted that the applicant was a national of Pakistan, a member of its army and that he entered Australia as a member of the Pakistani Olympic team.
b)The applicant was a member of the TJP party as a schoolboy but had not been involved with it since.
c)The RRT did not accept the applicant’s early claims to have suffered discrimination in the army because of his religion. In the end, at the interview, the applicant acknowledged that his religion was not really the source of his problem.
d)The RRT accepted that the applicant had breached Pakistani law in absconding from the army while in Australia. However, it did not accept that the likely outcome for the applicant for so doing would be more than a dishonourable discharge. Nonetheless, the RRT considered the position if the punishment for absconding would be more serious and concluded that any punishment will be because the applicant breached a law of general application and not because of the applicant’s religion or for any other Convention reason.
The RRT noted and accepted the applicant’s evidence that his reason for staying in Australia was for his career and for economic reasons.
Briefly, the applicant made a claim for a protection visa on the basis of apprehended religious persecution in Pakistan on the basis of his Shi’ite Muslim religion. At the hearing before the RRT, however, the applicant told the presiding member that his principal concern was not that he feared persecution on the basis of his religion but rather, a fear that he would be dealt with harshly if he returned to Pakistan because he was a serving member of the Pakistan Army, and his failure to return to Pakistan after the Sydney Olympics could be construed as desertion, carrying a severe penalty.
The decision of the RRT includes a reference to country information relating to the treatment of Shi’ite Muslims in the Pakistan Armed Forces in the form of a series of questions and answers directed to the Australian Department of Foreign Affairs and Trade. At the top of page 59 of the court book there is included an answer to a question relating to the issue of desertion. The Department provided the following answer:
Desertion is a serious offence under the Pakistan Army Act. Every person serving in the army is deemed to be on active service (including in peace time) as a result of a notification issued by the Federal government in 1975. Depending on the circumstances, the punishment for desertion can range from imprisonment to the death penalty. We understand that religion would not be a factor in administrative justice.
At page 61 of the court book the presiding member dealt with this issue in terms which Mr Levet, for the applicant, saw as particularly significant. The presiding member said this:
During the hearing the applicant stated that he had made a mistake in remaining in Australia. His evidence was that his problem in returning to Pakistan is not really his religion but the fact that he did not return to Pakistan after the Olympics, deserted from the army and thus, broken military law. The independent evidence before me indicates that desertion is an offence under the Pakistan Army Act. The punishment for desertion depends on the circumstances. In the applicant's particular case I am not persuaded that the applicant would be considered to have actually deserted from the army as opposed to being absent without leave. I am informed by a colleague with lengthy experience as an Australian Army Officer and lawyer that in his view the most likely punishment to be given the applicant in the particular circumstances would be a dishonourable discharge. I place weight on my colleague's opinion and consider it relevant to this case in view of the evidence before me indicating that Pakistani military law comes from a common law tradition, as does Australian military law.
The presiding member went on to conclude that she was not satisfied that the applicant has a well founded fear of persecution for a Convention reason in the reasonably foreseeable future.
The matter proceeded before me today on the basis of an amended application filed on 18 March 2003. That amended application raised three grounds of review; first, that the RRT made a jurisdictional error when it ignored and overlooked relevant material and relied on irrelevant material; secondly, that the decision of the RRT involved an error of law, being incorrect application of the law to the facts, as found by the person who made the decision; and, thirdly, that the applicant was denied procedural fairness.
In oral argument Mr Levet submitted to me that the principal ground of the application was ground three, asserting a breach of the rules of procedural fairness, having regard to the passage I have quoted of concern to the applicant.
In his written submissions, filed on 14 July 2003, Mr Levet points out that the presiding member (erroneously described in submissions as the delegate) gave weight to a colleague's opinion. Mr Levet points out that the applicant is left wondering as to the identity of the unnamed colleague, the degree of familiarity of that person, if any, with the Pakistani Army Act, the circumstances in which such opinion was sought by the presiding member from the unnamed colleague and whether the unnamed colleague was advised of the evidence from DFAT to the effect that the likely range of punishment was imprisonment to the death penalty.
It transpired in oral argument that the case presented on behalf of the applicant, based on a lack of procedure fairness, was that the decision of the RRT is vitiated by apprehended bias. Mr Levet took me to the decision of his Honour Mason J in Re JRL; ex parte CJL (1986) 161 CLR 342, and also Hogan v Chief of Army (1999) ADFDAT 1, decided on 4 November 1999. Both of those decisions establish that, in the context of court proceedings, and military justice proceedings, it is unacceptable for the presiding judicial officer to decide a case on the basis of secret inquiries. On that basis, Mr Levet submits that a fair minded observer confronted with the statement of the presiding member would have a reasonable apprehension that the case had not been decided impartially.
However, as was made clear by Mr Lloyd in his oral submissions, the RRT is placed in a significantly different position to courts and military tribunals in that it is expressly empowered under the Migration Act 1958 (Cth) (“the Migration Act”) to act in an inquisitorial fashion. Section 424 of the Migration Act relevantly provides that in conducting the review the tribunal may get information that it considers relevant, and, further, that without limiting subsection (1) the tribunal may invite a person to give additional information.
It is, in my view, clear that in reliance upon the general power conferred by section 424 the presiding member made an enquiry of her colleague which she saw as having a bearing on the issues she had to decide. Given that the RRT is expressly empowered to make its own inquiries I see no objection, in principle, to such an inquiry being made by the presiding member. It is surprising that the presiding member did not name the person who provided information to her and did not consider, in her reasons, the qualifications of that person to express the opinion attributed to the colleague. However, that fact alone does not persuade me that the approach taken by the presiding member gives rise to apprehended bias.
There may have been a more substantial question of whether the approach taken by the presiding member amounted to a breach of another part of the rules of procedural fairness requiring a fair hearing. On the face of the decision it would be difficult, as Mr Levet observes, for the applicant to deal with the information given that the source of the information is not named and the qualifications of the person to express an opinion are not given. However, Mr Levet conceded that there is no evidence before me of what was, or was not, put before the applicant for him to comment on subsequent to the hearing. In addition, I invited Mr Levet to tell me whether the applicant's case was based in part upon an alleged breach of s.424A(1) of the Migration Act. Mr Levet told me that in the light of the state of the evidence no reliance was placed on that section.
If there had been evidence before me, for example, by way of an affidavit from the applicant to establish that the applicant was not informed of the opinion referred to from the colleague, and was not invited to comment on it, and of what the applicant would have done if he had been made aware of it, there would have been a serious question in my mind as to whether the RRT proceedings were procedurally fair and whether s.424A(1) had been breached. I would have had difficulty finding that there was no obligation to provide the applicant with an opportunity to comment, because I would doubt that s.424A(3) applied for the same reasons as I expressed in NASQ v Minister for Immigration [2002] FMCA 305, in particular at paragraph 9. In addition, it seems to me that the information provided by the colleague was in part determinative of the outcome of the case.
However, on the state of the evidence before me I cannot say what the applicant may or may not have done had he been invited to comment on the opinion of the presiding member’s colleague. In addition, given that the applicant was legally represented and no reliance was placed on s.424A(1) (or, indeed, the fair hearing rule under the general law), it is not for me to make the applicant's case for him.
In addition, as was pointed out by Mr Lloyd, even if there were some defect in the approach taken by the presiding member in relation to the colleague's opinion, the presiding member went on to state that:
In any event, whatever punishment the applicant faces on return to Pakistan, I am of the view that this will be imposed on him because he has breached military law and not because of his religion or for any other Convention reason.
Mr Lloyd has pointed out that the Pakistan Army Act is a law of general application and that the manner in which the applicant presented his case before the RRT did not establish any Convention nexus between the fear of being dealt with under the Army Act for possible desertion and the applicant's particular characteristics. The material before the RRT tended to establish that religion would not be a factor in the application of Pakistani military law. The applicant apparently abandoned his claim based on religion and did not present any other Convention nexus apart from his simple fear of being dealt with under the Army Act for desertion.
Mr Levet suggested that the applicant might have been able to establish membership of a particular social group of Pakistani deserters. However, no such claim was made to the RRT and if it had been made the RRT may well have been bound to conclude that such a particular social group was not recognisable under the Convention because it could not be determined except by reference to the fear of persecution.
Mr Lloyd took me to the very recent decision of the Federal Court in BEAJ of 2002 v Minister for Immigration [2003] FCA 678, in particular at paragraph 55. There His Honour Gray J stated that although the applicant established a denial of procedural fairness amounting to jurisdictional error the application failed because the RRT had gone on to decide the case before it on a proper basis.
Although the consideration of the matter by the presiding member was fairly brief following the passage of concern to the applicant, it is sufficiently clear from that later consideration that the presiding member had come to the view that whatever harm might befall the applicant in Pakistan would be a result of a law of general application and that there was no Convention basis for the fear held by the applicant.
In the circumstances, while there is legitimate concern about the approach taken by the presiding member in the way that approach is reflected in the reasons, particularly if the applicant was not given an opportunity to comment on the information obtained, the decision of the RRT should not be set aside, given that it was ultimately determined on a proper basis.
I will, therefore, dismiss the application and that the applicant pay the Minister's costs and disbursements of and incidental to the application which I fix in the sum of $3,500.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 7 August 2003