SZDCL v Minister for Immigration
[2006] FMCA 68
•24 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDCL v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 68 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Pakistan as an atheist – applicant contesting the merits of the RRT decision – no reviewable error found – application dismissed. |
| Migration Act 1958, s.65(1) |
| Applicant A169 of 2003 v Minister for Immigration [2005] FCAFC 8 ApplicantNABD of 2002 v Minister for Immigration (2005) 216 ALR 1 Applicant S395/2002 v Minister for Immigration (2003) 216 CLR 473; 203 ALR 112 Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 NABD v Minister for Immigration [2005] HCA 29 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 NACB v Minister for Immigration [2003] FCAFC 235 NAHI v Minister for Immigration [2004] FCAFC 10 NBGZ v Minister for Immigration [2005] FCA 119 Randhawa v MILGEA (1994) 52 FCR 437 Re Minister for Immigration; Ex parte Cohen (2001) 177 ALR 473 S1039 of 2003 v Minister for Immigration [2005] FCA 353 SJSB v Minister for Immigration [2004] FCAFC 225 SZANK v Minister for Immigration [2004] FCA 1478 SZEEO v Minister for Immigration [2005] FCA 546 VWST v Minister for Immigration [2004] FCAFC 286 WAJQ v Minister for Immigration [2005] FCAFC 79 |
| Applicant: | SZDCL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG856 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 24 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 January 2006 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondent: | Mr G Johnson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Refugee Review Tribunal is joined as the second respondent to the proceedings.
The transcript of today’s hearing be ordered and provided by the Minister’s solicitors to her Department for such action as the Minister and her Department consider appropriate.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG856 of 2004
| SZDCL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 24 February 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant, his wife and his two children protection visas. In the proceedings in this Court only the first applicant, the applicant father, is an applicant. The applicant is from Pakistan and had made claims of religious persecution. The relevant background is adequately set out in paragraphs 6 to 11 of the Minister's written submissions. I adopt those paragraphs as background for the purposes of this judgment:
The applicant is a national of Pakistan. He claimed a protection visa essentially upon the basis that he was an atheist and feared harm from Muslims and Pakistani authorities by reason of such beliefs. The applicant also claimed fear of general violence and instability in his home province and in Pakistan generally (including risk of war with India). See court book, pages 145.4; 134-139.
The RRT accepted that the applicant was a Pakistani (court book, page 145.4), but did not accept that he had a well-founded fear of persecution by reason of his religious belief or for any other Convention reason (court book, page 149.9). That conclusion was reached upon a number of alternate bases.
First, the RRT was not satisfied that the applicant had a genuine fear of persecution in Pakistan (court book, page 145.6). The RRT explained the reasons for that lack of satisfaction as follows:
a)The RRT noted that, whilst the applicant claimed that he began questioning his original Muslim beliefs in 1980-1982, that he later discussed his thoughts with colleagues, friends and people close to him who did not understand his position, and that accusations of blasphemy and apostasy were “mumbled”, the applicant nonetheless remained in Pakistan – working for the same organisation and living at the same address in Lahore from 1985 until 1990. The RRT found that, if the applicant’s thoughts and beliefs had caused him any problems during that period, or if he had a genuine fear of harm by reason of his beliefs, he would not have remained at the same address and with the same employer for such an extended period of time (court book, page 145.8);
b)Whereas the applicant travelled to the US for three months in 1988 (then returning to his old address in Lahore) and then later resided in the US for six years prior to coming to Australia, the applicant did not apply for asylum in the US;
c)Also, as well as returning to Lahore (same address) when he went back to Pakistan in 1990, the applicant also visited Pakistan in 1993 (see court book, pages 145.9-146.3). The RRT rejected evidence from the applicant that he was in hiding while visiting Pakistan in 1993, finding this to be an exaggeration and an attempt to embellish the claimed fear of persecution (court book, page 146.3);
d)Even after arriving in Australia in 1996, the applicant did not apply for asylum until 26 July 2002 – some six years later (court book, page 146.4). The RRT simply did not accept the applicant’s explanation (there outlined) (court book, pages 146.5-146.8).
Second, the RRT did not accept that the applicant had any real chance of being persecuted by reason of his being, or apparently being, an atheist or agnostic (court book, pages 148.5; 146.9-148.9). Again, there were a number of strands to the RRT’s conclusion:
a)The RRT found a lack of support in the country information before the RRT for the proposition that someone who is apparently an atheist or an agnostic faces any real chance of harm in Pakistan, the RRT distinguishing one particular (named) person who it found to have a profile different from the applicant (court book, pages 146.9-147.5). As Hely J held in SZANK v Minister for Immigration [2004] FCA 1478 (special leave refused on 27 April 2005), at [16], “it was a matter of fact for the RRT to decide what weight should be given to “country information” as part of its fact finding function. The question of the accuracy of the country information, and its relevance to a person in the position of the appellant, is one for the RRT, not the Court”. His Honour cited NAHI v Minister for Immigration [2004] FCAFC 10 at [11].
b)The RRT further found that the applicant would not espouse his views publicly and would voluntarily conduct himself in Pakistan in the same way that he had chosen to conduct himself in Australia, not socializing with family members and, being discreet – through choice or preference rather than because of fear of harm (court book, pages 147.5-148.5). The RRT did not reason in any way inconsistently with Applicant S395/2002 v Minister for Immigration (2003) 216 CLR 473; 203 ALR 112, which was decided before the RRT’s decision in this matter. The RRT was not requiring the applicant to do anything. It addressed how it considered the applicant would behave upon return to Pakistan (not just how he should or could, reasonably, behave) and it also asked itself why he would so behave – making findings which excluded any Convention reason for his choice of behaving discreetly. To indicate how the applicant would behave on return to Pakistan, the RRT drew upon the choices that it found had been freely made by the applicant living in Australia (court book, page 148.3) as well as the way in which he had behaved in Pakistan and the lack of harm suffered (court book, pages 147.9-148.3). The RRT further referred, in this context, to the applicant having signed a declaration, to obtain a new Pakistani passport, that he is a Muslim and believes in the “absolute and unqualified finality of the prophethood of Muhammad”. The RRT found that the applicant’s current passport and his two expired passports identified him as a Muslim and the RRT found that the applicant had “signed the declarations voluntarily and by choice because he is, as gleaned from his evidence, a pragmatic and cautious individual” (court book, pages 148.6-148.9).
Third, the RRT found that any fear was confined to the applicant’s local province, NWFP, and that it was reasonable, in the identified circumstances of the applicant, to expect him to relocate away from his relatives, or from extremists, to a different city such as Karachi or Lahore (court book, pages 148.9-149.5), where he would be safe. The RRT referred in this respect to the applicant having lived in Lahore for a number of years previously without encountering any problems and also found the applicant to be intelligent, highly educated, multilingual and, given his ability to live and support himself in Australia over the past six years, clearly able to adapt to new environments (court book, pages 149.3). The RRT further noted that the applicant could not claim that he would be unable to earn, or be prevented from earning, a living in other parts of Pakistan (court book, page 149.4).
With respect to the applicant’s concerns about general instability in Pakistan and tensions as between Pakistan and India, the RRT found that the applicant’s fears of violence and instability, or of being harmed if war were to break out, to be “very general and highly speculative” (court book, page 149.7). The RRT further found that it was satisfied that the chance of the applicant suffering harm in the reasonably foreseeable future in these ways is “remote” (court book, page 149.8).
In his application for judicial review the applicant fails to set out any grounds to enliven the Court's jurisdiction. However, the application refers to an accompanying affidavit which, in essence, set out his claims to be a refugee. I declined to accept that affidavit as evidence for the purposes of this hearing on the basis that the task before the Court is not to decide the question of the applicant's refugee status but, rather, to consider whether the decision of the RRT is infected with any jurisdictional error. In any event, the applicant's refugee claims are more than adequately set out in the court book, which I did receive as evidence.
The applicant filed a second affidavit on 22 July 2004. I declined to accept that affidavit as evidence but I did accept it as written submissions. Again, the applicant in that document addresses his protection visa claims.
By letter dated 10 January 2006 the applicant sought an adjournment of the hearing of his judicial review application ostensibly on the basis of his lack of legal assistance and what the applicant understood to be the pending decision of the High Court in ApplicantNABD of 2002 v Minister for Immigration (2005) 216 ALR 1. I declined that request for an adjournment on the basis that the applicant had had adequate time to seek legal assistance and the decision of the High Court had been handed down some time ago.
The applicant took the opportunity to make oral submissions at the hearing today. He impressed me as a sincere and honest man who simply wanted to inform the Court as well as he could his concerns about being required to return to Pakistan with his family. He referred to his concerns already put to the Minister's delegate and the RRT and also serious concerns that the applicant has for his health, which has apparently deteriorated since the RRT hearing.
It is apparent from what the applicant told me from the bar table that there are humanitarian issues worthy of consideration in this case and with that in mind I directed that the transcript of today's hearing be obtained and provided to the Minister's Department so that the Minister's Department and, if considered appropriate, the Minister, might give consideration to those issues. They are, however, beyond the scope of these proceedings.
The legal issues are thoroughly dealt with in the Minister's written submissions prepared by Mr Johnson. It was unnecessary for Mr Johnson to augment those orally. I agree with the submissions made by Mr Johnson from paragraphs 12 to 25:
The RRT’s decision accordingly depended upon findings of fact within its domain. It was not affected by jurisdictional error.
The case put in the applicant’s affidavit; No jurisdictional error affecting the decision
The applicant appears to raise an issue, towards the end of his affidavit, as to whether the RRT’s decision is consistent with the High Court’s decisions in Applicant NABD of 2002 v Minister for Immigration (2005) 216 ALR 1 and Applicant S395/2002. The applicant says that he needs time to investigate this.
NABD followed S395 and, as noted above, the RRT’s decision was in accordance with S395. NABD, far from supporting the applicant, plainly vindicates the RRT’s approach. See in particular NABD at [167]-[168] per Hayne and Heydon JJ, with whom Gleeson CJ relevantly agreed (particularly at [11]). At [168], having referred at [167] to the RRT’s consideration and reliance upon the applicant’s conduct in Australia, Hayne and Heydon JJ said:-
At no point in its chain of reasoning did the Tribunal divert from inquiring about whether the fears which the appellant had were well founded. It did not ask (as the Tribunal had asked in Appellant S395 /2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran. Based on the material the Tribunal had, including the material concerning what the appellant had done while in detention, it concluded that were he to practise his faith in the way he chose to do so, there was not a real risk of his being persecuted.
The same conclusion is applicable here. The applicant refers in his affidavit to not being able to exercise what he terms his freedom of speech, but the question for the RRT – which it addressed – was the narrower question of whether the applicant had a well-founded fear of persecution for a Convention reason on return to Pakistan. The RRT plainly was not satisfied that he did. Properly, it looked at how he would behave and why. It did not need to consider the case of someone else who might not be so discreet, or for whom such discretion might not be a matter of choice, or who might not have the same pragmatic or cautious nature.
With respect to the remainder of the applicant’s affidavit, it is to be observed that, after asserting that he is a born Muslim and now an atheist, matters which the RRT did not dispute, the applicant seeks only to debate the merits of the RRT’s decision.
Leaving aside the applicant’s purported assessment (at the end of his affidavit) of the expertise of the member, which of course goes nowhere, the applicant focuses only upon the RRT’s findings in relation to the declaration made by the applicant in obtaining his passports. Yet, it was open for the RRT to decide, as it did, that by filling out the declarations as he had, the applicant had demonstrated his preparedness to profess Islamic belief to obtain a passport and that this demonstrates his pragmatic and cautious nature.
Also, even if (as is not conceded) the RRT’s findings in relation to the passport declaration were incorrect, the findings are nonetheless only ones of non-jurisdictional fact and no jurisdictional error would be so revealed. In NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [53]-[54], it was indicated that that “an error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact” and the Full Court pointed to the reluctance with which a Court should find that “an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error”. The Full Court there cited what McHugh J said to that effect in Re Minister for Immigration; Ex parte Cohen (2001) 177 ALR 473 at 481, [35]. Here, the finding(s) of fact sought to be impugned by the applicant are not jurisdictional facts. As NABE (No 2) (same paragraphs) further explains, both error of law and error of fact may occur within jurisdiction.
Also, in ApplicantA169 of 2003 v Minister for Immigration [2005] FCAFC 8 at [31], a Full Court rejected an argument that jurisdictional error could be demonstrated through a legal deficiency including the absence of evidence or the insufficiency of evidence to support the decision. There, the Full Court found that only one of the judgments in S20 supported that proposition. The Full Court proceeded to explain that the circumstance of a decision being so unreasonable that no reasonable decision maker could so decide may lead to jurisdictional error being found if it can be “inferred from the nature of the decision that the administrative decision maker applied the wrong test in making the decision or was not, in reality, satisfied in respect of the correct legal test in making the decision”. Their Honours there referred to S20 per Gleeson CJ at [9], and per McHugh and Gummow JJ at [35]-[36], and noted also that it was plainly established that there is no jurisdictional error simply in making a wrong finding of fact.
No part of what the RRT said shows any “wrong test” to have been applied. The weighing of the evidence before the RRT was entirely a matter for it. Whether or not the applicant agrees with the RRT’s reasoning, there is nothing that takes the RRT’s decision outside the RRT’s jurisdiction.
Further, even if, as is not conceded, the RRT’s decision was illogical or irrational, that would not suffice to establish jurisdictional error. Irrationality is no different from illogicality. In NACB v Minister for Immigration [2003] FCAFC 235 at [24]-[30], a Full Court of this Court considered the High Court’s decision in S20 and reached the conclusion that “want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional…”. In VWST v Minister for Immigration [2004] FCAFC 286, another Full Court extracted what was there said in NACB, noting also that special leave was refused by the High Court in NACB and observed, at [17]:
…..although not too much can be drawn from the High Court’s refusal of special leave, we note that in NACB the special leave point was said to be: ‘whether judicial review of an administrative decision is available where the requisite satisfaction of the decision maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds’ and that the reason for the refusal of special leave was that there were insufficient prospects of success.
At, [18], the Full Court in VWST then concluded:
[18] We are not convinced that the analysis in NACB is erroneous: see Transurban City Link v Allan (1999) 95 FCR 553 at [26] to [31]. Accordingly we agree that the current state of the law is that want of logic in the reasons of the RRT is not an available ground of review. This point was confirmed by a Full Court in NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52, where NACB was referred to with approval at [25]. See also W404/01A of 2002 v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 255 at [35].
In WAJQ v Minister for Immigration [2005] FCAFC 79 at [22], a further Full Court held that “illogicality has not been established by the authorities as a proper ground on which to grant judicial review of a decision of the RRT”, citing NACB at [22]-[30] with approval. See also SZEEO v Minister for Immigration [2005] FCA 546 at [14]-[17] per Tamberlin J exercising Full Court jurisdiction and S1039 of 2003 vMinister for Immigration [2005] FCA 353 at [13] per Moore J exercising Full Court jurisdiction. The point must be treated as settled.
Any attempt now to argue that what was before the RRT was sufficient to enable the RRT to grant a protection visa would be futile. The credibility of the applicant’s claims was a matter for the RRT. Moreover, the RRT cannot grant a protection visa unless it is satisfied that the criteria are fulfilled. It was its lack of satisfaction upon which its decision was based. As was explained by a Full Court in SJSB vMinister for Immigration [2004] FCAFC 225[1], section 65(1) of the Act:
…does not require the decision maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision maker is not affirmatively satisfied that the criteria for the grant of the visa in question have been satisfied.
Similarly, in NBGZ vMinister for Immigration [2005] FCA 119, for example, Allsop J found [63] that the RRT was “obliged to refuse the visa” if it was “unsatisfied of the necessary criterion that Australia owed protection obligations to the appellant”.
In addition, even if (as is not conceded) there was some relevant error in relation to what the RRT said in relation to the declarations made by the applicant to obtain a passport, or their significance, that error could not have affected other alternative bases for the RRT’s decision. In particular, it could not have affected the RRT’s findings upon the issue of relocation. Those findings examined whether it was reasonable for the applicant, in his circumstances, to relocate within Pakistan and were entirely in accordance with Randhawa v MILGEA (1994) 52 FCR 437, especially at 442-443 per Black CJ (with whose reasons Whitlam J agreed).
No jurisdictional error by the RRT is evident – much less one that could have affected the RRT’s decision.
[1] In a passage recently affirmed in Minister for Immigration v VSAF of 2003 [2005] FCAFC 73.
Although I may have approached this matter differently had I been in the position of the RRT, I cannot point to any jurisdictional error in the RRT decision. In the absence of any jurisdictional error the decision is a privative clause decision and the judicial review application must be dismissed. I will so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $5,200. I have no difficulty in accepting that costs of not less than $5,000 have been incurred by or on behalf of the Minister when assessed on a party and party basis. The RRT submits to the jurisdiction of the Court save as to costs and does not seek any costs. The applicant had some questions in relation to costs but did not make any submissions.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 January 2006
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