SZDYJ v Minister for Immigration
[2005] FMCA 1522
•28 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDYJ v MINISTER FOR IMMIGRATION | [2005] FMCA 1522 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 422B, 424A, 474
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Tribunal; Ex parte Aala [2000] HCA 57
Kioa v West (1985) 60 ALJR 113
NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494
Abebev Commonwealth of Australia (1999) 197 CLR 510
SZDQR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 599
Muin v Refugee Review Tribunal (2002) 190 ALR 601
| Applicant: | SZDYJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1986 of 2004 |
| Delivered on: | 28 October 2005 |
| Delivered at: | Sydney |
| Hearing date: | 22 June 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Advocate for the Applicant: | Mr N A McNally |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Ms T Wong |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1986 of 2004
| SZDYJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 29 June 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 March 2003 and handed down on 22 April 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on
19 March 2001 to refuse to grant the applicant a protection (Class XA) visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZDYJ”.
The applicant, who claims to be a citizen of Pakistan, arrived in Australia as a visitor in January 2001. On 16 February 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-29) (“CB”). On 19 March 2001 the delegate refused to grant a protection visa (CB pp.32-38) and on
23 April 2001 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.43-46).
The applicant claimed to be a single male who left Pakistan on
12 August 2000 and came to Australia via Hong Kong. He claimed he left Pakistan because he was afraid of being harmed on the basis of his membership of the Pakistan Muslim League (“the PML”). The applicant referred to the military coup in October 1999 as a result of which the former Prime Minister Nawaz Sharif was deposed and ordinary members of the PML experienced violence. He claimed he was afraid of being harassed, kidnapped, tortured and even killed. The applicant stated he witnessed violence because of his membership of the PML and participated in rallies against the coup. He claimed that the leader of the coup, General Musharraf, set up a team to torture political individuals and this team was responsible for crushing any moves against the dictatorship in Pakistan. The applicant claimed that the team would isolate and torture individuals like the applicant who had been seen participating in protests against the dictatorship (CB pp.72-73).
The applicant stated that he lived in Parachinar of the Federally Administered Tribal Areas of the North Western Frontier Province of Pakistan. He stated he had completed his intermediate schooling (Year 12) in science at the Government Degree College in Parachinar at the end of 1999 and he had planned to undertake further studies after he completed his intermediate schooling but due to problems he had been unable to continue his studies. The applicant stated he had been a low level member of the PML in his area and when General Musharraf had come to power and Nawaz Sharif had been arrested, people who had belonged to the PML had been in trouble in his area. He stated that in his area it was common for people to carry guns and there had been a shooting incident in which a person had been injured (CB p.73).
The applicant claimed that in his area they had a Kohat Agreement, whereby if an incident such as a shooting took place, the government could arrest and punish an entire village for the offence. The applicant claimed that five months after the shooting, because he was the only PML member in his area, and therefore by reason of his political opinion, local Maliks (or village leaders) falsely accused him of committing the shooting. The applicant claimed the Maliks did this to protect themselves and their families from government reprisals, including but not limited to sanctions under the Kohat Agreement. As he was a PML member, the applicant claimed he was an easy scapegoat for the allegations and the government would generally go along with the Maliks in such a case. The applicant claimed he was exposed to potential punishment by the Maliks and the local system of non-State tribal justice that they administered, and from the government itself, which retained power to impose additional penalties on such accused criminals, including lengthy terms of imprisonment which took place through a separate State administered criminal trial, but as adjunct to the Malik-administered system of tribal justice.
The applicant claimed he also feared lethal reprisals from the family of the victim of the shooting because he had been labelled the perpetrator by reason of his political opinion and the victim’s family would pursue revenge “even after 100 years”. The applicant stated that as his father was friends with the Pakistan Consul General in Hong Kong it was arranged for the applicant to travel and stay in Hong Kong for a period to avoid persecution. The applicant claimed he travelled to Hong Kong and the Consul General provided him with a visa to travel and live in the Consulate General as an employee. In fact, the applicant stated he did not work at the Consulate but that the Consul General had merely provided him with temporary protection. After five or six months, the Consul General then arranged a visitors visa for the applicant to travel to Australia in December 2000. After five days in Australia, the Consul General asked the applicant to return to Hong Kong to assist with a problem he had there. The applicant stated that he returned to Hong Kong as requested and shortly after, when the Consul General’s tenure ended and the applicant could no longer remain in Hong Kong, he returned to Australia with the intention of seeking asylum.
The Tribunal’s findings and reasons
The Tribunal’s findings are based substantially on the applicant’s credit as the Tribunal did not accept a number of elements of the applicant’s claims. The Tribunal noted that many of the claims contained in the applicant’s original application, which application had been prepared with the assistance of a migration agent, were very different from the oral evidence the applicant gave at the Tribunal hearing. The Tribunal did not accept that members of the PML were persecuted by the Pakistani Government in the manner described by the applicant. Independent country information indicated that the PML was still a registered political party and that it participated in the elections of October 2002. The applicant’s passport had been signed by the political agent in Kurram in Parachinar which was inconsistent with the applicant’s claim that he was wanted by the Pakistani Government for a breach of the Kohat Agreement covering his region. The other inconsistency with the applicant’s evidence was that he either worked for or was a guest of the Consul General of Pakistan in Hong Kong when in fact he had been a fugitive of the Pakistani Government and was on their wanted list (CB pp.81-82).
Application for review of the Tribunal’s decision
On 29 June 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On the day of the hearing the advocate for the applicant sought leave to file an amended application which contained the following grounds:
1.The Tribunal failed or constructively failed to exercise its jurisdiction under the Act.
Particulars
2.The Tribunal was in breach of section 424A of the Act in that despite identifying information that the Tribunal considered to be the reason, or a part of the reason, for its affirming the Departmental decision, no notice was issued under Section 424A of the Act. The Tribunal had a statutory obligation under s424A to so put the information in writing to the applicants, even if that information had been put to the applicant at the verbal hearing – see recent High Court decision in SAAP v MIMIA [2005] HCA (18 May 2005); per Kirby J at paras 161-170; per Hayne J at paras 180-185; per McHugh J at para 77. See also MIMIA v Al Shamry (2001) 110 FCR 27 which draws a distinction between the “application” to DIMIA and the “application” to the Tribunal.
3.The Tribunal failed to take into account a relevant consideration and/or failed to address the case put to it by the applicant and/or which was raised by the evidence and material before the Tribunal:
3.1The applicant claimed that he would be harmed under a system referred to as the “Kohat Agreement” which permits the collective punishment of members of a clan or tribe for the perceived offence. This type of punishment amounts to persecution by reason of membership of a particular social group, but the Tribunal did not consider this claim to be relevant, or did not ask itself the right question to determine whether the applicant would suffer persecution under this ground.
3.2The applicant claimed a fear of persecution by State actors as well as non-state actors. He claimed, inter alia, that he was at risk of persecution by the family of a person injured in a “firing accident” by reason of his political opinion (transcript page 12), and that he could not obtain effective protection from the State (transcript page 6). The Tribunal only addressed the claim relating to State actors, and failed to make findings or otherwise determine the non-state actor components of the applicant’s case. The Tribunal failed to exercise its jurisdiction under the Act.
4.The tribunal took into account an irrelevant consideration through a basic misunderstanding of the case brought by the applicant (Dranichnikov v MIMIA at paragraph 88). The Tribunal stated at CB 81.2 that the applicant did not claim that he had participated in rallies against the October 1999 coup despite that being included by his advisor in his original application. That is not correct. The error was essentially definitional, and amounted to a basic misunderstanding of the case brought by an applicant, with the resulting flaw being so serious as to undermine the lawfulness of the decision in a fundamental way.
5.The Tribunal misdirected itself as to the relevant law by concluding that if the applicant feared persecution from non-State actors he was not protected by the Convention and therefore Australia had no protection obligation towards him. The Tribunal should have considered whether the State was unable or willing to protect him against such persecution because of its support for a system of tribal law which allowed for collective punishment.
6.The Tribunal failed to afford the applicant procedural fairness / natural justice by failing to put to the applicant a number of matters that it ultimately relied on to reject the applicant’s application, namely:
6.1That the Pakistan Muslim League’s (PML’s) participation in October 2002 elections (CB 81.2) suggested:
6.1.1the applicant did not have a subjective fear of Musharraf government torture committees, despite his evidence to the contrary, and/or
6.1.2[that the] claim the Musharraf government persecuted members of the PML through the use of torture committees was not correct.
6.2That the independent country reports reproduced in the Court book from pages 85 to 132 thereof supported of the contention (and the Tribunal’s ultimate conclusion) that:
6.2.1the applicant did not have a subjective fear of Musharraf government torture committees, despite his evidence to the contrary, and/or
6.2.2the claim that the Musharraf government persecuted members of the PML through the use of torture committees was not correct.
6.2.3that citizens were free to discuss public issues and that the Musharraf government did not attempt to exercise direct control over views expressed in the print media, and that the Musharraf government had not banned political parties that were active prior to the 1999 coup, and that the parties, including the PML, were able to continue with their political activities.
6.3That it was of the view that if the Pakistan Consul-General to Hong Kong was knowingly harbouring a “fugitive” from the Pakistani authorities, “it must be obvious that the last thing he would have wanted was for the applicant to return to Hong Kong” (CB 82.1).
6.4That the Tribunal had doubts about the applicant’s credibility (as opposed to doubts about the well-foundedness of the applicant’s subjective fears).
The Law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs (“Dranichnikov”).
Submissions
Both parties filed detailed written submissions which were supported by detailed and helpful oral submissions during the hearing.
Mr Nicholas Alexander McNally, Solicitor appearing for the applicant, applied for an affidavit affirmed by him on 22 June 2005 to be admitted into evidence. Attached to that affidavit was a transcript of the Tribunal hearing held in Sydney on 26 February 2003 which was recorded by the Tribunal and transcribed by Auscript Australasia Pty Ltd. A Court Book was prepared, filed and served by the respondent solicitors on 19 October 2004.
Reasons
Ground 1
Ground 1 which was contained in the original pleadings and repeated in the amended application, was stated in very general terms and was insufficiently particularised to establish jurisdictional error on the part of the Tribunal. The applicant in his written submissions did not refer to Ground 1 and did not appear to rely on it as a separate ground of review. I believed it was unnecessary to explore this ground any further as it did not appear to activate any issue and has not been argued in either the written or oral submissions before me.
Ground 2
Ground 2 alleged a breach of s.424A of the Act. Mr McNally contended that despite identifying information as being the reason or part of the reason for affirming its decision, the Tribunal failed to issue a notice as required by s.424A of the Act. Mr McNally relied on the High Court decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs. The following extracts outline the position at law in the 3-2 majority view, per Kirby J at [161]-[170]; per Hayne J at [180]-[185]; McHugh J at [77]:
“However, because the Act compels the Tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the applicant for review, before recording a decision, it would be an anomalous result if the Tribunal's decision were found to be valid, notwithstanding that the Tribunal has failed to discharge that obligation. It is not to the point that the Tribunal may have given the applicant particulars of the adverse information orally. It is also not to the point that in some cases it might seem unnecessary to give the applicant written particulars of adverse information (for example, if the applicant is present when the Tribunal receives the adverse information as evidence from another person and the Tribunal there and then invites the applicant orally to comment on it). If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. There can be no "partial compliance" with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act. Any suggestion by the Full Federal Court in NAHV to the contrary should not be accepted. Parliament has made the provisions of s 424A one of the centrepieces of its regime of statutory procedural fairness. Because that is so, the best view of the section is that failure to comply with it goes to the heart of the decision-making process. Consequently, a decision made after a breach of s 424A is invalid.”
The failure to comply with s.424A invalidates the Tribunal’s decision, per Hayne J at [208]:
“Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”
His Honour Kirby J stated at [173]:
“Nevertheless, is breach of s 424A sufficient to establish jurisdictional error necessary for relief in this case? Because of the mandatory language of s 424A ("must") and the provisions of Pt 7, Div 4, I agree with Hayne J that the breach is sufficient to constitute jurisdictional error, as that opaque expression has been interpreted. An imperative obligation for the conduct of a review by the Tribunal has not been complied with. The will of the Parliament must be obeyed. The resulting decision of the Tribunal is not, therefore, one protected by the Act from judicial review in the Federal Court.”
Furthermore, Kirby, McHugh and Hayne JJ found that where there has been a breach of the statutory procedural fairness required under s.424A, relief should not be withheld unless the conduct of the appellants (in that case) warranted the refusal of the exercise of the discretion; per McHugh J at [83]; per Kirby J at [174]-[176]; per Hayne J at [211]. It is important to note that in SAAP McHugh J, in emphasising the significance of s.424A, stated at [83]-[84]:
“However, where the relevant breach is the failure to observe fair decision-making procedures, the bearing of the breach upon the ultimate decision should not itself determine whether the constitutional writs of certiorari and mandamus should be granted. If there has been a breach of the obligation to accord procedural fairness, there is jurisdictional error for the purposes of s 75(v) of the Constitution. There is no reason to rewrite the limitation ordinarily implied on the statutory power to deny jurisdictional error for "trivial" breaches of the requirements of procedural fairness.
If the decision of the Tribunal is invalid for want of procedural fairness, there is no reason to withhold discretionary relief. There is nothing to suggest that the conduct of the appellants warrants the refusal to exercise the discretion. There is no suggestion of delay, waiver, acquiescence or unclean hands. Whether the first appellant was in fact deprived of a relevant opportunity to deal with the adverse material received by the Tribunal from her eldest daughter should not affect the discretion to grant relief.”
His Honour Hayne J stated at [210]-[211]:
“The Minister submitted that no relief should be granted to the appellants. It was contended, in effect, that the course of events at the Tribunal was such that the first appellant (at least by her migration agent) was aware of what the eldest daughter said and had sufficient opportunity to meet it. Lying behind that submission might be thought to have lurked the suggestion that because the first appellant is illiterate in any language and the second appellant is a young child, giving of notice in writing to them in accordance with s 424A would have served no practical purpose. Whether or not that was a proposition that did lie behind the submission that relief should be refused on discretionary grounds, the submission should be rejected.
For the reasons given earlier, the decision reached by the Tribunal is invalid. There is no basis, in this case, on which the undoubted discretion to refuse the relief sought could be exercised against its grant. There has been no suggestion of delay, waiver, acquiescence or other conduct of the appellants said to stand in their way. As Gaudron J said in Enfield City Corporation v Development Assessment Commission:
‘Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less.’ (footnote omitted)
Even if the considerations advanced by the Minister were relevant to considering whether relief should go for jurisdictional error constituted by a want of procedural fairness (a question I need not examine) they are not considerations that bear upon whether certiorari should go to quash what is found to be an invalid decision.”
Mr McNally submitted that the Tribunal regarded the following matters as the reason, or part of the reason, for affirming the delegate’s decision:
a)The Tribunal was troubled by the fact that the original protection visa application did not particularise the applicant’s claims relevant to the shooting incident. It took the view that the applicant presented to the hearing “a very different story” (CB p.80.5) rather than his evidence at the Tribunal hearing constituting more particulars of the original claim.
b)The Tribunal was under the erroneous belief that the applicant had abandoned his claim about persecution due to his attendance at rallies against the coup.
c)The Tribunal formed the view that because the applicant was able to obtain a passport in June 2000 (one month after the firing incident), and “having regard to the applicant’s evidence before the hearing” (CB p.81.6), it did not accept that the applicant had a subjective fear of harm by reason of his participation in rallies against the coup, or by reason of his involvement in the PML more generally as was claimed at the hearing.
d)The Tribunal was troubled by the applicant’s evidence about obtaining assistance from the Consul General of Pakistan in Hong Kong, who was a friend of his father’s (CB pp.80–81). It did not accept that if the applicant was wanted by the authorities in Pakistan that the Consul General of Pakistan would have assisted him as he claimed.
e)The Tribunal was troubled by the fact that the applicant returned to Hong Kong after his first trip to Australia in December 2000 (CB82.2). It did not accept that if the applicant was wanted by authorities in Pakistan, he would have returned to Hong Kong, or that the Consul General would have asked him to so return.
f)The Tribunal did not accept the applicant’s claims about being falsely accused of the shooting incident (CB82.3). This was central to the applicant’s claim, and the Tribunal should have alerted the applicant to this matter.
g)The Tribunal formed the view that the applicant invented his claims to obtain a protection visa, but it never alerted him to that view.
h)The Tribunal did not accept that the applicant would be arrested at the airport if he were to be returned to Pakistan.
i)The matters outlined herein in relation to the common law natural justice ground also apply to this ground, because even if they had been put to the applicant verbally at the hearing, the Tribunal was also bound to issue a notice under s.424A notice in respect of them.
The distinction between the “application to DIMIA” and the “application to the Tribunal” was drawn in the decision of Minister for Immigration & Multicultural Affairs v Al Shamry per Ryan and Conti JJ at [17] and Merkel J at [37].
Ms Wong of Counsel, appearing for the respondent, submitted that s.424A only applies to specific types of information. In VAF v Minister for Immigration & Multicultural & Indigenous Affairs (“VAF”) the Full Court of the Federal Court noted at [24]:
(i)…
(ii)the word “information” in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at 218 [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at 217–18 [19]–[22]; and
(iii)the word does not encompass the tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679; BC200107472 at [25]; approved [2002] FCAFC 120; BC200203793; 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, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282–4 [26]–[29].
Once it was established that the Tribunal possessed “information” within the meaning of s.424A, it must then be demonstrated that the Tribunal considered that the information “would be the reason, or part of the reason” for affirming the decision under review: VAF.
The respondent made the following submissions in relation to each of the categories of information stated in the applicant’s written submissions and noted at paragraph 19(a)-(i) above.
a)In regard to paragraph (19)(a) , the Tribunal’s observation that the applicant “told a very different story” at hearing in comparison to his original application was an observation regarding “a failure to mention a matter to the Tribunal”, and therefore not “information” within the meaning of s.424A(1): WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (“WAGP of 2002”) at 282–4 [26]–[29]. In the alternative, the respondent submitted that the Tribunal’s observation (CB p.80.5) was not “the reason, or part of the reason” for the Tribunal’s decision, as the Tribunal specifically made findings regarding both the applicant’s claim to have participated in rallies against the coup, and his claim arising from being blamed for the “shooting incident”.
b)In regard to paragraph 19(b), the Tribunal’s observation that the applicant, at hearing, “did not claim that he had participated in rallies against the October 1999 coup” was a subjective appraisal of the applicant’s evidence, and did not constitute information within the meaning of s.424A of the Act. In any event, the Tribunal did not decide the application on the basis that the applicant had abandoned his claim to suffer persecution on the grounds of participating in rallies against the October 1999 coup, and specifically made a finding that even if the applicant had participated in such rallies, the Government of Pakistan was not persecuting members of the PML using torture committees as claimed by the applicant.
c)In regard to paragraphs 19(c)-(h), each of the matters referred to by the applicant in these paragraphs constituted “subjective appraisals, thought processes or determinations” of the Tribunal and did not constitute “information” subject to the requirements of s.424A(1): VAF at [24].
d)In regard to paragraph 19(i), the applicant incorporated the matters relating to common law natural justice. The respondent submitted that the Tribunal was not required to notify the applicant of these matters pursuant to s.424A of the Act, as they are founded on country information not specific to the applicant: s.424A(3)(a); Minister for Immigration & Multicultural & Indigenous Affairs v NAMW. The respondent also submitted that the applicant’s submissions referred to paragraphs in relation to “subjective appraisals, thought processes or determinations” of the Tribunal and did not constitute “information” subject to the requirements of s.424A(1).
The issue raised in paragraph 19(a) by the applicant is whether the discrepancies between the original application and the subsequent matters given in evidence by the applicant during the hearing make the original application subject to a s.424A notice. The decision of
Al Shamryand the exception contained in s.424A(3)(b) and the use of the word “application” have been interpreted to mean the application to the Tribunal. The question that arises is whether the original visa application made to the Department was part of the application made to the Tribunal for the purpose of the review. Many of the submissions made by Counsel for the applicant depend upon the Tribunal being exposed to the original application. As the applicant seeks to rely on the contents of the original application, it should not require the applicant to be notified of the contents of that document. The claims made in the original application should be regarded as forming part of the applicant’s application to the Tribunal. In the letter sent to the applicant from the Tribunal on 26 April 2001, the Tribunal’s first response to the application for review states:
“We have asked the Department to send a copy of its documents about your case to the Tribunal. When we receive the Department’s documents, the Tribunal will look at your papers and decide whether it has jurisdiction to consider your application. If so, it will then look at your papers along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour.” (CB p.47)
In the applicant’s application there was no additional material provided to the Tribunal. The only information before the Tribunal would have been the original application filed with the Department. On the basis that the original application was part of the application to the Tribunal that material falls within the exception contained within s.424A(3)(b). To the extent that the applicant submitted that the discrepancies between the original application and the subsequent application should have been provided to the applicant and those discrepancies should have been notified to the applicant in writing, the respondent relied on the decision of WAGP of 2002. In that decision it states that the word “information” as used in s.424A does not extend to identified gaps, defects or lack of details or specificity in evidence. The absence of any reference in the original application to the firing incident falls specifically within the concepts stated within WAGP of 2002, of an identified gap, defect or lack of detail in evidence. Information is intended to note something of a factual nature. As stated in VAF information does not extend to subjective appraisals, thought processes or determinations. The Tribunal’s reasoning and the way in which it comes to its conclusions are not considered information for the purpose of s.424A.
The points outlined in paragraph 19(b)-(h) of the applicant’s submissions are not pressed. Mr McNally conceded these subparagraphs were in the nature of reasoning of the member or analysis of evidence rather than information which falls into the category being considered under s.424A.
The applicant contended that in the decision of the Tribunal (CB p.81), it referred to country information being US Department of State Country Reports on Human Rights Practices and various news articles. The Tribunal noted at the hearing that country information suggested the PLM party had not been banned by General Musharraf and was able to participate in the October 2002 elections. The Tribunal then concluded:
“I do not accept the applicant’s evidence that he feared torture committees set up by the Government of Pakistan to persecute members of the PML. I do not accept that the Government of Pakistan is persecuting members of the PML in this fashion.” (CB p.81)
The Tribunal discussed the information that the PML party was not banned and that it had participated in the elections (Transcript p.12). However, the applicant contended that no where in the hearing was the actual country report referred to nor were there any media articles which were reproduced in the Court Book either referred to or provided to the applicant. The applicant conceded it was not always necessary to provide material so long as the information that may be adverse to the applicant is provided. The country information relied upon here and which was never the subject of a s.424A notice was the country information about the fact that a political party was not banned and that a political party was able to participate in the 2002 elections. The applicant claimed that that country information was clearly a matter relevant to the ultimate refusal of his application. To be excluded it must satisfy two limbs of s.424A(3)(a) in that it was not specifically about the applicant or another person and that it was just about a class of persons.
The applicant contended that in the Tribunal’s decision there were a series of media articles (CB pp.117-132) which the Tribunal discussed (CB p.78). It listed the articles generally, noted that the PML could participate in an election, detailed the results of certain political parties in those elections and cited from the US State Department Report:
“… citizens were generally free to discuss public issues and that the Musharraf Government did not attempt to exercise direct control over views expressed in the print media. It reported that newspaper editorials and commentators were increasingly critical of the Government although direct criticism of the military was rare. The Musharraf Government has not banned political parties and the parties active prior to the coup, including the PML, continue their activities.” (CB p.78)
The Tribunal then noted:
“However, the Government has occasionally interfered with large rallies.” (CB p.78)
The Tribunal also noted that certain legislation was passed to prohibit public gatherings and processions or rallies. It was argued that the information contained in the media articles also went towards the Tribunal’s ultimate conclusion that opposition political parties were generally able to conduct their activities and that persecution of them did not take place (CB pp.78, 81). It was argued that the actual articles were never provided to the applicant and the information in those articles was never the subject of either questions at the hearing or a s.424A notice. The articles contained various references to inadequacies of democracy in Pakistan. Specifically the first article (CB p.117) dealt principally with election results but noted:
“ … in one constituency … elections were postponed due to some violence incidents took place on polling day.”
The next article relating to a referendum that was held actually predated the election but referred to the democratic nature of post coup Pakistan (CB p.119):
“ … serious polling irregularities to ensure his victory.”
The article further noted:
“… the most senior official … denied any irregularities …”
Reference was then made to persecution of captive voters and small children as follows:
“Reports from Sindh [Province] indicate that even small children were forced to vote …” (CB p.120)
The following article was headed “Elections in Pakistan: Turning Tragedy into Farce”. In that article under the subheading “Fractured Polity” it was noted:
“Many voters who might otherwise have gone to the polls became convinced that the elections were nothing but a mask for continued military power.” (CB p.122)
The same article then noted:
“But it was clear by 2000 that the model of democracy envisioned by the Musharraf regime was limited. Elections held for various local bodies did not permit the participation of political parties.” (CB p.124)
The article also noted:
“Again, a façade of democracy was maintained …”
“While Musharraf claims to stand for ‘progress’ and ‘sustainable democracy’, his regime’s initiatives exhibit curious similarities to the stated beliefs of British colonial overlords and Zia ul Haq that ‘pure’ democracy does not suit Pakistan.” (CB p.125)
The applicant claimed that these extracts clearly demonstrated there was evidence contrary to the conclusion drawn by the Tribunal from this material.
Counsel for the respondent admitted that the information related to Pakistan’s political system, although it did seem somewhat abstract and was about a system that concerned a class of persons. It was a system that governs how those people can elect a president as that class of persons will be subject to the particular rules of that government.
Ms Wong submitted the material must fall within the exemption stated in s.424A(3)(a). The purpose of s.424A(3)(a) it is to provide that information that is publicly available and not particular to the applicant does not need to be notified to the applicant in accordance with s.424A and information about the political systems in Pakistan falls within those policy ideals.
In respect of the applicant’s further submission that conclusions drawn from country information should also be subject to a s.424A notice,
I accept the respondent’s submissions to the extent that conclusions or findings reached from country information are determinations and consequently not information.
Ground 3
a)In relation to Ground 3 in the amended application, Mr McNally contended that the Tribunal failed to take into account a relevant consideration and/or failed to address the case put by the applicant and/or which was raised by the evidence and the material before the Tribunal. Under this ground the applicant claimed he would be harmed under the Kohat Agreement and would therefore suffer persecution by reason of his membership of a particular social group, which he claims was not considered by the Tribunal. The applicant also claimed to fear persecution by both State and non-State actors but contended the Tribunal only addressed the claim relating to State actors.
The applicant contended that in its treatment of these claims the Tribunal committed jurisdictional error in failing to exercise its jurisdiction. The Full Court summarised the position in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs as follows:
“It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
The applicant submitted that in failing to make a finding and deal with the applicant’s claims about persecution by non-state actors, the Tribunal committed jurisdictional error of law.
In respect of Ground 3.1, the respondent Counsel contended that this ground of review failed to have regard to the express terms of the Tribunal’s decision. In its reasons for decision, the Tribunal summarised the evidence given by the applicant regarding the Kohat Agreement and noted the applicant’s claim that he would be punished under the Kohat Agreement because he was being blamed for a firing incident in which a person had been injured (CB pp.73-75). However, the Tribunal rejected the applicant’s claim that such a firing incident had occurred, considering that the claim had been invented “as a pretext for his application for a protection visa” (CB p.82).
It was unnecessary for the Tribunal to determine whether the applicant would suffer persecution as a member of a special social group subject to the Kohat Agreement because the Tribunal did not accept that the firing incident, which was to give rise to the allegation of punishment, had ever occurred. The Tribunal found that the applicant’s claim was not credible (CB p.82). Such a finding on credibility “is the function of the primary decision maker ‘par excellence’: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham per McHugh J at [67] (“Durairajasingham”):
“If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.”
In these circumstances, the Tribunal was under no obligation to give detailed reasons for rejecting the applicant’s claim that he would suffer punishment under a Kohat Agreement as a result of being blamed for a firing incident.
In respect of Ground 3.2., Counsel for the respondent submitted this ground for review again failed to acknowledge that the Tribunal did not accept that the applicant fled Pakistan because he was wrongly accused of involvement in a firing incident (CB p.82). In circumstances where the Tribunal did not accept that the applicant had made out the facts underlying his claim to fear persecution, it was not required to make findings as to the nature of the persecution that might arise had those facts been made out. I accept the submission by Counsel for the respondent that Grounds 3.1 and 3.2 do not establish jurisdictional error.
Ground 4 – amended application
The applicant submitted in Ground 4 of the amended application that the Tribunal took into account an irrelevant consideration through a basic misunderstanding of the case (Dranichnikov at [88]). The Tribunal (CB p.81.2) stated that the applicant did not claim that he had participated in rallies against the October 1999 coup despite that being included by his adviser in his original application. That was not a correct understanding of the applicant’s case and it led the Tribunal to deal with the case in a way that was tainted by this fundamental misunderstanding of the applicant’s case. The applicant submitted that the High Court in Dranichnikov considered the ground and Kirby J noted at [88]:
“Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.”
The applicant submitted that the Tribunal’s error in this case was essentially definitional, and amounted to a basic misunderstanding of the case brought by an applicant, with the resulting flaw being so serious as to undermine the lawfulness of the decision in a fundamental way.
In respect of Ground 4 of the amended application, the respondent contended that the relevant passage from the Tribunal’s decision is as follows:
“While the Applicant said at the hearing before me that he had participated in rallies while the PML had been in power and that he had been very famous in his area he did not claim that he had participated in rallies against the October 1999 coup, as suggested in his original application.” (CB p.81)
Counsel for the respondent submitted that the Tribunal appeared to be referring to the following portion of the transcript of the hearing held on 26 February 2003 (p.10 of transcript):
“MR SHORT: In your original application you said that, your representative said that you participated in rallies against [the coup]?
THE INTERPRETER: Yes, I used to take part in all meetings when Muslim League was in power. I was very famous in my area because during …. time our government was very famous in this area. Everything changed after Musharraf came into power. Lot of people they disappear from other villages and they have been done by the government. A lot of the Muslim League, they left the area. I did not want to leave my village but I had to because of this problem.”
It was submitted that this passage of the transcript demonstrated that at the hearing, the applicant claimed to have taken part in meetings while the Muslim League was in power, but did not claim to have participated in rallies against the coup. Nor did the applicant make the claim to have participated in rallies against the coup at any other point during the hearing. The observation made by the Tribunal (CB p.81.2) was thus an entirely reasonable interpretation of the applicant’s evidence given at the hearing. It was further submitted that in these circumstances, the Tribunal was entitled to take into account that the applicant did not claim to have participated in rallies against the October 1999 coup at the hearing, and it was not an irrelevant consideration. In any event, the Tribunal did consider the applicant’s claim in his original application to have taken part in rallies against the coup, and dismissed it on the grounds that the Tribunal did not accept that the applicant feared torture committees set up by the Government of Pakistan to persecute members of the PML, and did not accept that the Government of Pakistan was persecuting members of the PML in this fashion (CB p.81).
The Tribunal’s overall view as to the applicant’s credibility and the reasoning as set out in its decision (CB p.82), is that the Tribunal based its adverse findings on the multifarious concerns about the applicant’s evidence: “inconsistencies in that evidence and the general impression formed as to the lack of credibility on the part of the applicant”. No detailed reasons need to be given as to why a particular witness is not believed: Durairajasingham per McHugh J. The proposition that the Tribunal did not take into account all relevant considerations through a basic misunderstanding of the case cannot be sustained.
Ground 5 – amended application
Ground 5 of the amended application was not pressed.
Ground 6 – amended application
In respect of Ground 6, the applicant submitted that the application for review in this case was commenced on 23 April 2001, prior to the commencement of s.422B, and hence the common law principles of natural justice and procedural fairness apply. It was contended that the Tribunal failed to afford the applicant procedural fairness by failing to put to the applicant the following matters that it ultimately relied on to reject the applicant’s application:
a)That the PML’s participation in the October 2002 elections suggested:
i)the applicant did not have a subjective fear of the Musharraf government torture committees, despite his evidence to the contrary, and/or
ii)that the claim the Musharraf government persecuted members of the PML through the use of torture committees was not correct.
b)That the independent country reports reproduced in the Court Book from pages 85 to 132 thereof supported the contention (and the Tribunal’s ultimate conclusion) that:
i)the applicant did not have a subjective fear of the Musharraf government torture committees, despite his evidence to the contrary, and/or
ii)the claim that the Musharraf government persecuted members of the PML through the use of torture committees was not correct.
iii)That citizens were free to discuss public issues and that the Musharraf government did not attempt to exercise direct control over views expressed in the print media, and that the Musharraf government had not banned political parties that were active prior to the 1999 coup, and that the parties, including the PML, were able to continue with their political activities.
c)That it was of the view that if the Pakistan Consul General to Hong Kong was knowingly harbouring a “fugitive” from the Pakistani authorities, “it must be obvious that the last thing he would have wanted was for the applicant to return to Hong Kong” (CB p.82).
d)That the Tribunal had doubts about the applicant’s credibility (as opposed to doubts about the well-foundedness of the applicant’s subjective fears).
The applicant submitted that the Tribunal therefore did not accord him procedural fairness. It was noted in Re Refugee Tribunal; Ex parte Aala (“Aala”) per McHugh J at [101]:
“One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding (164) Mahon v Air New Zealand Ltd [1984] AC 808 at 820-821.”
The applicant also referred to the case of Kioa v West per Brennan J at 140-144; and per Mason J at 127:
“In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations (cf. Salemi (No. 2), at p.451, per Jacobs J.).”
In regard to ground 6, Counsel for the respondent submitted that in NARV v Minister for Immigration & Multicultural & Indigenous Affairs it was noted that there was an obligation upon the Tribunal to give an applicant an opportunity to deal with adverse information, including country information, which is “credible, relevant and significant to the decision to be made”, adopting the words of Brennan J in Kioa v West at 629.
Counsel submitted that in respect of the applicant’s submissions at paragraph 54(a) above, the applicant was specifically put on notice and given an opportunity to comment on country information that indicated that the PML was not banned in Pakistan and that it had in fact participated in the elections in October 2002 (CB p.77) (Transcript p.12). It was submitted that the Tribunal’s findings on this issue were findings arising from that country information and were adverse findings inherent in the proceedings which the Tribunal was not required to put to the applicant: Abebev Commonwealthof Australia per Gummow and Hayne JJ at [187]; Aala per Gaudron and Gummow JJ at [76]; per McHugh J at [101] and Callinan J at [208].
Counsel for the respondent submitted in regard to paragraph 54(b) above of the applicant’s submissions, that the applicant failed to demonstrate that the entirety of the country reports (reproduced at CB pp.85-132) were “credible, relevant and significant to the decision to be made”, or even relied upon by the Tribunal in reaching its decision. To the extent any portion of these country reports were relevant and significant to the decision of the Tribunal, the relevant portion was put to the applicant for comment at the hearing (CB p.77) (Transcript p.12). Counsel submitted that the Tribunal put to the applicant the country information regarding the PML’s involvement in the elections held in October 2002, which was the country information relied upon the Tribunal in reaching its conclusions (CB p.77) (Transcript p.12). Moreover, it was submitted, the country information (as stated in paragraph 54(b)(iii)) was not “relevant and significant to the decision to be made”, as it did not form part of the section of the Tribunal’s decision titled “Findings and Reasons for Decision”. The information stated in paragraph 54(b)(iii) was also largely of the same nature as the country information upon which the applicant was given an opportunity to comment (CB pp.78, 79-82).
In regard to paragraph 54(c) above, Counsel for the respondent submitted that the applicant’s submissions failed to acknowledge the matters put by the Tribunal to the applicant regarding his stays in Hong Kong with the Consul General. The transcript of the hearing held on 26 February 2003 states (Transcript p.6):
“MR SHORT: You understand that it is a little difficult for me to believe that you had been persecuted by the government of Pakistan when you were employed by the Consulate General of Pakistan in Hong Kong?
THE INTERPRETER: My real problem is not from the government, it’s from the people of our area but when the government involve then definitely they will be against me too.
I cannot expect any favour from this government.
MR SHORT: You came to Australia for five days and then you returned to Hong Kong?
THE INTERPRETER: Yes.
MR SHORT: That doesn’t suggest that you needed Australia’s protection.
THE INTERPRETER: I only went back because Consul General he ask me to do that, so I had to go back.
MR SHORT: Why did he ask you to do that?
THE INTERPRETER: He did not tell me. He only told me that he had some problems. So I had to come back there.
MR SHORT: You understand that this is a little difficult for me to believe.
THE INTERPRETER: Whatever I am giving you is true and correct.”
The respondent Counsel contended that this passage from the transcript demonstrated that the applicant was put on notice that the Tribunal had serious doubts about the account given by the applicant regarding his stays in Hong Kong with the Consul General, and could make adverse findings against the applicant arising out of the evidence given by the applicant at hearing. In these circumstances, the applicant was alert to the need to provide the Tribunal with any information which would support the applicant’s version of events surrounding his stays in Hong Kong, and no denial of procedural fairness has been demonstrated.
In regard to paragraph 54(d) above, Counsel submitted that a review of the hearing transcript indicated that the Tribunal, on numerous occasions, put the applicant on notice that it was having difficulty believing the applicant’s claims, and gave the applicant an opportunity to comment on numerous inconsistencies in the applicant’s evidence (Transcript pp.6-12). The applicant was thus afforded complete procedural fairness in this regard: SZDQR v Minister for Immigration & Multicultural & Indigenous Affairs.
The respondent counsel submitted that the applicant failed to provide any evidence to establish what the applicant would have done had he been given an opportunity to comment on the alleged “information” (referred to in paragraph 54 above): Muin v Refugee Review Tribunal.
A further matter that was raised by the respondent Counsel was the question of delay. This issue was not raised in any of the written submissions or applications before this Court and was appropriately brought to my attention at the conclusion of the submissions. The application before this Court was filed on 19 June 2004 seeking judicial review of the Tribunal’s decision which was handed down on 22 April 2003. This represents a delay of over fourteen months between the notification of the Tribunal’s decision and the application for review in this Court.
Mr McNally for the applicant argued that this point was not flagged in any of the written submissions and there was no response filed to the original application, nor was any response filed by the Minister on this question of delay. It was submitted that if delay was relevant to the issue in this case, then what took place between the applicant and the Department between the date of the Tribunal’s decision and the commencement of these proceedings are relevant. It was also submitted that there was nothing in the Court Book relating to that period which detailed events that took place during that period. It was further contended that in the absence of foreshadowing that issue, either by way of response to the application or written submissions that relate to the intervening period, it should not be made available to the respondent to now pursue the argument on delay. Mr McNally referred the Court to a number of authorities which address this issue. I accept Mr McNally’s submission that this issue should have been foreshadowed prior to the oral submission at the final hearing. I do not believe the issue influences or has a bearing on the final outcome.
Conclusion
I am not satisfied that any of the grounds of judicial review can be sustained that the Tribunal has committed jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan Date: 28 October 2005
0
7
0