SZELP v Minister for Immigration

[2005] FMCA 1743

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZELP v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1743

MIGRATION – Refugee – impermissible merits review – adverse fact finding is an inevitable part of the Tribunal’s reasons – no sufficient reason to establish bias and apprehended bias – no denial of procedural fairness – no failure to take into account a relevant consideration – singly erroneous finding of fact by Tribunal – no breach of s.424A of the Act – Tribunal’s thought processes is not information for the purposes of s.424A(1) – implausible claims without Convention nexus – no irrational or illogical findings made by Tribunal – application is dismissed.

Migration Act 1958, ss.36(2), 36(3), 91R, 91R(2)(a), 424A
Federal Magistrates Court Rules 2001, r.21.02(2)(a)

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SBBF vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v Khawar (2002) 210 CLR 1
Applicant A169 of 2003 vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76
NAOA vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
WAGP of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276
Tin v Minister for Immigration and Multicultural Affairs[2000] FCA 1109
Paul v Minister for Immigration and Multicultural Affairs[2001] FCA 1196
NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 1010
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59
VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286

Applicant: SZELP

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2923 of 2004

Judgment of: Nicholls FM

Hearing date: 8 August 2005

Date of Last Submission: 8 August 2005

Delivered at: Sydney

Delivered on: 1 December 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. T. Wong

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent in these proceedings.

2. The application is dismissed.

3. The applicant to pay the first respondent’s costs set in the amount of $4520, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2923 of 2004

SZELP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 24 September 2004 seeking review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 3 August 2004 and handed down on 30 August 2004 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant made on 25 November 2003.

2. The applicant is a citizen of Pakistan who arrived in Australia on
   4 September 2003. He lodged an application for a protection visa with the respondent's Department on 24 September 2003 and following refusal by the respondent's delegate of that visa application sought review by the Tribunal on 26 December 2003. His application is at Court Book (“CB”) 67 to CB 72. The applicant’s claims were set out in his application to the respondent's Department and by way of attached statement at CB 55 to CB 56, in his application to the Tribunal at CB 69 to CB 71, and at a hearing before the Tribunal held on 26 May 2004.  The Tribunal's account of that hearing is reproduced in its decision record at CB 92.5 to CB 98.8. The applicant claimed to be a “Shia” Muslim (Shia) by religion and to have lived in Pakistan until December 1992. He then lived in the Philippines where he married, and returned to Pakistan on a regular basis to visit his family. The applicant made two sets of refugee-related claims, one in relation to Pakistan and one in relation to the Philippines.

   In relation to his claims arising from circumstances in Pakistan, the applicant claimed to have a well founded fear of persecution arising from:

   1)Threats made to kill him by the family of a woman that his family had arranged for him to marry in Pakistan, but whom he did not want to marry. He also claimed that her family had commenced a “false case” against him, and that the Pakistani police were searching for him in Pakistan (CB 55.5).

   2)That his status as a Shia Muslim will cause him to be persecuted in Pakistan should he return (CB 56 and CB 70).

   In relation to the Philippines, the applicant claimed that:

   1)There had been threats made to kill him by his three brothers-in-law who wanted the applicant to make sure that his wife and children “give up Islam” (CB 55); and

   2)That his status as a Shia Muslim will cause him to be persecuted in the Philippines (CB 56 and CB 70).

3. The Tribunal's “Findings and Reasons” are set out in its decision record at CB 98.9 to CB 101.1. The Tribunal considered the applicant’s claims in relation to both Pakistan and the Philippines:

   1)In relation to his claims against Pakistan the Tribunal noted that he had not lived in Pakistan for any length of time since 1992 but returned to that country at least annually since 1992, with the last occasion being May 2003 (CB 99.4). It further noted that the applicant visited the United States for six months in January 2002 but did not make any claims to refugee status in that country at that time, and then visited the UK for a month in February 2003, and again did not claim refugee status. The Tribunal also noted that the applicant visited Japan, Thailand and Hong Kong. In relation to his claims that he feared persecution in Pakistan because he is a Shia Muslim, the Tribunal pointed out to the applicant at the hearing that it conducted with the applicant that he did not make any such claim in his primary visa application and in the light of his frequent return trips to Pakistan over the past 11 years it was difficult to believe that this claim had any substance. The Tribunal took into account the applicant’s claims made at the hearing before it, and also noted letters provided to the Tribunal which stated the applicant's life was in danger in Pakistan, but found, in light of the above, that the applicant's claim that he had a genuine fear of persecution in Pakistan because he is a Shia Muslim to be without foundation (CB 99.8).

   2)It also found that his claim to have a well founded fear of persecution in Pakistan at the hands of his former fiancée’s family to be implausible given the passage of years since he was purportedly promised to this lady, his longstanding marriage to a Filipino lady and his residency in the Philippines for over a decade. The Tribunal also saw his frequent return trips to Pakistan as relevant to this claim, but considered that even in the unlikely event that this “story” (relating to the former fiancée) is true, it found there was no Convention nexus to this claim (CB 100.1).

   3)In relation to the Philippines, the Tribunal found that the applicant's problems with his brothers-in-law were of a personal nature and did not entitle him to refugee status (CB 100.7). The Tribunal was satisfied that the applicant had not suffered persecution in the Philippines on account of his Muslim religion and further held that if the applicant had genuinely feared persecution in the Philippines he might have returned to his home country (CB 100.9). On this basis the Tribunal affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant (CB 101.1). 

4. The applicant’s originating application was filed in this Court on 24 September 2004, and an amended application was filed on 30 December 2004. A further amended application was filed on 28 January 2005. In this amended application the applicant puts forward 8 grounds:

   “1. The Tribunal member demonstrated bias/alternatively a lack of procedural fairness when she failed to consider that the applicant had been subjected to systematic and selective harassment by his in-laws because of his family professed Shi’a Muslim faith. (See: KHAWAR CASE)

   2. At the hearing the applicant was denied the opportunity to explain why it was that the Applicant believed that the harm arose as a result of his Shi’a muslim faith. This denial of opportunity was a failure to provide procedural fairness. (See: Applicant 157)

   3. The Tribunal failed to take a relevant consideration – the constant and selective harassment. These were indicative of the fact that I was a target because of my religious beliefs in a predominantly Christian environment.

   Particulars

   4. The Tribunal member used critical adverse information obtained after the delegate’s decision which was neither provided to the Applicant before the hearing nor put to the applicant during the hearing – Applicant S 157.

   5. The Tribunal misapplied the test or alternatively misinformed the Applicant about the test.

   6. The Tribunal member’s reasoning was of the kind that could be labelled irrational or so illogical as to indicate a failure to person the review function at all. See: Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Applicant S20/2002 [2003] HCA 30.

   7. The Tribunal member’s failure to take into account a relevant consideration (persistent and selective harassment at the hands of his in-laws) is sufficient standing to seek judicial review of an ultra vires administrative action. (See: The Peko – Wallsend Principle)

   8. The RRT erred in failing to consider all claims and issues put forward by the applicant.”

5. At the hearing before me the applicant was unrepresented. He was assisted by an interpreter in the Urdu language. I note that the applicant, as he confirmed at the hearing before me, did access the Court’s Legal Advice Scheme and was provided with legal advice by a lawyer on the panel of that scheme. The applicant complained that he had only received the respondent’s written submissions “by hand” just prior to the hearing. He claimed that he now wanted to seek legal advice and to show these submissions to his legal adviser. I did not understand the applicant to say that he had a legal adviser, but that he now wanted the opportunity to obtain the services of a legal adviser in light of the respondent’s written submissions. While no evidence was put before me in relation to the service of these submissions, what emerged from both parties from the Bar Table (Ms. Wong appeared for the respondent) was that the respondent’s submissions had been sent to the address for service provided by the applicant, but from the applicant's account he was in the process of moving from that address and did not actually receive the submissions. The applicant had not filed or served the respondent with any notice of change of address and I did not find the applicant's account of his changing addresses to be clear, but in any event the applicant ultimately indicated that he was content to proceed on the basis that I would provide him with two weeks following the hearing to obtain whatever legal advice that he wished to obtain and to make written submissions to the Court. The hearing proceeded on that basis and the applicant filed written submissions on 22 August 2005. At the hearing before me the applicant claimed that the hearing before the Tribunal was “conducted under enormous pressure” and that he provided two documents to the Tribunal which were proof “that he was a Shia Muslim and that there was a threat to his life”. The applicant claimed that these two documents were not properly considered by the Tribunal. I will deal with this below.

6. The applicant’s first complaint in the further amended application has a number of aspects. The first is that the Tribunal member demonstrated bias on the basis that she failed to consider that the applicant had been subjected to systematic and selective harassment by his in-laws because of his, and his family's, professed Shia Muslim faith. It is clear from the Tribunal's decision record that the Tribunal did consider the applicant’s claim that he had been subjected to harassment by his Pilipino brothers-in-law when they came to realise that his wife had converted to Islam after they were married in 1992, and when they came to realise that his wife and their three children were all Muslims. The Tribunal clearly sets out its understanding of the applicant’s claims in this regard in its decision record at CB 94.5, which reflects what the applicant put to the Tribunal in his application for review that when his in-laws found out that his wife had converted to Islam and that his children were Muslim they “became against him” (CB 69). It is clear from the Tribunal's decision record that the Tribunal did consider this claim and that the issues relating to this claim were discussed with the applicant at the hearing the Tribunal conducted with him. The Tribunal's decision record from CB 100.5 to CB 100.8 clearly shows the discussion with the applicant at the hearing and the Tribunal's assessment of what was said. The applicant has put no evidence before the Court to challenge the Tribunal's account of what occurred at the hearing it conducted with the applicant and the Court can only proceed on the evidence before it; (NAOA vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 (“NAOA”)). It is clear that the Tribunal's consideration of this issue led it to a finding that the difficulties experienced by the applicant in this regard, in relation to his in-laws, were of a personal nature and did not entitle him to refugee status (CB 100.7). Given that the matter is clearly evident in the Tribunal's decision record it is difficult to see the applicant's claim that the Tribunal “failed to consider” as being anything more than an allegation that the Tribunal did not accept that the applicant had been subjected to systematic and selective harassment. In this regard this complaint would rise no higher than a request for impermissible merits review (Minister for Immigration & Multicultural & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259). In relation to the claim of bias based on the failure to “consider” this claim, the only evidence that the applicant points to is that of the Tribunal's published reasons for its decision. The applicant has put no other evidence whatsoever before the Court in this regard. I note the respondent’s submissions in this regard and the reference to SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 (“SCAA”) and SBBF vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358. As stated by von Doussa J., in SCAA at [38]:

   “Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision.”

7. The applicant has put nothing else before the Court, other than relying on the Tribunal's decision record, to show, as he alleges, that the Tribunal failed to consider that the applicant been subjected to systematic harassment by his in-laws because of his, and his family’s professed Shia Muslim faith. Further, to establish a case of actual bias in the form of pre-judgement, the person alleging the bias must of course establish the decision maker had a state of mind so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently. The real question is not whether the mind of the decision maker is blank, but rather, whether the mind of the decision maker is open to persuasion (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [71]). The Tribunal's adverse finding that the applicant's problems with his in-laws in the Philippines are of a personal nature and did not entitle him to refugee status and was not in any event related to a Convention reason, does not of itself amount to sufficient reason to establish bias on the part of the Tribunal.

8. In his subsequent written submissions the applicant makes reference to NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 and says that this was a Full Federal Court decision which held that the manner in which the Tribunal member debated the religious beliefs of the applicant for a protection visa established that apprehended bias was established. In his submissions the applicant appears to have taken a number of reported cases, but does not submit how the authorities, or principals in those authorities, apply or can assist in his case. The applicant has not put forward apprehended bias as a ground in his further amended application, and nor specifically does he argue how the Tribunal's decision was affected by apprehended bias. But in this regard again there is no evidence before me to show that the Tribunal's actions fell within the understanding of the relevant test for apprehended bias to be made out; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 (“Ex parte H”). There is nothing before me to show that a fair minded lay observer or properly informed lay observer might reasonably apprehended that the Tribunal member might not have brought an impartial mind to reviewing the decision of the delegate; Ex parte H at [28].

9. Further, the other aspect of the applicant's general complaint, that there was a lack of “procedural fairness” in relation to the making of the Tribunal’s decision, lacks any particularity or specificity. The applicant does not say how there was any lack of procedural fairness in the context of the Tribunal’s dealing with his claims to have been harassed by his in-laws in the Philippines. In any event, there is nothing before me to show that there has been any lack of procedural fairness in respect of this particular claim. I note further that the application for review to the Tribunal and the Tribunal's decision, were all made after the introduction of s.422B to the Migration Act 1958 (“the Act”). But to the extent that the principals of natural justice and procedural fairness could or may be said to apply to any extent, it is clear that the applicant was given every opportunity to put forward his claims in this regard. The Tribunal's decision record (unchallenged before me) of what occurred at the hearing with the applicant reveals that the issue of the claimed systematic and selective harassment by his in-laws in the Philippines was discussed with the applicant at CB 97.8 to CB 98.8 and further at CB 100.5 to CB 100.8. The Tribunal's decision record clearly shows that the Tribunal's thinking and analysis which ultimately led to its adverse finding on this point were put to the applicant and discussed with him at the hearing. The Tribunal clearly records (CB 100.7) that it advised the applicant at the Tribunal hearing that his problems with his in-laws were of a personal nature and did not entitle him to refugee status. The applicant was clearly given the opportunity to respond to the Tribunal's thinking in this regard.

1. Even further, the applicant’s reference in his further amended application to “Khawar case” (but without any real argument) could also be seen as an attempt to set up an argument along the lines of that arising from the High Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v Khawar (2002) 210 CLR 1. In that case the High Court found that an applicant before the Tribunal who had claimed harm from private individuals, that is domestic violence from her husband's family, in circumstances where the authorities tolerated or condoned such harm, could amount to persecution and that the Tribunal's failure to consider the issue was an error on its part. The applicant’s complaint in this regard could be seen as a claim that even though the Tribunal found that his claims in the Philippines were of a personal nature, that it should nonetheless have gone on and considered whether such harm was tolerated or condoned by the Philippines authorities because of his Muslim religion.

2. In reply the respondent relies on the independent finding by the Tribunal that if the applicant had genuinely feared persecution in the Philippines he would have returned permanently to Pakistan (CB 100.9) and that he did not do so. Ms. Wong for the respondent argued that this finding by the Tribunal (whatever else the Tribunal had done) is not affected by any error and provides an “independent basis” for the Tribunal’s rejection of the applicant’s claims to have suffered persecution in the Philippines (VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [25]).

3. I accept this submission, but would also decline the relief sought by the applicant to the extent that his claims rely on ground 1 in the further amended application on the basis that, while it was not an error on the part of the Tribunal to have considered the applicant’s claims as they related to the Philippines, it was not necessary to do so. Clearly in circumstances where the applicant applied for a protection visa, s.36(2) of the Act relevantly sets out that a criterion for a protection visa is that the applicant is in Australia and is a person whom the decision maker is satisfied that Australia has protection obligations to under the Refugees Convention as amended by the Refugees Protocol. Article 1A(2) of the Refugees Convention defines a “refugee” as:

   "Owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear is unwilling to avail himself of the protection of that country or who not having a nationality and being outside the country of his former habitual residence is unable or owing to such fear is unwilling to return to it. In the case of a person who has more than one nationality the term, the country of his nationality, shall mean each of the countries of which he is a national and a person shall not be deemed to be lacking the protection of the country of his nationality if without any valid reason based on a well founded fear he has not availed himself of the protection of one of the countries of which he is a national." 

4. The Tribunal in the case before me sets out this test, in part, at CB 90.8. In the circumstances before it, and as found by the Tribunal, the applicant is a citizen of Pakistan (CB 98.9) and a resident, but not a national, of the Philippines (CB 98.9 and CB 99.4). This is not disputed by the applicant. In assessing an applicant’s claims for a protection visa, bearing in mind the definition of a refugee, the Tribunal needs to determine the country, or countries, against which the applicant’s claims are to be assessed. This will clearly involve identifying the country, or countries, of nationality. In this case, this was clearly Pakistan, and not the Philippines. While the Philippines can be seen to be a country of former habitual residence, the refugee definition clearly only makes reference to, and requires an assessment of, a person’s claims against a country of former habitual residence where that person is stateless. In these circumstances, it is difficult to understand why the Tribunal therefore proceeded to examine, in the way that it did, the applicant’s claims to fear harm in the Philippines. The only relevant country under the Refugees Convention arising from the circumstances in this case, and in relation to which the applicant’s claims were required to be considered, was Pakistan. In particular, where the applicant was clearly a national of Pakistan, and found to be so by the Tribunal and not a national of the Philippines (and there was no suggestion that he was also a national of the Philippines), the applicant was clearly not stateless, and there were no issues pursuant to s.36(3) of the Act arising from what was before the Tribunal. In all these circumstances, the Tribunal was only required to assess the applicant’s claims and circumstances as they were relevant to Pakistan. The relevance of what occurred in the Philippines could only be to the extent that it may go to the issue of a real chance of a well founded fear of persecution if the applicant were to return to Pakistan. There was nothing before the Tribunal to indicate any such relevance.

5. This was clearly understood by the Minister’s delegate who proceeded to examine the applicant’s claims as they related to Pakistan after finding that he was a Pakistan citizen. The delegate then proceeded to state (at CB 65.5):

   “Before arriving in Australia, the applicant had been living in the Philippines for a period of more than ten years (B1:13:1). Although he claims that he fears persecution if he returns to the Philippines, I am considering his claims against Pakistan only, as he claims to be a citizen of that country only (B1:14:1).”

   The delegate had earlier found (CB 46.9) that the applicant did not have effective protection in a third country (clearly with reference to s.36(3) of the Act). In this situation the applicant’s claims as they arose from the Philippines, would have only been relevant to the Tribunal's consideration if they were to impact on his capacity to return to Pakistan. No such claim was made by the applicant. In this situation any error on the part of the Tribunal in relation to its consideration as it related to the Philippines, could only amount to jurisdictional error in so far as those circumstances relate to his return to Pakistan and not as they relate to his return to the Philippines. Therefore, while I accept Ms. Wong’s submission as a basis for rejecting the applicant’s claims in this regard, I would also refuse the relief sought by the applicant on this latter alternate basis.

6. The applicant's second complaint is that he was denied an opportunity at the hearing before the Tribunal to explain why he believed that the harm arose as a result of his Shia Muslim faith. He claims that this was a denial of procedural fairness. Again the applicant has not been able to say how it was that this denial of opportunity arose. The applicant put forward his claims in his protection visa application, made a statement in his application to the Tribunal, provided written material which the Tribunal considered and then attended a hearing before the Tribunal, where the Tribunal's unchallenged account of what occurred at the hearing before it at CB 98.5, shows that his claims as a Muslim in the Philippines and his claims as a Shia Muslim in Pakistan were discussed. The Tribunal records that it pointed out its concerns that he had not previously claimed to have problems in Pakistan because he was a Shia Muslim, and in light of his frequent return trips to Pakistan over the past 11 years it was difficult to believe that this claim had any substance. The Tribunal's record also shows that the applicant provided a further comment that he would have a problem in this regard if he were to return to Pakistan (CB 99.7). Further the Tribunal considered the documents the applicant submitted in this regard (CB 95 and CB 96), and clearly records that the Tribunal put to the applicant at the hearing that there were doubts about the authenticity of the documents (CB 97.2). The applicant has provided no other evidence to challenge the record of the Tribunal and I accept the respondent’s submission that I am bound by the Full Federal Court decision in NAOA at [21], that in the absence of any transcript of the hearing before the Tribunal it is not possible for this Court to make a finding that such an opportunity was denied to the applicant.

7. The applicant's third and seventh complaints in the further amended application are that the Tribunal failed to take a relevant consideration into account, being “the constant and selective harassment”. Putting together what the applicant has said in his further amended application and his subsequent written submissions, this appears to be a complaint that the Tribunal failed to take into account the relevant consideration being that the constant and selective harassment to which he claimed to have been subjected in the predominantly Christian environment of the Philippines by his in-laws was because of his religious beliefs, and that this failure was sufficient to ground judicial review of the Tribunal's decision. The applicant further claims, in particular taken from his written submissions, that the government of the Philippines cannot protect him and that the “NBI” (the Philippines Security Service) and the “Philippines National Police” (“PNP”) detained him and persecuted him because he was a Muslim. To the extent that this is a complaint that the Tribunal failed to consider the applicant's claims to have been subjected to constant systematic and selective harassment by his in-laws then I have already dealt with that aspect of the applicant's complaint above.

8. But the applicant also complained that the government of the Philippines could not protect him and that the Philippine authorities persecuted him because of religious reasons. It is clear that this aspect of the applicant's claims was included in his application for a protection visa: see CB 55.9. The applicant made claims that he could not return to the Philippines because the Philippines government considered Muslims from Pakistan to be terrorists. This is repeated in his application for review to the Tribunal (CB 69.9), and the Tribunal itself records in its decision record that in his protection visa application, amongst other issues, the applicant claimed (CB 94.7 – at the last three dot points at that page) that he could not return to the Philippines because the government of the Philippines considers all Muslims to be terrorists. Further, that the applicant was interrogated twice by the “NBI” and other law and security enforcement agencies. However, in its “Findings and Reasons” the Tribunal states at CB 100.8:

   “However the applicant did not claim that he has ever suffered serious harm at the hands of the authorities in the Philippines.”

   It is clear that this is a mistake on the part of the Tribunal. Clearly the applicant did claim (as is conceded by Ms. Wong for the respondent) to have experienced harassment by the “NBI” and the “PNP”. Ms. Wong submitted however that such an incorrect finding of fact is not sufficient by itself to demonstrate jurisdictional error and relies on:

   §  Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [31]:

   “A further aspect of the contentions should be observed about this issue. It was argued that it would amount to jurisdictional error if the Tribunal made a wrong finding of fact, namely that the ‘increased vigilance of the authorities [in the case of] revived hostilities would be sufficient to meet the appellant’s need for protection’. The argument ran that there was insufficient evidence to support that finding. The contention was based upon the observations of Lord Clyde in Reid v Secretary of State for Scotland [1999] 2 AC 512 at 541 in which his Lordship indicated that jurisdictional error may be demonstrated through a legal deficiency including the absence of evidence or the insufficiency of evidence to support the decision. Kirby J in Re Minister for Immigration & Multicultural Affairs ex Parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at 1193, [167] (Applicant S20/2002) suggested that the availability of constitutional writs in Australia should adapt to afford protection as comprehensive as that now regarded as available in England. We do not think the judgments of the other judges in Applicant S20/2002 support that proposition. There may appear circumstances in which a decision of an administrative decision-maker appears so unreasonable that no reasonable decision-maker could have come to it. In that circumstance, jurisdictional error may be established if such a conclusion is reached, because it is then inferred from the nature of the decision that the administrative decision-maker applied the wrong legal test in making the decision or was not, in reality, satisfied in respect of the correct legal test in making the decision: see e.g. Applicant S20/2002 per Gleeson CJ at 1168, [9], and per McHugh and Gummow JJ at 1171-1172, [35]-[36]. Indeed, it is plainly established by the High Court that there is no jurisdictional error simply in making a wrong finding of fact: see e.g. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. See also per Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 at 187.”

   §  NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 (“NAAP”) at [37]:

   “It cannot therefore be said that the Tribunal's rejection of the appellant's account of the events of March 2000 was irrational. It resulted from a detailed examination of the material before the Tribunal. The erroneous finding of fact in relation to the genuineness of the summons does not undermine the conclusion. It certainly does not require that the rest of the probative material and the reasoning on which the Tribunal relied be disregarded. Whatever is the meaning of "unreasonableness as to jurisdiction", it cannot consist of a single erroneous finding of fact, constituting one of several factors leading to a conclusion, which in turn has led to a failure of the Tribunal to be satisfied that the appellant fulfilled the requisite criteria.”

9. NAAP establishes that there is ultimately no jurisdictional error in circumstances where a single erroneous finding of fact constitutes only one of several factors leading to a conclusion, which in turn has led to the Tribunal not being satisfied that an applicant fulfilled the requisite criteria for a protection visa. In the case before me, whatever error may have occurred on the part of the Tribunal in relation to the assessment of the applicant's circumstances in the Philippines, the Tribunal’s clear finding that if the applicant had genuinely feared persecution in the Philippines for whatever reason he would have returned permanently to his home country being Pakistan (CB 100.9), is clearly not affected by the erroneous finding of fact that the applicant did not claim (when he had) that he had suffered serious harm at the hands of the authorities in the Philippines. The Tribunal's finding in this regard is not affected by any jurisdictional error and stands separately from whatever findings were made in relation to the situation in the Philippines. Further and importantly, as I have set out above, whatever the applicant's situation in the Philippines, he was only a Pakistani national, he was not stateless and ultimately it is the situation in Pakistan which is determinative of the applicant's claims for a protection visa. This ground also therefore cannot succeed.

10. The applicant also complains that the Tribunal used critical adverse information obtained after the delegate’s decision which was not provided to the applicant before the Tribunal hearing, nor put to the applicant during the hearing. The applicant does not say what this adverse information is. A plain reading of the Tribunal's decision record shows, and in particular in its “Findings and Reasons”, that the Tribunal relied on the material and evidence provided by the applicant himself to base its decision. I cannot see that it relied upon any independent country information. The only other references in its “Findings and Reasons” to other information is a reference to the “UNHCR Handbook on Procedures and Criteria for Determining Refugee Status” with a reference that appears not to be adverse to the applicant, that is, that he should be given the benefit of doubt, and a reference to an unreported case before the Federal Court, but again to draw the authority that it is for the Tribunal not only to consider inconsistencies, but also to determine what evidence it finds credible. None of this appears to be adverse, in the sense that it would need to have been specifically put to the applicant. In any event, both sources predated the delegate’s decision.

11. The respondent also submitted (with the effect of the recent High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and the dicta of the Court in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 in mind) that the Tribunal did note that the applicant had not claimed in his protection visa application to fear persecution in Pakistan because he was a Shia Muslim. The respondent submitted that such a reference to an omission in the primary visa application did not trigger any breach of s.424A of the Act because it was not information for the purposes of s.424A: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (“VAF”) and WAGP of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276. Ground 4 does not disclose any jurisdictional error.

12. Linked to the issue of being given the opportunity to comment, in his subsequent written submissions the applicant also claims that the Tribunal breached the requirements of s.424(1)(a). I took this to be a reference to s.424A(1)(a) in that he claims that it did not provide him with an opportunity to comment. The applicant appears to assert that this opportunity should have been provided by letter sent by the Tribunal to the applicant to seek clarification from the applicant of the doubts that the Tribunal had formed about his claims while assessing these claims. Clearly, within the applicable statutory context, part of the Tribunal's subjective thought process about, or its qualitative assessment of, information provided by the applicant, and put before the Tribunal, is not information for the purposes of s.424A(1) of the Act. See Tin v Minister for Immigration and Multicultural Affairs[2000] FCA 1109 at [53] per Sackville J.; Paul v Minister for Immigration and Multicultural Affairs[2001] FCA 1196 at [95] per Allsop J. An impression formed by the Tribunal in respect of the material otherwise put before it pursuant to s.418(3) of the Act is not information within the meaning of s.424A(1): per Branson J. in NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 1010 at [4] to [9].

13. Further, the applicant submitted that the Tribunal failed to provide the opportunity for him to comment pursuant to s.424B of the Act. In this regard I note there is no obligation on the Tribunal to provide such an opportunity pursuant to s.424B of the Act. This section which governs the procedure by which the Tribunal is to deal with any invitation to an applicant to give additional information or comments. There is however, nothing in this section to provide that this is a mandatory provision to be applied in each and every case, nor can I see that there was any obligation on the Tribunal by way of, for example, having given some indication to the applicant that it would act in this way, to have proceeded pursuant to s.424B. This complaint also does not assist the applicant.

1. The applicant's fifth stated complaint in the further amended application is that the Tribunal misapplied “the test” or alternatively misinformed the applicant about “the test”. The applicant makes no reference in his further amended application to exactly what test he is referring to. Further, in the subsequent written submissions there is again no direct or clear reference to any failure by the Tribunal to apply any particular test or any misinformation given to the applicant about any particular test. However, what perhaps can be discerned from the submissions is the allegation that the Tribunal misapplied the test of well founded fear of persecution for a Convention reason as amended or understood within the context of s.91R of the Act. The applicant's submissions are not clear as to exactly how the Tribunal misapplied this test. In one sense, the applicant's complaints appear to be that the use of the term “failed to consider” really amounts to “failed to accept or believe” and is therefore in that sense seeking impermissible merits review.

2. However, there is one reference in the submissions in relation to Pakistan that may have been meant as an example of what the applicant claims to be the Tribunal’s failure to properly apply “the relevant test”. At page 3 of the further earlier amended application the applicant claims that in his amended application of 30 December 2004, provided to this Court, he has clearly stated:

   “BECAUSE OF RACE: My Ex-fiancée family belongs to N.W.F.P. They are Pathan and very strict in their custom and tradition. They will persecuted me or kill me, as they have threatened me before, and it will happen because of the difference of their race and the mine.”

   Matters going to the merits of his refugee claims put in previous amended applications to this Court are not relevant to show jurisdictional error on the part of the Tribunal. What is critical in this regard was what was put before the Tribunal, and whether the Tribunal misapplied the relevant test in the context of what was before it.

3. In relation to the applicant's claims relating to his ex fiancé’s family, in his protection visa application he said (CB 55.5):

   “My fiancé’s parents belong to N.W.F.P and they are very strict in their customs and traditions.”

   In his application for review to the Tribunal (CB 69.5) the applicant stated:

   “They (the ex fiancé’s family) belong to N.W.F.P and they are very strict in their customs and traditions. Because of this fear I cannot go back to Pakistan and under this circumstances of race I am a refugee.”

   In its recounting of the applicant's claims and evidence the Tribunal relevantly records at CB 94.2 that in his application for a protection visa the applicant claimed:

   “They threatened that they would kill him in cold blood if he refused to marry his former betrothed. His former fiancé’s family belongs to the N.W.F.P and are very strict in their customs and traditions.”

   Further the Tribunal recorded at CB 95.3 that:

   “In his application for review the applicant claimed that he is a refugee because:

   … 4. On the basis of both his religion and race it is impossible for him to live in Pakistani.”

   Even further, the Tribunal's account of what occurred at the hearing with the applicant in relation to this issue, which I again emphasise is unchallenged before me by any other evidence to the contrary, is at CB 98.4:

   “The Tribunal advised that troubles with his in-laws did not make him a refugee. The Applicant’s responded: “That’s fine. There are two other reasons why I am a refugee”: (1) the Philippines is “anti-Muslim and (2) he can't return to Pakistan because of the end of 2002, on his visit to Pakistan at that time, his Pakistani “in-laws” found out that he was already married with children and so attacked his family home, forcing his sister and mother to flee to Karachi. The Applicant said he could not go and live in Karachi with his mother and sister because his former fiancée also had relatives in Karachi.

   The Tribunal advised the Applicant that these problems were of a personal nature and did not entitle him to refugee status. The Tribunal reminded the Applicant that in refusing the Applicant's primary visa application, the delegate had also reached the same conclusion.”

   The Tribunal's reference to what was in the delegate’s decision on this point is at CB 65.5. This must be read in the context that the delegate had found that as a citizen only of Pakistan the applicant’s claims were to be considered against Pakistan only:

   “4.3 The circumstances described by the applicant have not arisen because of his race, religion, nationality, political opinion, or because of his membership of particular social group. His claimed circumstances arose because of a dispute he has had with the family of a girl in Pakistan to whom he was engaged; this claimed dispute arose as a result of his failure to inform them that he was married to a girl in the Philippines. He does not claim, nor is there any reason to believe, that he was singled out for adverse treatment for a Convention reason.

   4.4 The applicant therefore makes no claims which are related to the Convention, and he has presented no evidence which prompts further inquiry as to whether or not his circumstances may be Convention related.”

4. The applicant's claims to the Court now, that the family of the ex fiancé are Pathans, and that what will happen to him on return to Pakistan will happen because of the difference of their “race and mind”, appears to be an embellishment, or at best an emphasis, that was not put before the delegate or importantly before the Tribunal. Whatever the situation, it is quite clear from what is set out above that the Tribunal did look at the applicant's claims as put by the applicant in this regard. With reference, by way of further explanation to the applicant, to the delegate’s finding and conclusion, the Tribunal advised the applicant at the hearing that the view that it took of these matters was that these problems were of a personal nature and did not entitle him to refugee status. It is in that context that the Tribunal made its finding at CB 100.2 that there was no Convention nexus to this claim.

5. But in any event, the Tribunal found on a separate basis, that the applicant's claims to a well founded fear of persecution in Pakistan at the hands of his former fiancé’s family were implausible. The reasons that it gave (CB 99.9 to CB 100.1) centred on the passage of years since he was “purportedly promised to this lady” (over 12 years), his long standing marriage to a Filipino woman, his residence in the Philippines for over a decade and his frequent return trips to Pakistan. The Tribunal clearly considered the applicant's claims as put by the applicant and found that there was no Convention nexus, having previously set out that it understood the basis of the applicant's claims to be both on the grounds of religion and race. As a separate finding found that the claim to fear harm, particularly given the passage of the years since he was first promised to the ex fiancé, to be implausible. These findings, on what was before it, were open to the Tribunal and it gave reasons for its findings.

6. To the extent therefore that the applicant claims generally now that the Tribunal “misapplied the test”, and that this relates to consideration of the claims in the Philippines, then again the Tribunal found against the applicant on a quite separate and independent basis that he would have returned to Pakistan if he had genuinely feared persecution in the Philippines. In any event, as I have emphasised above, any error in the misapplication of the test as it related to the Philippines would not assist the applicant. In relation to Pakistan, in his written submissions, the applicant makes reference to SZDTQ v Minister for Immigration & Multicultural & Indigenous Affairs[2005] FCA 867 and SZAYT v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 857 as authority for the proposition that the Tribunal failed to consider whether there would be a real chance that the applicant would be persecuted if he were to return to his home country, and that the Tribunal failed to assess the applicant's “risk to life” pursuant to s.91R(2)(a) of the Act. While these cases may stand (at least in part), as authority for the propositions that the applicant is asserting, the applicant has not shown how there was any failure on the part of the Tribunal in the case before me to consider whether there would be a real chance that the applicant could be subject to persecution if he were to return to Pakistan, and that the Tribunal failed in any way to understand the term “persecution” within the context of s.91R of the Act. It is clear, as I have already stated, that in relation to Pakistan the Tribunal looked at the applicant's claims both in relation to how they arose out of the issues with his former fiancé’s family, and in relation to his claims to fear persecution in Pakistan because he was a Shia Muslim. The Tribunal dealt with both of those issues. I can see no “misapplication” of the relevant test.

7. The applicant's sixth ground of complaint in the further amended application asserts that the Tribunal’s reasoning was irrational or illogical and he seeks to rely on Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59 (“Applicant S20/2002”). While Applicant S20/2002 does provide some basis for illogicality as a ground of review, it is clear VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 [16]-[19] is authority for the proposition that illogicality would not of itself suffice to show jurisdictional error. But whatever the state of the law there is nothing before me to the show that the Tribunal engaged in any irrational or illogical decision making in reaching its ultimate conclusion. Nor does the applicant say how the Tribunal's reasoning could be labelled as irrational or illogical. This ground also is not made out.

8. Ground eight in the applicant's further amended application asserts that the Tribunal failed to consider all of the applicant's claims and issues put forward by the applicant. In relation to Pakistan, beyond the issue dealt with above relating to Pathans and the differences of race in Pakistan, the applicant has put forward no particulars whatsoever to say what other claims were not considered by the Tribunal.

9. On what is before me it is clear that the Tribunal considered all of the applicant's claims as put in relation to his fear of returning to Pakistan, and made findings that were open to it on the material before it. Its conclusion that he did not have a well founded fear of persecution should he return to Pakistan was based on those findings. I can see no error let alone jurisdictional error in the Tribunal's decision as it relates to the situation in Pakistan, which is the only country of nationality of the applicant. Whatever error was contained in the Tribunal's assessment of the situation in the Philippines, this would not assist the applicant, as the separate and independent finding of the Tribunal was that the applicant would have returned to Pakistan if he had genuinely feared persecution in the Philippines. This would, in any event, (even if the Philippines had been a country of claimed nationality which it is not), have been sufficient for the Tribunal to have affirmed the delegate’s decision. The application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date:  1 December 2005