SZGTF v Minister for Immigration
[2008] FMCA 806
•19 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGTF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 806 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether s.424 of the Act constrained by s.427 – whether rationale of s.427 is to protect privacy of refugee claimants – whether breach of s.427(1)(d) – whether Secretary of Department, not employee of Tribunal should have conducted overseas enquiries – whether alleged ‘unauthorised’ investigation by first Tribunal tainted present Tribunal’s consideration of applicant’s claims – bias – applicant must make out own case – procedural fairness – whether sur place claim arises where information obtained from applicant’s country of origin – whether failure to consider alleged sur place claim. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 422B, 424, 424A, 427, 438, 439, 440, 474 |
| Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 Abebe v Commonwealth (1999) 197 CLR 510 SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 |
| Applicant: | SZGTF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3150 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 12 May 2008 |
| Date of Last Submission: | 12 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms F Berglund |
| Solicitors for the Applicant: | HIV/AIDS Legal Centre |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The application filed on 10 October 2007 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,500 payable within six (6) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3150 of 2007
| SZGTF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 20 September 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
Background
The applicant was born on 1 January 1968. He claims to be a national of Pakistan and of Islamic faith.
The applicant arrived in Australia on 12 September 2003 on a Temporary Business passport issued in his own name.
The applicant lodged an application for a protection visa on 24 October 2003 on the basis of his fear of persecution for his political opinions if he were to return to Pakistan. He claims that he had been involved in organisations and activities promoting the advancement of the position of women in Pakistan and that as a result he had been targeted, so that by 9 June 2003, a fatwa had been issued against him by Islamic scholars. He claims to have lived underground in Pakistan from about April 2001 until his departure for Australia.
On 18 November 2003 the delegate refused to grant the applicant’s protection visa on the basis that he was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 1 December 2003 the applicant applied to the Tribunal, differently constituted (the first Tribunal) for review of the delegate’s decision. The first Tribunal hearing was held on 11 May 2004. On 22 December 2004 a second hearing was held “in view of the apparently conflicting information contained in the protection visa application, the business visa application and the responses of the Aurat Foundation and DADO [see below], [the first Tribunal] decided to hold a further hearing” (CB 227).
I accept that the first respondent in its written submissions accurately summarises the interim relevant background between the first and second hearings in regard to the first Tribunal proceedings, as follows:
a)On or about 31 August 2004 a letter was sent under the letterhead of the Tribunal, by Taran Ramrakha, a “Senior Researcher” of the Tribunal to the Dir Area Development Organisation (or DADO) in Pakistan.[1] The letter indicated that the Tribunal was “presently assessing the asylum claims of a Pakistani citizen, [being the Applicant]”. The letter disclosed personal information of the Applicant and asked certain questions pertaining to the Applicant.
[1] GB at 72-73
b)Similar letters were sent to the Human Rights Commission of Pakistan[2], the Revolutionary Association of the Women of Afghanistan in Pakistan[3], and the Aurat Publication & Information Service Foundation in Pakistan[4].
c)Responses were received from the Aurat Publication and Information Service Foundation indicating[5] that ‘[t]hough we are not a direct witness to the activities of [the Applicant], but we had heard of his organisation and activities during [a country wide campaign in 2000 – 2001 motivating female participation in local elections]’. The response also indicated that ‘the area he hails from is the stronghold of the religious elements...[who] have always obstructed those who work for the women’s rights’.
d)A response was also received from DADO[6] indicating that ‘DADO know the applicant and his activities as a Social activist supporting women...[as] the first person in this rigid and hard area who took the initiative of forming women Organization for the right of women with his wife...’. That response also indicated that DADO was aware that the Applicant and his organization went underground.
e)A document contained (at GB 82), appearing to be a record of file notes made in respect of the Applicant’s application for review in the Tribunal, discloses:
30/8/04 An elderly male called to dob-in for the applicant. He didn’t give his name or any identity and requested not to tape his voice. He said the appliant [sic] is a Govt Servant here (it sounded he was calling from overseas) and he is a high-school teacher. When I asked him what does he mean by ‘here’, where he was calling from. He said please don’t ask that. Further he said the applicant has no problem here, he has taken one year sick leave, when he will come back he has a job here. He has involvement in the Union also and he is a criminal. He has made a false storey [sic] to NGO and to the Tribunal. I told him that I will pass this information to the Member but can’t gaurantee [sic] that Member will make a negative decision based on this information alone. he said that is OK. but whatever he is telling is the ‘truth’. D Khubchandani
f)Another entry is dated 9 December 2004 and records that a person rang stating an intention to ‘provide information about the applicant’ and was told that ‘this may be provided to the Tribunal in writing’ and that ‘anonymity may not be guaranteed’.
g)A letter apparently issued under s.424A of the Act, was sent to the Applicant on or about 6 January 2005.[7] The letter indicated, inter alia, that the Aurat Foundation was ‘not directly aware of your activities’ and that a claim that the Aurat Foundation had previously used a different name was ‘inconsistent with information provided to the Tribunal by the Aurat Foundation’. No further particulars were offered of that information.
h)On 16 February 2005 a further letter, also apparently issued under s.424A of the Act, asked the Applicant to comment on information that a ‘high level of document fraud’ was prevalent in Pakistan.
i)On 22 February 2005 a further letter, also apparently issued under s.424A of the Act, was sent asking the Applicant to comment on ‘an anonymous telephone call (apparently from overseas)’ that indicated ‘you had no problems in Pakistan, that you had taken twelve months sick leave and had a job to return to, that you were involved with the union in Pakistan, that you are a criminal and that your claims are false’.[8]
j)The first decision was then made on 30 May 2005 (“the First Decision”).
[2] GB at 74
[3] GB at 75-76
[4] GB at 77-78
[5] GB at 79
[6] GB at 80
[7] GB at 84
[8] GB at 128
The applicant sought review of the first Tribunal’s decision from the Federal Magistrates Court which, on 31 January 2007, set aside the decision of the first Tribunal and remitted the matter to the Tribunal to be determined according to law.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular 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.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
Prior to the Tribunal hearing on 14 June 2007, the Tribunal received material from the applicant’s adviser (CB 232).
On 13 April 2007 the Tribunal sent a letter to the applicant inviting him to appear before it on 14 June 2007 to give oral evidence and present arguments.
The applicant attended the Tribunal hearing with his adviser and with the assistance of an Urdu interpreter. The Tribunal also received oral evidence from Mr Sheraz Khan. The Tribunal hearing was then adjourned, prior to which the Tribunal sent a s.424A letter to the applicant on 18 June 2007 (the first s.424A letter). The applicant sent a response on 18 June 2007 (CB 187-189).
After the continuation of the Tribunal hearing on 5 July 2007, the Tribunal sent the applicant a further s.424A letter on 13 July 2007 (the second s.424A letter) (CB 241–242).
On 23 July 2007 the Tribunal received a response from the applicant’s adviser (CB 242–244) and on 9 August 2007 it received further material from the adviser (CB 244–245).
The Tribunal’s findings and reasons (CB 245–249)
The Tribunal made the following findings, including that:
·the Tribunal formed the view that the applicant lacked credibility and his claims could not be accepted
·his evidence was inconsistent, contradictory and implausible. The Tribunal pointed to a series of such contradictions, inconsistencies and implausibilities which led it to conclude that the applicant was not truthful or credible (CB 245-248)
·the Tribunal was not satisfied that the applicant was suffering from any health problems such that they impeded his ability to give evidence before the Tribunal
·overall, the Tribunal was not satisfied that:
othe applicant has suffered any persecution in Pakistan prior to arriving in Australia in 2003
othe applicant was falsely charged with criminal offences and held in custody by the Pakistani authorities
othe applicant has been accused by Islamists of being an infidel or that he wrote and sought to publish a booklet advocating women’s rights in his area of Pakistan
oa fatwa has been issued against him
·the Tribunal accepted that the applicant lived in his village and worked for a non-government organisation and was of the view that he held that position until he departed Pakistan in September 2003.
In conclusion the Tribunal found that:
Overall, the Tribunal does not accept that the applicant was forced into hiding from April 2001 until his departure from Pakistan in September 2003 because of a fear of persecution from Islamic fundamentalists. The Tribunal is not satisfied that the applicant was arrested, charged or detained in relation to false charges about a Mosque incident in April 2001 or that a fatwa was issued against him. The Tribunal is not satisfied that the applicant stands at risk of suffering serious harm in the reasonably foreseeable future if he returns to Pakistan.
Accordingly, the Tribunal is unable to find that the applicant has a well-founded fear of persecution for a Convention reason (CB 249).
The proceedings before this Court
The applicant filed the application in this Court on 10 October 2007 setting out 2 grounds of review of the Tribunal’s decision.
Ms Berglund of counsel appeared for the applicant before this Court on 12 May 2008. Mr Lloyd of counsel appeared for the first respondent.
Grounds of application
Ground 1 of the application
Ground 1 of the application states that:
(1)The Decision was void for jurisdictional error in that the Tribunal relied, in part, on information obtained by the Tribunal, when differently constituted [the first Tribunal], acting beyond its powers and contrary to the Act.
Particulars:
(a)In about November 2004, the [first] Tribunal conducted an investigation of the Aurat Foundation into the claims made by the Applicant in this application;
(b)The [first] Tribunal did not require the Secretary to arrange for the making of an investigation contrary to s.427(1)(d) of the Act.
(c)The [first] Tribunal did not receive a report of that investigation contrary to s.427(1)(d) of the Act.
(d)The Tribunal in its decision relied on the information the Tribunal, differently constituted, [the first Tribunal] had obtained when acting contrary to s.427 of the Act.
Ground 1 relates to four letters sent on 31 August 2004, at the request of the first Tribunal by Taran Ramrakha, Senior Researcher, Country Research, Refugee Review Tribunal, to various organizations in Pakistan. The letters were sent to:
a)the Dir Area Development Organisation (‘DADO’), asking whether DADO was aware of the Applicant and his activities, the Haqoq Harteen organization or the Social Welfare Organisation for the Women of Dir;[9]
b)the Human Rights Commission of Pakistan, asking whether the Commission was aware of an organization called the Democratic Human Rights Commission of Dir;[10]
c)the Revolutionary Association of the Women of Afghanistan (‘RAWA’), asking whether RAWA was aware of the Applicant and his activities, the Haqoq Harteen organization or a booklet published in the late 1990s entitled ‘New Society and Women’s Dignity’;[11] and,
d)the Aurat Publication and Information Service Foundation (‘APISF’), asking whether APISF was aware of the Applicant and his activities or the Haqoq Harteen organisation, whether APISF was previously known as Haqoq Khawateen-e Pakistan and whether APISF had any record of a booklet entitled ‘New Society and Women’s Dignity’.[12]
[9] CB 72-73.
[10] CB 74.
[11] CB 75-76.
[12] CB 77-78.
The applicant submits that:
·the powers of the Tribunal set out in s.427(1)(d) of the Act should have been followed. They were not, in that the Secretary was not required to arrange for the making of an investigation. The first Tribunal, rather, through its employee conducted its own investigation and then proceeded to act on that information to try to obtain further information from the applicant
·that process was carried out in a manner that was directly contrary to the procedure provided for in s.427(1)(d). The result is that an inference arises that what the Tribunal has done was unauthorized by the Act: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381
·the applicant was, in effect, caught by total surprise by the process of the investigation by the Tribunal (which would not have occurred if the authorised process under s.427(1)(d) had been adopted), and information obtained by that process, adverse to him, was used without his first receiving an opportunity to comment upon or contradict that information
·had the procedure required by s.427 been followed then the applicant's privacy would have been more properly contained. Use of information obtained by that process would not have been “put out there’ without him first receiving an opportunity to comment upon it
·the subsequent review by the present Tribunal was “infected by” the first Tribunal’s failure to follow the correct procedure. The whole process was affected by the information obtained by unauthorised means. The subsequent review by the present Tribunal could not have removed the possibility that it was affected by the information obtained by unauthorized means: Stead v State Government Insurance Commission (1986) 161 CLR 141. The material was on the record and so the applicant was prejudiced by it: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
·in the circumstances, there has been a denial of procedural fairness because of the departure from the procedure required by s.427 which exists to protect the privacy of applicants, particularly in circumstances where “that may give rise to additional difficulties even on top of the original difficulties which led them to seek refugee status.”
The applicant thus submits that:
… the protection of applicants is a primary concern throughout the whole process of Refugee Reviews … It's a fundamental assumption in our system that someone is entitled to the protection on the basis of a claim, they don't have to prove their claim in order to obtain that protection. We assume that they're entitled to it and that that would be the purpose of section 427, that the secretary would have a greater understanding of how to go about making investigations in such a way that that protection is afforded to the applicant.
…s.427 is a way of ensuring that s.424 is not breached, and that in this case 424 has been breached and that … had s.427 been followed, it may not have been.
… In the circumstances, the departure from the procedure mandated by s.427(1)(d) involved a denial of procedural fairness not covered by s.422B of the Act.
The applicant contends that the situation is indistinguishable from the internet search found to be in breach of s 424A of the Act in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174, except that in this instance the disclosure of the personal information had the capacity to alert authorities not previously aware of the political opinions of the applicant. That disclosure, it submits:
… was contrary to the very essence of the protection obligations owed to a refugee and is forbidden by the Act, disclosing a possible criminal offence under s 439 of the Act.
The result of the investigations is that the conduct of the review miscarried and any subsequent decision was tainted by that conduct and accordingly ought to be set aside.
Section 427 of the Act provides that:
SECT 427
Powers of the Refugee Review Tribunal etc.
(1)For the purpose of the review of a decision, the Tribunal may:
(a)take evidence on oath or affirmation; or
(b)adjourn the review from time to time; or
(c)subject to sections 438 and 440, give information to the applicant and to the Secretary; or
(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
(2)The Tribunal must combine the reviews of 2 or more RRT‑reviewable decisions made in respect of the same non‑citizen.
(3)Subject to subsection (4), the Tribunal in relation to a review may:
(a)summon a person to appear before the Tribunal to give evidence; and
(b)summon a person to produce to the Tribunal such documents as are referred to in the summons; and
(c)require a person appearing before the Tribunal to give evidence either to take an oath or affirmation; and
(d)administer an oath or affirmation to a person so appearing.
(4)The Tribunal must not summon a person under paragraph (3)(a) or (b) unless the person is in Australia.
(5)The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true.
(6)A person appearing before the Tribunal to give evidence is not entitled:
(a)to be represented before the Tribunal by any other person; or
(b)to examine or cross‑examine any other person appearing before the Tribunal to give evidence.
(7)If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.
Section 424 of the Act provides that:
SECT 424
Tribunal may seek additional information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3)The invitation must be given to the person:
(a)except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b)if the person is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
I do not accept the applicant’s submissions on these matters.
Firstly, the applicant’s assertion that the rationale of s.427, per se, is to protect the privacy of refugee claimants, is not born out from the construction of the provision as a whole. Whilst ss.(1)(a) and (b), for example, (which provide respectively for evidence to be taken on oath or affirmation and for the adjournment of a review), deal with matters that may protect issues of procedural fairness, it is difficult to see how they could ever be construed as protective of privacy provisions. Likewise, ss.(3)(a) and (b) which provide for persons to be summoned to appear before or produce documents to a Tribunal cannot be construed to protect the privacy of refugee applicants. To import a privacy protective rationale into the language of ss.(1)(d) and s.427 as a whole, as the applicant contends, is thus not borne out by a proper construction of the provision and the Act.
I accept the first respondent’s submission in this regard that:
… there's nothing in the Act which supports the proposition, there's no extrinsic materials, there's no case that suggests that the purpose of this provision [s.427] is to protect applicants.
In my submission it is what it appears to be: a tool that is available to the Tribunal to facilitate investigations to be made - and nothing more, nothing less; but the focus appears to be on medical examinations, and a Secretary, unlike the Tribunal, may be better placed to arrange medical examinations because the secretary has Commonwealth medical officers that are available to the Department and regularly used by the Department, for anyone who gets a visa has to pass public health tests. So that's the kind of thing that it has in mind. There's nothing whatsoever, in my submission, in that section which suggests that it's a limitation on the Tribunal's power to ask questions.
Furthermore, there are express provisions in the Act whose clear rationale is to protect the privacy of applicants for protection visas, including s.429 (which provides a mandatory requirement for Tribunal hearings to be conducted in private); and s.439 (which provides in certain circumstances for a criminal offence for disclosure of confidential information).
Secondly, I do not accept that s.424 of the Act is constrained by s.427(1)(d) in the way that the applicant suggests. Section 424 provides broad powers for a Tribunal to obtain additional information, including from third parties.
There is nothing in the Act itself to suggest that these broad powers in ss.424(1) and (2) should be qualified in any way by s.427(1)(d), as the applicant contends, in particular to import a privacy protection rationale into its construction. Furthermore, as submitted by the first respondent, the historical introduction of the two provisions would mitigate against such a construction (where s.427 came into effect in 1994; whereas s.424 in its present form had its genesis in 1998):
… apart from the fact that there's no textual basis even to see an inconsistency, ... there is also no historical basis. If there was an historical basis … s.424 would override s.427 to the extent of an inconsistency, not the reverse.
Thirdly, s427(1)(d) is a permissive provision. It cannot therefore be construed as placing any positive obligation on the Tribunal to have recourse to it. Nor can it be construed as the only way in which the Tribunal may obtain information from third parties, in particular given the very general power in s.424, referred to above, as well as under s.428 of the Act which provides for the Tribunal authorising a public servant to take evidence on its behalf, including outside Australia. I accept the submission of the first respondent on the point that:
Paragraph 427(1)(d), like the other paragraphs in that subsection, simply confers power on the Tribunal to facilitate its function but not in an exhaustive manner.
There is no basis to construe s.427(1)(d) as the exhaustive means by which the Tribunal can acquire information. Section 422B does not say this or have this effect. There is no basis for contending that there was a breach of s.427(1)(d).
Fourthly, whilst the Tribunal may choose to exercise its information-gathering powers under s.424, s.427(1)(d) and s.428, it is well-settled that a decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL at [40]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] and [1]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73].
Indeed, an applicant will have to supply the relevant facts of his or her case in as much detail as is necessary to enable the Tribunal to establish the relevant facts. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As further observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Fifthly, I do not accept the applicant’s assertion that any error of procedure by the first Tribunal in seeking and obtaining the information from the relevant third parties in Pakistan has had any contaminating or flow on effect on the deliberations of the present Tribunal.
In this regard, no transcript of the Tribunal hearing has been put before the Court to demonstrate any actual or perceived tainting of the Tribunal’s reasoning processes either in the manner or choice of questions put to the applicant. Similarly, there is nothing disclosed on the face of the Tribunal decision record which would support such an assertion. Further, no precise particulars have been provided by the applicant to identify where the tainting effect is said to have occurred, other than a general allegation in this regard.
It is instructive in the present context that the first Tribunal sent a s.424A letter to the applicant in accordance with the Act and thus gave the applicant an opportunity to respond to or comment on its concerns in regard to inconsistencies between his claims and the information obtained from the third parties. In any event, the decision of the first Tribunal was set aside.
The present Tribunal obviously did not consider that the information from Pakistan was of sufficient weight to be in any way determinative of the applicant’s credibility. In these circumstances, it is difficult to accept the proposition that the Tribunal’s reasoning process was tainted by this information. I accept the first respondent’s submission that:
The first Tribunal saw it as inconsistent and sent him out a 424A notice … The second Tribunal makes no use of the information. In setting out all of its adverse credibility findings it doesn't refer to it, and the only reason it perhaps even has to deal with it at all is because the applicant refers to it as being corroborative evidence.
To the extent that the applicant’s submission amounts to an allegation of bias on the part of the Tribunal that it did not bring a fresh mind to the task undertaken, it is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69]. This has simply not been done in the present case.
I further note the observations by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.” His Honour further relevantly observed at [38]:
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. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
In order to establish bias the applicant would need to demonstrate that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [56]-[59]. Again, the applicant has failed to demonstrate where any such acts are said to occur.
I am further satisfied that there is nothing on the face of the decision record to show that a “hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process: Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [28], (and see further under ground 3 below).
I am satisfied therefore that no allegation of bias, whether actual or apprehended, can be demonstrated on the face of the Tribunal decision record. Indeed, far from demonstrating bias on the part of the present Tribunal, or some tainting effect from the information received by the first Tribunal, the procedure adopted by it in this case, of inviting the applicant to a hearing and a further adjourned hearing; with s.424A letters sent to the applicant after each hearing; and its then considering the applicant’s responses to each letter, militates against any claim of pre-judgment on its part or that it embarked on the task before it with a mind not open to persuasion.
I accept the submission by the first respondent in this regard that:
Any error of procedure made by [the first Tribunal], at least one of this kind, does not permeate and infect with procedural error decisions of the … Tribunal (at least where, as here, the decision of the [first] Tribunal was set aside). The … Tribunal gave no apparent weight to the responses received by the first Tribunal. If a procedural error by the [first] Tribunal infected all subsequent decisions with jurisdictional error, it would be impossible for the Tribunal to undertake its statutory function.
Sixthly, it follows from the above that I do not accept the applicant’s submission that an inference may be drawn that the first Tribunal obtained the information by “unauthorised means” (by using its employee rather than the Secretary of the Department to obtain the information). Even if I be wrong in this regard, I accept the submission by the first respondent that a breach of s 427(1) is not “a jurisdictional error. The language of the subsection is permissive. It is not expressed as stating pre-requisites to the valid exercise of decision-making power.”
Seventhly, the applicant did not object to the first Tribunal obtaining information from the third parties (see CB 226). This information was only sought from those in Pakistan who might support or assist his claims. The applicant also made no complaint about the present Tribunal receiving this information. Indeed, the applicant clearly considered it to be corroborative of his claims. As stated in the applicant’s combined submission (following the Tribunal hearing) and response (to the second s.424A letter) of 20 July 2007:
[The applicant] has also sought to clarify the inconsistencies identified by this Tribunal and the first Tribunal. His efforts in this regard ought not to be disparaged as they were by the first Tribunal who stated that his evidence “was changed at any time he thought that it would advantage him to do so with little regard to the truth”. With the utmost respect to the first Tribunal, it treated corroborative evidence it obtained through its own investigations in a manner prejudicial to [the applicant]. I am here referring to DADO’s supporting correspondence and that of the Aurat Foundation [emphasis added] (CB 206).
The Tribunal clearly had regard to the applicant’s above response to which it expressly referred (at CB 244).
In these circumstances, it is difficult to accept that the applicant’s privacy was breached, or that he was in any way prejudiced or caught by surprise, as is now contended. I accept the submission by the first respondent in this regard that:
… in this context, where the applicant alleges that there's corroborative evidence … an extremely technical point is taken that section 427 provides a limitation on the Tribunal's power. In my submission 427 doesn't do that … the [first] Tribunal is required to maintain privacy of the applicant in various ways, but one of the things it's allowed to do is use this information for the purposes of the review, which is all that it did. It didn't do it in a surprising way, it did it with his agreement and knowledge.
The [first] Tribunal asked the applicant if he had any objection to the Tribunal contacting people in Pakistan to confirm his claims. The applicant indicated he had no objection.
Finally, I do not accept the applicant’s assertion that the present case is indistinguishable from the decision in NBKS. NBKS was clearly concerned with an internet search which was found to be in breach of s.424A. No breach of s.424A has been asserted in the present case. Indeed, unlike NBKS where no s.424A letter was sent to the applicant, two s.424A letters were sent to the applicant in the present case in compliance with the Tribunal’s statutory obligation to accord procedural fairness to the applicant.
Also, in NBKS, the Tribunal relied upon the adverse information from the internet search. In the present case, the Tribunal appears to have placed no reliance on the information from Pakistan in reaching its conclusion as to the applicant’s adverse credibility.
Furthermore, I accept the first respondent’s submission that there is no basis for the assertion that the inquiries made by the first Tribunal constituted an offence under s.439 of the Act on the basis that:
The inquiries were made for the purpose of the Act and in the performance of a function under the Act. They were also made with the consent of the applicant.
Contrary to the applicant’s assertion, I am thus satisfied that the applicant was accorded procedural fairness by the Tribunal in accordance with the statutory framework of the Act.
Accordingly, for the reasons stated above Ground 1 of the application is rejected.
Ground 2 of the application
Ground 2 of the application states that:
(2) The Decision was void for jurisdictional error in that the release of confidential information protected by the Act to persons within the country against which the applicant's claim was to be assessed, had become an additional ground for the applicant's claim (ie a sur place claim) that was a material integer of the applicant's claim that was not assessed or considered by the Tribunal.
The applicant submits that:
·following the unauthorized and procedurally unfair investigation carried out by the Tribunal, in which personal information about the applicant had been released to agencies in the country against which his claim was being assessed, a separate integer of his claim for a protection visa was that the very release of that information to those agencies had the potential to draw adverse attention and present a further risk of future persecution based upon his political opinions (as a supporter of women’s rights) or as a member of a particular social group (of people who had fled Pakistan and sought protection)
·this other integer of the applicant’s claim, [the sur place claim], was not assessed at all by the Tribunal. Its failure to do so constituted a jurisdictional error: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 at [42]
·where the applicant was in danger of persecution, it is reasonable that the danger may have been increased by the release of personal information to his country. It may increase the danger to him if he were to return to Pakistan, and at least, therefore, that ground of his claim should have been considered by the Tribunal.
I do not accept the applicant’s submissions. A sur place claim envisages an applicant making a claim to be a refugee based on fresh facts or circumstances that have arisen after the applicant has left his or her country of origin, which pose a risk of persecution if the applicant were now to return to his or her country, (such as a coup, or the outbreak of a civil war, or where a refugee claimant may be perceived as a traitor in his country of origin by the mere fact of seeking refugee status outside that country).
There is no evidence to support any such proposition in the present case. The sur place claim is said to be based upon an alleged increased danger of persecution from the authorities potentially becoming aware of enquiries made by the first Tribunal in 2004 seeking verification of the applicant’s claims from affiliates of the applicant in Pakistan.
I also note that this is the first time that the applicant has raised a sur place claim based on this information. Such a claim stands in contrast to the claims put forward by the applicant to the Tribunal which were based on his fear of harm from religious fundamentalist groups because of his support for women’s rights. In these circumstances, it can hardly then be contended that the Tribunal failed to consider a sur place claim and thereby fell into jurisdictional error.
Whilst I accept that the first Tribunal disclosed information that identified the applicant to persons in Pakistan in order to verify his claims, it was not disclosed to his enemies but to organisations nominated by the applicant with which he claimed an affiliation or connection. The applicant also endorsed the first Tribunal making these enquiries, and then expressly raised the responses to those enquiries as corroborative of his claims with the present Tribunal.
I also accept the first respondent’s submission that:
… there is no reason to believe that the disclosure of information to the organisations concerned gave rise to a sur place claim. Indeed, the applicant did not at any time suggest that this was the case.
While the applicant did suggest that the sending of these letters may have led to the dob-in incident, that did not constitute a sur place claim. Rather, it was designed to reinforce his existing claims (which the Tribunal did consider and rejected). This is not a case where the applicant claimed that being known to have claimed refugee status would put him at risk, nor is it a case where he ultimately claimed to fear persecution from the authorities … there having been no sur place claim properly raised there was no obligation on the Tribunal to consider it.
Indeed, it is incumbent on an applicant to supply the relevant facts of his or her case in as much detail as is necessary to enable the Tribunal to establish the relevant facts. As relevantly observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out (and see further under ground 1 above).
In conclusion, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of, and set out a very detailed and closely reasoned analysis of, the applicant's claims; explored those claims with him at hearing and continued hearing; identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearings; sent the applicant two s.424A letters inviting his comment or response; and closely noted the applicant's evidence and responses. The Tribunal then made findings based on all the evidence and material before it.
I consider that its findings of fact, in particular as to the applicant’s adverse credibility, were open to it on the evidence and material before it; that it provided well-articulated and detailed reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.
Accordingly, for the reasons stated above, Ground 2 of the application is rejected.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application before this Court is dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 19 June 2008
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