SZGZL v Minister for Immigration - [2006] FMCA 1509

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGZL v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1509

MIGRATION – Refugee – impermissible merits review – no breach of the rules of procedural fairness – s.422B applies – the Tribunal complied with statutory requirements in sending an invitation to a hearing to the applicant – as the hearing was adjourned pursuant to s.427(1)(b) the Tribunal was not required to comply with the requirements of s.425A(2) and Regulation 4.35D – no jurisdictional error – application dismissed.

Migration Act 1958, ss.422B, 65, 36(2), 425A, 425A(2), 427(1)(b)
Migration Regulations 1994, Regulation 4.35D

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 62
SZEFM vMinister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78
SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026

Applicant:

SZGZL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2233 of 2005

Judgment of:

Nicholls FM

Hearing date:

28 September 2006

Date of Last Submission:

20 September 2006

Delivered at:

Sydney

Delivered on:

12 October 2006

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Mr. J. A. C. Potts

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2233 of 2005

SZGZL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed in this Court on 18 August 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 June 2005 to affirm the decision of a delegate of the respondent Minister made on 4 February 2005 to refuse a protection visa to the applicant.
The applicant, who is a citizen of Pakistan, arrived in Australia on

6 November 2004 and lodged an application for a protection visa with the respondent Minister’s Department on 14 December 2004.

When this was refused he applied to the Tribunal for review of that decision on 14 March 2005.
The applicant’s claims are set out in his application for a protection visa reproduced at Court Book (“CB”) 1 to CB 25, and particularly in a statement attached to this application reproduced at CB 26 to CB 35. The applicant’s application for review is reproduced at CB 47 to CB 50. In support of his application for review the applicant made written submissions, following the hearing before the Tribunal, on 9 June 2005 (reproduced at CB 59 to CB 76). The applicant’s claims as put at the hearing before the Tribunal are set out in some detail in the Tribunal’s decision record at CB 89.2 to CB 93.1.
The applicant claimed to fear persecution on the basis of his political opinion as Area Vice-President of the Pakistani Muslim League (“PML”) for the Bounken area, Sialkot, Pakistan. He claimed that he feared he would be treated in a manner akin to Nawaz Sharif, the former leader of the party who was arrested. He also claimed that he was involved in conflict over the construction of a road in his area which resulted in criminal charges, police raids, imprisonment and implication in murder. He also claimed that should he return to Pakistan he feared that the authorities would arrest him and prosecute him in respect to the murder of several judges (which occurred while they were on an official visit to a gaol in which a former associate of the applicant was being held).
The Tribunal’s “Findings and Reasons” are reproduced in its decision record at CB 94.1 to CB 96.2. The Tribunal:
1)Accepted that the applicant was the Area Vice-President of the PML in his home area (Bounken area in Sialkot) in Pakistan (CB 94.3).
2)Accepted that the applicant’s position as Vice President of PML and secretary of the Bounken Welfare Society gave rise to his involvement in certain road works in the area (CB 94.4).
3)Accepted that the conflict that arose over the road construction works gave rise to an escalating series of events including various court proceedings, a court order to stay the road works, and police investigations, which may have involved a raid on his house, his arrest and detention (CB 94.5).
4)Considered it plausible that the applicant’s business partner was in a Sialkot prison at the time of a riot resulting in the deaths of judges and prisoners (CB 94.6).
5)Was unconvinced that the applicant’s business partner was implicated in this riot, or that he himself was implicated through his business partner. It found the applicant’s evidence in this respect to be “unsubstantiated and far-fetched” (CB 94.7).
6)As discussed with the applicant at the hearing before it, was unable to discern a Convention nexus in these events (CB 94.8).
7)Noted that the applicant’s evidence before it provided little detail as to his political profile, activities, or motivations in respect of his claimed experiences of past harm, or fear of harm (CB 94.9 to CB 95.1).
8)Noted further that, in oral evidence given to the Tribunal, the applicant did not suggest any Convention reason in respect to past experiences of his fear of arrest by the Pakistani authorities on his return (CB 95.2).
9)Did not accept that the harm which the applicant claimed to have experienced in the past, or the harm he claimed to fear in the future (in regard to the road construction incident) was essentially, or significantly, for reason of his political opinion and/or membership of the PML (CB 95.5).
10)Did not accept that the applicant would face harm on his return to Pakistan by reason of his association with the PML given that he did not face arrest in the past by reason of the position he held with the PML and his political affiliation (CB 95.7).
Having considered the evidence as a whole the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason if he were to return to Pakistan.
The applicant commenced the current proceedings on 18 August 2005 by application filed in this Court. The applicant has not filed any amended application, evidence by way of affidavit, or written submissions. The applicant raises three particularised grounds in his application for judicial review:
“1.The Tribunal decision subject to this application involved Jurisdictional error because the Tribunal misapply the Australia Law and Refugees Convention on the facts of the claim.
PARTICULARS
a)The applicant was implicated in murder case of high profile judges.
b)The applicant arrest.
c)The applicant spend considerable time in hiding to save his life.
d)The applicant paid huge sum for his release.
e)The applicant was vice president of Muslim League (Nawaz Group).
2.The Tribunal decision involved Jurisdictional error because it failed to comply with rules of procedural fairness.
PARTICULARS
a)The Tribunal comments that it peculiar that Judges visited the prison (RRT decision page 7 last para).
b)The Tribunal failed to investigate this issue fairly and properly.
3.The Tribunal error by asking irrelevant questions during the interview and taking into account irrelevant consideration.
PARTICULARS
a)Applicant’s passport.
b)The applicant’s departure from Pakistan.”
At the hearing before me today the applicant was unrepresented and was assisted by an interpreter in the Urdu language. Mr. Potts appeared for the respondents.
The applicant restated some of the circumstances that had been put before the Tribunal, his disagreement with the Tribunal’s decision, and that he is in Australia “saving” his life. He submitted he was “not doing well economically here” which I understood to be a submission that he remained in Australia because he feared for his life and not for any economic or financial reason.
The first ground stated in the application is that the Tribunal “misapplied” Australian law and the Refugees Convention to the facts of his claim. While the applicant states a number of particulars to this ground these are clearly no more than a restatement of some of his claims before the Tribunal and, as Mr. Potts submitted, clearly seek impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Nor can I see in looking at the circumstances of the case before me that the Tribunal did not understand the relevant law, or the relevant part of the Convention, dealing with the definition of a “refugee” (see its decision record at CB 85.3 to CB 87.4 where its understanding is set out in the usual unexceptional fashion). Nor is there anything in its decision record to show that it “misapplied” the relevant law and Convention definition to the circumstances of the applicant’s claims. Essentially, the Tribunal was not convinced that on the basis of the applicant’s factual claims which it accepted, there was a relevant and necessary nexus to one of the Convention grounds such that it could be satisfied that the applicant's circumstances met the definition of a refugee in its entirety. The Tribunal looked at the applicant’s claims as put, found some aspects to be “unsubstantiated and far-fetched” (CB 94.7), but in relation to the aspects of the claims that it did accept, could not discern any Convention nexus. On what is before the Court now, these findings were all open to the Tribunal and it gave reasons. I cannot see error in how the Tribunal has proceeded. In all therefore, this ground does not succeed.
The applicant's second ground of complaint is that the Tribunal failed to comply with the rules of procedural fairness. This is particularised by an assertion that the Tribunal failed to “fairly and properly” investigate the issue of the visit of the judges to the prison in Pakistan. In particular, the applicant appears to take issue with the Tribunal's comment as set out in its decision record at CB 90.10 that it was:
“… rather peculiar that judges were visiting the prison.”
It should be noted that this reference to the Tribunal's decision record, is a reference appearing in the Tribunal's account of what occurred at the hearing with the applicant. It was clear that the comment made by the Tribunal was made during the exchange with the applicant as it related to the circumstances of what occurred in the prison. The Tribunal’s account is at CB 90.9 to CB 91.1:
“He stated that when his business partner was in prison several judges had gone to visit the prison and that his business partner was charged with murdering the judges. The Tribunal asked the Applicant if he could elaborate on the murder of the judges as the Tribunal found it rather peculiar that judges were visiting the prison. The Applicant then stated that the government did not wish them to go to the prison, but that the judges decided that they wished to go to the prison and discuss things with the prisoners. He also stated that when the judges arrived at the prison, three of them were shot dead and that his business partner was responsible for this. He stated that his business partner had a gun and with this gun he shot dead three of the judges.”
Clearly the Tribunal was seeking further detail from the applicant in relation to what, on its face, appeared an unusual occurrence – the visit of a large number of judges to the prison.
However, significantly, notwithstanding the Tribunal's comment to the applicant as to the “peculiarity” of the visit of judges to the prison, it is clear that in its “Findings and Reasons” the Tribunal accepted that the judges had visited the prison, and that there had been a riot, and that this had resulted in the deaths of judges and prisoners. For that matter the Tribunal also considered it plausible that the applicant's business partner was imprisoned at this gaol at the time of this event, as claimed by the applicant (CB 94.6).
I cannot see that this complaint can amount to a breach of the rules of procedural fairness. The Tribunal quite properly is entitled to put to an applicant at a hearing any doubts, or concerns, that it may have about the applicant’s claims. This can be seen as complying with the very worthwhile objective of making sure an applicant knows the case that may be developed against him and giving him an opportunity to comment. That the Tribunal commented at the hearing that the judges’ visit was “peculiar” must be seen in context of the reported discussion at the hearing and in light of the Tribunal’s ultimate finding where it accepted that the visit occurred. The Tribunal's subsequent acceptance of this aspect of the applicant’s claims demonstrates an open mind on the part of the Tribunal in that notwithstanding its initial reaction at the hearing to this claim, it subsequently accepted the claim.
In any event I also note, as Mr. Potts submits, that the common law rules of procedural fairness, to the extent that they relate to the natural justice hearing rule, are excluded in this case by the operation of s.422B of the Migration Act 1958 (“the Act”) (see Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 62 at [8]). This complaint also does not succeed.
The applicant's third stated complaint is that the Tribunal was in error by asking irrelevant questions during the hearing, and taking into account irrelevant considerations. This is particularised with reference to the applicant's passport, and the applicant's departure from Pakistan.
The purpose of the hearing before the Tribunal is to provide an applicant with an opportunity to provide additional claims, or to enhance claims already made by way of additional evidence, or oral submission, and to provide explanations such as to satisfy the Tribunal that an applicant meets the definition of refugee (s.65, s.36(2) of the Act and Article 1A(2) of the Refugees Convention). For this reason it is clearly an opportunity for the Tribunal itself to more fully explore an applicant's claims, and circumstances, to enable it to get a better understanding of what the claims may be, and what is or may be relevant to the ultimate disposition of those claims. I cannot see that any error, as asserted now by the applicant, can be discerned simply by the Tribunal asking questions at the hearing in relation to an applicant's passport, and the applicant's departure from Pakistan, which in this case, after all, is the country of claimed persecution.
The definition of refugee set out in the Refugees Convention clearly makes reference to an applicant's nationality. At the heart of the definition is the issue of a well founded fear of persecution in that home country. It is trite to say that the circumstances of an applicant's departure from that country must at least initially have some relevance to the question that the Tribunal is required to address. I cannot see in all the circumstances that questions about the applicant's passport and the circumstances of departure from Pakistan as put by the Tribunal, and as derived from its record of the hearing, show that the question was “irrelevant”. Nor does it demonstrate that ultimately in its “Findings and Reasons” the Tribunal took into account an irrelevant consideration. Nor does the applicant say how such considerations were irrelevant.
But in addition I also accept the submission made by Mr. Potts that in any event jurisdictional error does not encompass questions that may ultimately prove to be irrelevant to the disposition of an applicant's claims. This ground also does not assist the applicant now.
Nor does what the applicant submitted before the Court now rise above a request for impermissible merits review. The applicant may well assert that he remains in Australia because of his fears and not for economic gain, but this does not reveal jurisdictional error in the Tribunal’s decision.
Although not raised by the applicant, or his application, Mr. Potts raised, properly, given that the applicant is unrepresented before the Court, the following issue for the Court’s consideration. This is whether the postponement of the hearing before the Tribunal to 1 June 2005 on 19 May 2005 was required to comply with the requirements of s.425A(2) of the Act and Regulation 4.35D of the Migration Regulations 1994 (“the Regulations”) in respect to the prescribed period of 14 days notice.
The relevant circumstances are that the applicant's application for review to the Tribunal was made on 14 March 2005 (CB 47 to CB 50). On 1 April 2005 the Tribunal wrote to the applicant by letter sent by registered post, and addressed to the applicant's address for service (CB 51 to CB 52). The letter notified the applicant that on what had been put before it the Tribunal was unable to make a decision in his favour, and in those circumstances invited the applicant to attend a hearing before it on 18 May 2005. A time, date and place was provided and the Tribunal's letter contained important information about this hearing.
In particular, that if the applicant was unable to attend the hearing, he should contact the Tribunal. The letter, importantly and relevantly, made reference to a “Response to Hearing Invitation” form and stated:
“Please read and complete the enclosed form carefully and:
· tell us if you are coming to the hearing or not coming to the hearing” (CP 51.8)
Further at CB 52.1:
· “answer all the other questions on the form and return the completed form and any new documents or written arguments by 19 April 2005.”
There is nothing before the Court now to show anything other than that the Tribunal did not receive any response from the applicant by
19 April 2005. Nor is there any evidence before the Court that the letter was returned as undeliverable to the Tribunal, and nor has any such assertion been made by the applicant. In an extract from the Tribunal’s file, reproduced at CB 53, and dated 11 May 2005, it appears that an employee of the Tribunal completed a “Checklist No Reply to Hearing Invitation” form. Having checked that no reply had been received, and having checked that the invitation to the hearing had been properly sent to the applicant, a number of other checks appear to have been made, and consideration was given to other methods of contacting the applicant, but no avenues presented themselves.
In any event it appears (at CB 56) that subsequently, on the day of the hearing, namely 18 May 2005, the applicant did attend at the Tribunal premises. A Tribunal employee noted the following (CB 56):
“18/5/05 Applicant arrived at the front counter for today's “No Reply” hearing. I informed the applicant that as he did not inform the Tribunal of his attendance we were not able to secure an interpreter and the hearing would not proceed. The applicant said he did wish to attend a hearing and would require an Urdu interpreter. He said that he didn't know he had to return the RTHI form. I asked him to fill a Response to hearing form to confirm that he did wish to attend a hearing and informed him that I would contact him by telephone upon the confirmation of a hearing date. I informed him that I would also send a letter confirming the new hearing date and he would be required to confirm his attendance again to the new hearing by returning the RTHI form or calling me. E Chiu
19/5/05 New hearing date letter sent to applicant (postal & residential addresses) by registered post. E Chiu”

This letter is reproduced at CB 57 and relevantly I note the following from the letter:
“As you are aware, your hearing on the 18 May 2005 was not able to proceed because you did not inform the Tribunal of your intention to attend. The Member has agreed to your request for a new hearing date and a hearing has now been set down for you.”
The applicant subsequently attended the hearing at the new date that had been provided, namely 1 June 2005. The letter contains the date of dispatch of 19 May 2005.
Mr. Potts also tendered (subsequently marked “Respondent’s Exhibit 1”) a printout of part of the electronic record of the conduct of the applicant’s case before the Tribunal. With reference further to what is set out at CB 56, the “printout” reveals”:
“30/5/05 Contacted applicant regarding his attendance to the Rescheduled hearing. I confirmed the date & time of hearing with him. Applicant said he would be attending. E Chiu
17.6.2005. Applicant rang to say he will be in at 10am on monday 20 June to hand in further documents for his case. J.M
20/6/05 Submission received from client. SRajagopalan”
Mr. Potts therefore, in these circumstances, sought the Court’s consideration of whether the postponement of the hearing on 19 May 2005 to 1 June 2005 required an invitation that complied with the provision of s.425A(2) of the Act and Regulation 4.35D. Relevantly, whether the Tribunal was required to give the applicant the prescribed period of 14 days notice. Clearly, in these circumstances, the letter issued on 9 May 2005 does not provide a period of 14 days.
Mr. Potts’s submission was that the circumstances of this case are analogous to the facts in SZEFM vMinister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 (“SZEFM”), a Judgement of Bennett J., on appeal from this Court. Mr. Potts’s submission was that the postponement in this case was due to factors beyond the Tribunal's control. Namely that the applicant did not return the relevant response to the hearing invitation. In these circumstances the hearing could not continue on the scheduled date of 18 May 2005 due to the unavailability of an interpreter, and the hearing was adjourned pursuant to s.427(1)(b) of the Act. His submission was that as the hearing was adjourned there was no need to again comply with s.425A and Regulation 4.35D. He relied on SZEFM at [7]-[8] and [12], and also referred to SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026.
I agree with Mr. Potts’s submission in this regard. It should be noted that the letter of invitation to a hearing sent on 1 April 2005 (CB 51 to CB 52) did comply with all the relevant statutory requirements, and in particular complied with the relevant period of notice. The applicant was clearly on notice that he should return the completed “Response to Hearing Invitation” form, and that he should return it by a particular date. There is no evidence before the Court now to show that the applicant attempted to take any action in this regard. Nor is there any evidence before the Court that this letter was returned to the Tribunal as “undeliverable”. The Tribunal's records report simply that the applicant said he did not know that he had to return the completed form. If indeed that was the case, the applicant has not put anything before the Court now to explain why he did not comply with what the Tribunal had put to him.
On what is before me, I am satisfied that the provision of a new hearing date was by way of an adjournment of the hearing pursuant to s.427(1)(b) of the Act. It is clear, in all the circumstances, that the Tribunal was responding to the applicant's request that he be provided with another hearing date. The references in the Tribunal's memorandum at CB 56 make it clear that a “new hearing date was being provided”. Further, the Tribunal’s subsequent letter of 19 May 2005 (CB 57) made it clear to the applicant, and reflected the Tribunal's view that the hearing initially scheduled for 18 May 2005 was not able to proceed on that day because of the applicant's failure to inform the Tribunal of his intention to attend. The Tribunal, in these circumstances, nonetheless had agreed to the applicant's request for “a new hearing date”.
In all the circumstances, the Tribunal clearly complied with its statutory requirements pursuant to ss.425 and 425A in relation to the sending of the invitation to hearing to the applicant (by letter of 1 April 2005 – at CB 51). But on the relevant date set for the hearing the Tribunal was unable to “proceed” with the hearing because of the applicant’s failure to notify the Tribunal as he had been asked if it was his intention to attend. The practical issue here relevantly relates to the provision of an appropriate interpreter and the need for an interpreter in the relevant language. These are matters which the applicant would have been able to confirm had he responded by completing and returning the “Response to Hearing Invitation” form as he was asked to do (CB 51) and which he ultimately did on 18 May 2005 (the “first” scheduled hearing date (CB 54) after the reported events at the Tribunal’s counter (CB 56 and “RE1”) and where he responded that he did need an interpreter in the Urdu language).
It is also relevant to note that the Tribunal's “Response to Hearing Invitation” form provides relevantly two options in relation to attendance at a hearing (CB 54). The applicant could either have indicated that he wanted to come to a hearing, or that he did not want to come to a hearing. The applicant's action, or more precisely inaction, therefore put the Tribunal in a position of some uncertainty as to what the applicant wanted to do. The references in the Tribunal's subsequent letter to the agreement to the applicant's request for a new hearing date, in my view, reinforced that what the Tribunal was doing was exercising its adjournment power such as to provide the applicant with the opportunity of a hearing. This was not a situation of a new hearing opportunity being provided to the applicant but, in my view, on the circumstances of this case, it was a continuation of the same opportunity originally provided to the applicant. All that had changed was the hearing date because of the applicant’s inaction. In these circumstances, and given that it is not necessary for a fresh compliance with ss.425 and 425A when the Tribunal is acting under s.427(1)(b) in adjourning a hearing, I cannot see that any ground of complaint on this basis would succeed.
In all therefore, I cannot see jurisdictional error in what the Tribunal has done. The application is therefore dismissed.

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

Associate:

Date: 12 October 2006