SZHOA v Minister for Immigration
[2006] FMCA 1373
•28 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHOA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1373 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of Pakistan – applicant seeking a protection visa on the grounds of his political involvement – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36, 65, 414, 415, 420, 422, 474 |
| Appellant S395 of 2002 v Minister for Immigration & Multicultural & Affairs [2003] HCA 71 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263 Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZHOA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3281 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 August 2006 |
| Date of Last Submission: | 28 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jayawardena |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3281 of 2005
| SZHOA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is
an application for review of a decision in the Refugee Review Tribunal that was signed on 28th September and handed down on
18th October 2005. The Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant now seeks orders by way of writs of certiorari, prohibition and mandamus quashing the decision of the Tribunal preventing the first respondent from acting further on their decision to refuse a protection visa and directing the second respondent's Tribunal to redetermine the applicant's application for a protection visa according to the law.
The
applicant is a citizen of Pakistan who arrived in Australia on
27th November 2004. He applied for a protection (class XA) visa on 22nd December 2004 but it was refused on 12th April 2005.
The applicant then sought a review of that decision from the Refugee Review Tribunal on 3rd May 2005. He did not submit any other documents with his application.
The
Tribunal wrote to the applicant on 19th July 2005 inviting him to attend a hearing on the afternoon of Monday 22nd August.
The applicant, on 4th August, sought a one-month adjournment in order to obtain documents from overseas. The Tribunal replied that the hearing set down for 22nd August 2005 should proceed as scheduled but if the applicant required further time after that date to obtain documents, it could be discussed with a member at the hearing.
The applicant attended the hearing. He gave evidence with the assistance of an Urdu interpreter. He told the Tribunal that he was seeking a protection visa on the grounds of his political involvement, having been a youth leader of the Pakistan Muslim league. He referred to a coup which had taken place in October 1999 and charges that he had faced in January of 2000 and having organised a demonstration in 2004. He said that on both of those occasions he was arrested and beaten by the police and arrested a few days later.
The applicant claimed that because of past persecution he had a genuine fear that he would be persecuted by the authorities if he ever freely worked in Pakistan as a member of the Pakistan Muslim league.
The Tribunal reviewed the evidence and that is set out at pages 96 through to 100 of the Court book. The Tribunal considered certain country information about Pakistan which is set out in pages 100 through to 104 of the Court book.
The Tribunal's findings and reasons are set out on pages 104 and 105. The Tribunal noted, at page 104:
The Tribunal did not find the applicant to be a credible witness
The Tribunal did accept that the applicant might be sympathetic to and politically aligned with the PML (M) but did not accept that he engaged in the level of political activity that resulted in his coming to the adverse attention of the Pakistan authorities. The Tribunal acknowledged that the applicant had demonstrated at the hearing some knowledge of relevant political events but could not provide relevant or detailed information as to his claimed involvement in political events.
The Tribunal criticised the applicant for giving evidence in a hesitant way and speaking in generalities only when describing his political opinions and membership of a particular party. The Tribunal described the applicant as being ambivalent when asked about political events at the time in which he claimed to be politically active.
The Tribunal noted, at page 105, that when asked about relevant political events involving the party in his place of abode in Rawalpindi, the applicant was unable to give any meaningful detail. The Tribunal said:
When the Tribunal put to the applicant at the hearing that the paucity of his oral evidence made it difficult for the Tribunal to accept his claims, the applicant did not attempt to clarify or elaborate on his claims but rather implored the Tribunal to have consideration for him in terms of his family circumstances, that being, that his parents had passed away and he has six sisters, two of whom are yet to be married.
The Tribunal went on to find:
On the basis of the applicant's evidence as outlined above, the Tribunal is not satisfied that the applicant was a political activist in Pakistan. Further, as the Tribunal does not accept that the applicant was politically active in the manner he so claims, the Tribunal does not accept that the applicant was detained in the past or will be detained in the foreseeable future by reason of a claimed political profile.
The Tribunal noted the country information indicates that the applicant's party is a viable political party in Pakistan and contested elections. The Tribunal did not accept the applicant's claim that he would not be free to express a political opinion on returning to Pakistan. The Tribunal was not satisfied the applicant had a well‑founded fear of persecution by reason of his political opinion or any other Convention ground on his return to Pakistan and affirmed the decision not to grant him a protection visa.
The applicant has filed an amended application on 8th May 2006 in which he set out, through his solicitor, three grounds of review. In the submissions, however, filed on behalf of his solicitor on 25th of this month, it was indicated that ground 2 would not be relied on and that submissions would be made in respect of grounds 1 and 3 only.
I have also read with interest the written outline of submissions filed on behalf of the first respondent Minister on 16th August.
Those submissions pre-date the submissions filed on behalf of the applicant and I have heard oral submissions from the legal advisers for both parties.
In respect of the applicant's first ground, he claimed that the Tribunal made an erroneous finding because of its failure to give proper weight to the applicant's claims where the Tribunal did not find the applicant to be a credible witness. The applicant submitted that in terms of s.414 of the Migration Act it was mandatory on the part of the Tribunal to review the decision and to conform to its basic function of review in terms of ss.415 and 420 of the Migration Act.
The applicant submitted, in the written submissions, that the Tribunal failed to conform to these statutory functions and therefore committed jurisdictional error.
In respect of the third ground, the applicant said that the Tribunal was procedurally unfair because of its failure to consider the new information on additional documents that the applicant submitted to the Tribunal on 4th October 2005 when the decision was handed down on 18th October 2005, despite the Tribunal having consented to receive these documents as per the agreement of the Court book at page 105.
The applicant submits that this is procedural unfairness and that the Tribunal's finding that it was not satisfied the applicant had a well‑founded fear or persecution by reason of his political opinion or any Convention ground on his return to Pakistan was not justified in the circumstances and therefore contrary to law.
The applicant submitted that in respect of those grounds the applicant has a definite view that the Tribunal wilfully ignored giving due weight to the applicant's claims and that during the hearing the Tribunal was seriously unfair towards the applicant by making accusations about the documents that the applicant wished to submit to the member in support of the applicant's claims. Reference is made to a transcript of the proceedings to which I will refer shortly.
The applicant submitted that the Tribunal's attitude towards the applicant's claims, even before they were dealt with, was highly adversarial and it was apparent that the Tribunal had already made up its mind to dismiss the applicant's claims as unreliable.
In my view, it is therefore necessary for me to consider a claim of either apprehended or actual bias which I now propose to consider.
I am referred, by the solicitor for the applicant, to the decision of
NABEv Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263 where the Full Court stated that the conduct of a review is a necessary condition of the exercise of the Tribunal's powers in making a final decision of the kind set out in
sub-s.415(2) and a failure to undertake a review would vitiate any purported decision made pursuant to s.415.
The Full Court noted, for instance, that a failure to afford an applicant the oral hearing required by the Act, where a favourable decision is not possible on the papers, would render any purported decision invalid.
It is not just a failure of natural justice but a failure to conduct a review as required by the Act.
If an application has properly been made the Tribunal must review the decision. This means that the Tribunal must exercise the jurisdiction of the Minister's decision, that is to say, it must make a decision on the application and any document properly submitted by an applicant as part or relevant to it. To fail or refuse to receive and consider such document, to make a decision without regard to it, is a failure to exercise jurisdiction.
I am also referred to the decisions of Appellant S395 of 2002 v Minister for Immigration & Multicultural [2003] HCA 71 and Craig v South Australia (1995) 184 CLR 163.
In oral submissions, the solicitor for the applicant put that it was not strictly - and I am summarising here - the case that the Tribunal had failed to carry out a review but that it had failed to carry out a review properly. The sections referred to, 414, 415 and 420, refer, of course, to the carrying out of the review by the Tribunal and the need for the Tribunal, as it was put to me, to be fair and just.
It was conceded that the Tribunal was not bound to accept the applicant's claims uncritically but the Tribunal, having been aware of the applicant's claims, did not believe the applicant's claims from the outset.
Counsel for the respondent, Mr Smith, submits that there is no suggestion that the Tribunal failed to have regard to the applicant's claims and says that an argument of this nature would meet difficulty in that the claims are set out in summary form in the Tribunal's statement of reasons at pages 96 and 97 of the Court book. He submits, in effect, that this ground is no more than an attack of the merits of the Tribunal decision.
A question of what weight to be given to any particular evidence is only relevant to whether or not that evidence is accepted in the fact finding process undertaken by the Tribunal. Weight can only go to the merits of the decision and not to whether or not the Tribunal had the jurisdiction to make it.
The applicant's solicitor referred the Court to page 23 of the transcript of the hearing which appears in the Court book at page 80, where the Tribunal sets out:
So I need to be satisfied - you do not sort of satisfy me at this point in time. You are not giving me much detail. You are certainly not coming across to me as a person with deeply held political convictions that is involved in demonstrations.
The applicant then went on to indicate that he would be submitting further documents, to all of which I will refer later.
The applicant complains that the Tribunal referred to the fact that some documents from Pakistan were fraudulent and that this therefore was a ground to indicate that the Tribunal was not giving the applicant the benefit of the doubt.
It appears to me, with respect, that the Tribunal did not, at any stage, find that the documents upon which the applicant sought to rely were fraudulent and there is no evidence in the findings and reasons which indicate such a finding by the Tribunal member.
The solicitor for the applicant went through the substance of the applicant's claims in some detail and indicated the very truthful nature of them, but as I indicated during the hearing, the fact that the Court may be satisfied that the applicant's account indicated a degree of persecution and had a ring of credibility, it was not relevant because the Tribunal was not satisfied about the credibility.
It is not the function of the Court conducting judicial review to substitute its own view of the facts and the findings to be derived from the facts established, for that of the Tribunal. Fact finding is a decision of the administrative decision-maker and findings as to credibility are specifically findings of fact. So long as there is evidence upon which the Tribunal can make a factual finding, be it as to credibility or anything else, then there is no jurisdictional error. It is, of course, not necessary for the Tribunal to examine or give reasons for every subset of evidence in order to come up with a credibility finding and I refer to the decision of Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 and particularly paragraph 67 of the judgment of McHugh J.
No matter how plausible the applicant's case may appear on paper, it is not the function of the Court to form the view that the Tribunal has not satisfactorily assessed credibility. It was put that the Tribunal had not proved that the applicant was not a credible witness. With respect, it is not a part of the function of the Tribunal to provide proof of a negative or in this case, proof of the applicant's non-credibility. The applicant must satisfy the Tribunal that he or she is leading credible evidence which will allow the Tribunal to reach the state of satisfaction under s. 65 of the Migration Act that he or she has met the condition visa.
If the applicant's evidence is not assessed to be credible and the Tribunal is not satisfied that the applicant has a well-founded fear of persecution, then the Tribunal cannot be satisfied that an applicant is a person to whom Australia owes protection obligations under the Refugee's Convention. Accordingly, the Tribunal could not be satisfied that the applicant met the criterion under sub-s.36(2) of the Migration Act.
In my view, the Tribunal has made findings as to the applicant's credibility and has set out in the findings and reasons on pages 104 and 105 of the Court book, why the Tribunal was not satisfied as to the applicant's credibility. This includes the findings on page 105 to which I referred earlier and which was put by the Tribunal to the applicant, but the paucity of his oral evidence made it difficult for the Tribunal to accept his claims.
In my view, no jurisdictional error has been made out in respect of the first ground.
I turn to the third ground which is the other ground argued, relating to a lack of procedural fairness which is alleged in not considering the documents submitted after the hearing to the Tribunal by the applicant.
The Tribunal indicated prior to the hearing that if the applicant did wish to submit further documents that were not available by the time of the hearing, then the applicant could bring that matter to the attention of the Tribunal at the hearing. The applicant did just that. At page 29 of the transcript, which appears on page 86 of the Court book, the Tribunal member is reported as saying:
So I will need these documents sooner than in a month's time.
INTERPRETER: Sorry?
TRIBUNAL: It's all right, the documents that you say that you have, so when can you have them to the Tribunal?
INTERPRETER: Yes, I've got your phone number. As soon as I am receiving the documents I will be informing you or forwarding to you people those documents.
TRIBUNAL: Well, we can't wait because we have a requirement by government to make our decisions in a reasonable time period so I can't wait indefinitely.
INTERPRETER: Today the documents has been posted.
TRIBUNAL: Okay.
INTERPRETER: I mean, I don't know, what's the time frame to be released?
APPLICANT PERSONALLY: Maybe 10 days, maybe seven days, maybe 12 days.
TRIBUNAL: Okay, well what about if I say I will wait for two weeks?
On page 87 of the Court book the applicant maximum the Interpreter:
INTERPRETER: If you please, can you make it for 20 days?
TRIBUNAL: A month?
INTERPRETER: Twenty days.
TRIBUNAL: You mean in total? Okay, yes.
INTERPRETER: In total.
TRIBUNAL: Okay, so I will give you 20 days.
Now that was on 22nd August 2005. The Tribunal wrote and signed the decision on 28th September. At that stage - it appears at page 96 of the Court book - the Tribunal said:
At the date of this decision no submission had been provided to the Tribunal.
Quite clearly, 28th September 2005 is outside a period of 20 days from 22nd August. It is more than a month later. Under no interpretation of the discussions between the Tribunal and the applicant can it be said that the Tribunal agreed to wait from 22nd August to 28th September for the production of these documents. The time was 20 days.
In any event, however, documents were submitted to the Tribunal, but late. There is a file note at page 90 of the Court book which says:
On 4th October 2005 the Tribunal received a submission from the applicant after finalising its decision on 28th September 2005. The Tribunal has reconsidered its decision in light of this further decision but has decided not to recall or alter its decision.
The Tribunal notes that this submission consists of a restatement of the applicant's written statements and a transcript of the hearing.
The Tribunal went on to say that on making its decision it had placed emphasis on the applicant's oral evidence over and above the written evidence. The Tribunal believed that that approach was reasonable in view of the applicant's oral evidence to the Tribunal that someone else had completed the protection visa application and that although the applicant had signed it, he had not read it and was unable to testify as to its accuracy.
It was put to me, on behalf of the applicant, that the Tribunal did not give the proper recognition or consideration to those documents. In my view, that submission cannot be supported. The Tribunal did not place weight on those documents but sets out, in the final note, why the Tribunal did not place weight on the documents and why the Tribunal was not persuaded to recall or alter its decision.
It was not necessary for the Tribunal to conduct a detailed forensic analysis of the documents in order to ascertain whether or not they were forgeries. The Tribunal never said they were.
It cannot be said that the Tribunal did not consider the documents that were submitted, even though the documents were submitted very late. In my view, the file note in the Court book indicates that the Tribunal did give the documents appropriate consideration but was of the view that the documentation should not be given weight and was therefore not persuaded to recall its decision.
In my view, no jurisdictional error has been shown.
It was also put that the Tribunal did not challenge the applicant's oral evidence. It appears to me from the transcript that at times the Tribunal was putting comments to the applicant about the Tribunal members' misgivings about his evidence or about the fact that the evidence was not giving the Tribunal a great deal to go on and the applicant was being given the opportunity to reply.
In my view it is also reasonable that the Tribunal should, in the circumstances described, place greater weight on the applicant's oral evidence than on the written evidence because the Tribunal was aware that the applicant's oral evidence was, in fact, coming directly from the applicant because the applicant was there and giving evidence before the Tribunal.
The submission, I also infer, includes an allegation of bias or an apprehension of bias that the Tribunal was of a view to reject the applicant's claim from the outset. In my view, the evidence does not support this; not from the Tribunal's decision or from reading the transcript. It is not a reflection of bias if the Tribunal puts a contrary proposition to the applicant during the hearing, provided that the applicant has the opportunity to answer and explain the situation. It is clear from the transcript that this is what the Tribunal did.
I am also aware that in the decision of Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 that the Full Court said that bearing in mind that a Tribunal has decided it cannot make a finding favourable to the applicant on the papers, it is not to be unexpected that at times the Tribunal's questions may be of a sceptical nature in that the Tribunal is testing the applicant's evidence. In my view, that is what the Tribunal did. There is nothing to indicate that the Tribunal engaged in anything that could be seen as biased behaviour, either openly biased or from which bias could be imputed.
As to procedural fairness in the conduct of the review, I am satisfied that the review was conducted appropriately in the degree of procedural fairness required under s.422 of the Act. The applicant attended the hearing, was provided with an interpreter, gave evidence, was questioned about his story, received indications from the Tribunal as to why the Tribunal was having difficulties accepting part of his claim and was given an opportunity to explain those. As the Tribunal pointed out, however, on occasions, the applicant did not attempt to clarify or elaborate on his claims but rather, implored the Tribunal to have consideration for him in terms of his family circumstances – (see at page 105).
The Tribunal agreed to allow the applicant to submit documents after the hearing. An agreement was reached as to the time scale in which those documents could be provided and the applicant was warned that the time could not be extended indefinitely because of the requirement on the Tribunal to stick to a time limit in respect of producing a decision.
When the documents were not submitted within the time limit, the Tribunal then prepared its decision and signed its decision. It was not until after that that documents were submitted but it is clear that the Tribunal still considered them. The Tribunal was not, however, persuaded that the documents should be given any weight and was certainly not persuaded that the Tribunal should recall the decision so the consideration of the documents did not indicate that they were of such weight that the Tribunal should change the decision that had been arrived at as a result of the hearing.
In my view, no jurisdictional error has been shown as the decision has not been initiated by jurisdictional error as set out in the Plaintiff S157 of 2002 v Commonwealth 211 CLR 476. The decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act.
As such, no orders in the nature of mandamus certiorari or prohibition will lie.
There is no reviewable error and the application will be dismissed. There is an application for costs. The applicant has been unsuccessful in his claim and the first respondent Minister has been successful. There is nothing, in my view, to take this matter away from the normal rule that a successful party should be entitled to a costs order.
I propose to make an order for costs in favour of the first respondent.The amount sought is $5,500.00. The application was commenced prior to 1st December 2005 and in my view the amount sought, which I understand to be inclusive of counsel's fees, is within the range that the Court would normally award. It is for those reasons that I am satisfied that the sum is appropriate.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 7 September 2006
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