SZJHJ v Minister for Immigration

[2008] FMCA 1044

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJHJ v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1044

MIGRATION – Review of Refugee Tribunal decision – findings open to the Tribunal on the material before it – impermissible merits review – weight to be given to evidence a matter for the Tribunal – no bias or apprehended bias on the part of the Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 441A, 424A, 424, 427, 91R, 425

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Sabaratnasingam v Minister for Immigration Multicultural Affairs [2000] FCA 261
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Abebe v Commonwealth (1999) 162 ALR 1
VBAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
MZXGR v Minister for Immigration and Multicultural Affairs [2006] FCA 1167
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZATV v Minister for Immigration and Citizenship [2007] HCA 40
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265
Lee v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 464
Applicant S20 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59; [2003] HCA 30
WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912
W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 432
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277
NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291; [2006] FCAFC 107
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102
SZHPD v Minister for Immigration and Citizenship [2007] FCA 157

Applicant: SZJHJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2769 of 2007

Judgment of: Nicholls FM

Hearing date: 5 March 2008

Date of Last Submission: 5 March 2008

Delivered at: Sydney

Delivered on: 31 July 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms T Quinn

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application on 10 September 2007, and amended on 2 April 2008, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,500.

3. Within seven (7) days of the making of these orders the first respondent’s solicitors write to the applicant at the address for service notifying the applicant of the orders made, and in relation to order 2, of the existence of Rule 16.05 of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2769 of 2007

SZJHJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 10 September 2007, and amended on 2 April 2008, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 10 July 2007, and handed down on 31 July 2007, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

1. The first respondent has put a bundle of relevant documents before the Court (the Court Book – “CB”) from which the following background may be discerned.

2. The applicant is a national of Pakistan who arrived in Australia on 14 October 2005.  On 24 November 2005 he applied for a protection visa (CB 1 to CB 31 with annexures).  The applicant claimed to fear persecutory harm from Islamic extremists in Pakistan, particularly in his home province, the Northwest Frontier Province (“NWFP”)

3. In particular the applicant claimed that he had spoken against the Tanzim Nifazi Shariat Muhammadi (“the TNSM”) in the local school and publicly.  On one occasion when he was speaking publicly against the TNSM and Islamic extremism he was threatened by a local leader of the TNSM.  Since that time he was attacked and injured.  He reported the incident to police.  Further he was dismissed from his employment as a teacher.  The school principal told him that he could not afford problems for the school.

4. The applicant claimed that although he did not face any “major problems” in the years 2000 to 2004, that in 2005 following the defeat of Islamic extremists in Afghanistan they became “active domestically”.  In July 2005 his home was attacked and his life was saved by his “family members lying” that he was not at home.  His family forced him to go to Karachi but TNSM people found him there and sought to attack him.  He avoided them through luck and ultimately left Pakistan for Australia to seek protection.

5. The delegate refused the application (CB 32 to CB 47).

The Tribunal

1. The applicant applied for review by the Tribunal on 10 March 2006 (CB 51 to CB 54).  He sent a number of documents in support of his application to the Tribunal, which were received on 23 March 2006 (CB 59 to CB 65).  The applicant was invited to a hearing before the Tribunal on 20 April 2006.  The applicant made a further submission in relation to his application (CB 70 to CB 71).

2. The applicant first appeared before the Tribunal (as differently constituted) at a hearing held on 20 April 2006 (CB 74).  He provided further documents to the Tribunal (CB 76).  By letter dated 3 May 2006 the Tribunal wrote to the applicant inviting him to comment on information that it said would be the reason, or part of the reason, for deciding that he was not entitled to a protection visa (CB 83 to CB 88).  A further undated letter seeking comment on information appears to have been also sent by the Tribunal (CB 89 to CB 92).  The applicant provided further comment and material to the Tribunal (CB 94 to CB 101).  

3. By way of a decision signed on 20 July 2006, and sent on 8 August 2006, the Tribunal affirmed the decision under review (CB 108 to CB 140). The applicant sought judicial review. That decision was quashed by orders made on 12 April 2007. The matter was remitted to the Tribunal for reconsideration (CB 144 to CB 145). (The reasons for the proposed orders appear to be that the Tribunal’s “s.424A letter” did not comply with the requirements of s.424A(2)(a) of the Act, and was not sent by one of the methods specified in s.441A of the Act as it was not dated before it was sent by prepaid post.)

4. By letter dated 16 May 2007 the applicant was again invited to comment on information which the Tribunal said would be the reason, or part of the reason, for deciding that he was not entitled to a protection visa (CB 150 to CB 167).  The applicant was again invited to appear at a hearing before the Tribunal (CB 171).  The applicant attended and gave evidence at the hearing on 4 July 2007 (CB 178).  The Tribunal’s account of what occurred at the hearing is set out in its decision record (at CB 186 to CB 205, and in particular at CB 193.4 to CB 200.3).

5. The Tribunal found the applicant not to be a credible witness (CB 202.3).  It found (at CB 202.3) that the applicant’s evidence at the hearing was:

   “often evasive and non-responsive and on many occasions the Tribunal had to repeat its questions several times to elicit a response from the applicant.  The applicant’s oral evidence was internally inconsistent in some respects and his oral evidence was also inconsistent with the written information he provided to the Tribunal.”

6. In dealing with the applicant’s claim to fear persecutory harm if he were to return to Pakistan, the Tribunal discussed these inconsistencies with him (see especially CB 199.6).  

7. The Tribunal did not accept the applicant’s claim that he would be persecuted if he returned to Pakistan because of his criticism of the TNSM.  The Tribunal variously found that the applicant was not truthful in this claim, and did not accept certain explanations because it found his explanations to be inconsistent with his claim that TNSM members continued to threaten him.  

8. The Tribunal also found that inconsistencies between what was stated in a “First Information Report” relating to a claimed attack on the applicant in May 1999, and the applicant’s oral evidence led it to find that the applicant had not been truthful in his evidence to it (CB 203.7).  It did not accept that he was truthful in his description of the incident (CB 203.7).  The Tribunal rejected the applicant’s claims that his expressed criticism of the TNSM brought him to their attention.  It did not accept that he was attacked in 1999, or in 2005, or that he was threatened as a result of his criticism.  It did not accept that the TNSM had followed the applicant to Karachi or threatened him there (CB 203.10).

9. The Tribunal also found that a letter provided by the applicant purporting to be from the principal of the school (from which he claimed he was asked to resign) did not support the applicant’s claim that he was dismissed due to his opposition of the TNSM, or due to pressure from the TNSM, or other religious organisations (CB 204.2).  The Tribunal did not give “much weight” to a letter provided by the applicant from a “Mr Khan” who claimed to have known the applicant and was aware that the applicant had had problems with “the hardliners” (CB 204.4).  

10. Notwithstanding these findings the Tribunal also found that: “in any case” independent information available to it indicated that the TNSM was active in the applicant’s home districts of the NWFP, and had only limited access in expanding its activities beyond this area.  It therefore considered that any threat the applicant may face was localised, and that the applicant could move to another area of Pakistan (CB 204.5).

11. In all, the Tribunal found that there was not a real chance that the applicant faced persecution because of his religious beliefs, real or imputed, or because of his criticism of TNSM or for any other Convention reason if he were to return to Pakistan.  It found that the applicant was not owed protection by Australia, and therefore affirmed the decision of the delegate.

The Application to the Court

1. The application before the Court makes assertions which are expanded in an amended application, with some particulars.  The amended application states the following:

   “(a)The applicant claims that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error when the Tribunal did not make its decision according to Migration Act 1958 (the Act).

   Particulars

   1.Number of days the applicant could not remember: The Tribunal did not accept that the applicant forgot the number of days in hospital due to pressure and the Tribunal found that the applicant was not truthful because of this (CB-203), it is a wrong procedure because the Discharge Slip mentioned that how many days he stayed in hospital (CB-62 & 63).

   2.The First Information Report: The Tribunal misread the FIR (CB-60), the Date and Time of the Report is different from the time of incident.  Not knowing the attackers can not be the reason of untruthfulness.

   3.The applicant’s resignation from his employment as a teacher: The Tribunal willingly made the conclusion to reject his application that he was not dismissed from work due to the pressure from the TNSM or other religion (CB-204)

   4.Letter from Mr. Khan:

   The Tribunal did not consider the letter from Mr. Khan and did not give much weight because the Tribunal willingly made an issue of note having contact details of Mr. Khan and it was not very hard to collect contact details (CB-204)

   5.Localised harm:

   The Tribunal wrongly observed that the Tribunal therefore considers that any threat the applicant may face is localised and there would be no real chance of the applicant being seriously harmed if he moved to another area (CB-204)

   6.Relocation:

   Relocation is never possible because of TNSM and evidences of the Tribunal shows that how bad TNSM is (CB-200, 201)

   7.Wrong observation:

   The Tribunal did not assessed the claim properly and it made wrong observation on wrong legal criteria.

   8.Evidence before the Tribunal:

   The evidence collected by the Tribunal support the applicant’s claims the evidence also disclose the severity of the problem in Pakistan by TNSM (CB-200 & 201)

   (b)The Tribunal used wrong process to reject the applicant’s claim that the Tribunal accepted that the applicant has fear in and problem his area but the Tribunal rejected the applicant’s claim for protection on the basis of few wrong legal requirement which the Tribunal can not do u/s 91R of the Act.”

Hearing before the Court

1. At the hearing before the Court the applicant appeared in person.  He was assisted by an interpreter in the Pashto language.  Ms T Quinn appeared for the first respondent.

2. The applicant confirmed that he was relying on the grounds set out in the amended application.  (He also made written submissions on 2 April 2008.)  He complained that the Tribunal did not accept that he had been attacked, and did not accept the various documents that he had provided in support of his claims.  He further “objected” to the Tribunal saying that he could go elsewhere to seek protection in Pakistan.  He submitted that the TNSM operated everywhere in Pakistan, and there was “no guarantee” that he would be safe. 

Consideration

1. To a large degree the applicant’s grounds (as understood particularly with reference to the “particulars”, and his written and oral submissions seek to take issue with the factual findings of the Tribunal.  For the most part they seek impermissible merits review from this Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”)).

2. I agree with submissions by Ms Quinn that on any plain reading of the Tribunal’s decision record, its decision contains two separate and independent bases for affirming the decision under review. 

3. The Tribunal rejected the substance of the applicant’s claim to fear harm in Pakistan due to his claimed criticism of the TNSM, and the consequences which he said had flowed from this because it did not believe the applicant’s factual account, and explanations, of the incident of harm, and fears, that he said had occurred in the past in Pakistan. 

4. Given its comprehensive rejection of the applicant’s credibility in this regard, and the rejection of the factual basis of his relevant claims to fear harm, it is not clear why the Tribunal then went on to consider the issue of relocation to another part of Pakistan. 

5. The definition of “refugee” set out in Article 1A(2) of the Refugees Convention defines, as a refugee, a person who is unable or unwilling to avail himself of the protection of his home country because of a well-founded fear of persecution for one of the five Convention reasons.  Relevantly, it is accepted that for an applicant to be owed protection by Australia, he must have a well-founded fear of persecution for one of the Convention reasons in relation to the country of claimed persecution as a whole.  The situation is, therefore, that if the well-founded fear of persecution is localised then the relevant decision-maker (such as the Tribunal) is required to consider the availability of protection in the remainder of an applicant’s home country.  It is not necessary however to consider relocation where the Tribunal makes a finding that there is no well-founded fear of persecution (see for example Sabaratnasingam v Minister for Immigration Multicultural Affairs [2000] FCA 261 per Whitlam, Lehane and Gyles JJ at [13]).

6. In the current case the applicant claimed to fear persecutory harm in Pakistan because he had spoken out against various Islamic extremist groups.  He claimed that as a result he had been harmed by Islamic extremists in the past, and feared that this would occur again in the future if he were to return.  Having found the applicant not to be a credible witness and having rejected the factual basis of his claim, this was sufficient in itself to base the Tribunal’s decision to affirm the delegate’s decision to refuse the applicant a protection visa.

7. However, there is no error, in itself, in the Tribunal in any event (“in any case” – CB 204.4) then going on to consider that even if “any threat the applicant may face” was seen to be localised that the applicant could reasonably and safely relocate to another part of Pakistan. 

8. In this regard I did not see the first basis of the Tribunal’s finding (that is its rejection of the applicant’s factual claims to fear persecutory harm) had been attendant with such doubt as to have necessitated consideration of the issue of relocation such that the relocation finding could be said to have been considered in circumstances where the Tribunal looked at this as an alternative, in answer to the question of “what if I am wrong” (see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v Commonwealth (1999) 162 ALR 1 (“Abebe”), and Wu Shan Liang).

9. Given the above, therefore, I agree with the first respondent’s submissions that for the applicant to succeed before this Court jurisdictional error must be discerned in regard to both of the bases for the Tribunal’s decision (see in particular VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [32]–[33], per North J, and also MZXGR v Minister for Immigration and Multicultural Affairs [2006] FCA 1167 at [7] and [17], per Black CJ).

10. In relation to the first basis, that is the rejection of the applicant’s factual claims to fear persecutory harm in Pakistan, the Tribunal found that the applicant was not a credible witness.  It gave reasons for this finding.  Such findings are of course findings of fact based on the evidence before it, and for which the Tribunal gave reasons.  In these circumstances I cannot discern jurisdictional error (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]). The Tribunal’s findings were open to it for the reasons that it gave.

11. But for that matter nor can I discern jurisdictional error in the Tribunal’s finding that the applicant could reasonably and safely relocate to another part of Pakistan away from his home district and adjoining districts of the NWFP. 

12. Tribunal noted independent information before it as to the area of activity of the TNSM, and limitations on its expanding its activities beyond the applicant’s home area.  Further the Tribunal considered the applicant’s relevant personal circumstances: his family, employment history, and his demonstrated ability to live (even outside of Pakistan) for a period of years, in reaching the view that the applicant could relocate to another area of Pakistan.  In this regard I cannot see that the Tribunal acted inconsistently with what was relevantly said in SZATV v Minister for Immigration & Citizenship [2007] HCA 40 and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 (“Randhawa”) at [14], per Black CJ.

The Grounds: Consideration

1. Ground (a) in the amended application asserts jurisdictional error on the part of the Tribunal on the basis of the Tribunal failing to make its decision according to the Act. A number of particulars are set out in support of this general assertion.

Particular One: Days in Hospital

1. Particular one takes issue with the Tribunal’s finding that: “the applicant could not remember the number of days he spent in hospital following the attack in 1999” (CB 203.3).  This particular asserts that to the extent that the Tribunal relied on this to find that he was not a truthful witness, that this was “a wrong procedure”, because the “Discharge Slip mentioned that how many days he stayed in hospital”.  I understood the applicant here to refer to a document provided by the applicant to the Tribunal being the “Discharge Slip” from a hospital in Pakistan which showed that the applicant had been admitted on 22 May 1999, and discharged on 6 June 1999 (see CB 60 to CB 63).

2. The applicant appears to misunderstand the Tribunal’s finding in this regard.  The Tribunal’s finding was not necessarily about how many days the applicant actually spent in hospital.  Its finding, very clearly, was that, given that the applicant had said that he had suffered significant injuries, he could not tell the Tribunal how long he had spent in hospital.  This, it must be noted, was in circumstances where the hospital record provided to the Tribunal recorded the actual time that he had spent in hospital, and that this document had previously been provided to the Tribunal by the applicant himself.

3. The Tribunal’s account of what occurred at the hearing (unchallenged by any other evidence brought by the applicant to this Court) is relevantly as follows (at CB 197.7):

   “The applicant said that he could not remember the exact time how long he spent in hospital, may be 4-5 days or a week.  The Tribunal noted that according to the medical certificate he provided to the Tribunal previously, he was hospitalised from 22 May to 6 June 1999.  The applicant said that he could not remember the exact time as many years have passed.  The Tribunal noted that it may have been reasonable for the applicant to remember whether he spent one week or almost three weeks in the hospital.  The applicant said that he should remember that period but he is under pressure and he cannot remember everything, many things affect his memory.”

4. Relevantly, the Tribunal’s finding was (at CB 203.3):

   “The Tribunal finds it significant that the applicant could not remember the number of days he spent in a hospital following the attack in 1999.  The Tribunal does not accept that this was due to the pressures faced by the applicant due to the significance of this incident and also because the applicant was quite specific about other aspects of his evidence.  The Tribunal is of the view that if the hospitalisation was the result of such a significant event as an attack on the applicant, the applicant would be able to recall such details.  The Tribunal finds that the applicant has not been truthful with respect to his claim of hospitalisation following an attack by the TNSM supporters and does not accept that the applicant had been hospitalised as a result of the attack by the TNSM.  Further, the medical certificate does not state the circumstances in which the injury has been inflicted.  For this reason the Tribunal also does not accept that the medical certificate provided by the applicant is probative evidence that the applicant had been attacked by the TNSM supporters.”

5. The Tribunal’s finding, that went to the applicant’s lack of credibility (amongst a number of other factors) that he could not remember how long he had been hospitalised following such a significant event was plainly open to it on the material before it.  That it went to support the Tribunal’s finding that the applicant was “evasive and non-responsive” in answering the Tribunal’s questions at the hearing, is clearly evident with regard to the Tribunal’s account of what occurred at the hearing, and in relation, specifically, to this issue.  This finding was plainly open to the Tribunal in the circumstances.  I cannot discern error in the way the Tribunal has approached this matter.

Particular Two: “FIR”

1. This particular complains that the Tribunal “misread” the “First Information Report” (“FIR”) which the applicant had submitted to the Tribunal in support of his claims (see CB 60).  This document purported to be a police report in relation to the applicant’s claim that he had been attacked by fundamentalists on 22 May 1999.  The applicant appears to take issue with the Tribunal’s claimed finding by asserting that “his not knowing the attackers cannot be the reason of untruthfulness”.

2. The Tribunal’s finding in this regard was as follows (at CB 203.5):

   “The applicant provided to the Tribunal a copy of the First Information Report dated 22 May 1999.  It states that the offence was committed by three or four unknown farmers and that they showed themselves to the writer as TNSM workers.  However, when the Tribunal questioned the applicant whether he was aware of who attacked him, he stated that he could not identify the attackers but he though [sic: thought] they were TNSM workers because he had no other enemies in the area.  The Tribunal considers it significant that the applicant stated in oral evidence that he was unable to identify his attackers while he had done so in the FIR.  The Tribunal finds that the applicant has not been truthful in his evidence to the Tribunal.”

3. The Tribunal’s finding in this regard was, plainly, that it was concerned with the inconsistency in the applicant’s evidence in that, at the hearing his evidence was that he “thought” that the attackers were fundamentalists and assumed that this was the case, even though he could not identify them (see CB 197.3).  But in the FIR report to the police he said that they “showed themselves as the worker of TNSM” (CB 60.7).  Plainly, it was open to the Tribunal to make a finding of inconsistency in the applicant’s evidence.  A finding that was open to it on the material before it.  The applicant’s complaint in this regard therefore does not rise above a challenge to the factual finding made by the Tribunal.

Particular Two: The Time of the Incident

1. The other aspect of the applicant’s complaint arising from particular two refers to the difference in “time of [the] incident”. From the “FIR” it appears that the applicant provided an exact time, and date, for the claimed incident.  When plainly read this reveals that the applicant reported the attack to the police on the same day that the attack was said to have occurred.  

2. Yet at the hearing with the Tribunal the applicant said: “that he was unconscious and people took him to Saidu Sahrif Hospital” (CB 197.4).  In these circumstances it was plainly open to the Tribunal to find that the applicant’s evidence given at the hearing that he was unconscious following the attack, and was taken to hospital, was inconsistent with what was recorded in the police report.  That is, that the applicant reported to police at “14:00 pm” on the day of the attack and stated to the police that the attack had occurred an hour earlier “at 13:00 pm” (CB 60).

3. Plainly it was open to the Tribunal to find that the applicant’s oral evidence was inconsistent with what was recorded in the documentary evidence that he had provided in support of his claims.  I cannot see error on the part of the Tribunal in making a finding that was clearly open to it on the material before it.  Further it was plainly open to the Tribunal to find that this inconsistency also went to the applicant’s credibility.

Particular Three: Dismissal

1. Particular three takes issue with the Tribunal’s finding that the applicant was not dismissed from his employment due to pressure from the TNSM or other fundamentalists, in spite of his having provided a letter in support of his claim.

2. The letter from the relevant school principal is reproduced at (CB 64).

3. The Tribunal accepted that the applicant had been employed in a school, and even that he may have expressed some criticism against the TNSM.  However, for reasons which it gave, it did not accept that such criticism brought the applicant to the attention of the TNSM, or that the claimed consequent harm from them had occurred (CB 203.9).

4. In relation to the letter the Tribunal said as follows (at CB 204.1):

   “The applicant presented to the Tribunal a letter from the school owner suggesting that he should leave employment at the school.  Putting aside [the] Tribunal’s concerns about the availability of fraudulent documents available [sic] in Pakistan, the Tribunal notes that the letter does not state the reasons why the applicant was dismissed from employment, other than to state that the parents and disciples are not satisfied with the applicant’s efforts.  The Tribunal accepts that the applicant was employed in a school in Koza Bandai and accepts that he resigned from that school.  In the absence of any reasons for the resignation, the Tribunal does not accept that the letter supports the applicant’s claim that he was dismissed from work due to his opposition to [the] TNSM or due to the pressure from the TNSM or other religious organisations.”

5. The Tribunal’s finding that the applicant had not come to the attention of the TNSM was open to it for the reasons that it gave (see CB 202 to CB 203).  Further, it was also open to the Tribunal (given what was stated in the letter) to find that it could not accept that the letter supported the applicant’s claim that he was dismissed from work due to pressure from the TNSM, or other religious organisations (CB 204.2).

6. The applicant’s complaint that the Tribunal did not accept his alternative explanation for the resignation, namely that his dismissal was forced by the religious organisations because of his speaking out against them does not reveal error on the part of the Tribunal.  First the Tribunal does not have to uncritically accept what the applicant said in this regard (Randhawa).  Nor was the Tribunal required to make a finding as to “the real” reason for the resignation.  In relation to the letter provided as corroborative evidence of the applicant’s claim that he had been dismissed from his employment because of pressure from religious organisations, and because of his opposition to them, this required the Tribunal only to find whether that letter supported, or did not support, the applicant’s claim in this regard.

7. Having rejected the applicant’s claim to have been dismissed from his employment because of pressure from religious organisations because of his opposition to them, it was plainly open to the Tribunal to find that the letter, given what was stated on its face, did not in any event support the applicant’s claim in this regard.  I cannot discern error on the part of the Tribunal. 

Particular Four: The Letter from “Mr Khan”

1. Particular four makes reference to a letter from “Mr Khan” provided in support of his claims.  The applicant resents that the Tribunal did not consider the letter, and did not give much weight to it.  Further, the Tribunal should have made enquiries of Mr Khan and not just relied on the fact that the letter from Mr Khan did not provide any contact details.  The applicant claims that it was: “not very hard to collect contact details”.

2. The letter from Mr Khan is reproduced at CB 65.  It states that the author of the letter has known the applicant, and his family, for many years and that the applicant had problems with “hardliners” and had been physically assaulted.  The letter is addressed: “To Whom It May Concern”. 

3. The Tribunal’s relevant finding, which contains a reference concerning contact details (at CB 204.4) is:

   “The applicant provided to the Tribunal a statement from Mr Khan who states that he has known the applicant and his family for a number of years and is aware that the applicant had problems with the hardliners for which he was physically assaulted.  The Tribunal notes that the writer had not provided his contact details, preventing the Tribunal from seeking further information with respect to that evidence.  The Tribunal does not consider this letter to be probative of the matters stated therein and cannot give this letter much weight.”

4. First, it is not correct, as is asserted in the amended application, that the Tribunal did not consider the letter.  It plainly considered the letter.  The applicant’s complaint therefore must be seen as one that the Tribunal did not accept that the letter was such as to cause the Tribunal to believe the applicant’s claims, or of value in support of those claims.  

5. The Tribunal’s reason for not giving “much weight” to the letter must be seen in context.  First, the Tribunal comprehensively rejected the applicant’s claims to have had problems with fundamentalists or hardliners, and to have been physically assaulted, for reasons which it had previously given.  What is quoted immediately above, from the Tribunal’s decision record, is seen as the Tribunal dealing with a piece of evidence provided by the applicant in support of his claims.  Keeping in mind its findings relating to the lack of credibility of the applicant in relation to his relevant factual claims, it was plainly open to the Tribunal not to give “much weight” to the letter in circumstances where it did not consider the letter as providing proof or evidence of what was actually stated in it.  The giving of weight to pieces of evidence before it is, of course, a matter for the Tribunal (Lee v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 464 at [27]).

6. The applicant complains that the Tribunal did not give much weight to the letter from Mr Khan.  When read with the applicant’s general assertions that the Tribunal followed a “wrong procedure”, this may therefore be understood as a complaint that the Tribunal was in error in not placing weight on this document.  However, I cannot discern error in how the Tribunal proceeded in this regard.  The Tribunal plainly made a finding that the applicant was not a witness of truth.  In this circumstance there was no error in giving this document, which went to corroborate the applicant’s claims, the little weight that it did.  The document was in any event undermined by the adverse credibility finding (Applicant S20 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59; [2003] HCA 30).

7. I note also what was said by the Court in relation to procedural fairness (“wrong procedure”) in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at [36], per French J:

   “Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility.  In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness.  This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision.  But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness.  Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party’s credibility.”

8. I cannot see error in how the Tribunal has approached this matter.

9. In relation to the inference that the Tribunal should have made further enquiries of Mr Khan, I note, as submitted by Ms Quin, that there is no general duty on the Tribunal to make enquiries about the applicant’s claims. The relevant statutory scheme (see in particular ss.424 and 427 of the Act) is not mandatory in obliging the Tribunal to seek further information, or to make further investigation. These provide power for the Tribunal to do so if it so wishes.

10. In this regard while it may be said that there is a duty to enquire in some circumstances (see for example W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 432), in the absence of any such particular reason as in this case, there is no general obligation for the Tribunal to make further enquiries (see for example VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27], WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [24]–[25], and NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC at [18]–[21]).

11. The Tribunal’s observation that the author of the letter had not provided contact details was not the reason that the Tribunal chose to not give “much weight” to the letter.  Nor importantly is there any evidence before the Court to show that the applicant asked the Tribunal to make enquiries of Mr Khan, either by calling him as a witness, or otherwise.

12. Ultimately the applicant provided a letter to the Tribunal which he said supported his claims to fear harm from Muslim extremists.  The Tribunal for reasons that it gave was not persuaded that the applicant did fear such harm, nor that the letter provided evidence in support of the applicant’s claims.  In all I cannot see error in how the Tribunal has dealt with this matter.  This complaint also does not succeed.

Particulars Five and Six: Threat “local”

1. At particulars five and six the applicant takes issue with the Tribunal’s “observation” that the threat that the applicant faced was “localised”.  It also takes issue with the Tribunal’s finding that the applicant could safely relocate to another area, and asserts that such relocation: “is never possible because of TNSM”.  The applicant refers to “evidences” “of the Tribunal shows that how bad the TNSM is”.

2. In my view the Tribunal’s finding in relation to relocation was, when read in context, made in response to what was broadly asserted in Mr Khan’s letter in support of the applicant.  When read plainly the Tribunal’s decision turned on its rejection of the factual basis of the applicant’s claims because it did not believe the applicant (see CB 203.10).  What follows in the decision record is the Tribunal dealing with various pieces of evidence (the letter from the school), and the letter from Mr Khan.  

3. It was in relation to the latter, noting of course that Mr Khan asserted that he had known the applicant for a number of years, and was aware that the applicant had problems with the hardliners (in context, in his local area), evidence to which the Tribunal did not give “much weight”, for reasons that it gave.  But then said: “in any case” (CB 204.5), that is in contradiction to what was stated in the letter from Mr Khan (that the applicant could not go back to Pakistan and should stay away from Pakistan that is that he could not be safe anywhere in Pakistan) that the Tribunal “cited” independent information available to it that said that the TNSM was active in certain areas of the NWFP and had: “only limited success in expanding its activities beyond the tribal areas of the province”.  It was in those circumstances that what the Tribunal considered that the applicant “may face” (in light of what Mr Khan had said) was “localised”, and therefore the applicant would be safe if he moved to another area of Pakistan.

4. The applicant’s complaint that he could not move to another area safely, as put to the Court now, does not rise above a challenge to the Tribunal’s factual finding and invites impermissible merits review.  Further, that the Tribunal considered the harm: “is localised” was clearly, in context, a reference to the independent country information available to it which indicated that the TNSM activity, and influence, was extended only to certain regions of the NWFP, and not to other parts of Pakistan. I cannot see that this complaint assists the applicant in showing jurisdictional error on the part of the Tribunal.

Particular Seven: “Wrong Observation”

1. Particular seven to the amended application asserts that the Tribunal did not assess his claims properly, and “made wrong observation”.  In submissions the applicant explained that the Tribunal is obliged to “find out” whether there is a threat to life or liberty or significant physical harassment.  The submissions claim that the independent evidence before the Tribunal relating to the TNSM (as set out at CB 200 and CB 201) shows that the applicant had “a threat for life liberty from TNSM”.  But the Tribunal made a “procedural mistake” in not accepting that.

2. First, I did not understand this to be a complaint about the procedures adopted by the Tribunal (with particular reference to Division 4 of Part 7 of the Act), but a complaint that the Tribunal found against the applicant notwithstanding independent evidence before it. In this regard there is no “procedural mistake” or procedural unfairness as such to be derived from the Tribunal’s conclusion in this sense. This again is another request for impermissible merits review.

3. To the extent that the applicant complains that the Tribunal made its “observations” on “wrong legal criteria”, again with reference to the applicant’s written submissions and the references to threats to life, liberty or significant harassment, this appears to be a complaint that the Tribunal did not have regard to the provisions of s.91R of the Act, and in particular s.91R(2) of the Act. This appears to be linked to ground (b) of the amended application, and paragraph 2 of the applicant’s written submissions.

4. Section 91R of the Act, of course, provides a statutory explanation, for the purposes of the Act, to the concept of “persecution” as derived from Article 1A(2) of the Refugees Convention. To the extent that the applicant’s complaint is that the Tribunal misunderstood its legal obligations in this regard, I note relevantly that the Tribunal understood the relevance and requirements of s.91R (see CB 188).

5. It is clear however that the provisions of s.91R(2), and in particular as to what is said to constitute “serious harm” within the purposes of s.91R(1)(b), is only properly engaged, at least in a practical sense, in circumstances where the Tribunal accepts an applicant’s claims and that they involve some harm. It is then required to see whether such harm can be said to be: “serious harm”.

6. Plainly in the circumstances of this case the Tribunal, because of its findings on the applicant’s credibility, rejected the applicant’s claim to fear persecutory harm both as based on his claimed experiences in the past, and as they were likely to occur in the future.  In this sense it was clearly not required to go on to specifically consider whether the harm faced by the applicant was “serious harm”, or not, given that it found that he did not face any harm (noting of course the circumstances in which it went on to consider relocation, and the circumstances in which it went on to consider whether the applicant faced any threat in that regard).

Particular Eight: Independent Evidence

1. Particular eight refers to the independent evidence before the Tribunal (with reference to CB 200 and CB 201).  The applicant’s complaint in this regard is that the Tribunal had before it information which “disclosed the severity of the problem in Pakistan by TNSM”.  Presumably the Tribunal therefore should have found for the applicant.

2. This does not rise above a request for impermissible merits review.  That the Tribunal had before it independent information regarding the TNSM would really only have assisted the applicant in circumstances where the Tribunal accepted his claims to fear harm from the TNSM, and other fundamentalists.  

3. The applicant’s complaint now is that the Tribunal should have accepted his claims given the evidence regarding TNSM.  The Tribunal rejected the applicant’s evidence because he was not credible.  That the TNSM is a “problem” in some part of the NWFP does not alter the finding of fact that the applicant’s claims to fear harm from the TNSM were not credible.  I cannot discern error in this regard.

4. Further to the extent that the Tribunal did rely on this independent information in finding that the TNSM’s area of activity in Pakistan was limited, and that its influence was confined in relation to the issue of relocation, is consistent with the information before it (see CB 201).  But in any event even if there had been some error in a factual finding in this regard, such an error would not in any event have amounted to jurisdictional error (Abebe at [137]). Further the choice and assessment of country information by the Tribunal is, of course, a factual matter for it (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]–[14]). This aspect of this complaint also does not succeed.

Submissions: s.424A of the Act

1. In written submissions the applicant also complains that he did not understand why his claim was rejected by the Tribunal. He claims that he did not understand what was in the Tribunal’s “s.424A letter”, and did not understand why he was sent this letter in the first place. I understood this essentially to be a complaint with reference to s.424A(1)(b) of the Act, which is in the following terms:

“(1)Subject to sub-sections (2a) and (3), the Tribunal must:

(a)….

(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review …”

(That is, why the information contained in the letter is relevant to the review.)

1. Following remittal of the applicant’s matter to the Tribunal, the Tribunal wrote to the applicant by letter dated 16 May 2007 inviting his comment on certain information that it said would be the reason, or a part of the reason, for deciding that he was not entitled to a protection visa (see CB 150 to CB 167). In essence the letter referred to information provided by the applicant in his protection visa application, and in statements made to the first respondent’s Department, and in information and statements and documents provided to the Tribunal (as previously constituted), including evidence given by the applicant at a hearing before the Tribunal as previously constituted. It also referred to an earlier notice sent to the applicant pursuant to s.424A by the earlier constituted Tribunal, and noted the applicant’s response. The letter also made reference to independent country information available to the Tribunal.

2. To the extent that the Tribunal made reference to independent country information in its s.424A letter I note that given the nature of this information it was non-in personam information), such information falls within the exception contained in s.424A(3)(a) from the requirements set out in s.424A(1) of the Act. Further to the extent that the letter made reference to evidence and material provided by the applicant to the Tribunal for the purposes of the review (albeit at the time of the earlier constituted Tribunal), then such information was plainly provided for the purposes of the review, and therefore falls within the exception contained in s 424A(3)(b) from the requirements set out in s 424A(1). (Noting also that the Tribunal was entitled to rely on processes before the earlier constituted Tribunal. See SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291; [2006] FCAFC 107.)

3. Further to the extent that the Tribunal did put such information to the applicant in its letter does not in my view constitute error. While such “information” does not enliven s.424A(1), there is in my view no error if the Tribunal in any event chooses to put such information to an applicant for comment.

4. To the extent that the Tribunal also put to the applicant inconsistencies said to arise in part from what he put to the first respondent’s Department, I note that given the date of the letter (16 May 2007) that it was plainly sent before the High Court handed its judgment in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) (on 13 June 2007).  As such the Tribunal acted properly to comply with what was then the relevant leading authority in this regard (see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 and Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27).

5. Since the handing down of SZBYR it is clear that the “information” referred to by the Tribunal in its letter plainly was not information that was “information” for the purposes of s.424A(1) (see SZBYR at [17]), given that what is relevantly set out at CB 150 and CB 151 does not “contain in [their] terms a rejection, denial or undermining of the [applicant’s] claims to be [a person] to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.”

6. That the letter also makes reference to inconsistencies in the applicant’s evidence, and inconsistencies with independent information available to the Tribunal, such inconsistencies, and the Tribunal’s subjective appraisal, and adverse views derived from these inconsistencies, is also not “information” for the purposes of s.424A(1) (with reference to SZBYR at [18]).

7. Plainly however the Tribunal, at the relevant time, did not have the benefit of the understanding provided by the High Court in SZBYR. The answer to the applicant’s question as to why he was sent the letter therefore is that the Tribunal acted in accordance with what it understood to be its statutory (and legal) obligation at the time to put such “information” to the applicant for his comment. That it went beyond and put information to which s.424A(3)(a) and (b) of the Act (even at that time) applied (presumably as an abundance of caution) cannot be said to be jurisdictional error on its part.

8. The applicant complains that he did not understand why he received the letter.  The Tribunal’s first sentence in this letter puts the matter beyond doubt (at CB 150.3):

   “The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.”

9. I cannot see in these circumstances that even an applicant from a non-English speaking background would not know why he was sent the letter.  Plainly he was sent the letter to put him on notice of information or material which would go to his being refused the application.  With reference to what is set out at the foot of the letter (CB 167.5): “You are invited to comment on this information”, he was given the opportunity to do so.

10. I should just note in relation to the issue of “non-English speaking”, and generally the applicant’s complaint that he did not understand the letter, that in his application for a protection visa the applicant responded to the relevant question (at CB 13.9) that he could speak, read, and write English.  I do not see this as somehow inconsistent with the applicant’s subsequent request to the Tribunal (at both instances of the hearing) requesting a Pashto interpreter (CB 68 and CB 176).  It is quite understandable that an applicant such as this applicant, notwithstanding that he could speak, read, and write English, would still require the services of a relevant interpreter at a hearing.

11. In any event s.424A(1)(b) of the Act requires the Tribunal to ensure, “as far as is reasonably practicable”, that an applicant understands why the information is relevant to the review, and the consequences of it being relied upon in affirming the decision that is under review.

12. The applicant complains that he did not understand the letter. He does not say why, and nor did he explain this at the hearing before the Court. If the applicant had some difficulty as to language, it was open to him to have sought assistance to overcome this problem. I cannot see that there is any obligation on the Tribunal to have provided any translation of its letter to the applicant, such as to satisfy any requirement set out in s.424A(1)(b) of the Act. What I understand the section to oblige the Tribunal to do is that within its terms: the Tribunal must “give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information”, and ensure that “the applicant understands why it is relevant to the review”. The terms of the letter show that, at appropriate points, the Tribunal indicated why the information was relevant to affirming the decision under review (see CB 159.3 to CB 167).

13. Nor does the relevant legislation require the Tribunal to ensure that an applicant actually does understand the contents of the letter, or its consequences.  What is required of it is to ensure that, as far as is reasonably practicable, this occurs.  I cannot see in the circumstances that the Tribunal failed in this regard.  Nor importantly has the applicant provided anything further to the Court other than the mere assertion that he did “not understand”.  This complaint therefore does not succeed.

Further Consideration: s.425 of the Act

1. I note also (in particular given that the applicant appeared unrepresented before the Court) that at the hearing conducted by the Tribunal (as subsequently constituted), that on the only evidence before the Court (that is the account of the hearing contained in the Tribunal’s decision record), the applicant was given the opportunity to confirm his claims as previously made, and to further present those claims (see generally CB 193 to CB 199).  Ultimately (after giving sufficient indications of its concerns with his evidence) the Tribunal squarely put to the applicant the concerns that it had with what he had claimed (at CB 199.5):

   “The Tribunal noted its concerns.  The Tribunal noted that the applicant claims that he had been opposing the TNSM from 1998.  He had not been subjected to any harm from TNSM from 1999 to 2005.  The applicant said that in 2005 an attack happened to his house.  The Tribunal reiterated that from 1999 to 2005 he had not been subjected to any harm from the TNSM even though he agreed that he could have been easily located.  The Tribunal noted that the TNSM operated in a particular area of Pakistan and given the applicant’s residence in Australia the Tribunal considered it reasonable for him to relocate to another area of Pakistan where the TNSM was not active.  The Tribunal invited the applicant’s comment on these issues.  The applicant said that if he returned to his country, he would not be able to live with his family because if he moves to another area, it would be difficult for them and the organisation would chase them as they have business links.  The Tribunal pointed out that if he remained in Australia, he would also be unable to live with his family.  The applicant said that he agreed but he feels safe in Australia.”

2. Any plain reading of the Tribunal’s decision record shows that in relation to the applicant’s claim to fear persecutory harm from the TNSM and extremist fundamentalists in Pakistan, the applicant was given the opportunity to fully set out the factual basis of his claims. With reference to procedural fairness obligations on the part of the Tribunal, pursuant to s.425 of the Act (and with reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [47]), the Tribunal sufficiently indicated to the applicant that everything he said was at issue (see also in the Tribunal’s account of the hearing CB 195.7 to CB 196.2, CB 196.4, CB 196.5, CB 197.2, CB 197.4, CB 197.5 to CB 197.6, CB 198.3, CB 198.7, and leading ultimately to CB 199.6).

Bias

1. The applicant’s complaints generally may be said to assert bias on the part of the Tribunal, in that it did not bring an open mind to the proceedings, a ground asserted in the originating application to the Court (“the decision was made a preset mind and the Tribunal officer already has made her mind of refusing my application”).

2. I have regard to the relevant authorities (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157 (“Jia”), SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [43]-[44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102).

3. I note with reference to relevant authorities (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], Jia) that such allegation, and even an allegation of an apprehension of bias, must be distinctly made and clearly proven.  There is nothing before the Court (bearing in mind relevant authorities and relevant tests) to show that the Tribunal failed to bring an open mind to the proceedings, or that the well-informed lay observer would reasonably apprehend the Tribunal to have been biased.  This complaint also does not succeed.

Conclusion

1. In all, for the applicant to succeed before the Court, the Court would need to discern jurisdictional error on the part of the Tribunal.  I cannot see such error.  This application is therefore dismissed.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  31 July 2008