SZKFX v Minister for Immigration

[2008] FMCA 292

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKFX v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 292

MIGRATION – Review of Refugee Review Tribunal decision – adverse credibility finding – questioning during the hearing not designed to produce a predetermined outcome – no failure to consider motives of alleged persecutors – no evidence of bias or bad faith on the part of the Tribunal – no denial of procedural fairness – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.65, 36(2), 422B, 424A(1), 424A(3)(b), 425, 91R

Ram v Minister for Immigration and Ethnic Affairs and Anor (1995) 57 FCR 565
Applicant A and Anor v Minister for Immigration and Ethnic Affairs and Anor (1997) 190 CLR 225
Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17; (2001) 205 CLR 157
Re Refugee Review Tribunal Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142
SZCIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 62
Lay Lat v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 61
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
NAMJ v Minister for Immigration and Multicultural Affairs [2003] FCA 983
WAHU v Minister for Immigration and Multicultural Affairs [2004] FCA 890
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S20/2002 [2003] HCA 30; (2003) 198 ALR 59
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511
WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624
SAAP v Minister for Immigration and Multicultural Affairs [2005] HCA 24; (2005) 215 ALR 162
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92

Applicant: SZKFX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 563 of 2007

Judgment of: Nicholls FM

Hearing date: 19 February 2008

Date of Last Submission: 19 February 2008

Delivered at: Sydney

Delivered on: 28 March 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr M P Cleary

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 19 February 2007, and amended on 15 June 2007, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 563 of 2007

SZKFX

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 19 February 2007, and amended on 15 June 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 14 January 2007, and handed down on 1 February 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

2.The first respondent has filed a bundle of relevant documents (the Court Book – “CB”) in this matter from which the following background can be discerned. 

3.The applicant is a citizen of Pakistan who arrived in Australia on 14 June 2006 and applied for a protection visa on 29 June 2006 (CB 2 to CB 32).  On 28 September 2006, a delegate of the respondent Minister refused to grant a protection visa to the applicant (CB 54 to CB 63).  On 11 October 2006, the applicant applied to the Tribunal for review of the decision (CB 65 to CB 68). He was assisted by a registered migration agent (who was also a solicitor) before the Tribunal (CB 64 and CB 66).

The applicant’s claims to protection

4.The applicant claimed to have worked in Pakistan in support of women’s rights and social justice. He claimed to fear harm from Islamic extremists whom he said were very influential and powerful in his region (the North West Frontier Province – “NWFP”). The applicant claimed his activities, work and “liberal views” brought him to their attention. The applicant identified membership of a particular social group and political opinion as the relevant Refugees Convention grounds.

The Tribunal

5.The applicant appeared before the Tribunal and gave evidence on 22 November 2006.  The Tribunal’s account of what occurred at the hearing is set out in its decision record (CB 113.4 to CB 116.2).

6.The Tribunal did not accept that the applicant feared harm in Pakistan for any Refugees Convention reason at any time before 2005 (CB 116.8). This was based on the Tribunal’s finding that between 1998 and 2005, the applicant continued to live and work in Pakistan, returning to his home town, even after travelling overseas on two occasions during this time. In particular, the Tribunal did not accept the applicant’s claim that his business in his hometown (Swat) was burned down in 1998 and that he feared harm arising from this. This was, it found, because he had returned there from Karachi six months later and did not have a reasonable explanation as to why he returned in the circumstances (CB 117.2).

7.The Tribunal found that the applicant had invented the claim to have been involved in welfare work in Pakistan and to have been a member of the Roshni Welfare Society (CB 117.3). The Tribunal, further, did not accept that the applicant had been a welfare worker. These findings were based on what the Tribunal found to be inconsistencies in the applicant’s evidence. In particular, that the applicant claimed to have been involved in welfare groups from 1997/1998, but claimed there were no episodes of harm until 2005. He admitted that his business had been burned down, not because of his claimed political views or membership of social groups, but because he was: “dealing in videos and was wrongly influencing the community” (CB 117.7).

8.The Tribunal found it implausible that the applicant had gone into hiding in August/October 2005 because he had been approached by someone seeking to harm him, because the applicant was in Karachi at this time waiting to be contacted by his employer for work on a ship (CB 117.9)

9.In all, the Tribunal found that the applicant: was “not a witness of truth,” and as a result, it also found that the documents he produced in evidence in support of his claims could not be relied upon (CB 117.10 to CB 118.1).

10.The reason for the Tribunal affirming the decision under review, was based on the adverse view that it had formed of the applicant’s credibility, based on the implausible and inconsistent nature of his evidence, and that “no plausible evidence” had been put before it to support the claim that the applicant had suffered persecution in his country because of his political opinion, his imputed political opinion, or because he was a member of any particular social group, or for any Convention reason. On this basis, the Tribunal concluded that it could not be satisfied that Australia had protection obligations under the Refugees Convention towards the applicant.

Application to the Court

11.By way of amended application filed on 15 June 2007, the applicant asserted the following grounds for review:

“(a).     The Refugee Review Tribunal erred in law in making findings of well-founded fear. The Tribunal erred in adopting an unduly harsh approach to the well-founded fear.

Particulars: The RRT adopted a line of questioning designed to establish the harm from the perspective of the Applicant persecute asking why he would be harmed rather than addressing as to the motive.

(b).   The Tribunal identified wrong issue; asked itself wrong questions, failed to consider relevant material and relied on irrelevant material. The Applicant claims that the Tribunal made jurisdictional error when it made decision totally based on the evidence prepared for the First respondent and by the First Respondent.
The applicant claims that he was denied procedural fairness when it totally discarded the Applicant’s oral and written evidence. As it said to the Applicant at the time of hearing that the Refugee Review Tribunal is independent body and make the hearing would be conducted in a judicial and impartial manner but the Tribunal member’s approach was very harsh and irrelevant.”
PARTICULARS: The Tribunal raised the issue of credibility made opinion that there was no evidence that the applicant had been persecuted because he had been able to return to and live in Pakistan whenever the applicant was not at sea.
Applicant claims that the Tribunal member spent most of the time of the hearing only to find the basis of credibility and inconsistencies such as when I went to Karachi or when I came from Karachi and Swat, when I opened Video Shop or when I closed the Video Shop? When I joined TI established by Imran Khan. The Applicant claims that the Tribunal member avoided giving any importance his role as advocate of women’s right. The Member totally discarded the written or oral evidence related his role and activities with the Roshni Welfare Society, which are the main reasons of harm or persecution. He said at the time of hearing and presented several original documents to the Member but the Member made up his mind before he made the decision. The Applicant had a legitimate expectation from the impartial judicial body (RRT) to treat workers of Human Rights in a judicial manner.

The Applicant claims that he was denied procedural fairness when his hearing was not conducted in judicial manner and environment.

The applicant claims that he has well founded fear of persecution because of his political affiliation with TI party. The Tribunal failed to afford sufficient weight to the evidence (oral and written) given by the applicant in relation attacks by fundamentalists on him because of his advocacy for the woman and children’s rights. The Tribunal undermined the effect and potentiality of harm and made a jurisdictional error by not understanding the effect of harm.

The applicant claims that he did not understand many questions, which were raised at the time of hearing. He was able give proper answer to all of the questions if he could get chance to know about the issues earlier. At the time of hearing he was very much confused and depressed.”

[Errors in original].

Hearing before the Court

12.The applicant appeared unrepresented before the Court.  He was assisted by an interpreter in the Pashto language.  Mr M. Cleary of Counsel appeared for the first respondent.

13.In addition to the amended application, the Court also had before it the applicant’s written submissions filed on 4 February 2008, which appear to make additional complaints about the Tribunal’s decision. The Court also has before it the outline of written submissions filed on behalf of the first respondent. 

14.At the hearing before the Court the applicant complained that the “Immigration Department rejected” his application without interviewing him and that “they emphasising that I am from India, but I am from Pakistan.” In relation to the Tribunal, the applicant submitted that the Tribunal did not accept his evidence or his documents. The applicant pressed that he was involved in human rights in Pakistan and that his life was in danger if he were to return.

15.The applicant’s presentation of his “grounds” and the particulars in the amended application require the imposition of some structure to be understood; the applicant’s written submissions require a similar approach. To some extent the two sets of complaints appeared to overlap, although the written submissions seek to add to the list of grounds or complaints. 

16.I note that in written submissions Mr Cleary has attempted to give some structure to the narrative set out in both these documents. With some amendments, I agree with what he has discerned (see paragraphs 30 and 31 of the first respondent’s submissions), and therefore understand the “grounds” or complaints that the applicant seeks to put before the Court by way of these two documents to be as follows:

1)The Tribunal “erred in adopting an unduly harsh approach” to the question of whether the applicant had a well-founded fear of persecution. This may also involve a complaint that the Tribunal was biased in that it sought to achieve a predetermined outcome rather than bring an open mind to the proceedings.

2)The Tribunal identified the wrong issue, asked the wrong question, failed to consider relevant material, and relied upon irrelevant material.

3)A denial of procedural fairness when the Tribunal “totally discarded the Applicant’s oral and written evidence.”

4)The Tribunal did not act judicially because it disregarded the applicant’s evidence.

5)A denial of procedural fairness because the hearing was not conducted in a “judicial manner and environment.”

6)The Tribunal “failed to afford sufficient weight to the” applicant’s oral and written evidence.

7)The applicant did not understand the Tribunal’s questions at the hearing and was not able to give proper answers as he was “very much confused and depressed.”

17.In his written submissions the applicant appears to raise additional grounds:

8)The Tribunal exceeded or constructively failed to exercise relevant consideration as to whether there was a real chance of fear of persecution (to be understood as a complaint relying on an alleged failure to apply s.91R(1)(b) and (c) of the Act).

9)The Tribunal breached s.424A of the Act.

10)The Tribunal “failed to understand the risk of persecution” in Pakistan as claimed by the applicant.

11)The Tribunal “designed and asked” questions at the hearing in such a way that the applicant “was confused” and “could not give response properly.”

18.Throughout the applicant’s amended application and written submissions allegations of bias or bad faith on the part of the Tribunal can be inferred and I will deal with these as they relate to the individual grounds as set out above. 

Ground 1

19.The first ground in the amended application is that the Tribunal erred in “adopting an unduly harsh approach” to the issue of whether the applicant had a well founded fear of persecution. Mr Cleary submitted that without particulars this ground is meaningless and should be rejected for that reason.

20.Taken on its own, I would agree with Mr Cleary. However, it appears that the applicant has sought to particularise, or explain his complaint by stating that the Tribunal: “adopted a line of questioning designed to establish the harm from the perspective of the Applicant asking why he would be harmed rather than addressing as to the motive.” 

21.It is difficult to understand exactly what the applicant seeks to put forward as his complaint in this regard. If the applicant is seeking to complain that the Tribunal approached the hearing that it conducted with him with a predetermined outcome in mind, and pursued “a line of questioning” to achieve this objective of rejecting the applicant’s claims, then what must immediately be noted is that despite the opportunity, the applicant has not put forward evidence before the Court, for example, by providing a transcript of the hearing before the Tribunal.

22.In these circumstances, the Court is left with the Tribunal’s own account of what occurred at the hearing. Orders were made by a Registrar of this Court on 29 March 2007 (based on short minutes of order signed by the applicant), which included an order that: “the applicant file and serve any affidavit containing additional evidence to be relied upon including any transcript of a Tribunal hearing” – Order 3. Further, I note that the applicant did access the Court’s legal advice scheme, and was provided with advice by a lawyer on the panel of that scheme on 4 May 2007, and would therefore have had that opportunity to have had explained to him  how to go about putting this evidence before the Court.

23.The relevant question to be addressed by the Tribunal in conducting the review was to determine whether it could be satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. The applicant had put forward a number of claims, and incidents that went to support the claim of his fear of harm in Pakistan because of his political opinion, and his membership of a particular social group. On the only account of what occurred at the Tribunal hearing, that is, the Tribunal’s own account, I cannot see that the “questioning” at the hearing was “designed” to achieve a predetermined outcome. In my view the questioning was aimed at properly establishing the substratum of facts upon which the Tribunal’s decision would flow.

24.To the extent that this complaint may be said to be a complaint of bias or the apprehension of bias, or even that the Tribunal approached its task in bad faith, this issue is addressed below at [39] to [43].

25.The Tribunal’s questioning appeared to be aimed at elucidating further detail and explanation in relation to the applicant’s claims and, on what is before the Court, was appropriately focused on the claims and incidents said to support the claims of past persecutory harm (see CB 113.10 and what follows) and the risk of harm if the applicant were to return to Pakistan (see in particular CB 115.7 and what follows).

26.In my view, on what is before the Court, the Tribunal adopted a line of questioning which it felt was required to enable it to undertake the task which it was jurisdictionally required to conduct, that is, to either form (or not form), the requisite level of satisfaction such that a protection visa must be granted to the applicant for reason of being satisfied that the applicant, in effect, met the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention (see s.65 and s.36(2) of the Act).

27.It may also be that what the applicant had in mind in putting forward what appears following the first reference to “Particulars” under the heading of “Grounds for Review” in his amended application (or in the minds of those who may have assisted the applicant in the drafting of this document) that the applicant sought to rely on those authorities in support of the proposition that persecution for the purposes of the Refugees Convention contains some element of motivation for the infliction of harm (see for example Ram v Minister for Immigration and Ethnic Affairs and Anor (1995) 57 FCR 565(“Ram”), Applicant A and Anor v Minister for Immigration and Ethnic Affairs and Anor (1997) 190 CLR 225

28.In Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1; [2000] HCA 55 McHugh J (at [102]) stressed that the Refugees Convention obliges the Tribunal to: “ascertain the motivation for the allegedly persecutory conduct” which the refugee applicant fears.

29.In Ram, Burchett J said (at 568):

“Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors … That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase ‘for reasons of’, and fastens upon the victim’s membership of a particular social group. He is persecuted because he belongs to that group.”

30.It may be, therefore, that the applicant’s complaint is that at the hearing the Tribunal’s questions were focused on the applicant’s actions and did not include any focus on dealing with the motives of those from whom he claimed to fear harm.

31.If this is the case, then such a complaint does not succeed. The applicant’s claims were that he feared harm from Islamic extremists because of his work for women’s rights and social justice in Pakistan, and because of the attention that he attracted from Islamic fundamentalists because of the liberal views which he expressed. A plain reading of his claims prior to the hearing before the Tribunal reveals that the motives of the extremists who he said sought to do him harm were that they were opposed to him for holding the liberal views that he claimed to have held (see CB 10: “my Liberal socio-political opinion”), and because of his welfare and social justice work to which the extremists were opposed (see generally CB 10 and CB 11, and further see CB 75.8: “He is perceived as circumventing Shari’a law and the traditional values underpinning that law.” (Part of written submissions made on the applicant’s behalf to the Tribunal.)).

32.The Tribunal plainly understood that the applicant’s claim to fear harm in Pakistan was “because of his political opinion and his membership of a particular social group” – as had been submitted on his behalf. (See CB 112.7 for the Tribunal understanding of what had been submitted and claimed.)

33.The Tribunal plainly understood that the applicant had claimed that he had undertaken welfare work which was part of the basis for having attracted the interest of the Islamic extremists.

34.The Tribunal’s questions at the hearing certainly focused on the applicant’s claimed welfare work and sought explanation and details from the applicant. This can be seen beginning at CB 114.1, and further at CB 114.2: “He also said he was just a member in the welfare society.” Then further at CB 114.4:

“The Tribunal asked the applicant how he managed to do his welfare work if he was running a video business on his own. He said that ‘sometimes once a week we met.’ He then said that he did farm work before the video shop. He said that he went to welfare after the shop burned but then clarified that he had the business ‘when I went to welfare’. He said then that he joined welfare in the second month of 1998 and the video shop fire was in the second month of 1998. He said that he was not involved in the welfare society in Karachi. The applicant confirmed that the shop was burned because he was selling videos not because of his political opinion or his welfare work; he had joined welfare at the time of the fire.”

35.The Tribunal was entitled (in the circumstances, obliged) to seek details and explanation of the applicant’s claims to fear harm from Islamic extremists because of his welfare work and his political views. In relation to the latter, the Tribunal asked the applicant: “… if he had any other problems in Swat/Pakistan after 1998. He said that he saw lots of things in other countries and talked to others about freedom and gave them information” (CB 114.8).

36.Any plain reading of the Tribunal’s account of what occurred at the hearing reveals that the Tribunal properly focused on the applicant’s claims to fear harm, and that opportunities were available to the applicant to elaborate and provide detail to those claims. The issue of the motivation of those from whom he said he feared harm was plain, and made explicit in the applicant’s claims before the Tribunal. That is, that they were opposed to the applicant’s liberal views and the welfare work that the applicant said that he had undertaken.

37.Ultimately, the applicant was unable to convince the Tribunal (such that it could reach a requisite level of satisfaction) as to the credibility of his claims that he had in fact conducted welfare work, was active politically, and was perceived to hold a particular political opinion by Islamic extremists. That is, if the Tribunal was unable to be satisfied as to the substratum of facts that the applicant had presented to it, then whether or not the Islamic extremists would be motivated to harm the applicant in that sense, becomes an irrelevant consideration. Nonetheless, the opportunity was plainly in existence at the hearing for the applicant to have put forward any additional elements of his claim that he wished to do so. In all this complaint is not made out.

Ground 2

38.The second complaint asserts that the Tribunal identified the wrong issue, asked the wrong question, failed to consider relevant material, and relied upon irrelevant material. As it stands this allegation appears unparticularised. In these circumstances I agree with Mr Cleary that the generalised assertions are meaningless. I cannot in any event discern any such errors in the Tribunal’s decision. The Tribunal made its decision: “totally based on the evidence prepared for the First respondent and by the First Respondent”. That this is the jurisdictional error generally asserted, then this complaint is not sustained at the factual level.

39.The Tribunal’s decision record reveals that it plainly considered the submissions made on the applicant’s behalf, the documents provided in support of his claims by the applicant, and also, and particularly, considered the applicant’s evidence at the hearing. That the Tribunal found that the applicant had not given truthful evidence, does not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 (“Wu Shan Liang”). This finding was certainly within jurisdiction as findings of fact, including findings of credibility are for the Tribunal to make as the relevant decision maker “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Ex Parte Durairajasingham”) at [67] per McHugh J). Further, the Tribunal gave reasons for its findings.

40.To the extent that this complaint, as with a number of other statements made in the applicant’s amended application (see [23] above) could be construed as allegations of bias or bad faith (or even the apprehension of bias), on the part of the Tribunal, then such complaints are, in the circumstances, not made out. It is not clear to what the applicant refers when he states that the Tribunal’s decision was “totally based on the evidence prepared for the First respondent,” or that it adopted “an unduly harsh approach” (see [19] and [48] above).

41.Plainly, in reviewing the delegate’s decision, the Tribunal is obliged to have regard to the matters that were before the delegate. The authorities relevant to considering an allegation of bias, bad faith, or the apprehension of bias, require that such a complaint be clearly articulated, and be supported by evidence. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more than just the conclusion reached by the Tribunal to support this claim. Further, allegations of apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes (Re Refugee Review Tribunal Ex parte H [2001] HCA 28, [27]-[32]).

42.With reference to SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 (“SBBS”), Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, and Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002[2003] FCAFC 142 (“NAOS”), an allegation or bad faith is a serious allegation which should not be made lightly and which must be proved. In cases where the material relied upon to found such an allegation is limited to the decision record, it is rare that bad faith will be made out: SBBS at [44], per Tamberlin, Mansfield and Jacobson JJ.

43.To allege bad faith on the part of the Tribunal is to allege some "personal fault" on the part of the Tribunal member, in the sense that there was an absence of honesty (SBBS at [43]), and to allege that the decision was made not on the basis of “considered judgment” but on the basis of “whim or fancy” (NAOS at [21], per Whitlam, Finn and Goldberg JJ).

44.With regard to the relevant authorities, I cannot see that any such evidence is before the Court, nor that the test for bias, or apprehension of bias, or an allegation of bad faith, can be sustained in the circumstances of this case.

Grounds 3 and 4

45.The applicant’s third complaint is that he was denied procedural fairness because the Tribunal “totally discarded” his oral and written evidence. Similarly, in a fourth complaint, the applicant asserts that the Tribunal “did not act judicially because it disregarded the applicant’s evidence.”

46.First, in relation to the complaint concerning procedural fairness, I note that this is a case to which s.422B of the Act applies such that the matters set out in Division 4 of Part 7 of the Act (as they were prior to the amendments of July 2007) are the exhaustive statement of the natural justice hearing rule (of course, absent bias) (SZCIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 62, Lay Lat v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 61).

47.As explained by what the applicant has put in his amended application, it would appear that the applicant’s complaint is that the Tribunal did not believe his evidence. On any plain reading of the Tribunal’s decision record, the Tribunal considered each aspect of the applicant’s claims, and gave reasons that led to its finding that that there was “no plausible evidence” that the applicant had suffered persecution in his country because of his political opinion or for any Convention reason (CB 118.2). The Tribunal’s finding in this regard, and the findings that led to this conclusion, were all findings that were open to it on what was before it, and consistent with the Tribunal’s function as the “decision maker par excellence” including its finding as to the credibility of some of the applicant’s claims (Ex parte Durairajasingham)

48.For the purposes of s.424A(1), and bearing in mind what is meant by the term “information” in that section (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17], [18] and [21]) the Tribunal relied on information provided to the Tribunal by the applicant himself and, as such, this information falls within the exception contained in s.424A(3)(b) from the obligation in s.424A(1).

49.The applicant was invited to a hearing pursuant to s.425 of the Act, and attended and gave evidence. With the High Court judgement in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (“SZBEL”) in mind, the determinative issue in this case was the Tribunal’s rejection of the  plausibility of the applicant’s evidence – both oral and documentary.

50.The delegate had some difficulty with the applicant’s credibility. (See CB 62.6: “I do not believe that the supporting documentary evidence and example of his social welfare work are commensurate with his claims and greatly diminished the veracity and credibility of his submission overall”.) The Tribunal was however faced with a number of additional claims and documents to those that were before the delegate.

51.But nonetheless it made its concerns about the applicant’s credibility clear at various points during the hearing it conducted with him. (It at least raised factual issues that would have sufficiently indicated to the applicant its concerns (with reference to SZBEL at [47]), but ultimately put squarely to the applicant that: “The Tribunal told the applicant that that it had to decide whether it accepts as true what he is saying about being persecuted in his country and whether the documents he has provided are reliable evidence of the facts in those documents” (CB 116.1).)

52.I cannot see that the Tribunal has failed to comply with any of the relevant provisions of Division 4 of Part 7. Nor by the use of the word “discarded,” did I understand the applicant to be saying that the Tribunal failed to consider any aspect of his claim (this is not evident in any event) such that it could be said that the Tribunal failed to properly consider any of his claims. Rather, in context, it appears the applicant’s complaint is that the Tribunal did not believe his claims in critical respects. As such, the applicant seeks impermissible merits review (Wu Shan Liang).

Grounds 5 and 6

53.The applicant, variously, also complains about what he said occurred at the hearing with the Tribunal. The applicant asserts that the Tribunal should conduct its hearing “in a judicial and impartial manner,” and complains that the approach taken by the Tribunal member “was very harsh and irrelevant.” The applicant also complains that the hearing was “not conducted in judicial manner and environment,” and further that he “did not understand many questions which were raised at the time of the hearing” and that he was therefore unable to “give proper answer to all of the questions” (see also [53] below). The applicant claims that the time of the hearing he was “very much confused and depressed.”

54.Despite opportunity (see Order 3 made by a Registrar of this Court on 29 March 2007 – orders made by consent) the applicant has not put before the Court any transcript of the Tribunal hearing. On what is before the Court, and including the Tribunal’s account of what occurred at the hearing, the applicant’s complaints, about what he alleges as to the Tribunal’s manner and approach, is simply not made out.

Grounds 7 and 11

55.The applicant also complains that he was confused and depressed at the hearing, the implication being, that this also prevented him from giving proper answers to all the questions. He also complains that the Tribunal asked questions in such a way that it was confusing to him.

56.There is nothing in the material before the Court to indicate that the applicant was unwell at any time before the Tribunal, let alone that he was confused and depressed or that he was not able to properly answer the Tribunal’s questions. It is the case, as Mr Cleary submitted, that there is some onus on the applicant to provide evidence that he was unable to properly give his evidence to the Tribunal (see NAMJ v Minister for Immigration and Multicultural Affairs [2003] FCA 983 per Branson J at [69]). The applicant, despite opportunity, has not put any transcript of the Tribunal hearing before the Court

57.Nor has the applicant put any medical evidence before the Court to support the allegation that he makes by way of his amended application. I can only agree with Mr Cleary that in the absence of any such evidence, this claim lacks merit (WAHU v Minister for Immigration and Multicultural Affairs [2004] FCA 890 per Nicholson J at [34] to [40]).

58.The material before the Court reveals that there is no indication that the applicant had any difficulty at the hearing before the Tribunal, either by way of any emotional state on his part, or that there was any difficulty in interpretation, or that there was any difficulty in the conduct of the hearing by the Tribunal. The applicant had the assistance of an interpreter at the hearing (see CB 101.7 and CB 113.4). I note further that the applicant was assisted by a legal representative during the course of the conduct of the review (although the representative did not attend the hearing). Nonetheless given that the hearing took place on 22 November 2006, there was ample time for the applicant, at least through his representative, to have made submissions or representations to the Tribunal if there had been any such difficulties. Noting that the decision was not signed until 14 January 2007 and was not handed down until 1 February 2007, these complaints are also not made out.

Ground 6

59.The applicant also complains that the Tribunal did not give sufficient weight to the applicant’s evidence, both oral and written. This was said to be specifically in relation to the applicant’s evidence relating to attacks on him by the fundamentalists because of his advocacy for women and children’s rights. I agree with Mr Cleary that it is now settled that the Tribunal is entitled to accept or reject or give such weight to evidence provided by an applicant as the Tribunal assesses appropriate in all the circumstances (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]).

60.In any event, it should be noted that what the applicant claims was a failure to place appropriate weight, really does not rise above a complaint that the Tribunal did not accept that he was a member of the Roshni Welfare Society and was involved in welfare work in Pakistan. The Tribunal plainly found that this claim was an invention (CB 117.3), a finding (with reference to the Tribunal’s reasons) which was open to it on what was before it.

Ground 8

61.The applicant’s written submissions appear to raise additional complaints. The applicant’s complaint that the Tribunal had exceeded, or has constructively failed to exercise, jurisdiction is made without any detail or particularity whatsoever. Mr Cleary submitted that without particulars, this bald assertion is meaningless, and should be rejected for this reason alone. I agree. Further, on any plain reading of the material before the Court, I cannot see that such an assertion can succeed.

Ground 10

62.The applicant also complains in written submissions that the Tribunal did not give proper consideration to the issue of whether there was a real chance of fear of persecution and that the Tribunal failed to understand the risk of persecution that the applicant claimed. In particular, the applicant’s submissions make reference to the issue of “serious harm” in s.91R of the Act. Again, beyond mere assertion, the applicant provides no insight as to why he says this complaint can be made out.

63.As already stated above, the material before the Court reveals the Tribunal considered all aspects of the applicant’s claims, had regard to the relevant evidence: both the applicant’s evidence given at the hearing, and to that provided in writing, and the documentary evidence, given to it by the applicant. Any plain reading of its decision record reveals that it assessed the evidence and found, ultimately, that the applicant was not a witness of truth. It therefore rejected as true any of the oral evidence given by the applicant. As stated above, this conclusion and the findings which related to it, were plainly open to the Tribunal on what was before it.

64.The Tribunal found that the applicant was not a witness of truth (see CB 117.10). Its decision turned on this finding. A finding which, given with reasons, was open to it on what was before it.

65.To the extent that the applicant complains that the Tribunal disregarded his documentary evidence (ground 3), did not act “judicially” in disregarding his documentary evidence (ground 4), did not give sufficient weight to his documentary evidence (ground 6) and that further this led to a failure to give relevant consideration as to whether there was a real chance of persecution (ground 9), these complaints are not made out. The Tribunal formed an adverse view of the applicant’s credibility based on his oral evidence to it in light of the claims he had made. The documents provided in support of this claims were found to be: “not reliable evidence of the facts in those documents” (CB 118.1).

66.In other words, the Tribunal found the documents were not reliable evidence because of the adverse credibility finding it had already made in relation to the applicant. In this regard, a clear parallel can be drawn with what was said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S20/2002 [2003] HCA 30; (2003) 198 ALR 59 per McHugh and Gummow JJ at [49]. No amount of corroboration could undo the comprehensive adverse view the Tribunal took of the applicant’s credibility.

67.As Mr Cleary submits this is not a case where there is any issue about the genuineness of the documents (for example, WACO v Minister for Immigration and Multicultural Affairs (2003)131 FCR 511; WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624). The Tribunal found these documents did not assist the applicant in circumstances where his credibility was already comprehensively rejected.

68.To the extent that what is complained about by ground 9 is that the Tribunal failed to consider a real chance of persecution because of the applicant’s political opinion or membership of a social group, this complaint also does not succeed. The Tribunal plainly understood the applicant’s claims in this regard (see CB 112.7 and that the harm feared was from Islamic extremists (see CB 111.5). the Tribunal plainly considered the factual substratum of the applicant’s claim (his claimed welfare work, his membership of a welfare society, his claimed membership of a political party, but also his evidence as to where and how he was employed and at which relevant times). It simply did not believe in critical respects that the applicant was telling the truth. This does not reveal error in its decision.

69.I cannot see that the Tribunal misunderstood or misapplied the relevant law in its approach to answering the central question of whether the applicant had a real chance of a well founded fear of persecution for a Convention reason.

Ground 9

70.The applicant also asserts by way of written submissions a breach of s.424A(1) of the Act, and makes reference to SAAP v Minister for Immigration and Multicultural Affairs [2005] HCA 24. Unfortunately, the applicant’s submissions provide no detail whatsoever as to what information he says the Tribunal failed to deal with in breaching its obligations pursuant to section 424A(1).

71.I note firstly, that the meaning of the term “information” has been recently explained by the High Court in SZBYR (see [17], [18] and [21]). But in any event, the information on which the Tribunal relied, and which was the reason for its decision, was the information that the applicant himself gave to the Tribunal at the hearing. As such, this information comes within the exception contained in section 424A(3)(b) from the requirements set out in section 424A(1) (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at [71], VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12]-[14], QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22]).

72.At the hearing before the Court the applicant complained that he was not interviewed by the Minister’s delegate and the delegate had found he was a citizen of India, not Pakistan. This latter was clearly a reference to what is set out at CB 59.8 in the delegate’s decision record. Plainly, given the whole of the delegate’s decision record, this was a typographical error. But as I explained to the applicant neither this nor the absence of an interview (as there was no obligation in any event) reveal error in the Tribunal’s decision, which after all is the substantive review before the Court.

73.Further, the applicant’s complaint before the Court at the hearing was to emphasise his claims to fear persecution that he had put before the Tribunal. To emphasise his complaint that the Tribunal did not accept what he had said does not reveal jurisdictional error.

74.I note further, in this regard, that before the Court, the applicant asserted that he wanted the Court to return his matter to the Tribunal so that he could give further evidence and, in particular, noted that he had no legal representative in the past and therefore had “no clue or directions” as to how to proceed before the Tribunal. It is difficult to accept this submission by the applicant in light of the material before the Court, which reveals that the applicant was assisted before the Tribunal by a solicitor who was also a registered migration agent (see CB 64 and CB 66) and who made a submission on the applicant’s behalf (see CB 74 to CB 77) In any event, this complaint does not reveal jurisdictional error on the part of the Tribunal.

Conclusion

75.The applicant made a number of claims to fear harm before the Tribunal. With the assistance of a lawyer, he made a number of submissions, and provided documentary evidence in support of those claims. He gave evidence before the Tribunal at a hearing. Simply, in critical respects, the Tribunal did not believe the evidence that he gave. The Tribunal put the applicant on notice during the hearing that the issues of whether what he had said was true, and whether the documents that he had provided in support were reliable, were central to the decision that the Tribunal was required to make. None of the applicant’s complaints as set out in the amended application, nor in his written submissions, reveal jurisdictional error on the part of the Tribunal.

76.In all, I cannot discern jurisdictional error in the Tribunal’s decision. This application is therefore dismissed. 

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Catherine Darcy

Date:  28 March 2008