SZKGP v Minister for Immigration & Anor

Case •

[2007] FMCA 1756

•

29 October 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKGP v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1756
MIGRATION – Review of decision of Refugee Review Tribunal – no miscarriage of discretion not to grant an adjournment of hearing – nor miscarriage of discretion not to grant an extension of time to comment – no evidence of bias – no apprehended bias – no illogicality – no jurisdictional error – application dismissed.
Migration Act 1958, ss.424A, 422B, 424C(2), 441C, 427, 425, 441A 425A, 65, 36(2)
Migration Regulations 1994, reg.4.35D
NAHY v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 319
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407
Mahzar v Minister for Immigration and Multicultural Affairs [2002] FCA 1759
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [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
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZBYR v MIC (2007) 235 ALR 609; [2007] HCA 26
VAF v MIMIA (2006) 150 FCR 214
Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20 (2003) 77 ALJR 1165; [2003] HCA 30
Applicant: SZKGP
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 695 of 2007
Judgment of: Nicholls FM
Hearing date: 18 October 2007
Date of Last Submission: 18 October 2007
Delivered at: Sydney
Delivered on: 29 October 2007

REPRESENTATION

Counsel for the Applicant: Nil
Solicitors for the Applicant: Nil
Counsel for the Respondents: Ms L Clegg
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The application filed on 28 February 2007, and amended on 28 June 2007, is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 695 of 2007

SZKGP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application filed in this Court pursuant to the Migration Act 1958 (Cth) (“the Act”) on 28 February 2007, and amended on 28 June 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 12 January 2007 and handed down on 1 February 2007, which affirmed the decision of the delegate of the respondent Minister to refuse to grant a protection visa to the applicant.

Background

  1. The applicant is a citizen of Pakistan who arrived in Australia on 23 May 2006 and applied for a protection visa on 23 June 2006 (reproduced in the Court Book (“CB”) at CB 1 to CB 29, with annexures). On 11 September 2006, a delegate of the first respondent refused to grant a protection visa to the applicant. On 10 October 2006, the applicant applied to the Tribunal for review of that decision. On 1 February 2007, the Tribunal handed down its decision affirming the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

The applicant’s claims to protection

  1. The applicant’s claims to protection are set out in a statement attached to his application for a protection visa (reproduced at CB 27 to CB 29). The applicant claimed to be of Muslim faith and a “Self-defense Fighting coach.” The applicant claimed to fear persecution in Pakistan for the reason that he was approached by members of a militant fanatical Islamic group (“Lashkar Taiba,” the leader of which in his local area was “Jabbar Khan”) “to fight for Islam.” He claimed to have lodged a complaint with police, but they were too scared to record a complaint. He further claimed he left home to hide and was then able to obtain a visa to come to Australia.

  2. The applicant also gave evidence to the Tribunal at a hearing on 11 December 2006 where he added to these claims. The Tribunal’s account of the hearing is set out in its decision record (at CB 112.3 to CB 115.6). The applicant also submitted a number of documents in support of his claims. Further, he responded in writing to the Tribunal’s invitation to comment on information which the Tribunal said was relevant to its decision (see CB 94 to CB 97 and CB 101 to CB 103).

Events leading to the Tribunal’s decision

  1. The following events are set out by way of better understanding the applicant’s complaints before the Court:

    1)On 10 October 2006, the applicant applied to the Tribunal for review of the delegate’s decision (CB 41 to CB 44).

    2)On 30 October 2006, the Tribunal wrote to the applicant at his address for service and invited him to a hearing before it scheduled for 11 December 2006 and enclosing a “Response to Hearing Invitation” form (CB 45 to CB 46).

    3)On 14 November 2006, the Tribunal received the “Response to Hearing Invitation” form from the applicant indicating that he wished to attend the hearing before the Tribunal (CB 55 to CB 56).

    4)By letter (undated), the applicant wrote to the Tribunal and requested an adjournment of his hearing date to “February 2007” (CB 47).

    5)On 15 November 2006, the Tribunal wrote to the applicant and advised that it had decided not to accede to the request for an extension of time (CB 58).

    6)On 11 December 2006, the applicant attended a hearing before the Tribunal (CB 84 to CB 85).

    7)On 12 December 2006, the Tribunal wrote to the applicant pursuant to s.424A of the Act, inviting him to comment on information that it said would be the reason, or a part of the reason, for the Tribunal deciding to affirm the decision under review (“s.424A letter”) (CB 94 to CB 97).

    8)On 20 December 2006, the applicant requested, in writing, an extension of time to respond to the Tribunal’s s.424A letter (CB 98).

    9)On 22 December 2006, the Tribunal wrote to the applicant and advised him that it would not accede to the applicant’s request for an extension of time in which to respond to its s.424A letter (CB 99).

    10)On 3 January 2007, the applicant wrote to the Tribunal commenting on the information identified in the Tribunal’s s.424A letter (CB 101 to CB 103).

    11)On 1 February 2007, the Tribunal notified the applicant of its decision, signed on 12 January 2007, and sent to the applicant at his address for correspondence (CB 104 to CB 106).

The Tribunal

  1. The Tribunal found that the applicant was not a credible, nor a truthful witness on the basis of inconsistencies in his claims as set out in his original application and when compared with his oral evidence at the hearing before the Tribunal (CB 119.4). Further, it found that there were inconsistencies between the evidence given at the hearing, and the applicant’s evidence and information contained in documents submitted by the applicant in support of his application for review. The Tribunal found the applicant’s explanations for these inconsistencies were unsatisfactory and in part failed to address the Tribunal’s concerns.

  2. In all, the Tribunal found that “the totality of his evidence shows a propensity to change and tailor his evidence in a manner which achieves his own purpose and the Tribunal did not find him to be a reliable, credible and truthful witness” (CB 121.3). Consequently, the Tribunal found that it did not accept the applicant’s claims that he had been pressured to join any group, nor that the applicant was threatened with harm if he refused to do so (CB 121.5). It found that the applicant did not have a well-founded fear of persecution in Pakistan for a Refugees Convention reason (CB 121.8).

Application to the Court

  1. The amended application filed on 28 June 2007 puts forward nine grounds:

    “The Tribunal constructively failed to exercise its jurisdiction by failing to refer to or make any findings on the following aspects in the Applicant’s case and had made jurisdictional error.

    (1)     The Tribunal had acted with reasonable apprehension of bias when the request made by the Applicant for an extension of time to make comprehensive details about his case using translating and Interpreting service.  The reason given by the Applicant was reasonable and a prudent person would grnat this opportunity to the Applicant to clarify the doubts to Tribunal had in relation to his claims.  As there is denial of justice, the conduct of the proceedings of the Tribunal was beyond jurisdiction and denial of procedural fairness had occurred during the process of the proceedings.

    (2)     The Tribunal had been speculating on the errors in relation to the dates and time made by the Applicant during the course of the hearing without logically deciding the claims on the material and the serious claims of well founded fear of persecution and flawed in its decision on credibility grounds based on the mistake the Applicant made in relation to dates and time.  The Tribunal must make a decision on the basis of logically probative material rather than on mere speculation or suspicion and thus had made a jurisdictional error.

    (3)     The Applicant expected genuinely that the Tribunal would grant him extension of time to make comprehensive details to clarify the doubts.  The legitimate expectation on the part of the Applicant is reasonable given the limited English language knowledge the Applicant possessed and the need for him to approach a Translator and Interpreter to understand the Tribunal’s doubts.  The Tribunal has a duty to act fairly in these circumstances as thus made a jurisdictional error.

    (4)     There was lack of procedural fairness on the part of the Tribunal when considering the probative materials put forward in relation to the Applicant’s claims as the Tribunal relied on the time and dates found in the material and relied on those facts as correct and found the Applicant not to be credible witness.  The Tribunal failed to act fairly as the decision of the Tribunal affects the rights and interests in relation to its genuine claims.  The Tribunal has a duty to act fairly and thus made a jurisdictional error.

    (5)     The Tribunal had been acting unreasonably and failed in its duty to question the Applicant during the course of the hearing to clear any doubts.  The claims in written form is readily available which is centrally relevant to make the decision.  The Tribunal never questioned the Applicant as to serious harm faced by him but went to the extent of judging the credibility of the applicant on the basis of old erroneous dates the Applicant had stated as forgotten.  When the serious claims are readily available for the Tribunal to rely on but the Tribunal unreasonably rejected the Applicant’s claims on credibility grounds.  As a reasonable authority, the Tribunal should not have come to an adverse decision and thus made a jurisdictional error.

    (6)     The Tribunal’s was uncertain during the course of the hearing as to the dates and should have clarified with the Applicant and could have given the opportunity for the Applicant to give clear answer to the questions so that the Tribunal could be ‘certain’ and could make a ‘final’ decision.  As there was uncertainty as to the decision made by the Tribunal, there is jurisdictional error on the part of the Decision maker.

    (7)     There is a lack of proper consideration on the part of the Tribunal when it relied on the time and dates of the claims in arriving at a final decision to reject and not giving any proper consideration to the serious claims in relation to the fear the Applicant has if he is returned back to his country of origin.  This constitutes an abuse of power and also the Tribunal failed to exercise its power in giving proper consideration to the claims and thus made jurisdictional error.

    (8)     The Tribunal based its decision on irrelevant or extraneous considerations and failed to give due and proper consideration to all relevant considerations and claims.  As the Tribunal is duty bound to take into account relevant considerations in relation to the Applicant’s claims and as the Tribunal considered itself entitled to take into account whatever the Tribunal found fit and proper to reject the Applicant, jurisdictional error occurred thereby.

    (9)     The Tribunal acted in bad faith and failed to exercise its power for the proper purpose in understanding the Applicant’s well founded fear of persecution under the Convention.  The Tribunal lost its purpose when it questioned the applicant about the irrelevant dates and facts which are not related to his fear of persecution in order to reject the Applicant on credibility grounds and in the process Tribunal acted in bad faith abusing its power and rejected the claims on credibility grounds and made a jurisdictional error.” (Errors in original)

The hearing before the Court

  1. At the hearing before the Court the applicant appeared in person with the assistance of an interpreter in the Urdu language.  Ms L Clegg of Counsel appeared for the first respondent. I also have before me the applicant’s written submissions filed on 4 October 2007, and Ms Clegg’s written submissions filed on behalf of the first respondent on 9 October 2007.

  2. At the hearing before the Court, the applicant stated that he had nothing to add to his application and written submissions. After hearing submissions from Ms Clegg, he said:

    1)That the extension of time that he sought from the Tribunal was “within the 90 days” that the Tribunal had for the making of its decision.

    2)That he wanted to provide more documents to the Tribunal and needed more time because it was difficult for his mother (in Pakistan) to collect these documents.

    3)When he gave oral evidence to the Tribunal he became “mixed up with [the] dates,” because the events that he was asked to record were a long time ago.

    4)The Tribunal gave too much weight to “the dates.” It was difficult for him to present evidence, because he was “not good in English.”

The amended application and the applicant’s submissions

  1. The amended application, as stated, appears to assert one ground of review. Namely, that “[t]he Tribunal constructively failed to exercise its jurisdiction by failing to refer to or make any findings” in relation to a number of aspects in the applicant’s case, as set out in the nine numbered paragraphs that follow. When read with what appears at page 6 of the applicant’s written submissions, it appears that what the applicant asserts is that the Tribunal must give “proper[,] genuine and realistic consideration upon the merits” of an applicant’s claims. He relies on NAHY v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 319, per Madgwick J at [14].

  2. The nine numbered paragraphs that follow the one ground set out in the amended application in turn set out what are said to be the “aspects” to which the Tribunal failed to refer and in relation to which it failed make any findings. However, these appear to go much further than what is asserted in this ground of review. In these circumstances, and given that the applicant appeared unrepresented before the Court, I considered each of the applicant’s complaints as they could be understood from the amended application and the written submissions to give rise to any other ground of review. In this regard, I note and generally agreeing with the approach taken by Ms Clegg in written submissions.

Complaint One – Refusal to grant an extension of time to respond to s.424A letter

  1. The applicant complains in paragraph one of the amended application that there was a denial of natural justice and procedural fairness in that the Tribunal did not provide the applicant with the requested extension of time to enable him to “make comprehensive details about his case.” Further, that it was unreasonable for the Tribunal not to grant this opportunity to the applicant to clarify the doubts that it had in relation to his claims.

  2. It is not entirely clear whether the applicant complains about the Tribunal’s failure to grant an extension of time for the applicant to provide comments in response to the Tribunal’s s.424A letter (see [5] above, at 7, 8, 9 and 10), or conversely, whether the applicant complains about the Tribunal’s decision not to grant an adjournment of the hearing to which he had been invited (see [5] above, at 2, 3, 4, 5 and 6). The applicant’s reference to “comprehensive details” and the reference to the “translating and Interpreting service” in paragraph one in the amended application, given the language of what is set out in his application for an extension of time to provide comments pursuant to s.424A of the Act (reproduced at CB 98), make it probable that this complaint relates to his request for more time to provide comments on the s.424A letter.

  3. As Ms Clegg submitted, this is a matter to which s.422B of the Act applies. The applicant’s complaint of a denial of procedural fairness, therefore, must be seen in the context of the expression of the natural justice hearing rule as set out in Division 4 of Part 7 of the Act (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).

  4. The material before the Court reveals that the Tribunal’s letter of invitation to comment on information, dated 12 December 2006, gave the applicant until 4 January 2007 to provide comments. The Tribunal’s capacity to impose a date by which the comments must be given, is recognised in s.424C(2) of the Act. In the circumstances, the applicant would have been taken to have received the letter seven working days from the date of the letter (s.441C(4)(a) of the Act). The applicant was then given until 4 January 2007 to provide comments. (The letter inviting comments was dated 12 December 2006 (a Tuesday) and is taken to have been received by the applicant seven working days after the date of the letter (Thursday 21 December 2006).) Given the nature of what the applicant was asked to comment on, that is information or evidence which he had provided either to the Minister’s Department in writing or to the Tribunal either in writing (including documents in support) or orally at the hearing, the period provided was reasonable. The applicant was not asked to comment on information provided by any third party (other than information which he had provided to the Tribunal) and of which he was aware.

  5. Further, at the hearing the day before the date of its letter, the Tribunal had raised with the applicant the various relevant matters of information and put him on notice as to the view it tool of inconsistencies between the various items of evidence and material and that it would write to him giving him the opportunity to comment. I accept Ms Clegg’s submission that the time provided was a reasonable period of time.

  6. The material before the Court reveals that the Tribunal did consider the applicant’s request for further time, but decided not to grant an extension. Such discretionary power, as Ms Clegg submitted, should not be exercised in any capricious or dishonest way by the Tribunal. As was said in House v The King (1936) 55 CLR 499, per Starke J at 503 such discretionary power, however wide, must be exercised (House v King, per Starke J at 503):

    “[A]ccording to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion.”

  1. While the issue before the Court in that case was the exercise of discretion by a Court, the Court noted that if the impugned exercise of discretion appears “upon the facts[,] … unreasonable or plainly unjust,” an appellate court may infer that the Court of first instance failed properly to exercise the discretion (House v The King, per Dixon, Evatt and McTiernan JJ, at 505). In the context of judicial review of the exercise of discretionary power by a Tribunal, regard must also be had to the relevant statutory framework pursuant to which the discretion was exercised by the Tribunal. I cannot see, on what is before the Court now, that the Tribunal exercised the discretion not to extend the time for the making of comments in any capricious or arbitrary way. That the requested extension was within the 90 day period (s.414A) within which the Tribunal must make its decision as the applicant asserted before the Court does not make the Tribunal’s refusal unreasonable, nor arbitrary or capricious.

  2. The applicant provided no detail to the Tribunal as to what the “comprehensive details” about his case were, nor why using the translating and interpreting service would add to the time required. Before the Court the applicant asserted he wanted more time so that his mother could collect documents. This was put to the Tribunal in the request for more time to comment on the s.424A letter (CB 98). He sought a further two weeks beyond 4 January 2007. In spite of the Tribunal’s rejection of the applicant’s request for an extension of time, the applicant did have effectively until 11 January 2007, during which time the Tribunal said that it would consider any material which the applicant submitted on or before that date. Ultimately, the applicant did provide his comments within the initial period provided. The applicant does not say why the reasonable and prudent person would have granted the applicant more time. Nor does he now say what further he was prevented from putting to the Tribunal by the time limit it imposed. In all the circumstances, I cannot see that the Tribunal acted capriciously, arbitrarily or unreasonably in maintaining the original time limit for the provision of comments.

  3. I should just note that while the Tribunal made reference in its decision record to the applicant’s request for an extension of time to provide comments in response to its s.424A letter (CB 117.8), its decision record does not contain any detailed reasons as to why the Tribunal did not grant the applicant’s request.

  4. In this regard I note that s.430 of the Act imposes upon the Tribunal the obligation to give reasons for its decision on the application for review. But having regard to the terms of s.430, it is clear that the obligation to give reasons is confined to the Tribunal’s decision on the review. That is, the Tribunal is obliged to give reasons in relation to its decision on the application before it seeking review of the delegate’s decision. I cannot see that any obligation is imposed on the Tribunal to provide detailed reasons in its decision record in relation to the exercise of its discretion whether or not to grant additional time. As was said by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 (“Durairajasingham”) (at [67]), the Tribunal is required to provide reasons for affirming the decision under review, “not the sub-set of reasons why it accepted or rejected individual pieces of evidence,” let alone why it imposed certain periods of time within which to receive comments.

Possible Complaint Two – Refusal to grant an adjournment (s.427(1)(b) of the Act)

  1. It may possibly be said that the applicant also complains that the Tribunal denied the applicant procedural fairness by not agreeing to the request for an adjournment of the date for the hearing.

  2. Section 425 of the Act requires that where the Tribunal is unable to make a decision favourable to the applicant on the material contained in the application for review it must invite the applicant to a hearing before it. It is well established that an invitation to a hearing must not be “an empty shell or a hollow gesture” (Mahzar v Minister for Immigration and Multicultural Affairs [2002] FCA 1759 (“Mahzar”) at [31]), and that the purpose of such an invitation is to afford the applicant an opportunity to appear before the Tribunal to “give evidence and present arguments” (Mahzar at [31]).

  3. The material before the Court reveals that the Tribunal complied with the relevant statutory requirements in giving the invitation to the hearing. There is no evidence before the Court to show otherwise. The Tribunal sent the letter within three days of the date of the letter, 30 October 2006 (s.441A(4)(a) of the Act) (a handwritten notation appears on the letter reproduced at CB 45 that the letter was “Posted 30/11”). Within three working days of the date of the letter it was sent to the last address for service provided by the applicant in connection with the review (s.441A(4)(c)), and complied with the requirements set out in s.425A of the Act. The relevant notice period set out in s.425A(3) of the Act and reg.4.35D of the Migration Regulations 1994 (“the Regulations”), was also met. That is, 14 days after the date on which the notice is received. In the circumstances, the applicant (pursuant to s.441C(4)(a) of the Act) is taken to have received the letter seven working days after the date of the letter (that is, 8 November 2006). The notice period ended 14 days later, that is, 22 November 2006. The Tribunal allowed a further 18 days beyond the prescribed period.

  4. The applicant’s request for an adjournment of the hearing date, which the Tribunal could consider pursuant to s.427(1)(b) of the Act, was said to be because he wanted more time to obtain evidence from his relatives and he was upset because his relatives were moving from one place to another. (The applicant did not make reference to his mother specifically before the Court, but the issue generally was referred to in his request (see CB 47).) Notwithstanding this when the applicant did appear at the hearing he was able to submit documents from overseas (see CB 92 and CB 93) and made no further request of the Tribunal for more time to submit any other documents. Nor is the applicant reported, nor does he now assert, that his being upset prevent him from giving evidence to the Tribunal at the hearing.

  5. The Tribunal complied with, and exceeded the time prescribed for the giving of notice for the hearing. In all the circumstances, the time provided was reasonable (even beyond the prescribed time) and I cannot see that the Tribunal acted in a capricious or arbitrary way.

Complaint Three – Bias, apprehension of bias, lack of good faith and abuse of power

  1. Paragraphs one and nine of the amended application assert an apprehension of bias on the part of the Tribunal, and that the Tribunal acted in bad faith. In paragraph one the applicant asserts that the Tribunal acted with “reasonable apprehension of bias” in refusing the applicant’s request for an extension of time within which to provide comments in response to the Tribunal’s s.424A letter. At paragraph nine the applicant asserts that the Tribunal acted in bad faith when it allegedly questioned the applicant (presumably at the hearing) about matters (“irrelevant dates and facts”) which the applicant said were “not related to his fear of persecution.”

  2. With reference to the relevant tests for apprehended bias, bad faith and even bias see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [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.

  3. As Ms Clegg submits, and as is often said, an allegation of bias is a serious matter which requires evidence in support of the allegation. In relation to the complaint in paragraph one of the amended application I cannot see that a well-informed lay observer would reasonably apprehend that the Tribunal was biased against the applicant simply for providing what, in the circumstances, was a reasonable period for the provision of comments, maintaining this deadline, and even indicating to the applicant that it would nonetheless consider any comments or information (“any material”) submitted to it up until a week later.

  4. As to the complaint of bad faith set out in paragraph nine, the applicant has not provided a transcript of the hearing before the Tribunal to support his claim that the Tribunal focussed on irrelevancies at the hearing in order to, in effect, create the basis upon which to reject the applicant’s claims on credibility grounds.

  5. The only account of what occurred at the hearing put before the Court is the Tribunal’s account contained in its decision record (as reproduced at CB 111.7 to CB 115.7). The Tribunal reported (at CB 114.8) that it put to the applicant at the hearing that it had a number of concerns about his case based on (in the context of the Tribunal’s account of the hearing, amongst other things) inconsistencies between information he had provided to the first respondent’s Department and oral evidence “relating to dates.” The applicant now complains that it was an act of bad faith on the part of the Tribunal and an abuse of its power in questioning the applicant about what he says were “irrelevant dates and facts.” This particular aspect of the complaint is also addressed in paragraphs 5 and 7.

  6. The Tribunal formed an adverse view of the applicant’s credibility based, in part, on the inconsistencies in the evidence that he himself gave. The Tribunal took the view, for example, that the applicant had stated in his protection visa application that he had lived at the same address until his departure from Pakistan which was in May 2006 (this was not in dispute), but then told the Tribunal at the hearing that he had lived at this same address only from 2000 until his departure from Pakistan. The Tribunal also noted that the date of the statement that he had given to police in Pakistan was 10 May 2006 yet, in contradiction of this evidence, he had put to the Tribunal at the hearing that he had visited police in March 2006. The applicant now claims that these dates were an irrelevant factor and were not related to the applicant’s fear of persecution. The Tribunal’s focus and reliance on them according to the applicant is an example of bias, lack of good faith and an abuse of its power.

  7. The relevant statutory regime governing the applications for visas requires the Tribunal to form a requisite level of satisfaction that, in the case of a protection visa applicant, in effect, the applicant meets the definition of “refugee” as set out in the Refugees Convention (ss.65 and 36(2) of the Act). On what was before it the Tribunal could not reach this level of satisfaction and the protection visa had to be refused (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

  8. In reaching this conclusion the Tribunal made findings which among many others noted and relied on inconsistencies in the detail of the applicant’s claims as it related to dates on which he said certain events occurred. In making such findings of fact, which plainly include findings on credibility (see Durairajasingham at [67], per McHugh J), the Tribunal was engaging in the very task that it was empowered to perform. The Tribunal’s actions cannot be said to be an abuse of process of reviewing the delegate’s decision.

  9. The Tribunal saw as relevant to its view of the applicant’s claims that these were inconsistencies in the applicant’s claims amongst others as to when certain events occurred. The date when the applicant said he reported to a police station as to when he said he was attacked by members of the group led by Jabbar Khan or as to when he told the Tribunal that this attack occurred can hardly be said to be irrelevant to the Tribunal’s consideration. That the applicant’s evidence was inconsistent in this regard similarly is not irrelevant. It was open to the Tribunal to find this relevant to consideration of the credibility of the applicant’s claims.

  10. Similarly the dates as to when and where the applicant lived, given that the applicant had told the Tribunal that he had had to leave his “home town” and stay with distant relative as a result of attacks that were made on him by fanatical Muslims, are also relevant to its consideration.

  11. I should also note that the applicant was provided with an opportunity at the hearing before the Tribunal to deal with these inconsistencies in dates that he had provided. He was also given this opportunity to provide an explanation in response to the Tribunal’s letter pursuant to s.424A of the Act. The applicant’s explanation before the Court now that when he gave evidence to the Tribunal he became “mixed up” with the dates does not assist the applicant in his complaint about what the Tribunal did. The applicant provided this explanation to the Tribunal in his response to its s.424A letter (see CB 101). The Tribunal was not persuaded by this explanation (see CB 120.2). This was open to the Tribunal on what was before it.

  12. As Ms Clegg submits, the task of identifying inconsistencies or otherwise in the evidence before it and, indeed, the weight to be attached to any identified inconsistencies (the applicant complained before the Court that the Tribunal gave “too much weight” to the dates) is a matter for the Tribunal in the exercise of its functions as the relevant decision maker. The applicant had an opportunity to explain the inconsistencies and the explanations that he provided which plainly did not satisfy the Tribunal. In all, therefore, this aspect of the complaint, as Ms Clegg submits, is an attempt to seek impermissible merits review by this Court of his refugee claims (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

  13. None of the applicant’s complaints as to bias, the apprehension of bias or a lack of good faith are made out with reference to the particular dates, nor otherwise.

Complaint Four – Denial of procedural fairness

  1. In paragraphs one, three, four and six, the applicant variously complains that the Tribunal denied him procedural fairness, or failed to put certain matters to him for comment. As already noted, this is a case to which s.422B of the Act applies. To the extent therefore that the applicant’s complaints are that the Tribunal did not put to him “information,” as that term is understood in the context of s.424A, it is now settled that “information” in that statutory context excludes the reasoning process of the Tribunal and adverse views that the Tribunal takes of the applicant’s evidence not the reasoning process of the Tribunal (see SZBYR v MIC (2007) 235 ALR 609; [2007] HCA 26, at [18], citing VAF v MIMIA (2006) 150 FCR 214, per Finn and Stone JJ at [24]).

  2. But in any event, and further, in the context of procedural fairness within the ambit of Division 4 of Part 7 of the Act, any information which did not fall within the exceptions set out in s.424A(3) of the Act from the obligations in s.424A(1) of the Act, was plainly the subject of and included in the s.424A letter (CB 94 to CB 96). A letter to which the applicant responded (CB 101 to CB 103). These complaints also do not succeed.

Complaint Five – Failure to make decision on basis of “logically probative material”

  1. In paragraphs two, four and eight, the applicant complains that the Tribunal did not make its decision on “logically probative material,” or in the alternative, based its decision on irrelevant considerations. Again, apart from a reference to the issue of dates dealt with above, the applicant has not particularised these complaints.

  2. What can be derived from the Tribunal’s decision record is that the Tribunal did consider all of the claims made by the applicant and in the material before it. Ultimately it was information given by the applicant either to the Minister’s Department or the Tribunal, on which the Tribunal formed the view and came to the conclusion that the applicant was not a credible witness, which in turn led to its affirming the decision under review. No lack of logic, to the extent that such a ground may available to the applicant (see Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20 (2003) 77 ALJR 1165; [2003] HCA 30), can be discerned from the Tribunal’s analysis of the applicant’s claims. Nor can it be said that the Tribunal’s reliance on what the applicant himself said can be irrelevant in its consideration of the question as to whether there is a well-founded fear of persecution for a Convention reason. These complaints are also not made out.

  3. The applicant’s sole stated ground in the amended application asserts that the Tribunal constructively failed to exercise its jurisdiction by failing to refer or make relevant findings is not made out as its is stated to refer to “aspects” set in the following nine paragraphs in the amended application.

  4. The applicant’s written submissions assert that the Tribunal failed to conduct a “proper genuine and realistic consideration upon the merits.” The applicant refers to NAHY v Minister for Immigrationand Multicultural and Indigenous Affairs [2003] FCA 319 at [14]-[15] (“NAHY”). The applicant does not state that this reveals jurisdictional error in the Tribunal’s decision in the circumstances of its consideration of his claims, beyond perhaps by reference to the matters in the nine paragraphs which have already been addressed.

  5. Neither as it is said to arise from what is set out in these nine paragraphs or otherwise can I discern matters giving rise to the “unease” felt by Madgwick J in NAHY, let alone that the Tribunal’s review was anything other than a “proper, genuine and realistic” exercise of the Tribunal’s jurisdiction (with reference to NAHY at [14] and the reference to Minister for Immigration and Multicultural and Indigenous Affair; Ex Parte Applicants S134/2002 (2003) 195 ALR 1 and Flentjar v Repatriation Commission (1997) 48 ALD 1).

Additional Complaints

  1. Before the Court the applicant complained that at the hearing before the Tribunal it was difficult for him to present evidence because he was “not good in English.” The applicant has not provided any evidence to this Court to support this claim. The only account of what occurred at the hearing before the Court is the Tribunal’s account in its decision record which makes no reference, nor otherwise reveals such difficulty. Further, other material before the Court in the Court Book shows the applicant asked for an interpreter in the Punjabi language (CB 55.l6) and that such an interpreter was provided to him (CB 84.7). There is no evidence before the Court that the level of interpretation provided was not adequate or otherwise deficient. In all the circumstances the applicant’s complaint about his level of English does not assist in showing jurisdictional error on the part of the Tribunal.

Conclusion

  1. In all, therefore, I cannot discern jurisdictional error based on what the applicant has put in his amended application, nor in his written or oral submissions nor otherwise. This application is therefore dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  29 October 2007

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Cases Citing This Decision

2

SZLUZ v Minister for Immigration [2008] FMCA 465
SZKGP v Minister for Immigration and Citizenship [2008] FCA 293