SZKUL v Minister for Immigration
[2007] FMCA 1972
•5 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKUL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1972 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – the weight to be given to evidence is a matter for the Tribunal – it is for the Tribunal to determine if some evidence is to be preferred over other evidence – allegation of bias not proven – lack of bona fides on the part of Tribunal not shown – Tribunal not required to refer in its reasons to evidence not relied upon in making findings – no requirement that Tribunal notify the applicant of relevant issues prior to Tribunal hearing. |
| Migration Act 1958, ss.425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Johnson v Johnson (2000) 201 CLR 488 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 |
| Applicant: | SZKUL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1939 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 14 November 2007 |
| Date of Last Submission: | 14 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2007 |
REPRESENTATION
The Applicant appeared in person.
| Counsel for the Respondents: | Mr. C. Mantziaris |
| Solicitors for the Respondents: | Blake Dawson |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1939 of 2007
| SZKUL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Pakistan where, he claims, he was politically active. He alleges that while in Pakistan he was an active member of the Pakistan Muslim League (Nawaz Sharif group) and President of the Youth Wing of the Muslim League and that this subsequently led to him being arrested, detained and tortured by police. The applicant arrived in Australia on 24 November 2006.
The applicant claims to fear persecution in Pakistan because of his political beliefs and activities.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
23 March 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 7 of the Tribunal’s decision (Court Book (“CB”) pages 72 – 75).
Protection visa application form
In his protection visa application form the applicant made the following claims:
a)the applicant was born in Sialkot where his family was politically recognised. His uncle and cousin were in the forefront of political activity in the district;
b)from 1987 to 2000 the applicant was an active member of the Pakistan Muslim League (Nawaz Sharif group) and in 1996 he was appointed President of the Youth Wing of the Muslim League in Sialkot;
c)the applicant worked hard for the party and tried to locate jobs and resolve social problems for youth;
d)in or about 1998 the army took over from Nawaz Sharif and all the members of the applicant’s party protested against the military coup. The applicant was arrested and tortured by police on orders from “the top”;
e)he was locked up for five days during which he was badly beaten as he was the leader;
f)police told the applicant that if they saw him in Sialkot again, he would be killed;
g)the applicant left Sialkot and settled with his family in Shahdra, near Lahore, where he remained until the end of 1999;
h)towards the end of 1999 the applicant left Lahore with his family as he did not feel safe there;
i)during the 2004 local election the applicant’s employer nominated the company manager for a district member position. The applicant’s uncle did not support this candidate as he supported the opposition group and the employer’s candidate lost. As a result of this, the applicant was fired from his job. He was unable to find another job as he was viewed as too political;
j)the applicant’s uncle was beaten at the election by Mr Khalid Pervaz. Violence broke out between the two parties and the applicant was wounded by a gun shot in the arm;
k)both groups were charged under the anti-terrorist laws. The Khalid group accused the applicant of firing and killing a member of their group; and
l)the applicant fears that if he returned to Pakistan he would be killed or investigated by the police.
Tribunal hearing
At the Tribunal hearing, the applicant made the following additional claims:
a)a case was lodged against the applicant as a result of the violence that broke out after the 2004 elections. He was held on the charge for six weeks;
b)the applicant’s parents have received threats directed at him; and
c)his cousin was shot in June or July 2005.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the applicant provided no evidence to the Tribunal to support his claim that he was a member of the Muslim League, a past President of the Youth Wing of the Muslim League in Sialkot or that he was arrested or shot at in the course of his political activities. The Tribunal noted that he provided no copies of his party membership or letters from his uncle, other friends or party members to support his claim or medical certificates documenting the nature of injuries he claimed to have received;
b)the Tribunal accepted that the applicant was involved in the most menial way in a few limited political activities in Pakistan but it did not accept that the applicant had any political profile in Pakistan or was involved in canvassing on behalf of the Muslim League, noting that:
i)the applicant was extremely vague at the Tribunal hearing on the topic of his political activities and did not claim to have had any significant political role whatsoever;
ii)the applicant claimed that as president of the youth wing his only duty was to inform members about meetings;
iii)the applicant gave very vague and evasive answers about the work he did for Naeem Mughal during an election campaign;
iv)the applicant’s answers were exceedingly shallow and reflected no substantive knowledge of the Pakistan political process, even at the local level;
v)the applicant’s limited responses to questions put to him by the Tribunal revealed no knowledge of the Muslim League Party platform, objectives, philosophy or even its views in general terms on a range of contemporary issues confronting Pakistan;
c)accordingly the Tribunal was not satisfied that the applicant was well-known in his local area as a genuine political activist or supporter of Nawaz Sharif;
d)the Tribunal did not accept that the applicant’s parents received threats directed at him, noting that this was an unsupported claim;
e)the Tribunal did not accept that the applicant was ever for a Convention reason arrested, detained, tortured or beaten or charged with murder, noting that the Tribunal concluded that if the applicant had been charged with the very serious crimes of murder or terrorism as he claimed, he would not have been released by the authorities in Pakistan and subsequently allowed to leave Pakistan without experiencing any difficulties as he claimed;
f)in light of the Tribunal’s findings that the applicant had very limited involvement in political activities and a lack of a political profile, it found that:
i)the reason why the applicant was unable to find work in Pakistan since 2004 was not because he was too political;
ii)it was reasonable for the applicant to relocate to live elsewhere in Pakistan; and
g)the Tribunal did not find the applicant to be a credible witness. Consequently, it did not accept his claim that he would be killed or imprisoned were he to return to Pakistan.
Proceedings in this Court
The grounds of review set out in the amended application are not well-expressed. Issues which the applicant’s amended application raises for consideration are:
a)whether the Tribunal erred in making its findings of fact;
b)whether the Tribunal failed to make a bona fide attempt to exercise its jurisdiction or was biased; and
c)whether the Tribunal breached s.425 of the Act.
Dealing with each of these possible grounds in turn:
Errors in fact-finding
In the amended application the applicant says that the Tribunal did not give credit to his evidence about his political involvement, discarded his oral and written evidence, made a decision totally based on the Minister’s evidence and failed to give sufficient weight to his evidence.
At the outset, it should be observed that it is the Tribunal’s role to make findings of fact and the Court cannot substitute its own views of the facts for those of the Tribunal. This is particularly the case when a finding is based on credibility, as is the situation here. The Tribunal analysed the material which was before it and concluded, in a logical and rational way, that it did not believe the applicant. This was a conclusion open to the Tribunal on the material before it and is not one which can be disturbed by this Court. The fact that the Tribunal preferred some evidence over other evidence, and gave more weight to some evidence than to other evidence, is part of the function reposed in the Tribunal. No jurisdictional error is disclosed because it preferred some evidence over other evidence or gave greater weight to some evidence than to other evidence.
The applicant also alleged in the amended application that the Tribunal reached an opinion without “finding of the facts”. A consideration of the Tribunal’s decision record indicates that this allegation cannot be made out. The Tribunal’s factual findings have been summarised above at [9] and it is clear that the conclusion reached by the Tribunal arose out of intermediate findings of fact which were open to it.
Consequently, no jurisdictional error is demonstrated in respect of the issue of whether the Tribunal erred in making its findings of fact.
Bona fide exercise of power / bias
The matters raised in the amended application relevant to this issue were that the Tribunal was not impartial, was unduly harsh, spent most of the time at the hearing looking for inconsistencies and credibility issues, asked itself the wrong questions, failed to consider relevant material, relied on irrelevant material and made its decision totally based on the Minister’s evidence, having discarded the applicant’s evidence.
In considering whether the Tribunal was actually biased, it was necessary for the applicant to demonstrate that the Tribunal had a state of mind which was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments might have been presented to it: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507.
The only evidence before the Court which would relate to this allegation is the Tribunal’s decision record. Nothing appearing in the decision record suggests that the Tribunal approached the consideration of the application for review with a pre-formed view or that its mind was incapable of alteration regardless of what the applicant put before it. The Tribunal did put numerous questions to the applicant during the course of the hearing but it is apparent that these were to test the applicant’s claims and to determine their veracity. Such questioning does not demonstrate pre-judgment.
To the extent that the applicant submits that the Tribunal’s conduct at the hearing evidenced bias, it is necessary for the applicant to demonstrate that a fair-minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question it was required to decide: Johnson v Johnson (2000) 201 CLR 488; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425. Again, the only evidence before the Court relevant to this issue is the Tribunal’s decision record. No transcript of the hearing before the Tribunal is available to the Court. The conduct of the Tribunal hearing, as disclosed by the Tribunal’s decision record, does not lead me to the view that the Tribunal could reasonably be perceived as having approached its task other than with an impartial and unprejudiced mind.
As to the question of bona fides, the Full Court of the Federal Court said in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 [43] to [46]:
· An allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker.
· The allegation is not to be lightly made and must be clearly alleged and proved.
· The presence or absence of honesty will often be crucial.
· The circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
· Mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism.
· Errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
Again, the only evidence relevant to this issue is the Tribunal’s decision record. What the applicant appears to be saying is that the Tribunal made no bona fide attempt to consider his claims but, instead, directed itself to finding a way to confirm the decision of the delegate. Although the Tribunal’s questioning of the applicant at its hearing may have been searching, that is not evidence of lack of good faith.
It is apparent from the Tribunal’s decision record that it considered the information which the applicant supplied not only in answer to the Tribunal’s questions but also which he, himself, advanced. In particular it should be observed that at the conclusion of the Tribunal hearing the applicant was invited to add anything he wished to say before the hearing closed but he failed to take up the offer (CB 75). If the applicant had wished to clarify any of his answers or provide further information to the Tribunal for its consideration, that was his opportunity to do so.
As to the assertion that the Tribunal asked itself the wrong questions, to the extent that this goes beyond the issue of bona fides and bias it is also not made out. At pages 2, 3 and 4 of its decision (CB 70 – 72) the Tribunal discusses without error the test it had to apply and the law governing that test.
As to the allegation that the Tribunal failed to consider relevant material and relied on irrelevant material, again, to the extent that this allegation goes beyond the questions of bona fides and bias, it is not made out. To the extent that the applicant alleges that the Tribunal did not refer, in reaching its findings, to particular evidence which might have been before it, no jurisdictional error is demonstrated in this regard. When articulating its reasons, relevantly, the Tribunal is only required to refer to the evidence on which its findings of fact are based. The applicant does not suggest that material he put before the Tribunal was not referred to in its discussion of his claims and evidence and if some evidence was not referred to in its reasoning under the heading “Findings and Reasons” it can be taken that the information was not relied upon by the Tribunal when reaching its decision.
But in any event, when the Court asked the applicant to expand upon this allegation he responded that he had not had time to bring documents from home to put before the Tribunal. The applicant does not say that he requested further time of the Tribunal in order to put material before it and no suggestion of such a request appears in the material contained in the Court Book bundle of relevant documents, exhibit “A”. Moreover, the Tribunal’s invitation to the applicant to appear before it, dated 20 April 2007 contains the following:
Please read, complete and return the enclosed “Response to Hearing Invitation” form to confirm the hearing and to advise us of who will take part in the hearing.
Please use the form or attach additional information if there are any requests or new information you wish the Tribunal to consider. Any documents or written arguments sent to the Tribunal should be in English or be translated by a qualified translator. (CB 58 – 59)
If the applicant wished to put further material before the Tribunal, he should have done so in response to the letter or otherwise he should have sought additional time to obtain such information. If he did not do so, the fact that the Tribunal proceeded to make its decision without such information does not demonstrate error on its part.
In relation to the allegation that the Tribunal relied on irrelevant material, when the Court asked the applicant to identify which irrelevant material had been considered, he responded that he had been a member of his party and worked for it but could not get his family to send him information. In the absence of particularisation of this allegation, and following a consideration of the Tribunal’s decision, there is no basis to conclude that the Tribunal relied on irrelevant material. Consequently, on the facts, this allegation is not made out.
Breach of s.425
In his amended application the applicant says:
The applicant claims that he did not understand many questions, which were raised at the time of the hearing. He was able to 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.
If the Tribunal’s invitation to attend its hearing was not a real and meaningful one by reason of the applicant’s illness at the hearing, then the Tribunal’s decision may be set aside.
At the hearing before the Court the applicant said that he was not physically well when he went to the Tribunal and he could not remember what he had said to the Tribunal. He conceded he had not been sick but he submitted that he had been anxious and extremely worried. Without more, allegations of anxiety, worry and depression do not suggest a breach of s.425. Moreover, the Tribunal’s decision record includes no suggestion that the applicant was disabled from giving evidence or presenting arguments at the Tribunal hearing. Indeed, the decision record suggests quite the contrary. Further, there is no transcript of the Tribunal hearing before the Court from which it might be concluded that the applicant had been incapable of adequately giving evidence or presenting arguments. Consequently, these elements of this potential issue do not disclose jurisdictional error on the part of the Tribunal.
Similar considerations apply to the applicant’s allegations that he did not “understand many questions” and was “very much confused”. No jurisdictional error is disclosed in respect of these assertions.
As to the applicant’s allegation about not knowing about issues earlier than the hearing, there is no requirement that the Tribunal raise issues with the applicant before the hearing. The Tribunal is only obliged to give the applicant a sufficient opportunity to give evidence or present arguments about those issues arising in relation to the decision under review which would be determinative of the review application before it. It is clear from the High Court’s decision in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 that this can be done at the Tribunal hearing. Consequently, no breach of s.425 of the Act has been demonstrated.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 5 December 2007
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