SZLVW v Minister for Immigration
[2008] FMCA 1199
•29 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLVW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1199 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLVW”. |
| Migration Act 1958 (Cth), ss.91R(1)(a), 91X, 422B, 430 |
| Abebe v Commonwealth of Australia [1999] HCA 14 Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 Craig v The State of South Australia (1995) 184 CLR 163 Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744 Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Osman v United Kingdom (1998) 29 EHRR 245 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 S1573 of 2003 v Minister for Immigration [2005] FMCA 47 SZDWR v Minister for Immigration & Indigenous Affairs [2006] FCAFC 36 SZGHC & Anor v Minister for Immigration & Citizenship [2007] FMCA 570 SZIEW v Minister for Immigration & Citizenship [2008] FCA 522 |
| Applicant: | SZLVW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 9 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 16 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person |
| Counsel for the Respondents: | Ms D Watson (solicitor) |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 3 January 2008 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 9 of 2008
| SZLVW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant arrived in Australia with his younger brother (“SZLVZ”) and both filed Protection (Class XA) visa applications. The applicant’s visa application was dismissed by a delegate of the Minister for Immigration on 2 March 2007 while his brother’s application was dismissed on 8 March 2007. Both brothers made separate applications to the Refugee Review Tribunal (“the Tribunal”) on 23 March 2007. The Tribunal confirmed the delegate’s decision on 29 November 2007. Separate applications for judicial review before this Court were filed on 4 January 2008 (SZLVZ v Minister for Immigration & Anor, SYG14 of 2008). As the applicants are brothers with substantially similar claims, their applications to this Court were held at the same hearing with each brother appearing and giving evidence. However I have prepared separate judgments for each matter.
I note the approach of the Tribunal in dealing with this matter and the observation it makes in its “Findings and Reasons”:
The applicant’s claims are closely connected to those of his brother [SZLVZ] (RRT file number 071286634), who attended a hearing on the same day as the applicant. At the hearing the applicant’s advisor indicated that she would like what each of the brothers said at the hearing to be considered as part of the other’s hearing. In making findings in relation to the applicant’s claim, the Tribunal has also had regard to the evidence given by his brother [SZLVZ], at his hearing. In its letter of 18 July 2007, the Tribunal put to the applicant for comment aspects of [SZLVZ] evidence that were potentially adverse to his own claims. (CB 389)
The applicant was born in 1968 in Lahore, Pakistan and is a Muslim of Sunni ethnicity. He states that he married in 2000. The applicant was educated in Pakistan for 16 years and holds an MBA from the Eastern College of Management. He claims that between October 2005 and November 2006, he worked as Business Development Manager for Raffles Pty Ltd but was retrenched for his political activities and beliefs. The applicant travelled to Australia on a valid Pakistani passport, leaving his wife, son and two daughters in Pakistan.
The applicant claims he joined the International Human Rights Commission (IHRC) in 2002. The applicant seeks protection in Australia for fear of persecution from religious groups because of his support for a new bill on women’s rights. Furthermore, the applicant claims that as result of his protest in favour of the bill, he was badly beaten for three days. The applicant claims that upon release from detention, he spent time in hospital and was counselled by his family. He spent a few days in Karachi before departing for Australia.
The applicant arrived in Australia on 6 December 2006 and applied for a Protection (Class XA) visa on 21 December 2006. The delegate refused to grant the applicant a visa on 2 March 2007 and the applicant applied to the Tribunal on 23 March 2007 for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. It is this decision (reference number 071286455) which is the subject of these proceedings.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.
The original application contains 12 unparticularised grounds of review. The applicant was granted leave at the first Court date to file an amended application giving complete particulars of each ground of review relied upon, by 23 April 2008. Any further information in support of the application was to be filed in affidavit form by the same date. An amended application was filed on 23 April 2008 which contains 10 grounds, some of which are particularised.
At the first Court date directions hearing, the applicant that he wished to participate in the scheme that gives unrepresented applicants in refugee matters independent legal advice. The applicant was allocated a panel advisor.
Applicant’s claims
The applicant claims to fear persecution in Pakistan from the Jamaat-i-Islami (JI), the Muttahida Majlis-e-Amal (MMA) and other religious fundamentalists because of his political and social affiliations with the IHRC, the Pakistan Muslim League and the NAWAZ Sharif Group (PMLN). In support of this claim the applicant cites the following:
a)The police visited him every three months since he joined the PMLN and he was arrested several times for his involvement in rallies against the government.
b)He and his brother were involved through the IHRC in assisting women who were victims of domestic violence and rape. They organised a rally in support of a legislative Bill amending Pakistan’s rape laws. During that rally they were kidnapped and bashed for three days by fundamentalist JI and MMA members. Since his arrival in Australia, his home in Pakistan has been attacked and his family threatened.
c)He was dismissed from his employment as a result of his political activism. He was also depressed and suffered memory and concentration problems as a result of his torture.
The applicant also claims that since the declaration of a state emergency in Pakistan, and the current climate of support for the NAWZ, he and his brother now fear arrest and detention by the police in relation to their political activities.
Tribunal decision
The applicant and his brother attended a Tribunal hearing on 6 June 2007 and gave evidence. The applicant’s registered migration agent attended the hearing by telephone and was able to participate in the hearing. The agent also made several written submissions including various supporting documents and country information on the applicant’s behalf.
On 18 July 2007 the Tribunal forwarded an “Invitation to Comment on Information” letter pursuant to s.424A of the Act inviting the applicant to comment on information and inform the Tribunal if he wished to have a further hearing to give additional oral evidence (CB 275-287). On 30 July 2007 his agent responded to the letter but did not indicate that he wished to attend a further hearing (CB 289-313). On 19 October 2007 the Tribunal forwarded a second “Invitation to Comment on/respond to Information in Writing” letter inviting the applicant to comment on a second group of issues (CB 321-325). The applicant’s agent responded on 25 October 2007 (CB 326-332).
The Tribunal had regard to the oral evidence given by the applicant and his brother together with the written submissions prepared by his migration agent. The Tribunal considered all of this material but did not accept it and, accordingly, did not accept the applicant’s claims.
The Tribunal did not accept that the applicant (or his brother) were members of or involved with the IHRC for the following reasons:
a)The membership cards produced to the Tribunal contained anomalies;
b)There was inaccurate evidence as to their claimed involvement with the IHRC and newspaper reports they submitted in relation to their alleged kidnap was at odds with other evidence. Independent country information indicates that it is possible to pay to have newspaper articles published depicting a situation of persecution. The Tribunal did not accept that the reports were a reliable reflection of true events.
c)The newspaper reports referring to an attack on the family home was not an accurate or reliable account of true events, given that the applicant (and his brother) did not refer to the attack in their protection visa application and given the difficulty with newspaper articles referred to in (b);
d)While it exercised caution in relation to cultural differences, the Tribunal had difficulty accepting the evidence about the way the IHRC dealt with women’s rights issues. Given its other concerns with the applicant’s claims, the Tribunal accepted that the Department of Fair Trade information that the IHRC had a limited role in women’s rights issues and that there was little evidence of assistance of rape and domestic violence victims at the local level;
e)Given that fraudulent documents were readily available in Pakistan, the Tribunal had regard to the IHRC letters, business cards, hospital discharge cards and the letter of termination from the applicant’s employer, but did not consider that they were sufficient to outweigh the other factors causing it to conclude that the applicant and his brother were not involved in the IHRC.
Consequently the Tribunal did not accept that the applicant (or his brother) were involved in a rally, were detained, tortured or harmed as a result, that they had ever come to the adverse attention of any party due to their involvement with the IHRC, or that their home or family had been targeted after their departure from Pakistan.
The Tribunal did not accept that the applicant (or his brother) were members of the PMLN for the following reasons:
a)Although the applicant claims to have introduced his brother to the party, his brother did not disclose knowledge consistent with his claimed role as joint secretary who was involved in organising meetings and rallies, even taking into account the evidence that his brother was not highly educated and that his role and responsibilities were limited.
b)The applicant’s evidence at the hearing was inconsistent with his claimed involvement in labour issues as a member and the Vice President of the PMLN.
c)The Notification submitted as evidence of the applicant’s membership was a reliable indicator of his involvement in the PLMN given that its constitution states that members are issued with membership cards, and given that his brother produced a similar document.
Consequently the Tribunal did not accept that the applicant was harassed, detained, questioned, tortured, placed under security or otherwise harmed by the police as a result of his involvement in the PLMN. Nor did it accept that the police or anyone else would have had reason to harm him because of actual or imputed involvement. It did not accept that the applicant (or his brother) had come to the adverse attention of the government, authorities or any political or religious group as a result of involvement with the PMLN.
Although the Tribunal accepted the evidence of a psychiatric report that the applicant may have memory and concentration problems, it did not accept that he suffered harm as a result of involvement with the IHRC or PLMN or that his family was at any risk. The Tribunal did not accept that it was possible to tell from the photographs submitted whether the scar on the applicant’s hand was present in 2000. And while it accepted that the applicant and his brother may have scars, it did not accept that they were the result of the events described.
The Tribunal accepted that political involvement in Pakistan had recently become oppressive, but it did not accept that the police had come in search of the applicant (or his brother) following the imposition of marshal law in Pakistan. The Tribunal also did not accept that the applicant had a profile which would lead him to be sought in that way or that he had any interest in politics or women’s rights.
The Tribunal did not accept that the newspaper reports, on their own and in the absence of any actual activity, would be sufficient to cause the applicant (or his brother) to face persecution from fundamentalists because of an imputed political opinion or perceived membership of a social group. The Tribunal found that the chance of persecution for actual or imputed political opinion, religion, membership of a social group constituted by his family or political, human rights or women’s rights activities were remote, even accepting the recent deterioration in the political environment in Pakistan.
Consideration
When the applicant was invited to make oral submissions he sought to tender a copy of the Federal Court decision in SZIEW v Minister for Immigration & Citizenship [2008] FCA 522. The applicant made no reference to the decision nor did he indicate what he was relying upon in that decision to support his case. However, in submissions in reply the applicant indicated that he believed SZIEW was relevant to his case. His argument appears to be that the Tribunal did not consider a number of documents he and his brother had submitted. He formed the view that because the Tribunal had rejected parts of the evidence, that it was in fact dismissing the documents without considering their content. The applicant believed that the situation was the same as that in SZIEW. The applicant also believed that the Tribunal member did not ask him questions about the independent country information.
SZIEW found that the Tribunal in that case had erred because it had given certain evidence little weight. The sole reason advanced by the Tribunal was that it had no opportunity to test the evidence of what was described as “first-hand hearsay evidence”. Justice Madgwick considered whether this amounts to jurisdictional error. At [17] his Honour indicates:
In such a case, it would be, and was here, perverse not to accord the reported statement considerable weight, unless the witness reporting it appeared untruthful or unreliable.
It is not immediately apparent how SZIEW assists the applicant in his application to this Court. This is a case where, essentially, the Tribunal was not satisfied with the applicant’s claims based on evidence given by the applicant and his brother. In particular, the Tribunal was not satisfied with the applicant and his brother’s lack of knowledge of the labour organisation they claimed to be members, and it was also concerned about evidence they both gave about their support of women’s rights in Pakistan. The Tribunal, in its “Findings and Reasons”, had difficulty with some of the documentary material provided by the applicants. The Tribunal made reference to the difficulty it had with a membership card that was produced.
The Tribunal also detailed concerns it had with evidence about the way the organisation operated in various countries. In particular, evidence that the organisation had its head office in Norway which was not supported by information on the organisation’s website. The Tribunal then went through concerns it had about newspaper articles also provided by the applicant to support his claims. The Tribunal was concerned that the facts as reported in those newspaper articles did not coincide with the evidence the applicant gave at the hearing. A newspaper article reported an attack on the applicant’s family, but the applicant had made no mention of the attack when his protection visa application was lodged. The Tribunal considered this a significant matter that one would expect to have mentioned in the original application.
The Tribunal then dealt with evidence which also caused it to doubt what was actually involved in the organisation which promoted women’s rights. The Tribunal concluded in relation to these issues:
Having taken careful account of all of the evidence, the Tribunal does not accept that the applicant and his brother were involved in women’s rights activities with the IHRC in the way they have described. (CB 395.2)
In a similar manner the Tribunal then considered the medical report purportedly issued after the applicant was discharged from hospital and the letter advising his termination of employment. There was a separate basis for claiming a fear of persecution because of membership of the PMLN. The Tribunal anticipated that a person in the position of the applicant would have been able to answer questions about members of parliament and people involved in the trade union organisation. This demonstrates that this matter is not similar to that in SZIEW where the Tribunal rejected a piece of corroborative evidence for the sole reason that it was hearsay evidence without anything further.
The matter before this Court is a case where the Tribunal relied on numerous issues which led to its ultimate conclusion that the applicant’s claims were not believed. This was a result of inconsistencies and the unsatisfactory nature of the evidence. The Tribunal provided extensive reasons for making the finding it did and there is nothing that falls from SZIEW that undermines that finding.
The applicant raised the issue of the Tribunal hearing tapes indicating that he had sought access but was only supplied one tape which does not contain a recording of the complete hearing. The applicant stated that the Tribunal asked a question about labour unions which he tried to explain. The applicant believes his answer may have been misinterpreted resulting in the Tribunal member doubting information in relation to the union. He indicated that he wished to listen to the hearing tapes to examine this issue. The applicant stated that he and his brother tried their best to provide all the evidence and there was no further information they could provide. The applicant also indicated that he was unsure what further steps he could take.
The second issue raised by the applicant in oral submissions concerns the supply of hearing tapes. The applicant’s migration agent sent a letter to the Tribunal dated 8 June 2007 requesting copies of the hearing tapes be forwarded to the applicant at a Queensland address (CB 247). Ms Watson, for the respondents, advised the Court that the Tribunal indicated that there was only one tape available as the second tape did not record due to a malfunction. The panel advisor allocated to the applicant under the Court’s panel advice scheme was also informed on 30 April 2008 that there was only one tape available.
Ms Watson submits that s.422B of the Migration Act 1958 (Cth) (“the Act”) provides an exhaustive statement of the natural justice hearing rule and a failure to provide a hearing tape to an applicant does not undermine the principle that the applicant is to be afforded a fair hearing. There is nothing in the Act which specifically compels a Tribunal to provide hearing tapes to an applicant. Ms Watson acknowledges that while the absence of the second hearing tape is unfortunate, it cannot lead to a finding of jurisdictional error by the Tribunal in the discharge of its duties under the Act. I agree with the submission that the applicant has not pointed to any specific matter which he says occurred during the hearing which he says led to a jurisdictional error. The immediate speculation that there may have been an error in interpretation is not a sufficient basis for alleging jurisdictional error.
The applicant did not file written submissions nor did he initially address any of the grounds pleaded in the amended application. However he did raise a number of issues in reply to the written submissions filed by Ms Watson.
Ground one
The second respondent failed to have regard to the whole of the evidence before deciding whether it believed the applicant, and it did not properly assess the significance of the documentary evidence which corroborated the applicant’s account.
Particulars
The second respondent failed to make findings on, and determine the authenticity of, the following documents:
a) Documents from the department of Surgery at Lahore General Hospital relating to the admission of the applicant on 17 November 2006 for treatment because of torture (refer pp 5 of the decision).
b) Letter from the International Human Rights Commission (IHRC) confirming the applicant’s membership and duties in the organisation. (refer to pp 13 and 25 of the decision)
c) A letter from the applicant’s employer dated 20 November 2006 stating that he had been terminated because of his involvement in political activities. (refer to pp 11 of the decision)
d) A “Notification” dated 18 July 2001 from the Pakistan Muslim League confirming the applicant’s membership and duties in the organisation. (refer to p6 of the decision where it is mentioned 28 July 2001 by mistake from the Tribunal)
e) Articles from the Daily Regional Newspaper dated 14 November 2006, 17 November 2006 and 10 December 2006 corroborating the applicant’s accounts of his involvement in demonstration (refer to pp6-7 of the decision).
Ms Watson submits that the contention that the Tribunal failed to consider the whole of the evidence and assess the significance of corroborating documents cannot be sustained. It is clear from the decision that the Tribunal considered and made findings assessing the significance of the particularised documents, as follows:
a)It had regard to the Lahore General Hospital discharge card (CB 35-35) but found that it was not sufficient to outweigh the other material which caused it to find that the applicant was not involved in the IHRC as claimed, and that he was never harmed as a result of such involvement which would have required hospital treatment (CB 395.9-395.10).
b)The Tribunal considered the letter bearing the IHRC logo (CB 203) but found that it was not sufficient to outweigh the other evidence (CB 395.6-395.7).
c)The Tribunal considered the letter stating that the applicant’s employment was terminated due to his political activities (CB 58, 201) but found that it was not sufficient to outweigh the numerous factors which led it to find that the applicant was not involved in IHRC activities such as to bring himself to the attention of his employer and have his employment terminated (CB 396.1).
d)The Tribunal considered the “Notification” (CB 98-99) from the PLMN but gave it little weight and found it was not a reliable indicator of the applicant’s membership and involvement in the PMLN (CB 396.8-397.1).
e)The Tribunal considered the newspaper articles submitted as evidence of the applicant’s involvement in the IHRC rally (CB 259-267) but found that they did not provide a reliable reflection of true events (CB 391.5-393.3).
Ms Watson contends that it was sufficient for the Tribunal to make findings about the reliability of, and weight to be accorded to, the above documents. However, it was not required to take steps to determine their authenticity. The authenticity of the documents was not in issue: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [46]-[47]. The Court in that case held that it was not necessary for the Tribunal to refer every piece of evidence and contention made by an applicant in its written reasons.
It maybe unnecessary for the Tribunal to make a finding on a particular matter because it is subsumed in findings of greater generality. Clearly there is no general duty upon the Tribunal to make enquiries on behalf of the applicant about the authenticity of a document that he has submitted: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 per Hayne and Gummow JJ at [43] and Callinan J at [124].
In response, the applicant raised the issue of the Tribunal member finding a spelling mistake on the card provided by the applicant and his brother and as evidence of their membership of the IHRC. The Tribunal noted:
The cards contained an address in “Oslo, Narway [sic]”. (CB 390)
The applicant indicated that he had already told the Tribunal member at the hearing that the membership cards had been produced in English which is not the first language in Bangladesh. The applicant said that the error on the card was a human error. He also said that there were many spelling mistakes on the IHRC website due to the fact that English was not their first language. However, the applicant claims that he had not provided the Tribunal with the organisation’s website address and that the material he had provided was sourced from his colleagues and co-workers who had provided him with the information.
The applicant then referred to the newspaper articles which contained stories about him. He states he was not authorised to interfere with the newspapers or ask to be written about in a particular way, which he told the Tribunal member. The applicant claims that different papers report stories differently but basically that he was kidnapped and tortured after the rally on 13 March 2006.
The next issue raised by the applicant was the attack on his family. He states that he had failed to mention this attack in his visa application and he was not aware how important it was to highlight this in his application. Further it should be noted that the attack was not on him personally but on his family who were not included in his visa application. Consequently, he did not consider it to be important for him to highlight. It was only after he received his panel advice that he knew how to make a protection visa application properly and prepare a statement for the Tribunal.
The applicant had stated that he provided the Tribunal with the termination letter on a letterhead from the company and signed by the Operations Manager and it contained the statement:
You are hereby notified that you have been terminated from your current position at this office with immediate effect.
You have breached conditions of your employment agreement by obtaining membership of a political party and involvement in political activities during your employment. (CB 58)
The applicant raised these matters with issues relating to different grounds in oral submissions. However, he has not identified any aspect of the Tribunal’s findings that contradicted the submissions made by Ms Watson. I am satisfied that the issues identified in ground one do not identify any jurisdictional error in the Tribunal’s findings and that this ground should be dismissed.
Ground two
2. As a result of the matters referred to in paragraph 1, the decision of the Tribunal was illogical, irrational, or lacking a basis in findings or inferences of fact supported on logical grounds.
Ms Watson submits that as ground one cannot be made out, the assertion that the Tribunal’s decision was illogical as a result of the asserted failure in ground one cannot be sustained. The issue of his actual reasoning was considered in the Full Federal Court in Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744 at [34]:
[34] The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place - Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356. S476(1)(g) and s476(4) appear to have been intended to give effect to such principles.
The more likely issue which the applicant is attempting to raise here was referred to in Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 at [5] per Gleeson CJ:
[5] As was pointed out in Minister for Immigration v Eshetu [[1999] HCA 21; (1999) 197 CLR 611 at 626 [40] per Gleeson CJ and McHugh J], to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.
On what is before this Court, it was open to the Tribunal to find that the applicant’s claims and explanations were unconvincing. In my view no illogical, irrational or unreasonable thinking is revealed in the decision record.
Ground three
3. The second respondent fell into jurisdictional error in so far as it made findings that were not open on the evidence before the Tribunal.
Particular
a) There was no basis on which find that the if the applicant was not involved in IHRC and PML-N, the applicant claim that he had been abducted with his brother and harassed was fabricated.
Ms Watson submits that the assertion that the Tribunal made findings not open to it has no merit. The applicant’s claim that he was abducted and harassed is directly connected with his claim to have been involved with the IHRC and the PMLN. After not being satisfied with the applicant’s involvement, the Tribunal was entitled to find (as it did) that it was not satisfied that the applicant was harmed as a result of participating in a IHRC rally (CB 395) or that he was harassed as a result of his involvement with the PMLN (CB 398).
Although the applicant did not address the issue of abduction and harassment he did explain in detail the structure of the Pakistan Muslim League. He indicated that his apparent poor knowledge of this organisation at the Tribunal hearing was because he was traumatised and lacked concentration. As a result, he was not able to provide the names of parliamentary members of the League to the Tribunal.
A second problem he was experienced was people in Pakistan changing political parties regularly. He gave the example of movement amongst parties known as the PML(N), the PML(QAF) and the PML(J). At the Tribunal hearing the applicant had problems remembering names of leaders of those parties.
The applicant claims he explained to the Tribunal member that he was unable to remember the names of various permanent leaders. He stated that he was able to provide all the information about the PMLN he was asked but was able to identify its chairman and all the other major office bearers. He stated that he had joined the PML(N) which was why he was able to answer most of the questions in respect of that party. However, he was unable to answer questions about the other parties and did not have any documents with him which contained those names.
The applicant stated that the first respondent’s suggestion that he did not answer any questions was untrue.
The Tribunal’s findings were far more comprehensive than that suggested by the applicant in oral submissions. In respect of his membership of the IHRC the Tribunal stated:
I have taken careful account of all the evidence, the Tribunal does not accept that the applicant and his brother were involved in women’s rights activities in the IHRC in the way they have described. This is particularly the case given the difficulties with the numerous aspects of the evidence such as membership cards, information concerning the IHRC’s offices and the newspaper articles. The Tribunal does not accept that the applicant was ever a member of, or in any way involved in, the IHRC. It finds that he never in any way participated in a protest against the women’s protection bill, that he was never detained, tortured or in any way harmed as a result. (CB 395.2)
Similarly the Tribunal’s findings in respect of his membership of the PMLN are far more comprehensive than that suggested by the applicant in his oral submissions:
In light of the matters outlined above, the Tribunal does not accept the applicant’s evidence as to his involvement in the PML-N. It does not accept as reliable the “Notification” the applicant has provided as evidence as his membership in circumstances where he claims not to have been issued with a membership card. His evidence at the hearing as to the absence of trade unions from the industry in which he claimed to have been involved was at odds with his claimed interest. The Tribunal is not satisfied on the evidence before it that the applicant was a member of, or involved in, the PML-N as claimed. (CB398.1)
The applicant in this ground of review is asking the Court to conduct a merits review of the Tribunal decision. Merits review is an assessment of the appropriateness of a decision as distinct from judicial review which focuses on the lawfulness of the earlier decision. Judicial review asks whether the decision maker was authorised to do what he did under the prevailing law, not whether the actual decision was the best decision which could be made in the circumstances. Alternatively, merits review provides a complete rehearsal of all the issues relevant to the application. Clearly merits review is not available in this Court, see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ:
31. … any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision…
In this decision, the Tribunal provided a detailed analysis of the evidence put before it and dealt with each of these issues in coming to its findings. It is clearly stated what elements of that evidence it did not accept which led it to ultimately not accept the applicant’s claims.
Ground four
The second respondent misconstrued the requirement of s91R(1)(a) of Migration Act.
Particular
a) The Tribunal held incorrectly that there is no real chance applicant would suffer persecution in Pakistan for “membership of the particular social group”.
Ms Watson submits that this ground is misconceived. The particular provided does not make out that s.91R(1)(a) of the Act was misconstrued. Rather it appeared to be covering the merits of the decision.
The Tribunal found:
Looking to the reasonable foreseeable future, the Tribunal finds to be remote the chance that the applicant would suffer persecution in Pakistan for reasons of an actual or imputed political opinion or for the reason of religion. It finds to be remote the chance that he would suffer persecution for a reason of membership of a particular social group constituted by his family. As it does not accept his claim that he is a political, human rights, or women’s rights activist as claimed, it finds to be remote the chance that he would suffer persecution for reasons of membership of a particular social group of political, human rights or women’s rights activists. While the Tribunal accepts the evidence of a recent deterioration of the political environment in Pakistan, it nevertheless finds that there is no real chance that the applicant would suffer persecution in Pakistan for any convention reason. (CB 399-400)
Ground five
The Tribunal failed to ask a question that it was, in the circumstances of this case, legally required to ask.
Particular
a) Whether the Pakistani authorities provided a standard of protection comparable with international standards.
Ms Watson submits that the assertion that the Tribunal failed to ask itself a question which it was legally required to ask is not demonstrated by the particular provided. She submits that the Tribunal is not required to consider the standard of protection provided by Pakistani authorities as the Tribunal found that the applicant did not face a real chance of persecution.
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks the wrong question, ignores relevant material, relies on irrelevant material, makes an erroneous finding or reaches a mistake and conclusion in a way that affects the exercise or purported exercise of the tribunal’s power: Craig v The State of South Australia (1995) 184 CLR 163 at [179] per McHugh, Gummow and Hayne JJ; Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26.
It is a task of the Tribunal to decide questions of fact and it is up to the Tribunal to decide what questions to ask an applicant. Even if the Tribunal makes a factual error, this is not a jurisdictional error: Abebe v Commonwealth of Australia [1999] HCA 14. While the applicant in this case claims that the Tribunal asked the wrong question, there is nothing to indicate that it misunderstood its task or was unaware of the issues it had to decide.
It is not the duty of the Tribunal to search for other country information to support an applicant’s claims: Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20].
Presumably the applicant or person assisting him with this ground followed the wording of the High Court in Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [27] and [28] concerning whether the Ukraine (in that case) provided its citizens with “the level of state protection required by international standards”. This phrase appears in that decision in the following context:
[27] In fact, there was no evidence before the Tribunal that the first respondent sought the protection of the Ukrainian authorities, either before he left the country or after he arrived in Australia. According to the account of events he gave to the Tribunal, he made no formal complaint to the police, and when the police interviewed him after the first attack, he made no statement because he could not identify his attackers. The Tribunal considered the response of the police on that occasion to be appropriate. It is hardly surprising that there was no evidence of the failure of Ukraine to provide a reasonably effective police and justice system. That was not the case that the first respondent was seeking to make. The country information available to the Tribunal extended beyond the case that was put by the first respondent. Even so, it gave no cause to conclude that there was any failure of state protection in the sense of a failure to meet the standards of protection required by international standards, such as those considered by the European Court of Human Rights in Osman v United Kingdom12..
[28] The first respondent sought to explain and justify his unwillingness to seek the protection of the Ukrainian authorities, either at home or abroad, on the basis that they were the instigators, directly or indirectly, of the attacks on him. That case was rejected by the Tribunal. The Full Court found no fault with that part of the Tribunal's decision. The only other basis upon which the first respondent's unwillingness to seek the protection of the Ukrainian government could be justified, and treated as satisfying that element of Art 1A(2), would be that Ukraine did not provide its citizens with the level of state protection required by international standards. It is not necessary in this case to consider what those standards might require or how they would be ascertained. There was no evidence before the Tribunal to support a conclusion that Ukraine did not provide its citizens with the level of state protection required by such standards. The question of Ukraine's ability to protect the first respondent, in the context of the requirements of Art 1A(2), was not overlooked by the Tribunal. Because of the way in which the first respondent put his claim, it was not a matter that received, or required, lengthy discussion in the Tribunal's reasons. If the Full Court contemplated that the Tribunal, in assessing the justification for unwillingness to seek protection, should have considered, not merely whether the Ukrainian government provided a reasonably effective police force and a reasonably impartial system of justice, but also whether it could guarantee the first respondent's safety to the extent that he need have no fear of further harm, then it was in error. A person living inside or outside his or her country of nationality may have a well-founded fear of harm. The fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify unwillingness to seek their protection. For example, an Australian court that issues an apprehended violence order is rarely, if ever, in a position to guarantee its effectiveness. A person who obtains such an order may yet have a well-founded fear that the order will be disobeyed. Paradoxically, fear of certain kinds of harm from other citizens can only be removed completely in a highly repressive society, and then it is likely to be replaced by fear of harm from the state.
These passages from S152/2003 have been subject to judicial consideration in SZDWR v Minister for Immigration & Indigenous Affairs [2006] FCAFC 36 at [18]-[21] and SZGHC & Anor v Minister for Immigration & Citizenship [2007] FMCA 570 at [25]-[28], and cited with approval in S1573 of 2003 v Minister for Immigration [2005] FMCA 47 per Smith FM at [27]-[34]. However, such judicial consideration is not relevant to the matter currently before this Court because the Tribunal found that the applicant did not face a real chance of persecution. Consequently the Pakistani authorities were not required to provide the applicant with protection.
The matter before this Court can be clearly distinguished from all the authorities referred to above because in those matters the applicants were found to have been persecuted and the issue before the Tribunals was whether the standard of protection provided by local authorities met international standards. International standards of protection have been considered by the European Court of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245.
I am satisfied that the issue raised in this ground appears to result from a misunderstanding of this particular requirement and has been taken out of context from the Tribunal’s actual findings. This ground cannot be sustained.
Grounds six and seven
6. The decision of the Refugee Review Tribunal was effected by jurisdictional error in that the Tribunal did not take into account certain relevant consideration or ‘integers’ central to the applicant claims; because the applicant was being questioned for a number of hours and felt stressed and intimidated.
7. The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
Particulars
a) The Tribunal did not consider the applicant who had been under immense and intimidating pressure from fundamentalist.
b) In relation to above the Tribunal did not consider the applicant claim that his distinguishable position as IHRC activist and PML-N member.
Ms Watson contends that the assertion that the Tribunal failed to take into account the particularised integers of the applicant’s claim cannot be sustained. She submits that it is clear from the Tribunal decision that it did consider and make findings on the applicant’s claims:
a)to have been persecuted by fundamentalists in relation to his involvement with the IHRC and the rally (CB 390.1-390.2; 391.7-392.6; 395.3; 399); and
b)to have been an IHRC activist (CB 390-395, 399) and a member of the PMLN (CB 396-399).
This ground adopts precedents frequently seen in this Court and displays little thought on their relevance to this particular case but makes general allegations meaningless in light of the Tribunal’s decision. The suggestion that particular integers to the applicant’s claim have not been addressed demonstrates this lack of understanding when the substantial part of the Tribunal decision as set out over 50 typed pages (CB 345-400) specifically addresses the integers central to the applicant’s claims. These two grounds cannot be sustained.
Ground eight
The Tribunal applied the wrong test.
Particulars
a) The Tribunal left out individual elements of the applicant claim and tested whether they individually amounted to persecution rather than look at the claim as a whole determine whether the claim so considered amounted to persecution.
b) By requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was in fact, placing too high an onus of proof on the applicant and failed to give the applicant the benefit of the doubt.
The particulars provided in support of this ground do not make out the assertion that the Tribunal applied the wrong test. The first particular does not relate to this Tribunal decision, as the Tribunal did not find that individual elements of the applicant’s claims did not amount to persecution. The particular does not identify what alleged elements were not addressed. On a fair reading of the decision all the issues raised by the applicant have been addressed both singularly and collectively.
Ground nine
The second respondent in making its determination failed to record its decision in accordance with section 430 of the Migration Act.
Particulars
a) The Tribunal made no finding as to the extent or nature of persecution suffered by the applicant.
b) The Tribunal however found that any persecution suffered was not for any convention reason but did not give reasons for the finding.
c) The Tribunal failed to record the material facts for the reasons referred to above.
The particulars claiming that the Tribunal breached s.430 of the Act demonstrate a misunderstanding of the decision. The Tribunal did not accept that the applicant was persecuted and did not find that any persecution suffered was for a Convention reason. Section 430(1) of the Act states:
Refugee Review Tribunal to record its decisions etc.
(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
In Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940 at [24], Spender, O’Connor and Emmett JJ stated:
[24] …S430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. S430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s430(1) of the Act.
In Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [64]-[68] McHugh J stated:
[64] There is some authority in the Full Court of the Federal Court for the proposition that s430(1) requires the reasons of the Tribunal to refer to evidence contrary to findings of the Tribunal47. However the contrary view was taken by differently constituted Full Courts in Ahmed v Minister for Immigration and Multicultural Affairs48, Addo v Minister for Immigration and Multicultural Affairs49 and Sivaram v Minister for Immigration and Multicultural Affairs50. In Addo, the Court said51:
"S430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. S430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s430(1) of the Act.
... It is not necessary, in order to comply with s430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made."
[65] In my opinion, this passage correctly sets out the effect of s430(1)(c) and s430(1)(d). However, the obligation to set out "the reasons for the decision" (s430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. Indeed, to do so would be contrary to the direction in s420 of the Act that:
"(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case."
[66] In this case, the Tribunal made an express finding that it did not accept the prosecutor's wife's evidence. That was sufficient to comply with the requirements of s430(1).
[67] In addition, the prosecutor alleges that the Tribunal breached s430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.
[68] But there is a more fundamental reason why the argument based on s430 fails to support a claim for prerogative relief. Even if, contrary to my view, there was a breach of s430(1) by the Tribunal, it would not amount to a jurisdictional error. In Minister for Immigration and Ethnic Affairs v Eshetu52, Gummow J referred to the requirement that, before granting a protection visa, the Minister and, on review, the Tribunal be "satisfied" that the prosecutor was a refugee. That requirement arose from s36 and s65 of the Act. His Honour said:
"A determination that the decision-maker is not 'satisfied' that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s75(v) of the Constitution."
The prosecutor argued at the hearing53 that s430(1)(c) "feeds into the ascertainment of the Minister's satisfaction" and that it is "an integral part of ascertaining the jurisdictional fact".
I am satisfied that the Tribunal decision complies with each of the four requirements of s.430(1) of the Act. The decision sets out why the Tribunal did not believe the applicant was entitled to a protection visa. The Tribunal set out why it was unable to accept specific parts of the applicant’s claim based on inconsistencies in his evidence and the implausibility of some of the claims.
Ground ten
The Tribunal failed to determine the chance of applicant being persecuted should they return to Pakistan.
The contention that the Tribunal failed to determine the chances of persecution should the applicant return to Pakistan is not supported by the Tribunal finding that the likelihood of this was remote. The “Findings and Reasons” state:
Looking to the reasonably foreseeable future, the Tribunal finds to be remote the chance that the applicant would suffer persecution in Pakistan for reasons of an actual or imputed political opinion or for reasons of religion. It finds to be remote the chance that he would suffer persecution for reason of his membership of a particular social group constituted by his family. As it does not accept his claims that he is a political, human rights or women’s rights activist as claimed, he finds to be remote the chance that he would suffer persecution for reasons of membership of a particular social group of political, human rights or women’s rights activists. (CB 399.10-400.1)
The reason for this conclusion was clearly detailed in a lengthy analysis of all the evidence put to the Tribunal by the applicant and his advisors. The reason for the conclusion was clearly articulated in the decision. The pleading in this ground is contrary to the Tribunal decision and cannot be sustained.
Conclusion
The applicant is a self-represented litigant who appeared with the assistance of an Urdu interpreter. In the preparation and presentation of his review application before the Tribunal the applicant was assisted by a registered migration agent. This resulted in a large volume of material presented to the Tribunal detailing his claims and providing independent country information on Pakistan. The applicant participated in the Court-sponsored legal advice scheme by attending a conference with the advisor and receiving written advice. He also filed an amended application. At the commencement of this hearing, the applicant submitted a recent Federal Court decision which he submits concerns a similar fact situation to his own. He substantially relied upon that decision in support of his application. Unfortunately the adoption of this approach seemed to abandon the grounds of review in the amended application. He made little to no reference to any of those grounds and did not argue or develop them but rather relied totally on the Federal Court decision.
The solicitors for the first respondent assisted the Court with written submissions in response to the amended application and I am satisfied that the issues identified in the application have been satisfactorily addressed and the oral submission in response to the tendered decision have been of assistance to the Court. This places an obligation on the Court to independently consider whether any argument based on the material contained in the Court Book and in particular the Tribunal’s decision give rise to any claim of jurisdictional error. I have undertaken that review and I am satisfied on a fair reading on the material available that it is not apparent that any other ground of jurisdictional error is apparent in the decision making process. Consequently the application should be dismissed with costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 29 August 2008
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