SZMJM v Minister for Immigration - [2009] FMCA 1175

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMJM v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1175

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424AA; 427(1)(d); 474; pt.8 div.2

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277
Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553
W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407
NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant:

SZMJM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1838 of 2009

Judgment of:

Emmett FM

Hearing date:

26 November 2009

Date of Last Submission:

26 November 2009

Delivered at:

Sydney

Delivered on:

26 November 2009

REPRESENTATION

Applicant appeared in person assisted by an Urdu interpreter

Counsel for the Respondent:

Mr Y. Sharrif

Solicitors for the Respondent:

Mr G. Johnson, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1838 of 2009

SZMJM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal, dated 9 July 2009 and handed down that same day.
The applicant claims to be a citizen of Pakistan and a Muslim who resided in Swat, Pakistan (“the Applicant”). The Applicant claimed to fear persecution in Pakistan from religious fanatics who imposed Sharia law in circumstances where the Applicant claims to be known as moderate in his views and to have spoken out in public against the enforcement of Sharia law.
The Applicant arrived in Australia on 28 June 2007, having departed legally from Karachi on a passport issued in his own name and a special purpose visa, issued on 28 June 2007.
On 13 July 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 9 October 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 26 October 2007, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 19 December 2007, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.
The Applicant sought judicial review of that decision and, on 19 November 2008, Federal Magistrate Driver remitted the matter to the Refugee Review Tribunal for determination according to law.
On 9 July 2009, the Refugee Review Tribunal, differently constituted, affirmed decision of the Delegate not to grant a protection visa.
On 3 August 2009, the Applicant filed an application in this Court seeking judicial review of the second Refugee Review Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

The Applicant provided a statement in support of his protection visa application in which he stated he previously resided in Swat in Pakistan where an extremist Islamic religious movement was “getting more and more powerful”. The Applicant claimed many supporters of this movement belong to the Taliban and to “an outlawed terrorist group known as Tehreek-e-Nafaz-e-Shariet-e-Mohammadi” (“TNSM”) which violently enforced radical Islamic fundamentalist principles and customs on the general populace.
The Applicant claimed that he became upset when his daughters were prevented from attending school. The Applicant stated that thereafter he spoke out on Friday after prayers against many of the restrictions imposed on Muslims in Swat by fundamental extremists.
In December 2006, the Applicant claimed to have received a warning on his mobile phone that he and his children would be killed. The Applicant claimed he reported the threat to police who refused him assistance. The Applicant stated that, later in December, people entered his property and stole his television set and destroyed his satellite dish.
The Applicant claimed that there were public demonstrations in support of fanatics in Swat and that shops were looted and burned, especially those considered to be propagating anti-Islamic products, such as books, televisions and other electronic equipment. The Applicant claimed that others were killed and their bodies left as warning signs. The Applicant claimed that he had been identified as a moderate by religious extremists. The Applicant stated that he had never attended any demonstration or rally supporting the TNSM and had spoken out in public against the enforcement of Sharia law.

The Delegate’s decision

On 9 October 2007, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

On 26 October 2007, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
The Applicant provided further documents in support of his application.
A decision of the Refugee Review Tribunal, differently constituted, affirming the Delegate’s decision not to grant the Applicant a protection visa, was set aside on 19 November 2008 by Federal Magistrate Driver and the matter remitted to the Refugee Review Tribunal for determination according to law. It is the decision of the second Refugee Review Tribunal (“the Tribunal”) which is the subject of the application for judicial review before this Court.
On 8 January 2009, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing to give oral evidence and present arguments.
On 23 February 2009 and 1 June 2009, the Applicant attended Tribunal hearings with his migration agent and gave evidence.
On 23 February 2009, the hearing was adjourned to enable the Tribunal to make further enquiries about the Applicant’s claims, including his evidence and recent documentary information provided by the Applicant to the Tribunal.
Thereafter, the Tribunal made enquiries from the Department of Foreign Affairs and Trade (“DFAT”) in Pakistan in relation to three documents provided by the Applicant. The documents included two police reports, dated 15 December 2006 and 9 December 2007 respectively, and a death certificate in respect of the Applicant’s daughter, dated 19 December 2008. The Tribunal noted that the result of its enquiries revealed that all the documents were false.
When the hearing resumed on 1 June 2009, the Tribunal further explored the Applicant’s claims with him and put to the Applicant the information it had received that the Applicant’s documents referred to above were false. The Tribunal then gave the Applicant a further 28 days to provide a response and any further submissions.
On 25 June 2009, a post-hearing submission from the Applicant was received by the Tribunal, together with a further document purporting to be from Sheikh Maltoon Police Station.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“2.1 The Second Tribunal’s decision record sets out the applicant’s claims (CB 295[21]-297[26]), an outline of the evidence that the applicant gave at the first hearing of the Second Tribunal (CB 297[27]-300[38]), the information that the Second Tribunal had obtained through enquiries made with the Department of Foreign Affairs and Trade (DFAT) (CB 300[39]-[42], an outline of the evidence that the applicant gave at the adjourned hearing of the Second Tribunal (CB 300[43]-302[54]), an outline of the manner and method by which the Second Tribunal provided the applicant with information it obtained from DFAT in compliance with s424AA of the Migration Act 1958 (the Act) (CB 301[51]-302[54]), and an outline of the post-hearing submissions received by the Second Tribunal from the applicant (CB 302[55]-303[56]).
2.2 The Second Tribunal accepted that the applicant was a citizen of Pakistan (CB 303[57]), that he came from Swat in Pakistan (CB 303[62]), that TNSM was a fanatical organisation which would be capable of causing serious harm to its enemies (CB 304[62]), that the applicant’s property in Swat might have been destroyed, and that persons had been injured, killed or had gone missing because of ongoing fighting in the Swat area (CB 304[62]). However, the Second Tribunal rejected the applicant’s other claims. In doing so, the Tribunal:
(a) was not satisfied that the applicant or any of his family members left Swat for the reasons claimed by the applicant: CB 304[62];
(b) was not satisfied about the credibility of key aspects of the applicant’s claims: CB 304[63]. In particular, the Second Tribunal was not satisfied that the applicant feared a return to Pakistan based on the views he had voiced prior to departing Pakistan (CB 304[63]-[64]). In arriving at this conclusion, the Second Tribunal relied on inconsistencies in the applicant’s evidence, including that:
(i) his claims of having made public comments against the TNSM in December 2006 were inconsistent with his continued stay in Swat until February 2007: CB 304[64];
(ii) a document submitted by the applicant which purported to be a police report recording the events which were alleged to have taken place at the applicant’s home was not authentic and that the genuine report set out a complaint from another party: CB 304[64.8];
(iii) an alleged police report relating to the asserted abduction of the applicant’s father and brother was not authentic: CB 305[64.1];
(iv) an alleged death certificate relating to the applicant’s daughter was not authentic: CB 305[64.2];
(c) in light of the adverse credibility findings, including those concerning the authenticity of the documents noted above, the Second Tribunal considered but gave no weight to the other documents submitted by and on behalf of the applicant: CB 305[65];
(d) was not satisfied about the applicant’s claims: CB 305[66].
2.3 Accordingly, the Second Tribunal concluded that the applicant did not have a well-founded fear of persecution for any Convention reason: CB 305[67]-[68].”

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of an Urdu interpreter.
On 24 August 2009, the Applicant attended a directions hearing before a Registrar of this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. On that occasion, the Applicant was directed to ensure that any transcript of the Tribunal hearings upon which he may wish to rely was verified by affidavit.
At the directions hearing, the Applicant was referred to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services, headed in his own language.
On 20 October 2009, the Applicant filed written submissions in support of his application.
At the commencement of the hearing the Applicant confirmed that he relied on the grounds contained in an application, filed on 3 August 2009, as follows:
“1. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirement of the Migration Act.
2. The Tribunal’s decision was unjust and was made without taking into account the full gravity of the applicant circumstances and the consequence of the claim.
3. The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
4. The RRT has failed to investigate applicant claim, specially the grounds of persecution, in Pakistan. Therefore, the Tribunal decision dated 9 July 2009 was effected by actual bias constituting judicial error.””
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally. No further application or evidence was filed by or on behalf of the Applicant.
Grounds 1, 2 and 3 make bare assertions that do not disclose any error capable of review by this Court.
In discussions with the Court, it became apparent that, at the heart of the Applicant’s complaints about the Tribunal’s decision, was the failure of the Tribunal to conduct any further investigations in respect of the Applicant’s evidence, in particular:
a)the statements provided by his father, brother and three other persons; and
b)how the Tribunal could have found the Applicant’s documents relating to police reports to be false when the police station was no longer in existence.
In relation to a) above, the Applicant submitted that the Tribunal did should have made enquiries of his father, brother and the three other persons who provided statements because the Tribunal had made enquiries about the authenticity of his documents.
However, there is no positive duty to make enquiries or investigate claims imposed upon the Tribunal (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“SGLB”) at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ).
As their Honours Gummow and Hayne JJ made clear in SGLB, whilst the Tribunal has the power to obtain further information, it does not have a duty to investigate the Applicants’ claims, nor is it under a duty to consider utilising such permissive statutory powers which might enable it to do so (for example, see s.427(1)(d) of the Act; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27] per Crennan J; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [24]-[25] per Heerey, Nicholson and Mansfield JJ; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 per Black CJ, von Doussa, Sundberg and Mansfield JJ at 561; W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78] per Nicholson J).
In NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18] to [21] per Jacobson J (upheld on appeal) stated:
“There was no obligation on the RRT to make any further investigation of the claim over and above the material submitted by the applicant. The High Court has made it clear on a number of occasions that proceedings before the RRT are inquisitorial and that it is for an applicant to advance whatever evidence he or she wishes to put forward in support of the application; see eg Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] (per Gummow and Hayne JJ).
The authorities make it clear that the RRT is not obliged to embark upon its own inquiries except in limited circumstances.” [Emphasis added]
Jacobson J cited Willcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 - 170. At page 170, Wilcox J stated as follows:
“The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision maker to make the applicant's case for him. It is not enough that the Court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the Court, on judicial review, should receive evidence as to the existence and nature of that information.” [Emphasis added]
The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Moreover, in circumstances where the Tribunal had made comprehensive adverse findings in respect of the Applicant’s credibility, it was open to the Tribunal to decide not to give weight to the Applicant’s witness statements as corroborative of the Applicant’s claims (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12] per Gleeson CJ and [49] per McHugh and Gummow JJ)).

A fair reading of the Tribunal’s decision record makes clear that the Tribunal had regard to the Applicant’s witness statements. However, because it:
(i)comprehensively rejected the Applicant’s claims of past harm and any Convention-related persecution;
(ii)found the Applicant not to be credible in relation to his Convention claims; and,
(iii)found the Applicant’s documents to be false
the Tribunal gave no weight to the statements as corroborative of the Applicant’s claims. Moreover, the Tribunal stated that “in light of the fundamental lack of credibility within the Applicant’s evidence, the Tribunal is not satisfied that the statements… are true”.
The Tribunal found that there was no credible evidence upon which it could find that there was a real chance that the Applicant could suffer Convention-related harm in the reasonably foreseeable future if he were to return to Pakistan.
Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Further, the Tribunal was entitled to prefer the evidence it had received from DFAT about the authenticity of the documents over the Applicant’s evidence. A fair reading of the Tribunal’s decision record makes clear that the Tribunal put DFAT information to the Applicant at the hearing on 1 June 2009 in accordance with s.424AA of the Act. The Tribunal informed the Applicant that the information could affect the weight the Tribunal may put on witness statements and gave the Applicant a further 28 days to provide written comments, responses and submissions. On 25 June 2009, a post-hearing submission was received by the Tribunal which did not address the DFAT information about the authenticity of the documents, other than to re-assert the matters referred to in the documents.
In the circumstances, it was open to the Tribunal, not only to find that the documents were not authentic, but also to have regard to that finding in assessing the Applicant’s credibility. As foreshadowed to the Applicant at the hearing on 1 June 2009, the concern the Tribunal had about the authenticity of the documents did cause the Tribunal to give no weight to the witness statements which purported to corroborate the Applicant’s claims. That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.
In relation to b) above, to the extent that the Applicant questions how the Tribunal could find that the police reports were false in circumstances where the Applicant told the Court that the police station no longer existed, was not a response given by the Applicant to the Tribunal after the Tribunal gave the Applicant that information and invited the Applicant to respond both orally and in writing. Neither is there any evidence before this Court that there was any evidence to that effect before the Tribunal.
Otherwise, the Applicant’s complaints are no more than disagreements with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54, [194]; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 41 per Mason J).
To the extent that ground 4 of the application alleges bias, such an allegation is not supported by particulars, evidence or submissions. Such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 24 August 2009, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on recordings of the hearings, however, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearings.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Accordingly, the allegation of bias or apprehended bias is rejected.
To the extent that the Applicant’s submissions complain that the Tribunal failed to consider Amnesty International country information, country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per the Court (Gray, Tamberlin and Lander JJ)).
In the circumstances, none of the grounds or complaints made by the Applicant in respect of the Tribunal’s decision is made out.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at two hearings; and, had regard to all material provided in support. The Tribunal put to the Applicant information that may be part of its reason for affirming the decision under review, mainly that the Applicant’s documents were false, and had regard to the Applicant’s written response. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 26 November 2009