SZNCZ v Minister for Immigration
[2009] FMCA 466
•20 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNCZ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 466 |
| MIGRATION – Review of the decision of Refugee Review Tribunal – no breach of section 424A – no failure to give the applicant the benefit of the doubt – no denial of procedural fairness – no failure to consider the applicant’s claims – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36(2), 65, 422B, 424, 424(2), 424(3)(a), 424A, 424A(1), 424A(1)(b), 424B, 424C, 425(1) |
| SZKTI v Minister for Immigration and Citizenship (2008) 168 FCR 256 SZKCQ v Minister for Immigration and Citizenship (2008) 170 FCR 236 SZLTR v Minister for Immigration and Citizenship [2008] FCA 1889 VHAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] 264 QAAC v Refugee Review Tribunal [2005] FCAFC 92 SAAP v Minister for Immigration and Multicultural Affairs [2005] ALJR 1009 SZBYR v Minister for Immigration and Citizenship [2007] HCA 28 SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 SZLQH v Minister for Immigration and Citizenship (NSD 970 of 2008) SZLPP v Minister for Immigration and Citizenship (NSD 1486 of 2008) Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Abebe v the Commonwealth (1999) 168 ALR 1 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; [2002] HCA 32 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] FCA 35 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 |
| Applicant: | SZNCZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 21 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 17 March 2009 |
| Date of Last Submission: | 17 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 20 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | None |
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 5 January 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 21 of 2009
| SZNCZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 5 January 2009 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 December 2008 which affirmed the decision of a delegate of the first respondent to refuse the grant of a protection visa to the applicant.
Background
The first respondent has put before the Court a bundle of relevant documents (Court Book (“CB”)) from which the following background may be discerned:
1)The applicant is a national of Pakistan who arrived in Australia, having departed South Korea, on 26 May 2008, and applied for a protection visa on 8 July 2008. (The application together with annexures is reproduced at CB 1 to CB 57.)
2)A delegate of the first respondent refused the application on 20 August 2008 (CB 83 to CB 95).
3)The applicant applied to the Tribunal for review of the delegate’s decision on 11 September 2008 (CB 97 to CB 100).
4)The applicant was invited by letter dated 23 September 2008 to appear before the Tribunal to give evidence and present arguments (CB 126 to CB 127).
5)The applicant appeared before the Tribunal on 29 October 2008. The only account of what occurred is the Tribunal’s account detailed in its decision record (CB 141.4 and CB 159.8).
6)The applicant was invited by letter dated 30 October 2008 to comment in writing on particulars of information pursuant to s.424A of the Act (CB 142 to CB 144).
7)The Tribunal affirmed the decision under review on 11 December 2008.
Claims to protection
The applicant claimed to fear persecution in Pakistan on the grounds of political opinion. In particular, he claimed to be the head of the Youth Wing of the Lahore Branch of the Pakistan Muslim League (Quaid-e-Azam), known as “PML(Q)”. He claimed he was engaged in work for the PML(Q) organising the “computations” of donations made to the party.
He said that a rival political party, the Pakistan People’s Party, (the “PPP”) “could not bear” the development of the PML(Q) and that he came to their attention.
He claimed that during local government elections he was threatened by the PPP and that in November 2005 his home was fired on by the PPP workers. The applicant claimed to have reported this incident to the local police in Lahore.
Following further threats and the realisation that the police “were with the criminals” he left Lahore for Karachi and ultimately left for Thailand “to save his life”. He claimed to have returned to Pakistan after the assassination of Benazir Bhuto, at which time he spoke publicly in Pakistan against the death of Ms Bhuto and called for an investigation into the circumstances of her assassination.
The applicant claimed to have again attracted attention from political opponents and to have been fired on while riding a bicycle. After this incident, the applicant left Pakistan for South Korea. The applicant claimed that he received threatening telephone calls in South Korea and so decided to come to Australia.
The Tribunal
Following the hearing the Tribunal wrote to the applicant by letter dated 30 October 2008 (CB 142 to CB 144). The letter (amongst other things) invited the applicant to comment upon information it had received concerning the authenticity of a letter from the PML(Q) the applicant had submitted in support of his application (see CB 113, CB 135). The applicant responded by letter received by the Tribunal on 27 November 2008 (CB 145).
The Tribunal did not accept that the applicant feared persecution in Pakistan on the grounds of his claimed membership of the PML(Q), or because he called for investigation following Benazir Bhuto’s death (CB 177.8). The Tribunal did not accept that the applicant departed Pakistan, nor that he feared to return to Pakistan, because he feared persecution (CB 177.8).
The Tribunal found the applicant’s testimony “internally inconsistent, inconsistent with independent country information and implausible amounting to a fabrication” for reasons which it gave (CB 177.8, CB 177.9 to CB 182.3). The Tribunal did not find the applicant credible generally, nor did it find him credible specifically in respect to his claims to have been involved with the PML(Q), to have been targeted by the PPP, to have gone into hiding in Karachi, to have been the subject of criminal charges, to have met with PPP workers in Pakistan following the death of Mrs Bhuto, to have been attacked with a knife while trying to protect his wife, and to have feared persecution when he departed Pakistan a second time in early 2008 (CB 177.9, CB 178.1, CB 179.1, CB 179.7, CB 180.3, CB 180.6, CB 181.2, CB 181.4).
The Tribunal comprehensively disbelieved the applicant and his claims. The Tribunal therefore, concluded that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention.
Application to the Court
The application to the Court filed on 5 January 2009 puts forward the following grounds:
“1.Te (sic) Tribunal did not give to the applicant before the hearing the information that it had about the history of the PML(Q) and PML(N) organisations and it did not give to the applicant the country information that it had about Pakistan. The Tribunal used this information while making the decision. This was against section 424A of the Migration Act 1958.
2.The Tribunal member failed to properly apply the consideration that applicant’s for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claims are plausible, which was the case here.
3.The Tribunal denied the applicant procedural fairness by reaching adverse conclusion that applicant (sic) claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
4.The decision of the second respondent was effected (sic) be jurisdictional error in that the second respondent failed to consider the applicant’s claim that he feared persecution on the basis of his membership with PML(Q).”
At the hearing before the Court the applicant appeared unrepresented. He was assisted by an interpreter in the Urdu language. Ms R. Francois of Counsel appeared for the first respondent.
The applicant was not able to assist with submissions in support of his grounds. He simply stated that if he were to return to Pakistan his life would be in danger because of political reasons. He said his family was still receiving threats “from opposition people.”
At the hearing, in addition to the application, the Court had before it the Minister’s response and written submissions filed on his behalf. Despite opportunity provided at the first Court date nothing further was received from the applicant (I note that the applicant did, at least access the Court’s legal advice scheme and was given advice by a lawyer on that panel).
During the course of the hearing I raised with the parties the question as to whether the Tribunal complied with s.424 in relation to information provided by the alleged author of the letter submitted to it by the applicant. I referred the parties to the Full Court judgment in SZKTI v Minister for Immigration and Citizenship (2008) 168 FCR 256 (“SZKTI”) and SZKCQ v Minister for Immigration and Citizenship (2008) 170 FCR 236 (“SZKCQ”) and SZLTR v Minister for Immigration and Citizenship [2008] FCA 1889 (“SZLTR”) and gave the parties the opportunity to make further written submissions.
The Minister provided supplementary submissions. Nothing further has been filed by the applicant.
Ground One: Breach of s.424A
Ground one in the application complains that the Tribunal erred in failing to put to the applicant, before the hearing, information about the PML(Q), the PML(N) (another fraction of the PML(Q)) and the country information that the Tribunal had about Pakistan, information that was used in the making of its decision.
The information about which the applicant complains is non-in personam information and as such falls within the exception set out in s.424A(3)(a) of the Act: VHAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 (“VHAP”), Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264 (“NAMW”), QAAC v Refugee Review Tribunal [2005] FCAFC 92 (“QAAC”). The Tribunal was not obliged to put this information to the applicant pursuant to s.424A(1) of the Act, before the hearing or for that matter after the hearing.
More generally, the Tribunal did write to the applicant pursuant to s.424A after the hearing. I note the Minister’s reference in submissions to SAAP v Minister for Immigration and Multicultural Affairs [2005] 79 ALJR 1009 at 1024 [71], 1037 [154], 1045 [202] (“SAAP”) for the proposition that the temporal effect of s.424A is not limited to the pre-hearing stage of the review (see also SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [13] and [14]) (“SZBYR”). No error is revealed on the basis that this letter was not sent before the hearing.
This letter invited comment on information obtained from Pakistan as to the authenticity of the letter submitted by the applicant in support of his claim to have been involved with the PML(Q). I cannot see that the Tribunal failed to comply with its obligations as set out in s.424A(1) or (2). In particular I note, that it met the requirements of s.424A(1)(b). As was not the case, for example, in SZKCQ (see at [2] to [5] per Stone and Tracey JJ and at [94]-[95] per Buchanan JJ).The Tribunal’s letter set out how the information from Pakistan was obtained, and the applicant was given a copy of a letter obtained from Pakistan confirming the information (CB 142.7 and CB 140). The applicant provided a response to the Tribunal’s letter (CB 145).
Section 424.
As set out above I did raise with the parties at the hearing whether, by obtaining information from Pakistan, that is, by obtaining information from the purported author of the letter that the applicant had submitted in support of his claims, the Tribunal was in effect “inviting a person to give additional information” within the meaning of s.424(2). If that was the case then the Tribunal was, in light of SZKTI, SZKCQ (see also SZLTR) required to give that invitation in compliance with s.424(3) and s.424B.
I should note that the current version of s.424 relates to invitations by the Tribunal pursuant to s.424, made on or after 15 March 2009 see:
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3)A written invitation under subsection (2) must be given to the person:
(a)except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b)if the person is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
In the current case an earlier version of the Act applies:
“(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3) The invitation must be given to the person:
(a)except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b)if the person is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
The Minister has provided supplementary submissions on this issue. Nothing further has been received from the applicant.
The circumstances giving rise to consideration of this issue are derived from:
(1)In his protection visa application the applicant claimed to have been the subject of persecutory harm in Pakistan because of his political opinion. In support he provided a letter from the Pakistan Muslim League which “certified” that the applicant was a “talented young worker holding the title of “Coordinator to Youth Wing” in Lahore” and was “facing serious tensions and threats from Pakistan People’s Party workers and authorities”. The letter bore what was said to be the signature of a Mr Hanif (see CB 68).
(2)What appears to be the original of this document and an identical translation was submitted to the Tribunal at the time of applying for review (CB 112 and CB 113).
(3)On the best evidence available to the Court (derived from the Tribunal’s decision record) on 29 September 2008, the Tribunal: “wrote to the Department of Foreign Affairs and Trade (“DFAT”) requesting they provide advice on the authenticity of the letter signed by …(Mr) Hanif” (CB 159.7).
(4)On 28 October 2008 the DFAT responded:
“RRT INFORMATION REQUEST. PAK33865
DFAT contacted the alleged author of the letter, Mr …Hanif, Naib Zila Nazim, Lahore… to ascertain the authenticity of the letter submitted by the applicant. Mr Hanif said that he had not issued the letter and the signature was not genuine. Mr Hanif said he would confirm this in writing, a scanned copy of which is attached.” (CB 139).
(5)The written confirmation is reproduced at CB 135 and CB 140 dated 20 October 2008 and is in the following terms:
“To
…
Political Research Officer
Australian High Commission
ISLAMABAD
Please refer to your letter No. Nil, dated 08-10-2008, whereby certain queries have been put up for answering.
In this regard it is stated that no such letter has ever been issued by me. Rather I vehemently deny as having issued any certificate favouring anybody for the issuance of visa of Australia. The fact is that neither the signature nor the letterhead was mine. Hence, the certificate in question may kindly be treated as fictitious and bogus.
(…Hanif)
Naib Zila Nazim
Lahore.”
In SZKTI, (with whom the Full Court agreed in SZKCQ) the Full Court considered the issue of the operation of s.424 (the version as in the case before the Court now), and when s.424(2) is engaged.
In SZKTI the relevant facts were that the applicant claimed to have been a practicing Christian in China and that he continued his practice in Australia. In support, he provided a letter from two elders of a Church in Australia. At a time following the hearing, the Tribunal contacted one of the elders on the mobile phone number that had been given in the letter and obtained information from him in addition to what was contained in the letter.
The Court found that the Tribunal’s telephone conversation with the Church elder was part of the reason for its rejection of the applicant’s claim for a protection visa. The relevant issue considered by the Court was whether the Tribunal could simply make this telephone call and ask the elder questions without having followed the procedures set out in s.424(2),(3) and s.424B of the Act (at [35]). The Court examined the relevant legislative scheme and set out the ways in which the Tribunal could obtain information:
“37 The tribunal can obtain information from a number of sources in addition to evidence or anything else given to it at a hearing under s.425(1). First (without seeking to be exhaustive). There are those sources of information referred to in s.424A(3), namely what is commonly referred to as “country information”, namely information not specifically about the applicant for review or another person but about a class of persons of which the applicant for review or the other person was a member. Secondly, information which the applicant gave to the tribunal for the purpose of the application (such as material included with the application for review) information which the tribunal obtains from its own investigations, such as reading in libraries or searching the internet. Thirdly, there may be cases where people provide information to the tribunal in an unsolicited manner.”
The Court found (SZKTI at [40]) that the Tribunal’s telephone call to the Church elder amounted to an invitation to him to give “additional information”. That is, information “additional to that contained in his letter …” That in these circumstances s.424(2) was engaged at the point when the Tribunal “decided to seek that information” …”
The Court rejected (SZKTI at [41]) the first respondent’s submission that s.424(1) authorised the Tribunal to act in this way, and that s.424(2) was an alternative method by which the Tribunal may proceed.
Importantly, the Court set out the meaning of s.424(2):
“43 In our opinion in its natural and ordinary meaning s 424(2) provides a means by which a person may be “invited” to give additional information to the tribunal, that is, information which that person has not already provided to the tribunal or which the tribunal has not obtained in another way, such as pursuant to the use of its powers under s 427(3) to summons a person to give evidence. The introductory words to s 424(2), namely “without limiting subsection (1)” identify one of the means available under s 424(1) which the tribunal may employ to get information, but then s 424(3) prescribes the mode and limitations governing how it may invite a person to give it additional information. The Parliament provided a code in ss 424, 424A, 424B and 424C which made extensive provision for the tribunal to obtain information including by means of an invitation to a person to provide it. Those provisions specified the means by which the information was to be sought, and the consequences for its non-provision. We are of opinion that the Parliament did not authorise the tribunal to get additional information from a person pursuant to its general power under s 424(1) without complying with the code of procedure set out in s 424(2) and (3).”
Following both SZKTI (and SZKCQ) in SZLTR a matter before Siopis J, involved, amongst other things, a report to the Tribunal from enquiries made by “DFAT” overseas with a party official in the country of claimed persecution who had confirmed that the applicant in that case had held positions in the party but could not be regarded as high ranking (SZLTR at [30]). In these circumstances his Honour expressed the view:
“33 In my view, these is some doubt that s 424(2) has application to the communication made by the Tribunal to DFAT in relation to the appellant’s status in the Awami League. Section 424(1) gives the Tribunal a general power to “get” information without prescribing the process by which it may “get” that information. By contrast, s 424(2) provides for a specific process. It is initiated by the Tribunal issuing an invitation. The invitation must be delivered by a means prescribed by s 441A and it must ask the recipient to give the Tribunal “additional” information. The use of the word “additional” to qualify the information that is sought, and the fact that the provisions of s 441A contemplate that the invitation is to be delivered to the recipient personally or to an address which the recipient has already provided to the Tribunal (ss 441A(3), (4) and (5)), are indications that s 424(2) has application only in limited circumstances. Those circumstances would be where the recipient of the invitation has previously given information to the Tribunal in relation to the review then being conducted by the Tribunal, and he or she has provided his or her address to the Tribunal, or is able to be handed the invitation personally. There is nothing to suggest that these circumstances were present in this case in relation to DFAT.”
This issue however, was not determinative of the matter before his Honour in light of other findings (see SZLTR at [35]).
Possibly in light of this further explanation as to the meaning of s.424 in the current case the Minister submitted that the circumstances in the current case could be distinguished from the circumstances in SZKTI, and SZKCQ, in that in both those cases the information sought was clearly “additional” to information which had already been provided by the person who was the subject of the request from the Tribunal. In the current case the Minister submits the information which the Tribunal sought from Mr Hanif was not “additional” to any information which had previously been provided by him, and in these circumstances the Tribunal obtained information pursuant to its power under s.424(1) and therefore, was not required to comply with s.424(3).
Prior to handing down judgment in this matter, and following submissions from the Minister, the Full Court handed down its judgment in SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 (per Lindgren, Stone and Bennett JJ (“SZLPO”)) and in cases considered at the same time SZLQH v Minister for Immigration and Citizenship (NSD 970 of 2008) (“SZLQH”), SZLPP v Minister for Immigration and Citizenship (NSD 1486 of 2008) (“SZLPP”) which also concerned the operation of s.424(2). I considered the resolution of the current case also in light of the further Full Court authority now available to this Court.
The factual situation in SZLPO relevantly involved an applicant who was a national of Bangladesh who claimed to fear persecution by reason of his Ahmadiyya faith. Prior to the hearing in that matter the applicant provided to the Tribunal a letter purported to be signed by the president of the relevant Ahmadiyya organisation in Bangladesh asserting that the applicant was a “regular member” of that organisation and made positive assertions as to the applicant’s conduct and character and that he was personally known to the signatory (at [24]).
The Tribunal sent a request by email to DFAT in relation to SZLPO seeking that contact be made with the signatory of the letter (the president of the relevant Ahmadiyya association) and to verify the authenticity of the letter and the applicant’s claim to be a member of the Ahmadi community (SZLPO at [25] to [26]). This request was forwarded verbatim to the embassy in Dhakar by DFAT (SZLPO at [27]). The response from the DFAT post in Dhakar to DFAT which was then forwarded to the Tribunal was relevantly that the letter submitted by the applicant was “false” and was “not signed” by the purported signatory (SZPLO at [29]). It appears that the method by which the post in Dhakar communicated with the purported signatory of the letter was to have met him in his office in Dhakar (SZLPO at[33]).
The Court held that “additional information” within s.424(2) means “information additional to any information previously given to the Tribunal by the invitee” (SZLPO at [99] and [100]).
In relation to SZLPO the Court agreed with the Minister’s submissions that since neither DFAT, nor the purported author of the letter submitted by the applicant, had previously given information to the Tribunal in the course of the review, any invitation by the Tribunal was not an invitation to give “additional information” with the result that s.424(2) was not engaged (SZLPO at [123] and [124]).
In the current case, on the best evidence available to the Court, (that is the Tribunal’s decision record before the Court by way of attachment to the applicant’s affidavit accompanying his application to the Court and as reproduced in the Court Book), the Tribunal “wrote” to the DFAT requesting they provide advice on the authenticity of the letter said to be signed by Mr Hanif. It can be inferred from Mr Hanif’s subsequent letter denying authorship of the letter submitted by the applicant, that the Tribunal’s request was forwarded by DFAT to its High Commission in Islamabad and that a “Political Research Officer” at the High Commission wrote to Mr Hanif (see the reference to “please refer to your letter … dated 08-10-2008” at CB 135). The Tribunal subsequently found (having given the opportunity to the applicant to comment) that the advice from DFAT, and in light of the letter from Mr Hanif himself, that the letter submitted by the applicant was “not authentic” (CB 178.5).
The circumstances of the case currently before the Court are far closer to the circumstances before the Court in SZLPO, than those in SZKTI.
In SZKTI the request for additional information was made by way of a telephone call to a person who had already provided information to the Tribunal. There was no question in that case that the letter provided by the elder of the church in support of the applicant’s claims was not genuine, and that the Tribunal therefore, obtained additional information from a person who had already provided information to the Tribunal.
In the current case, as in SZLPO, neither DFAT nor Mr Hanif, had previously given information to the Tribunal during the course of its review. I should note (that while the Court’s comments were obiter at [104]), that the word “person” in s.424(2) means only a natural person and not relevantly a government department such as DFAT (see at [103] to [108]).
In any event what is clear is that in relation to the information obtained from Mr Hanif (noting also that the letter sent by Mr Hanif being a document is not “information” within the meaning of s.424(2) (see SZLPO at [110]) was not additional information as he had not previously provided any information to the Tribunal for the purposes of the review. Therefore s.424(2) was not engaged.
In all therefore, this issue in light of the further explanation as to the meaning of s.424 provided by the Full Court in SZLPO, I agree with the Minister’s supplementary submissions. This issue does not assist the applicant.
Ground Two: Failure to give the applicant the benefit of the doubt
Ground two in the application complains that the Tribunal failed to give the applicant the benefit of the doubt in assessing his claims to be a person to whom Australia owed protection obligations in circumstances where the applicant asserts the Tribunal: “entertained the possibility that [his] claims are plausible”.
In relation to “benefit of the doubt”, to the extent that the applicant may be taken to rely on what is set out at paragraphs 203-204 of the “UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status”, I note that the Handbook does not have binding force in Australian law, but may be a useful reference for those whose task it is to determine whether or not a person is a refugee: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392, per Mason CJ (“Chan”), Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 302, per Kirby J (“Applicant A”), Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [8]-[9], per Finn J (“Semunigus’).
Where the Tribunal’s finding as to a claim, or an aspect, or integer of a claim, is attendant with any real doubt, the Tribunal is required to consider the alternative, that is, that its finding may be incorrect, and then to determine whether an applicant may have a well-founded fear of persecution for a Convention reason in those circumstances: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ (“Guo”) (endorsed in Abebe v the Commonwealth (1999) 168 ALR 1 (“Abebe’), and further explained by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719, per Sackville J with whom North J agreed (“Rakalingam”)).
The applicant’s ground is misconceived. The Tribunal plainly did not entertain the possibility that the applicant’s claims were plausible. Rather, the Tribunal considered each of the applicant’s claims, and the material in support, and concluded that it comprehensively disbelieved the applicant, and his claims.
Sections 65 and 36(2) of the Act require that the (relevant) decision-maker must be satisfied that the applicant is a person to whom Australia owes protection, and in the absence of such satisfaction, a refusal decision is mandated: SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16] (“SZSB”), NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5] (“NAST”), Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (“VSAF”).
Simply, the Tribunal comprehensively disbelieved the applicant. In the circumstances, there was no real doubt as to this conclusion and the findings which informed it. The Tribunal was not required to enquire as to the alternative. This ground does not succeed.
Ground Three: Denial of Procedural Fairness
Ground three in the application alleges that the Tribunal denied the applicant procedural fairness. In particular, the applicant alleges that the Tribunal made its findings about the implausibility of his claims without giving the applicant the opportunity to be heard in respect of those matters.
Section 422B provides that Division 4 of Part 7 of the Act “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with” (absent bias): Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67] (“Lay Lat”), SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8] (“SZCIJ”), SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48] (“SZFDE”).
This is a case to which s.422B applies.
To the extent that the applicant complains that the Tribunal erred in the factual findings that it made, it is established that on review, the question is not whether the Tribunal’s factual conclusions were right, but whether (relevantly) the Tribunal’s processes were in accordance with procedural fairness as understood in the particular statutory context within which the Tribunal exercises his or her power: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]-[26] (“SZBEL”), per the Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
The applicant also alleges that the findings made by the Tribunal were not open to it on the “known material”. A plain reading of the Tribunal’s decision record reveals that the Tribunal’s findings were open to it on the material before it, and no error is demonstrated in this regard: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559 (“Kopalapillai”), W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ (“W148/00A”).
A plain reading of the Tribunal’s decision record also reveals that the applicant appeared before the Tribunal to give evidence and present arguments (CB 159). At the hearing the Tribunal raised with the applicant the issues arising in relation to the decision under review, as required pursuant to s.425 of the Act: SZBEL at [34]-[35], per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
As the High Court said in SZBEL that the Tribunal is not confined in its role to the issues before the delegate, but where the Tribunal identifies issues other than the issues before the delegate as being dispositive of the application for review, the Tribunal must sufficiently indicate those issues, otherwise the applicant is entitled to assume that the issues arising from the delegate’s decision under review are the determinative issues: SZBEL at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
I note that in the present case the delegate refused to grant a protection visa to the applicant as the delegate was not satisfied that the applicant feared persecution in Pakistan on the grounds of political opinion. In particular, the delegate found the applicant’s claimed reasons for returning to Pakistan on several occasions, and his leaving in Pakistan his wife and children, to be inconsistent with his claimed fear for his own safety and that of his family (CB 110.1 to CB 110.10).
The Tribunal found that the applicant did not have a well-founded fear of persecution in Pakistan on the grounds of political opinion because it comprehensively disbelieved the factual basis for the applicant’s claims (CB 177.9 to CB 181.4). In its “Findings and Reasons” the Tribunal set out its findings in respect to each of the applicant’s claims.
A comparison of the Tribunal’s findings, and its record of what occurred at the hearing (the applicant has not challenged this record with any evidence of a transcript) reveal that the Tribunal raised with the applicant its concerns with the applicant’s claims, and the evidence put in support of those claims. The applicant would have been on notice as to not only the issue that arose in relation to the decision under review: SZBEL at [35] but the Tribunal’s concerns with each aspect of his account. I cannot see error in this regard.
As to other relevant parts of the procedural fairness statutory requirement, s.424 and s.424A are discussed above. I cannot otherwise see that the applicant’s ground can succeed on what has been put before the Court.
Ground Four: Failure to consider claim
Ground four of the application alleges that the Tribunal failed to consider the applicant’s claim that he feared persecution on the basis of his membership of the PML(Q).
This ground is not made out.
I can only see that in the circumstances the applicant takes issue with the Tribunal’s findings of fact and seeks impermissible merits review.
A plain reading of the Tribunal’s decision record reveals that it considered the applicant’s claimed membership of the PML(Q) and it rejected the applicant’s claim to have ever been involved with the PML(Q). This finding was open to the Tribunal on the material before it and no relevant error is demonstrated: Kopalapillai at 558-559, W148/00A at [64]-[69], per Tamberlin and Nicholson JJ.
Conclusion
In all, for the applicant to succeed before the Court, I would have to find jurisdictional error (at least) in the Tribunal’s decision. As no such error is evident the application is dismissed.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: S.Polley
Date: 20 May 2009
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