SZSDE v Minister for Immigration
[2013] FCCA 996
•2 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSDE v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 996 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 91X, 312B |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 SZRAG v Minister for Immigration and Citizenship [2013] FCA 202 |
| Applicant: | SZSDE |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2536 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 12 April 2013 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2013 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of an Urdu interpreter |
| Solicitor for the First Respondent: | Ms S. Given of Minter Ellison |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance |
ORDERS
The name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.
The application filed 5 November 2012 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
The applicant in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSDE.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2536 of 2012
| SZSDE |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court’s Orders made on 11 December 2012, the solicitors for the first respondent, the Minister for Immigration, Multicultural Affairs and Citizenship (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”) and marked Exhibit “A”.
At the First Court Date directions hearing, the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review upon, together with any supporting affidavit material, on or before 4 March 2013. The applicant elected not to file an amended application. The applicant was also required to file and serve a short written outline of submissions and a list of authorities 14 days before the hearing. Written submissions were not filed by the applicant.
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), RRT Case Number 1114081 of J. Duignan, dated 9 October 2012 and handed down on 10 October 2012, affirming the decision of a delegate of the Minister to refuse the applicant a Protection (Class XA) visa.
Background
Protection Visa Application
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the legal representatives of the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference for that material.
The applicant is a male citizen of Pakistan who arrived in Australia on 22 September 2010 (CB 3) as a holder of a subclass 676 visitor visa which was granted on 19 October 2009 and expired on 19 October 2010 (CB 3, 76). On 17 December 2010 the applicant applied for a Protection (Class XA) visa (CB 1 – 27).
Attached to the applicant’s Protection visa application was a separate statement of the applicant’s claims (CB 30 – 34). The applicant claimed to have a well-founded fear of persecution from Pakistani Government security authorities and militant extremist groups operating in Pakistan if he returned to Pakistan as a result of his alleged past involvement in peace activism, his collection of intelligence about Pakistani national intelligence service involvement and his passing of that information to Indian security agencies.
The Department of Immigration and Citizenship (the “Department”) sent the applicant a letter dated 21 December 2010 acknowledging receipt of the applicant’s Protection visa application (CB 35 – 39). On 25 October 2011 the applicant was invited to attend an interview with the Minister’s delegate to be held on 14 November 2011 (CB 46 – 49). At the interview with the Minister’s delegate the applicant submitted a range of documents, including his passport (CB 50 – 80). On 9 December 2011 the delegate made a decision refusing to grant the applicant a Protection (Class XA) visa (CB 83 – 106).
Proceedings before the Tribunal
The applicant sought review of the decision of the Minister’s delegate by application to the Tribunal dated 21 December 2011 (CB 107 – 110). On 27 March 2012 the applicant was invited to appear before the Tribunal on 9 May 2012 to give evidence and present arguments (CB 119 – 120). The applicant sought an adjournment of the hearing on 1 May 2012 (CB 127). The Tribunal granted the adjournment and set the hearing down for 1 July 2012 (CB 135 – 136). On 22 June 2012 the applicant appointed an authorised recipient (CB 143) who requested a further adjournment of the hearing (CB 142). This request was granted and the hearing was adjourned to 14 August 2012 (CB 148 – 149).\
On 13 August 2012 the applicant (by his authorised recipient) submitted a number of documents in support of his application (CB 156 – 226), including:
a)Written submissions (CB 158 – 167);
b)A letter for Transcultural Mental Health Centre dated 10 August 2012 (CB 168);
c)A letter from Dr Asif Ali, cardiologist, dated 2 June 2012 (CB 169);
d)A letter from Ch. Ghularm Mustafa of the National Peace Council For Inter-Faith Harmony dated 10 August 2012 (CB 170);
e)A letter from Brig. Shaukat Qadir dated 5 July 2012 (CB 171);
f)A letter from Hasham Moshin (CB 172);
g)Documents in relation to the applicant’s company in Malaysia (CB 174 – 178); and
h)Supporting documents and country information in relation to the applicant’s Protection visa application (CB 179 – 224).
The applicant ultimately appeared before the Tribunal on 14 August 2012 with the assistance of his authorised representative and an Urdu interpreter (CB 227). The applicant presented further documents at the hearing as well as his passport (CB230 – 272).
On 4 September 2012 the Tribunal received a letter from a solicitor (not the applicant’s authorised representative) who was under instructions from the applicant making further submissions in respect of the applicant’s claim and attaching a notice pursuant to s.312B of the Migration Act (CB 274 – 278). The solicitor was acting in addition to the applicant’s authorised recipient who was still the contact for the applicant and authorised to receive correspondence pursuant to s.441G of the Migration Act (CB 290).
The applicant sent the Tribunal further submissions that he had prepared on 6 September 2012 (CB 280 – 286). On 17 September 2012 the applicant sent further submissions attaching an internet article (CB 287 – 289). On 25 September 2012 the Tribunal sent a letter to the applicant, through his authorised representative, requesting documents referred to in, but not attached to, the applicant’s 6 September 2012 submissions. On 2 October 2012 the applicant’s authorised representative responded to the Tribunal’s request attaching a number of documents (CB 294 – 298).
The Tribunal’s Decision
On 10 October 2012 the Tribunal wrote to the applicant (via his authorised representative) notifying him of its decision made on 9 October 2012 (CB 304 – 343) to refuse to grant the applicant of a Protection visa (CB 302 – 303).
The Tribunal, in its Decision Record, formed the view that the applicant did not have a genuine fear of harm for any reason related to his past activities or current political interests in Pakistan and merely made such claims to try and create a basis for being granted a visa to remain in Australia (CB 337 at [119]). In making that finding, The Tribunal had regard to the following matters:
a)The applicant had entered Australia on previous occasions during November 2009 and between May and August 2010, yet did not seek a Protection visa on those visits. The Tribunal considered that such actions were not consistent with a person who genuinely held fears of returning to their country of nationality and that the applicant would have sought protection in a far more timely fashion if that had been the case (CB 337 at [121]);
b)The applicant had returned to Pakistan in late 2010, an action which the Tribunal considered was inconsistent with a person genuinely fearful of harm in that country, particularly having regard to the applicant’s claims in respect of the “length and level of interest in him from a broad range of groups in the country, extending from security authorities to violent jihadist groups”. The Tribunal came to the conclusion that the applicant was able to return to Pakistan without difficulty because no group or person was interested in harming the applicant (CB 337 – 338 at [122] – [124]);
c)It found aspects of the applicant’s evidence about his past activities and difficulties encountered to be unconvincing. In particular, the fact that the activities of the World Commission for Peace and Human Rights Council (the “WCPHRC”) in disseminating information against the interests of Pakistani authorities resulted in the Tribunal forming the view the activities and events did not occur (CB 338 at [125]);
d)The Tribunal also found that the applicant’s evidence, as well as documentary evidence submitted by the applicant, in support of his claimed negative experiences was unreliable, inconsistent or contradictory in relation to claims that the WCPHRC was subject to threats from militant groups, that its members had been detained by Inter-Service Intelligence (“ISI”) officers and that a conference planned by the group was disrupted by a rocket attack in November 1999. Further, the Tribunal found that, although the WCPHRC conference in November 1999 was likely disrupted by a rocket attack, that attack was not related to the conference or the group (CB 339 – 340 at [126] – [130]);
e)The Tribunal had concerns about the applicant’s evidence in relation to his claims of continued interest in members of the WCPHRC by Pakistani intelligence services. The Tribunal found that third party accounts tendered by the applicant were “tailored to fit more neatly with current activities in Pakistan” or that they “merely recount what the applicant has told these people”, and that the applicant’s explanations as to inconsistencies in those accounts were unconvincing (CB 340 – 341 at [131] – [133]);
f)The Tribunal noted that the applicant’s evidence in respect of his activities since leaving Pakistan in 2000 was problematic due to scant evidence of any continuing activism, as well as the applicant’s “propensity to completely embellish his activities to give them some flavour which they do not have”. The Tribunal did not accept the applicant genuinely held any fear of harm in Pakistan as a consequence of his activities since leaving Pakistan (CB 341 at [134] – [135]); and
g)The Tribunal did not accept the applicant’s claimed health and psychological difficulties, as reported to the Transcultural Mental Health Service and Lifeline, were an adequate explanation for the difficulties in the applicant’s evidence as the Tribunal did not consider that his condition would impact upon his memory. Further, the Tribunal noted that the applicant had repeatedly disputed the accuracy of the memories of others, rather than his own (CB 342 at [139]).
The Tribunal considered that the applicant did not hold a well-founded fear of persecution for any reason in Pakistan at the time or in the foreseeable future, having regard to the fact there was no evidence that a person in the position of the applicant would come to harm because of peace activism undertaken a decade ago, that groups similar to the WCPHRC continue to operate in Pakistan without disturbance, and based on the Tribunal’s finding that the applicant never engaged in, nor was perceived to engage in, activities which would bring him to the adverse attention of security authorities or militant groups in Pakistan (CB 342 – 343 at [137] – [138] and [140]). Further, the Tribunal rejected the applicant’s claim he may be targeted as a Western returnee (CB 342 at [139]).
Proceedings before the Federal Circuit Court
The applicant commenced proceedings in this Court by application filed on 5 November 2012. Leave was granted for the filing of an amended application, however, the applicant elected not to pursue this avenue. The Application sought the following orders:
1. An order in the nature of certiorari setting purported decision of the Tribunal aside.
2. An order of prohibition to restrain the Respondent from giving any further effect to the purported decision.
3. An order in the nature of mandamus remitting the matter back to the Tribunal to be determined according to law.
4. An order that the Respondent pay the applicants (sic) costs and such other orders as the Court sees fit.
The applicant’s Application raised three grounds of review. These are:
1. The Tribunal constructively failed to exercise its jurisdiction;
Particulars:
The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.
2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
3. The Tribunal has failed to investigate applicant’s claim, specially the ground of persecution in Pakistan. Therefore, the Tribunal decision dated 10 October 2012 was effected by actual bias constituting judicial error.
Applicant’s Submissions
The applicant elected not to file any written submissions, despite the order that he must file and serve in the Registry a short outline of submissions and list of authorities fourteen (14) days before the date of the final hearing.
At the hearing on 12 April 2013 the applicant indicated that he had been given legal advice by a RRT Legal Advice Scheme panel lawyer, but that this advice was only very basic. Without legal representation he was unable to understand proceedings before this Court. Further, the grounds that had been given to him he was unable to understand. The applicant asked for the Court to provide him with a pro bono lawyer as he would not otherwise receive a fair trial.
The applicant contended that the Court had, at the First Court Date directions hearing, made an order for the RRT to issue some supplementary documents which were never issued by the respondents. The applicant’s goal in seeking to obtain those documents was to interrogate the senders of those documents as there were serious allegations made against the applicant’s credit in them. Those allegations were withheld from the Tribunal’s final decision, documents provided to the applicant and the Court Book before the Court in the current proceedings. It is important for the applicant to know every detail of these documents and allegations against his credit and, even though the Tribunal Member stated that he did not rely on any of those documents containing the allegations, he still needs to see the allegations levelled against him.
The applicant submitted these allegations were made when an unknown person contacted the Department of Immigration and Citizenship and told them the applicant was lying about his case. A lot of people have come forward and the applicant does not know whether they sent the email or called, whether they made allegations against the applicant or whether they stated the applicant was lying in his application. The applicant is unaware of what was contained in the allegations and it is important for him to know.
The applicant indicated he was also facing a number of psychological issues for which he was currently seeking treatment. The applicant stated that he had made attempts to engage a lawyer, but the costs of doing so were a few thousand dollars and he was only able to borrow a few hundred dollars by that point from friends. Given the stress the applicant was under, without a lawyer it would be difficult for him to answer the allegations against him. After clarification the applicant indicated that he was seeking an adjournment so he could arrange legal representation.
Minister’s Submissions
Response to Applicant’s Oral Submissions
Ms Given, appearing for the Minister, indicated that the applicant had made similar oral submissions at the First Court Date directions hearing to the submissions he raised at the final hearing (noted at [20] – [21] above). An order was made by this Court for the preparation of a supplementary Court Book containing any additional evidence sought by the applicant in respect of email exchanges that were not restricted. Put in a more colloquial fashion, these are known as “dob-in letters”.
Ms Given referred the Court to [117] (CB 336) of the Tribunal’s decision and submitted that the Tribunal’s decision made plain that it did not take into account these “dob-in letters” and gave them no weight. What occurred after the orders were made at the First Court Date was that the Minister’s representatives contacted the applicant asking him to make the specific request for documents, in order for the Minister to comply with the Court’s orders. The response that was received by the Minister from the applicant (a copy of which was tendered at the hearing) was, essentially, a request to go behind the letters or the emails that were the “dob-in letters” and to perform an investigation into what was the basis of the knowledge of the people who had made the allegations against the applicant. Ms Given argues that this request clearly went beyond the scope of what the Court’s orders contemplated.
Ms Given indicates the Minister’s representatives contacted the applicant shortly thereafter and informed him of the Minister’s view (a copy of this letter was also tendered to the Court). It is argued that the response was quite reasonable, bearing in mind the nature of the order made by this Court and the nature of evidence it was anticipated would be sought. It was not for the Minister to launch an investigation into material that the Tribunal did not have regard to when making its decision. Ms Given submits one should not have to put material before the Court that was not relevant in the first place.
Ms Given indicated she opposed any adjournment application as the proceedings had been on foot since November 2012 and the Minister has had to proactively, through its representatives, pursue the applicant to get him to assist in complying with various orders. This was the first time that a request for an adjournment had been made. Ms Given argued that the applicant had been able, since December 2012, to continue a dialogue with the Minister or the Court as to his need for an adjournment and any psychological problems which were only raised after the Court informed the applicant there might be a basis for a person before the Court to obtain pro bono legal assistance. If this request was genuine, the Court would have been informed before the day of the final hearing. The Minister was ready and expecting to proceed with the hearing and it should be allowed to do so.
Ground 1
Ms Given submits that Ground 1 of the applicant’s Application appears to be an allegation that the Tribunal failed to consider the applicant’s claims and/or evidence. An allegation that the Tribunal has failed to consider a claim will only be made out where it fails to deal with a “substantial, clearly articulated argument relying on established facts” made by an applicant: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1092. The Tribunal is not obliged, in the course of conducting a review, to consider unarticulated claims or claims which do not clearly arise from the material before it, or to make any enquiries in relation to the applicant’s claims: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
Ms Given submits it is for the applicant to satisfy the Tribunal that he meets the criteria for the grant of a Protection visa: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ; Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214 at [76] per Heerey, Conti and Jacobson JJ. Further, the Tribunal was not under any obligation to refer to every piece of evidence put forward by the applicant or to explain why it accepted or rejected particular evidence, nor was it required to consider the weight to be afforded to corroborative evidence independently of, or prior to, its determination of the applicant’s credibility: SZJZS v Minister for Immigration and Citizenship & Anor (2008) 102 ALD 318 at [12] per Flick J.
Ms Given contends that the Tribunal’s Decision Record shows:
a)The Tribunal considered and understood the applicant’s individual claims in support of his application for the grant of a Protection visa, including whether the applicant had a well-founded fear of persecution from Government security authorities and militant groups by reason of an implied political opinion owing to his past activities as a peace activist and his providing of intelligence to Indian security agencies: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [45];
b)The Tribunal gave due consideration to the applicant’s documentary evidence tendered in support of his claims (at [126] – [133], CB 339 – 341);
c)The Tribunal made findings as to the weight to be accorded to the applicant’s evidence which were within the Tribunal’s proper jurisdiction: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 291 – 292 per Kirby J; and
d)On the basis of the evidence before it, the Tribunal made findings of fact, including as to credibility, which were open to it on the evidence before it for the reasons given and, therefore, within its jurisdiction to make: Abebe v Commonwealth (supra); SZLVM v Minister for Immigration and Citizenship [2008] FCA 1245 at [12].
Ms Given argues that the Tribunal’s Decision Record does not disclose any basis for a claim that the Tribunal failed to consider, or misunderstood, the applicant’s claims or evidence, including his documentary evidence. Accordingly, Ms Given submits that Ground 1 should be dismissed.
Ground 2
Ms Given submits that the second pleaded ground in the applicant’s Application is an allegation that the Tribunal committed jurisdictional error by failing to reach a requisite level of satisfaction as to the criterion set out in s.36(2) of the Migration Act. Ms Given contends that this appears to be a claim that the applicant does meet the definition of a “refugee” as set out in the Refugees Convention, such that a Protection visa must be granted: SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] – [16]. A claim of this nature seeks impossible merits review and should not succeed: Abebe v Commonwealth (supra) at [195] – [197] per Gummow and Hayne JJ; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (supra) at 271 – 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and at 291- 292 per Kirby J.
Ms Given submits that the Tribunal’s reasons for decision show that the Tribunal set out the relevant legal criteria applicable to an application for a Protection visa at [4] – [15] (CB 305 – 307), considered the applicant’s claims and evidence and made findings that were open to the Tribunal on the evidence before it for the reasons given at [115] – [140] (CB 336 – 342).
Ms Given refers the Court to the decision of his Honour Neville FM (as he then was) in SZRAG v Minister for Immigration & Anor [2012] FMCA 958 where an identically pleaded ground was considered. His Honour stated at [33] – [36]:
33. The final ground of appeal is set out in the application in the following terms:
The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the requirements of the Migration Act.
34. One of a number of unfortunate aspects of the application is that this particular ground is expressed at such a level of generality that it is not possible for either the Minister to address the specific grounds or for the court to determine what is intended to be understood by this particular contention.
35. To the degree that the court could perhaps only speculate what is intended by this ground of appeal, and to the degree that it is claimed that the Tribunal had no jurisdiction to make the said decision, that is a proposition I reject because the Tribunal clearly does have jurisdiction to deal with appeals from a delegate of the Minister.
[36] And also, to the degree that the court can glean what is understood by:
… reasonable satisfaction was not arrived at in accordance with the requirements of the Migration Act —
in my view, having regard to the evidence before it, the decision of the Tribunal is not attended by sufficient doubt to warrant this court to intervene, or more accurately stated, the decision reached was open to it on the limited evidence available. That being so, for this court to intervene would be to encroach upon the fact-finding exercise undertaken by the Tribunal. Such a course is not open.
His Honour’s decision was affirmed on appeal by Foster J (SZRAG v Minister for Immigration and Citizenship [2013] FCA 202).
Ms Given submits that the Tribunal’s Decision Record does not disclose any basis for a claim that the Tribunal failed to correctly apply the test contained in s.36(2) of the Migration Act and Ground 2 of the Application should be dismissed.
Ground 3
Ms Given submits that, to the extent Ground 3 of the Application overlaps with Ground 1 and its allegation that the Tribunal failed to consider the applicant’s claims, the Minister relies on its submissions in respect of Ground 1 (at [27] – [30] above).
Ms Given submits that this Court has given consideration to the same ground as pleaded in Ground 3 in two previous decisions: SZNNE & Anor v Minister for Immigration & Anor [2009] FMCA 1271 and SZODN v Minister for Immigration & Anor [2010] FMCA 269. In SZODN (supra), the following was said by the Court in respect of the exact same ground at [33] – [34]:
Ground 4
4. The RRT has failed to investigate the applicant’s claim, specially the grounds of persecution in India. Therefore, the Tribunal decision dated 4 March 2009 was effected by actual bias constituting judicial error.
33. Apart from the assertion that the Tribunal failed to investigate the applicants’ claims of persecution in India, the applicants have not particularised or made submissions identifying which of their claims the Tribunal failed to investigate. Having regard to the fact that the Tribunal only had before it the facts, as alleged by the applicant husband, that were contained in the papers, it is the only material upon which the Tribunal could proceed. The relevant facts pertaining to the application need to be supplied themselves, in as much detail as necessary to enable the applicant to establish the facts. It is for the applicant to make out his own case: Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 596 per Kirby J. In this case, the Applicant had an opportunity to attend the hearing and furnish additional facts. To the extent that he did, the applicant could not complain that any other facts were not taken into account or furnished additional facts and asked them to be taken into account. The Tribunal is under no general duty to make its own enquiries: Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32. The Tribunal’s decision record reveals the contrary and disclosed that the applicant’s claims were closely considered and there was nothing evident from those reasons which would have compelled the Tribunal to make any further enquiry: SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372.
34. In respect of the claim of actual bias, this can be said to exist where the Tribunal member had a pre-existing state of mind which disabled him from understanding or rendering him unwilling to undertake any proper evaluation of the relevant materials before him which are relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17. Actual bias may be said to exist when a Tribunal member is so committed to a conclusion already formed as to be incapable of alteration whatever evidence or argument may be presented: Jia Legeng (above) at [71] and [72]. A party alleging actual bias on the decision maker’s part carries a heavy onus and it must be clearly proved: Jia Legeng (above) at [69]. A case of actual bias is seldom made out by reference solely to the reasons for decision and no inference of bias or prejudice can be drawn from the mere fact of adverse findings in the Tribunal’s decision: BFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 131 FCR 102 at [21].
The Minister adopts the principles as expressed above and argues that the Application contains no particulars of the applicant’s allegation of bias.
Ms Given further submits that there is nothing in the Tribunal’s Decision Record or any other material available to the Court from which it might reasonably be apprehended that the Tribunal failed to bring an impartial mind to the resolution of matters the subject of the application, or was actually biased against the applicant and/or his claims. The Minister submits Ground 3 should also be dismissed.
Orders Sought
The Minister accordingly submits that the applicant was afforded a fair hearing and there was no breach of the Migration Act and that the Application should be dismissed with costs.
Consideration
The applicant is a self represented litigant and was assisted by an accredited interpreter in the Urdu language. The interpreter informed the Court that the applicant’s English was “reasonable” and he wished to address the Court in English. The applicant indicated that he had received advice from the Court appointed panel advisor under the pilot RRT Legal Advice Scheme that was only very basic legal advice and he was not able to obtain legal representation for the Court hearing. He was also unable to avail himself of sufficient resources to retain a legal representative. He stated that he did not understand the Court proceedings and, although he had been given his grounds of review, he did not understand them and the interpreter was unable to assist because he had no legal training. The applicant sought to be provided with a pro-bono lawyer to represent him because he did not believe that he would receive a fair trial without representation.
The second issue raised by the applicant concerned the orders made at the directions hearing before this Court on 11 December 2012, which was in the following form:
2. A Supplementary Court Book be prepared containing any additional evidence sought by the Applicant in respect of email exchanges that have not been restricted.
The applicant claimed that the Minister’s solicitors had refused to provide him with these documents. The applicant informed the Court that he was asking for those documents so as to interrogate the senders of those documents because of the serious allegations questioning the applicant’s credit. The applicant claimed it was important for him to know the details of the allegations made against him through emails forwarded to the Department. The applicant claimed that there were some allegations levelled against him during his application to the Department by someone that alleged the applicant was lying about his claims and raised some questions regarding his identity. The applicant indicated that he had been questioned by both the Minister’s delegate and the Tribunal Member about these allegations. The applicant stated that people had come forward and levelled allegations against him saying that he was lying in his application and that he did not face any threats in his home country. He states that he is not in possession of the specifics of those allegations or of the persons who had made them.
The third issue raised by the applicant is that he is facing a number of psychological issues for which he is seeking treatment and that this raised the question on whether he was fit to appear.
Ms Given, appearing for the Minister, acknowledged that the applicant had made a very serious submission at the first directions hearing which resulted in the order for a supplementary Court Book to be prepared containing all the additional evidence sought by the applicant in respect of the email exchange that had not been restricted. Ms Given acknowledged that, basically, this issue turned on what is commonly or colloquially refer to as “dob-in letters”. Ms Given informed the Court that she wrote to the applicant, requesting him to identify the material he sought, in order for the Minister to comply with the orders of this Court. Ms Given indicated that the applicant’s request essentially sought to go behind the letters or the emails and sought the Minister’s representatives to undertake an investigation, essentially, as to what the identity of the people who had made the allegations and what the basis of their knowledge was. Ms Given informed the Court that the view that the Minister had formed was that the order contemplated documents being provided and not that the Minister interrogate and verify the veracity of the knowledge of the person or persons who had made the allegations. Ms Given tendered that correspondence.
I accept Ms Given’s submission that the order made on 11 December 2012 anticipated that documents may be sought, but it was not contemplated that the Minister launch an investigation to determine the background to the material or into what people may or may not have known in order to have created the documents which ultimately were not relevant. I note the contents of the Tribunal’s Decision Record under the sub-heading “Findings and Reasons” at [117], where it states:
117. While some adverse allegations were made to the department and tribunal about the applicant’s identity and his intentions in seeking protection in Australia, the tribunal gives these no weight, These allegations are not able to tested and when issues as to his identity documents were considered the delegate found that the identified discrepancy was likely a error as the applicant has claimed. The tribunal does nor believe that the purveyor of these allegations has genuine knowledge about the applicant’s circumstances and has not considered them in reaching its conclusions about the applicant’s circumstances.
(CB 336)
I informed the applicant that there was a Court sponsored scheme which is free to applicants who are self represented to get limited legal advice, but that adviser will not represent the applicant in Court. The service is limited to the extent that the adviser will go through the applicant’s claim, give advice on it and give the applicant some limited advice on how they should proceed before the Court. I indicated to the applicant that there is a huge demand for attaining pro-bono assistance, being a free of charge assessment from members of the acting legal profession, but unfortunately due to the very high demands this assistance can generally can only be obtained for litigants with some disability that are unable to make submissions to the Court, even with the assistance of an interpreter. An application for an adjournment with the view to obtain such assistance would be very unlikely to succeed. The applicant informed the Court that since last November he had made many attempts to locate a legal representative, but that they all had “fees” that were outside his financial capacity. The applicant indicated that he was attempting to sell whatever assets he had and borrow money from friends and associates, but required legal representation to be supplied at a substantially reduced rate in order to be able to pursue this course.
In O’Donoghue v Minister for Immigration & Anor [2010] FMCA 345 his Honour Lucev FM (as he then was) considered the principles relating to the granting of an adjournment as follows at [37]-[39]:
Consideration of Interim Application for adjournment
Principles
37. The Court has discretion whether or not to allow an application to adjourn proceedings. In exercising this discretion, the Court must take into account the objects and purposes of the Federal Magistrates Act 1999 (Cth) and the Federal Magistrates Court Rules 2001 (Cth), which have been previously described by this Court as follows:
21. Reading together the objects of the FM Act in s.3, the mode of operation in s.42, and having regard to the objects of the FMCA Rules in r.1.03, it is apparent that the Court is intended to operate in a manner:
(a) as informed as possible in the exercise of judicial power;
(b) which is not protracted in its proceedings;
(c) which resolved proceedings justly, efficiently and economically;
(d) uses streamlined procedures; and
(e) avoids undue delay, expense and technicality. [60]
38. Further, the Court must take into account the following principles when determining whether or not to grant leave to allow an adjournment:
a. the paramount consideration remains the doing of justice between the parties, but a just resolution must have regard to any relevant legislative purpose or object;
b. modern principles of case management;
c. the avoidance of undue delay; and
d. the wastage of public resources.
39. This Court’s objects and purposes reflect much of the modern approach to case management, particularly of interim or procedural applications, especially recognising the need for proceedings to be resolved justly, whilst placing emphasis on the need for efficiency, economy and the avoidance of delay and expense.
(footnotes omitted)
While I acknowledge that the applicant, who is self represented, has difficulties in proceeding with his application before the Court, it is not immediately apparent that the granting of an adjournment would be of any assistance to him. The likelihood of obtaining pro-bono assistance from the Law Society of NSW or the Bar Association is highly unlikely for a litigant with the applicant’s profile. This Court has a limited power to refer the matter to the Court’s Registry to notify these respective organisations of the request for pro-bono representation, but the success of these applications are not readily apparent. Nor is the Court in a position to arrange any form of representation on a highly discounted or deferred payment schedule. As indicated above, the information sought by the applicant in respect of the identity of the informants and the veracity of these claims, ultimately was not taken into account by either the Minister’s delegate or the Tribunal and, consequently, did not impact those decisions. The third basis for the request for an adjournment focused on the applicant’s psychological issues for which he claims he is currently seeking treatment. There is no evidence before the Court in the form of medical reports or affidavit material to support this contention. Consequently, the application for an adjournment, although not specifically made in those terms, cannot be sustained.
In respect to the three pleaded grounds of review, I accept the written submissions prepared by Ms Given in response to those grounds and I am satisfied that they accurately and appropriately address the grounds of review and require no further comment. The applicant is a self represented litigant and openly admits to the Court that the grounds of review lodged by him were provided by some unidentified third party and he has no understanding or appreciation of those grounds. The report from the panel adviser indicates that he provided the applicant with advice, but did not provide him with a draft amended application. Consequently, in those circumstances I have reviewed the contents of the Court Book, being the only evidence before the Court and, particularly, the Decision Record of the Tribunal.
The keys findings of the Tribunal are set out at [119]-[120], where it states:
119. In the tribunal’s view, the applicant has in fact completely embellished his former activities in Pakistan to give them a focus and interest which they did not possess but which he believed would found a claim to requiring Australia's protection. In the tribunal's view he does not genuinely hold any fear of harm for any reason related to his past activities or current political interest in Pakistan and has merely made such claims to try to create a basis for being granted a visa to remain in Australia.
120. The presentation of the applicant's claims over time, the nature of the material which has been adduced to support his claims and the general assessment to the evidence of the applicant leads the tribunal to the conclusion that while he was involved in a non-government agency known as the World Commission for Peace and Human Rights Council in the past in Pakistan, this in (sic) no way gives rise to any genuine fear of harm in Pakistan in the past, at the present time or in the foreseeable future. Nor does the tribunal believe that the applicant's activities have ever resulted in him being of interest to any militant groups or governmental authorities in the past. It does not believe he was detained, threatened or mistreated in Pakistan in the past and does not believe there is any risk of such harms affecting the applicant should he return to that country now or in the foreseeable future.
(CB 337)
In the following paragraphs, the Tribunal sets out a detailed explanation in support of its findings, which can be briefly summarised as follows:
a)At [121] (CB 337):
…the Tribunal believes the applicant would have made a more timely application for protection in Australia if he genuinely held any fear of harm in Pakistan…
b)At [122] (CB 337):
A further reason to disbelieve the applicant’s account of his activities and fears of harm in Pakistan is that he has in fact returned to that country in the very recent past…
c)At [125] (CB 338):
The tribunal also founds aspects of the applicant’s evidence about his past activities and difficulties encountered to be unconvincing…
d)At [126] (CB 339):
The presentation of the evidence in support of claimed negative experiences the applicant has had in Pakistan also leads the tribunal to conclude the applicant is not being truthful about these events…
e)At [127] (CB 339):
The letter of Shaukat Qadir makes no reference to any periods of detention of the applicant or direct threat to his groups by militants but does refer to a mob attending the office and the rocket attack disrupting a planned conference in November 1999…
f)At [129] (CB 339):
It is also the case that the applicant’s claims in his written statement directly contradict the claims of the disruption of the conference in 1999 and his involvement in that…
g)At [130] (CB 340):
The tribunal does not accept as plausible that one could be responsible for organising a conference…
h)At [132] (CB 340):
Again when this apparent discrepancy was discussed with the tribunal the applicant gave very unconvincing explanations…
i)At [134] (CB 341):
The applicant’s evidence regarding continuing activism since leaving Pakistan in 2000 is equally problematic…
j)At [135] (CB 341):
The applicant has also referred to the existence of a blog which he had produced for some years and concerns in this regard. He made no reference to such activities or any fears in this regard in his written statement with the application…
k)At [136] (CB 341):
The tribunal has considered whether the health and psychological difficulties reported by the applicant to the Transcultural Mental Health Service and more Lifeline could be an adequate explanation for the difficulties with the applicant’s evidence. The tribunal does not believe this is the case…
l)At [138] (CB 342):
…The tribunal does not accept that he has ever engaged in, or been perceived to engage in, activities which would bring him to adverse attention of security authorities or militant groups in Pakistan…
The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, its finding that he was not credible. Such findings are matters of fact for the Tribunal par excellence: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]. The Tribunal detailed at length the vagueness, inconsistencies, confusion and unreliability of the applicant’s evidence in a number of respects. These are briefly summarised above at [49]. The Tribunal’s Decision Record, which is the only evidence before the Court in relation to the conduct of the hearing, indicates that the concern of the Tribunal had in relation to the aspects of the applicant’s evidence which were raised with him during the course of the hearing. In Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 558-559 and in W148/2000A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69] , so long as the Tribunal’s credibility findings are open to it, no error is demonstrated.
Conclusion
In the circumstances I am satisfied that the application should be dismissed with costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 2 August 2013
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