SZWAZ v Minister for Immigration and Border Protection
[2017] FCA 148
•24 February 2017
FEDERAL COURT OF AUSTRALIA
SZWAZ v Minister for Immigration and Border Protection [2017] FCA 148
Appeal from: SZWAZ v Minister for Immigration & Anor [2016] FCCA 2214 File number: NSD 1534 of 2016 Judge: ROBERTSON J Date of judgment: 24 February 2017 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – whether jurisdictional error on the part of the Administrative Appeals Tribunal – whether the Tribunal made an error of law by misunderstanding s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) – whether the Tribunal took into account irrelevant facts and disregarded relevant facts when reaching its decision – whether the appellant was not properly heard Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 91R Cases cited: SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 Date of hearing: 23 February 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 35 Counsel for the Appellant: The appellant appeared in person with the aid of an interpreter Solicitor for the First Respondent: Mr T Galvin of MinterEllison Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 1534 of 2016 BETWEEN: SZWAZ
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
24 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the costs of the first respondent, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ROBERTSON J:
Introduction
This appeal is from an order made by the Federal Circuit Court of Australia on 26 August 2016 dismissing an application for judicial review of a decision of what is now the Administrative Appeals Tribunal (the Tribunal).
A delegate of the Minister refused the application for a Protection (Class XA) visa on 28 February 2014. The appellant applied to the Tribunal which, on 5 January 2015, affirmed the decision not to grant him that visa.
The Tribunal found that the appellant was a citizen of Pakistan. The appellant said that because of his involvement in a political party, the Pakistan Tehreek-e-Insaf (PTI), he received threatening telephone calls and letters and shots were fired, on one occasion in the air when he was driving and on another occasion at his uncle’s house in Lahore (where he and his family were living at the time). The appellant said that he feared that “he will be killed or arrested if he returns to Pakistan now”. The Tribunal said that it was not satisfied that the appellant was a person in respect of whom Australia had protection obligations and he did not satisfy the criteria set out in s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Migration Act).
The Tribunal’s reasons
The Tribunal accepted, at [26] that the appellant was involved with the PTI, as he claimed. The Tribunal said, at [27], as the appellant himself said his involvement in the PTI was limited to attending meetings or gatherings and the Tribunal did not accept that the appellant was a prominent figure in the PTI. The Tribunal accepted that the appellant may have received threatening telephone calls and letters from political opponents, that on one occasion in October 2012 some people fired shots at his uncle’s house and that on another occasion in December 2012 some people fired shots in the air when he was driving to a convention with the Youth President. The Tribunal accepted that these were attempts to scare the appellant but did not accept that there was ever any intention on anyone’s part to do him harm.
The Tribunal referred, at [28], to incidents in which people involved in the PTI had been killed during the elections and to an incident in which members of another party, the Pakistan Awami Tehreek (PAT), had been killed in Model Town in Lahore in June 2014. After the hearing, the appellant produced media reports relating to the June 2014 incident and to a further incident on 30 August 2014 in which the police fired on the leader of the PAT and his supporters, killing two men and leaving over 1,000 people injured. The Tribunal said that it considered it significant that the 30 August 2014 incident, and the arrests of PTI workers to which the appellant referred, took place in the context of the sit-in protest in Islamabad organised by the PTI and the PAT with the object of forcing the elected government of Pakistan to resign. The Tribunal accepted that there was violence in this context and that PTI workers were arrested in Lahore as well as in other cities, but the Tribunal considered that there was only “a remote chance that protests similar to that one will be organised by the PTI in the future or that [the appellant] will become involved in such protests if he returns to Pakistan now or in the reasonably foreseeable future”.
The Tribunal did not accept, at [29], that the PTI was being prevented from holding such meetings or gatherings nor did it accept that people were being arrested or killed simply because of their involvement in the PTI. The United States State Department had reported that there were few restrictions on political parties in Pakistan and that in most areas there was no interference with the right to organise, to run for election, to seek votes or to publicise views. The Tribunal accepted that some people with connections to the PTI were killed at the time of the elections in 2013, but regarded those as isolated incidents. The Tribunal did not accept that there was a real chance that the appellant will be arrested, imprisoned, killed or otherwise persecuted for reasons of his political opinion based on his involvement in the PTI if he returned to his home in Lahore now or in the reasonably foreseeable future.
In relation to a press report about a bomb blast in Lahore, the appellant said he was not suggesting that he was in danger because of that bomb blast. The Tribunal said, at [30] that in the absence of particular factors which would put him at risk, it did not accept that there was a real chance that the appellant would suffer serious harm in the context of those sorts of bomb blasts if he returned to his home in Lahore now or in the reasonably foreseeable future.
The Tribunal, at [30], did not accept that the appellant had a well-founded fear of being persecuted for one or more of the five Convention reasons if he returned to Pakistan now or in the reasonably foreseeable future.
Have regard to those findings, the Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Pakistan, there was a real risk that he would suffer significant harm as a result of his involvement in the PTI or a real risk that he would suffer significant harm in the context of the sort of bomb blasts that were the subject of the press report produced by the appellant.
Application to the Federal Circuit Court
The appellant then applied to the Federal Circuit Court for judicial review. The application, dated 14 January 2015, was in the following terms (as written):
Ground 1
The Tribunal made a procedural error by not taking into account information relevant to the applicant’s particular circumstances.
Particulars
The applicant is a member of the Pakistan Tehreek-e-Insaf (PTI) political party. He had been subjected to verbal threats, intimidation and physical violence. He was shot at once while he was driving and again at his uncle’s place. The applicant had been an active member of the party, recruiting members and organising gatherings. The applicant states PTI is one of the main rival parties to the ruling political party and other leading parties and hence its members are continuously threatened, intimidated and or killed. The applicant produced before the Tribunal evidence where PTI members were attacked, killed or put in prison indiscriminately. The applicant states he fears to go back to Pakistan because now the power vests with the Pakistan Muslim League (PML), which targets PTI members killing them and imprisoning them. The applicant states this is due to the mostly anti-corrupt stance PTI adopts which is not favourably viewed by PML and other corrupt political parties.
Irrespective of the evidence produced before the Tribunal, its honourable member took the view that the applicant did not take a prominent part in the PTI’s activities and the threats, intimidation and gun shots were aimed at scaring the applicant than to harm him. The Tribunal took the view that there is general tolerance in Pakistan politics and the killings and violence as depicted by the applicant are isolated events and do not occur as a general rule. The applicant states that the Tribunal miscalculated the gravity of real politics in Pakistan and fear applicable to him, and in doing so, did not give due weight to his evidence or disregarded them. The applicant states his fear is continuing, even more now because PML is in power.
Ground 2
The failure to understand or take into account the applicant’s claims that his life was at risk and continue to be risky manifest ignorance and lack of knowledge of the realities in life in Pakistan.
Particulars
The applicant states that the Tribunal assessed the risk factor to his life based on some written articles and contends that the Tribunal did not take into account or was unaware of the actual ground situation. The applicant states the actual ground situation is much violent. The applicant states some of the atrocities never get to be published or even if they are published, they are often distorted or the actual truth is hidden to the outside world. There is not sufficient press freedom and violence at grass-root level may never get published. In basing the Tribunal’s decision that there is no fear for the applicant to go back, the Tribunal failed to understand and put the applicant in the context that exists in his home country of Pakistan.
Ground 3
The Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution in Pakistan was illogical or irrational, manifested a misunderstanding or misconstruction of the Convention test or arose out of a failure to take relevant information into account.
Particulars
The Tribunal found that there is not a real chance that the applicant will suffer serious harm in Pakistan by simply de-scaling the applicant’s evidence as insufficient to prove that he was a prominent member of the PTI or holding the view that there is a general political tolerance in Pakistan and that killings and violence are isolated incidents as opposed to a general trend.
Ground 4
The applicant was not afforded natural justice.
Particulars
The applicant believes that he was not afforded a fair hearing. The Honourable Member’s judgment was clouded by his own pre-conceived beliefs as to whether the applicant faces a real risk that he will suffer significant harm or that the applicant’s fear of being killed, imprisoned or harmed is valid. In doing so, the Honourable Member allowed his view to prevail over the applicant, taking the power vested in him to come to conclusions which are detrimental to the rights of the applicant. The applicant feels unheard, and justice unavailable and prevented.
The primary judge first set out the appellant’s claims for protection and then summarised the Tribunal’s reasons.
The primary judge then considered the four grounds of review.
As to the first ground, the primary judge said that the Tribunal was required to consider two ultimate questions. First, it was required to answer the question of whether the appellant had a well-founded fear of persecution by reference to s 91R(1) of the Migration Act and the instances of “serious harm” in s 91R(2). Second, it was required to consider the complementary protection claim by reference to s 36(2A) and what was there said about “significant harm”.
The primary judge found that it was reasonably open to the Tribunal to conclude, for the reasons it gave, that it was not satisfied the appellant had a well-founded fear of persecution because of his membership and participation in the activities of the PTI. In particular, it was reasonably open to the Tribunal to conclude that the two incidents did not involve systematic harm. It was reasonably open to the Tribunal not to be satisfied, for the reasons it gave, there were substantial grounds for believing that the complementary protection claim was made out.
As to the second ground, the primary judge said this disclosed no jurisdictional error. The ground did not suggest the appellant had put before the Tribunal material it did not consider. It was reasonably open to the Tribunal to rely on the material on which it did rely.
As to the third ground, the primary judge said that for the reasons he had already given in connection with the first ground, it was reasonably open to the Tribunal to conclude the appellant did not have a well-founded fear of persecution in Pakistan.
As to the fourth ground, the primary judge said that the appellant in effect relied on the adverse findings of the Tribunal as a ground for contending the Tribunal had preconceived views about the appellant’s claims. The primary judge referred to SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 at [38]. The appellant did not allege the Tribunal member exhibited hostile behaviour towards him, or in any other conduct during the hearing or before the Tribunal made its decision. There was no basis for concluding the Tribunal had preconceived ideas about the appellant’s case. There was nothing in the material that could give rise in the mind of a fair minded lay observer of a reasonable apprehension that the Tribunal member approached its task with a preconceived view of the appellant’s case.
The appeal to this Court
By notice of appeal dated 13 September 2016, the appellant appealed on the following grounds:
1.The Administrative Appeals Tribunal (Tribunal) made an error of law, in reaching a decision which failed to understand the law relevant to the appellant’s claim, namely ss. 36 (2) (a), 36 (2) (aa) of the Migration Act 1958 (Cth);
2.The Tribunal took into account irrelevant facts and disregarded relevant facts when reaching its decision and as a result, the appellant was not properly heard. The appellant therefore pleads procedural unfairness and breach of rules of natural justice;
3.The Tribunal had a duty to act fairly in the exercise of its administrative power, which affected the rights, interests and legitimate expectations of the appellant. By failing to act within its powers and duties, the Tribunal committed a jurisdictional error.
As may be seen, the notice of appeal does not, as it should, point to errors on the part of the primary judge but I shall read it as if the grounds meant that the primary judge erred in not finding that the Tribunal did or failed to do what is set out in the grounds.
The submissions of the parties
The appellant filed no written submissions. In oral submissions, the appellant contended that he believed the Tribunal did not give proper consideration to his case because the Tribunal accepted what had happened to him in the past but said that that it did not constitute risk of serious harm. The appellant referred to threats having been made against him when his uncle’s house was shot at (by chance, the appellant said, he was not in the house but usually resided there); the occasion when he was fired at while driving; some of the members of his party, the PTI, being killed; and the telephone threats he received. He took the Court to English translations of six newspaper reports and to a First Information Report to the police station at Faisal Town, Lahore.
The Minister submitted that the grounds in the notice of appeal did not reflect the case pleaded by the appellant in the Federal Circuit Court. However, in part the second and third grounds contended that the appellant was denied procedural fairness, which partly reflected the fourth ground of his application to the Federal Circuit Court. Furthermore, to the extent that the second ground contended that the Tribunal disregarded relevant facts, this (in part) reflected the first ground of his application to the Federal Circuit Court.
With respect to the first ground of appeal, the Minister submitted that this was an unparticularised assertion and the Tribunal’s decision record demonstrated that it did not err in its application of ss 36(2)(a) and 36(2)(aa) of the Migration Act. The Minister submitted this ground was nothing more than an expression of the appellant’s disagreement with the Tribunal’s conclusions that the appellant did not satisfy the criteria for the grant of a protection visa as set out in ss 36(2)(a) and 36(2)(aa).
The Minister submitted that to the extent that the second ground of appeal asserted that the Tribunal took into account irrelevant facts and disregarded relevant facts, again the appellant had failed to particularise these purported errors. The Minister submitted that the Tribunal did not take any irrelevant matters into account, nor did it disregard any obvious relevant facts. The Minister further submitted that the Tribunal had regard to the totality of the evidence that was submitted by the appellant, in addition to relevant country information that was available to it.
The Minister submitted that to the extent that the second and third grounds of appeal contended that the Tribunal denied the appellant procedural fairness, by not affording him an opportunity to be properly heard, there was no appellable error in the primary judge’s treatment of this issue. As a result of the way in which the issue was pleaded before the Federal Circuit Court, the primary judge took this complaint to be an assertion of the Tribunal having preconceived ideas about the appellant’s claims, or apprehended bias. The Minister submitted that the primary judge’s finding that such an assertion was not made out on the available material was correct. Furthermore, the Minister submitted, the Tribunal’s decision record demonstrated that the appellant had a meaningful opportunity to present his claims and evidence fully, and the Tribunal put him on notice of the dispositive issues, and therefore the Tribunal did not breach s 425 of the Migration Act.
In response to the appellant’s oral submissions, the Minister submitted, first, that the appellant did not contend that the Tribunal overlooked his claims or the evidence he submitted. Second, the Tribunal also considered independent country information and weighed the appellant’s material and the country information. That was a matter for it. The Tribunal’s conclusions were open to it, although the appellant disagreed with those conclusions.
Consideration
In my opinion the ground the subject of the appellant’s oral submissions was put to the primary judge and it is not necessary for me to consider any question of leave to advance new grounds.
As to ground 1 in the notice of appeal, I shall treat this ground as reflecting the first ground considered by the primary judge at [15]-[23]. The appellant’s oral submissions were to the same effect as the submissions he made to the primary judge and which were recorded at [17] of the judgment.
The structure of the reasons of the Tribunal was, relevantly, first to arrive at a conclusion about the events in relation to the appellant personally. The Tribunal did this at [27]. This was the conclusion that there were attempts to scare the appellant but not an intention to do him harm. The Tribunal then went on to consider events more generally. It expressed its conclusions at [29]. The Tribunal did not accept that people were being arrested or killed simply because of their involvement in the PTI. The Tribunal regarded as isolated incidents the killing at the time of the elections in 2013 of some people with connections to the PTI.
In my opinion, no error on the part of the primary judge has been established and no jurisdictional error on the part of the Tribunal has been established.
The contention on behalf of the appellant was that the events which the Tribunal accepted as having happened must have meant that he had a well-founded fear of persecution or that there were substantial grounds for believing that he would suffer significant harm as a result of his involvement with the PTI. This contention was rejected by the primary judge. The conclusion for which the appellant contends does not follow from the findings of the Tribunal, for the reasons given by the primary judge. The task of the Tribunal was to evaluate the significance of those events, having regard to s 91R and s 36(2A) respectively. I note that no criticism was made of the summary of the relevant law attached to the decision of the Tribunal. I accept the submissions on behalf the Minister that the Tribunal considered the claims and the evidence the appellant submitted, as well as independent country information, and weighed that material. Its conclusions were open to it.
I do not find it necessary to consider the Minister’s submission that the Tribunal’s conclusion on the facts was that the appellant “may have received”, rather than did receive, threatening telephone calls and letters from political opponents. I add that it is not clear to me that the expression “may have” extended beyond the threatening telephone calls and letters to include people firing shots either at the appellant’s uncle’s house or in the air when the appellant was driving.
As to ground 2 in the notice of appeal, this collects together a number of claims. As articulated, no detail is given as to what (prohibited) irrelevant facts the Tribunal took into account or what (mandatory) relevant facts the Tribunal disregarded. As put, it appears to amount to a complaint as to how the Tribunal evaluated the material before it. Of itself, that does not amount to a claim of jurisdictional error.
Part of the ground then asserts a denial of procedural fairness. In my opinion no error on the part of the primary judge is made out in relation to procedural fairness (or natural justice). I would only add that to make out a claim of apprehended bias by reason of prejudgment it is necessary to go further than showing, in a general sense, that the Tribunal had preconceived ideas about the appellant’s case. As the primary judge recognised, at [32], it must be shown that the decision-maker “embarked on the case with a closed mind, not open to persuasion.” See SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 at [38] per von Doussa J.
As to ground 3 in the notice of appeal, in my opinion this ground adds nothing to the grounds I have already considered. This is because it stands or falls on the same claim that the Tribunal failed to act within its powers and duties.
Conclusion and orders
For these reasons, grounds 1, 2 and 3 fail. The appeal is dismissed, with costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate:
Dated: 24 February 2017
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