SZWDA v Minister for Immigration
[2015] FCCA 2621
•30 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWDA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2621 |
| Catchwords: MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal considered information relevant to the applicant’s circumstances – whether the Tribunal failed to take into account all of the applicant’s claims – whether the Tribunal’s conclusion was illogical or irrational and misunderstood or misconstrued the Convention test – whether the applicant was denied natural justice – whether Tribunal failed to account for mistakes made in the delegate’s decision – whether the Tribunal erred by not allowing the applicant to adduce further evidence – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 414, 415, 476, 477(2) Constitution (Cth), s.75(v) |
| Bull v Lee (No 2) [2009] NSWCA 362 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR |
| Applicant: | SZWDA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 387 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 18 August 2015 |
| Date of Last Submission: | 3 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 30 September 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondents: | Mr L. Dennis, Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 387 of 2015
| SZWDA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Pakistan who arrived in Australia on a tourist visa in July 2013. In October 2013 he applied for a protection visa. The Refugee Review Tribunal summarised his claims in support of that application as follows:
[1]The applicant claimed that he was harmed and threatened as a result of his involvement in selling land on which an Imambargah (Shia mosque) was constructed; as a result of his involvement in a Shia organisation; and as a result of a speech he gave at a Shia mosque in April 2013 he “enraged” Sunni clerics; and because of his views opposing Islam and involvement in a “scientific project”. The applicant claimed that he was sought by Sunni Muslim extremists and a fatwa and an FIR[1] issued against him. The applicant claims that the extremists attempted to kidnap his children and he was attacked and a further attempt made on his life. The applicant claims that he and his family went into hiding in a basement. The applicant subsequently escaped Pakistan, but his family have remained in hiding in a basement and have developed a number of health and mental conditions as a result.
[1] A “First Information Report”.
A delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision. He attended a hearing conducted by the Tribunal on 29 January 2015 and the Tribunal made its decision to affirm the decision of the delegate on 6 February 2015.
The Tribunal found that the applicant was not a truthful witness and that he had fabricated the entirety of his claims to fear harm in Pakistan. It found his evidence about his experiences in Pakistan were confused, inconsistent and not credible. While it did accept that the applicant was a Shia it did not accept his claims regarding the circumstances of his religious conversion in 2009.
The Tribunal based its findings on a number of matters. First, there were inconsistencies between the applicant’s evidence given at the Tribunal and at the interview conducted by the delegate; secondly, the applicant gave inconsistent evidence to the Tribunal about the difficulties he experienced in connection with his religious conversion in 2009; thirdly, the date on the copy of the FIR provided by the applicant to support his claims was inconsistent with his oral evidence about the events which led to the issuing of the FIR.
The Tribunal found that the applicant did not genuinely fear harm in Pakistan and that he had not experienced any threats of harm in Pakistan as a result of his conversion, the fact that he sold his land for an Imambargah to build a prayer and religious teaching facility, his involvement in a Shia organisation, his attendance at a protest, the speech he gave at an Imambargah, his attendance at a religious meeting or his views on the Koran or scientific ideas. It found that the documents provided by the applicant were fabricated for the purposes of the application.
In spite of its findings on the applicant’s credibility, the Tribunal accepted that the applicant was a Shia and an ordinary member of a Shia religious organisation in Pakistan and that he sold his land on which the Shia community built an Imambargah. Nevertheless, taking into account the size of the Shia community, the low number of attacks or violence against Shias in the applicant’s area as well as other evidence about treatment of Shias, the Tribunal was satisfied that the chance that the applicant would suffer serious harm for reasons of his religion, as a result of generalised second sectarian violence or specific attack was remote. It also considered that the chance the applicant would be the victim of criminal or political violence in Pakistan was remote.
For those reasons the Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention[2] reason if he returned to Pakistan now, or in the reasonably foreseeable future. Further, it found that there was no real risk that the applicant would suffer significant harm upon return to Pakistan. Accordingly, it was not satisfied that the applicant met the criteria for the grant of a protection visa and affirmed the decision of the delegate.
[2] Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
The applicant now seeks judicial review of that decision. Pursuant to s.476 of the Migration Act 1958 this Court has the same jurisdiction in relation to migration decisions (such as that of the Tribunal) as the High Court has under s.75(v) of the Constitution. That fact, in combination with the operation of s.474(2) of the Act, means that, in order to be successful, the applicant must establish that the Tribunal’s decision is affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
Consideration
The applicant represented himself at the hearing and, although he had an interpreter available, made submissions in English. Although English is not his first language, he spoke well and I am satisfied that he was able to articulate the bases on which he sought relief. The grounds raised in his oral submissions were different from those in the application for review. As he was not legally represented, I will deal with both sets of grounds. It is convenient to deal first with the grounds in the application.
Ground 1
The first ground in the application is that the Tribunal made a procedural error by not taking into account information relevant to the applicant’s particular circumstances. The applicant lists eight factual matters that the Tribunal did not accept and then asserts that the events did in fact take place. This assertion may well be correct, however, it is not within this Court’s jurisdiction to determine that issue.
The Tribunal’s obligation under the Act was to review the decision of the delegate: s.414. In light of the powers given to the Tribunal by s.415 for the purpose of review, this meant, relevantly, that it had to determine on the material before it, the same question required of the delegate. That question was whether the delegate was satisfied that the applicant satisfied the criteria for the grant of the protection visa: s.65. This required the Tribunal to make findings of fact. So long as those findings were open on the material before the Tribunal then, regardless of whether or not they were correct, they were entirely a matter for the Tribunal. Thus, simply to say that a finding by the Tribunal is wrong is insufficient to establish jurisdictional error. For that reason, the first ground must be rejected.
Ground 2
The second ground in the application suffers from the same difficulty as the first. In it, the applicant asserts that the Tribunal’s failure to understand or to take into account the applicant’s claims that his life was at risk, manifested ignorance and lack of knowledge of the realities of life in Pakistan. This is another way of expressing disagreement with the Tribunal’s factual findings. It does not indicate any error going to the jurisdiction of the Tribunal to make its decision on review. This ground must be rejected.
Ground 3
The third ground is that the Tribunal’s conclusion was illogical or irrational and manifested a misunderstanding or misconstruction of the Convention test or arose out of a failure to take relevant information into account. The particulars to this ground are that, in light of the fact that the applicant submitted evidence to support his claim being a target of the extremist Sunni groups, the Tribunal was in error by “simply rejecting evidence brought by the applicant as having never having occurred or were mere fabrications”.
It may be accepted that illogicality or irrationality might, in certain circumstances, either amount to, or be evidence of, jurisdictional error: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611; Re Minister for Immigration & Multicultural Affairs; ex parte S20/2002 (2003) 77 ALJR 1165. However, there is neither illogicality nor irrationality of any type apparent in the Tribunal’s decision. As explained briefly above, the Tribunal’s decision turned essentially on its findings of credit which were, in turn, based upon a number of matters including inconsistencies in the applicant’s own evidence. That is to say that there was a logical basis in the material before the Tribunal for each of its findings and those findings led inexorably to its conclusion that the applicant did not satisfy the criteria for the grant of the visa. In those circumstances, the ground must, like the first and second ground, be properly understood as being no more than an emphatic disagreement with the findings of the Tribunal and rejected as not raising any jurisdictional error: see Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 [40] per Gleeson CJ and McHugh J.
Ground 4
The fourth ground is that the applicant was denied natural justice. The applicant alleges that the Tribunal was clouded by its “own preconceived beliefs whether the applicant was a credible witness or not or whether the applicant’s evidence was genuine or mere fabrication, notions as to what constituted ‘fear’”. The allegation is one of actual bias. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at 532 [72] per Gleeson CJ and Gummow J.
An allegation of actual bias must be distinctly made and clearly proved: Jia per Gleeson CJ and Gummow J at [69] and Kirby J at [127]. Ordinarily, in order to do so, a party would need to show some conduct on the part of the Tribunal, apart from the Tribunal’s expression of its reasons, which would indicate that the Tribunal has been guilty of prejudgment or was in any way biased: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [44] per Tamberlin, Mansfield and Jacobson JJ; Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [18] per North and Lander JJ.
There is no evidence at all that might suggest that the Tribunal had prejudged this matter in the sense required in order to establish actual bias. That is not to say that the Tribunal had not formed any view about the applicant’s case before it sat down to write its decision. The fact that it invited the applicant to attend a hearing is evidence that it formed the view on reading the papers that it could not come to a favourable decision on that basis alone. However, that is a different thing from being, or even appearing to be, unable or unwilling to change that view regardless of the evidence given by the applicant at the hearing. For that reason the fourth ground is rejected.
Additional grounds raised at the hearing
The applicant raised two matters in his oral submissions. The first was that the Tribunal erred by failing to find a number of mistakes in the delegate’s decision.
It is unnecessary to set out in any detail the errors in the delegate’s decision that are relied on by the applicant. Some of them, such as the applicant’s name and the date of his arrival in Australia are obvious and display, at the very least, a lack of attention to detail by the delegate. However, the applicant’s submission is based on a misunderstanding of the Tribunal’s duty. As I have noted, that duty is to review the delegate’s decision. It does not conduct an appeal from that decision. Rather, in light of its powers under s.415 of the Act, such as to exercise the delegate’s power for the purpose of the review, it must determine for itself what the correct and preferable decision is on the material before it, that is, “‘to do over again’ what the original decision-maker did” in the context of the Administrative Appeals Tribunal: see Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [100] per Hayne and Heydon JJ; see also at 299 [37] per Kirby J; Drake v Minister for Immigration & Ethnic Affairs (1981) 2 ALD 60 at 91-92 per Bowen CJ and Deane J; applications for review to the Refugee Review Tribunal are dealt with in the same way: Minister for Immigration & Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 443 [70].
For that reason, the Tribunal was not required to determine whether there were any errors (factual or otherwise) made by the delegate.
The applicant’s second oral argument was that the Tribunal did not permit the applicant further time to produce more evidence. He did not specify what that material may have been and did not adduce any evidence of what was said during the Tribunal hearing, if anything, in this respect. However, this ground appears to be based on a letter given by the applicant to the Tribunal prior to the hearing. The relevant part of the letter is extracted at p.198 of the Court Book and states:
…
In order to make it legal they issued my arrest warrant, which were not accomplished due to my absence in the country, which also another cause to escalate their anger.
Later they get ordered from the court to advertise me as: WANTED:
I request for appropriate time may give to me after this hearing to submit additional documents as part of support to my claim. These documents may include:
Arrest Order
Wanted Order
The document is stamped as received by the Tribunal but the date is unclear. However, it is marked “by hand” and appears in the Tribunal file after a case note made at 9:07am on 27 January 2015 which records that the applicant attended the Tribunal registry on that date. While I do not think that the document was given to the Tribunal at that time (unlike a handwritten document which is stamped as received at 9:24am on 27 January 2015), it is most likely that it was received either on that day (a Tuesday) or the following day. That is because the hearing was held on 29 January 2015 and documents received by the Tribunal on that day are marked “Received at hearing”.
On that basis, it is clear that the applicant had, by the time of the hearing, requested further time in order to obtain documents to support his claims. It is apparent that the applicant also made a request for further time at the hearing. At [34] of its reasons, the Tribunal stated:
… The Tribunal also does not accept the applicant’s claims that a wanted order, or arrest warrant has been issued for his arrest. The Tribunal has had regard to the applicant’s request in his statement and at hearing for additional time to obtain these documents. The Tribunal considers that the applicant has had ample opportunity to provide documents, and as advised at the hearing, is not satisfied that any further opportunity to do so is warranted. …
This passage shows that the Tribunal considered the applicant’s request for further time and gave reasons for refusing it, namely, that he had had “ample opportunity to provide documents”.
As this matter was not raised in any detail at the hearing before me I allowed the parties further time to provide written submissions in relation to it. The applicant filed written submissions which fell into two categories. The first related to the issue just mentioned and the second was a further attempt to agitate other matters not relating to that issue. I have not paid any attention to the submissions in the second category. In Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at [258], Mason J said:
... The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.
(See also Eastman v Director of Public Prosecutions (DPP) (ACT) (2003) 214 CLR 318 at 330 [30]; Re Application by the Chief Commissioner of Police (Vic) (2005) 79 ALJR 881 at 890 [53]-[54]; Dwyer v Commonwealth Bank of Australia (1995) 31 ATR 48; Kirwan v Cresvale Far East Ltd (in liq) (2002) 44 ACSR 21 at [340]; Chapmann v Caska [2005] NSWCA 113 at [19]; Notaras v Waverley Council (2007) 161 LGERA 230 at 267 [147].)
Those comments apply with equal force to submissions that go beyond any leave granted: Bull v Lee (No 2) [2009] NSWCA 362 at [9] per Allsop P, Campbell and Young JJA; NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 at 159 [192]; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 at 388 [111].
In the first category of submissions, the applicant argued that the Tribunal did not provide any reason or justification to refuse the request for further time and that the failure disclosed that the Tribunal had already made up its mind.
As noted above, it is clear that the Tribunal did give reasons for its refusal. Further, as it indicated at the hearing that it would not allow further time, there is no rational basis for concluding that it had prejudged the matter, or that it might reasonably appear that it might have made up its mind.
There is no question that the Tribunal has the power to adjourn the review from time to time: sub-s.427(1)(b). There is a presumption of law that Parliament intends an exercise of such a power to be reasonable: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 particularly at [29] per French CJ, at [63] per Hayne, Kiefel and Bell JJ, and at [88] per Gageler J; Minister for Immigration & Border Protection v Singh (2014) 308 ALR 280 at [43]. The question, then, is whether or not the refusal of the Tribunal to exercise that power was unreasonable in the circumstances.
In Kaur v Minister for Immigration & Border Protection (2014) 141 ALD 619 Mortimer J said this on the question of reasonableness of administrative action:
[110]In Singh, the Full Court identified two different analyses which might be applied in such a circumstance. If the repository of the power had given no reasons for the outcome, then the supervising court can only focus on the outcome of the exercise of power in its factual context as presented and evaluate for itself the justification or intelligibility of that outcome, bearing in mind the constraints applicable to the role of a supervising court. If the repository of the power has given reasons, then it is the justification given in the reasons, and the intelligibility of the exercise of power as explained in the reasons, which the supervising court should examine, bearing in mind the constraints applicable to that task. Limiting the examination to the reasons given by the repository of the power is consistent with the approach taken to the role of reasons generally in assessing jurisdictional error: namely, that reasons enable a supervising court to see what the repository of the power herself or himself saw as relevant, irrelevant, or as her or his statutory task. In deciding whether there was an excess of jurisdiction, this is the perspective which is important, understanding why the power was exercised as it was: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [10] per Gleeson CJ. Where there are reasons given by a repository of the power, which are not sufficient to provide an intelligible justification, for a supervising court to engage in finding and applying facts and reaching its own conclusions about how and why, through a different reasoning process, the exercise of power could be justified is tantamount to a re-exercise of the power by the supervising court and in my opinion crosses the line, well established in Australian law, between a review of the exercise of a power and the exercise of it, as described by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-38.
Here, there were reasons given by the Tribunal for its refusal to allow further time to obtain material. That reason, namely, that enough time had already been given, is sufficient in an appropriate case to establish that a refusal to grant more time was reasonable: Li (2013) 249 CLR 332 at 368 [82]. The question, though, is whether it is apparent how that conclusion was arrived at having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed. That is what was meant by the plurality in Li as whether there was an “intelligible justification”. There must not only be a justification, but it must be understandable in light of the facts and objects of the power. If not, regardless of the reason given, then there was no reasonable basis for the decision.
The relevant facts are these. The applicant applied for a protection visa on 16 October 2013. In support of that application he provided to the Department a large number of documents including his identification card, information concerning the plight of the Shia in Pakistan, information concerning one of the militants involved in sectarian violence against the Shia in Pakistan, newspaper articles and a certified translation of the applicant’s identity card. The applicant attended an interview conducted by a delegate of the Minister on 12 March 2014 and shortly before the interview provided further documents to the Department including a document apparently in Urdu, and a translation of a police report concerning a lost passport and further identification documents of both the applicant and his family. The applicant then later provided translations of the Urdu documents. The first document appeared to be a fatwa denouncing the applicant as a Kafir, the second recorded the assistance given by the applicant to the Shia community as well is the false case registered against him and the fatwa, the third a certificate of land registration ownership, the fourth a marriage certificate and the fifth a first information report in which it was alleged that the applicant had insulted the Sunni religious leadership and was trying to spread sectarian violence.
The delegate made a decision on 14 March 2014. The delegate found that the documents provided by the applicant were not genuine and that there was no fatwa against him and no first information report lodged with the local police. The delegate based its conclusions in part, upon information concerning the ready availability of fraudulent documents in Pakistan.
On 31 March 2014 the applicant applied to the Tribunal for review of the delegate’s decision. On 2 April 2014 the Tribunal wrote to the applicant acknowledging the application and indicating that if he wished to provide material or written arguments to the tribunal for consideration to do so as soon as possible. The applicant did not provide any documents to the Tribunal in response to this letter.
By letter dated 9 December 2014 the Tribunal invited the applicant to attend a hearing on 29 January 2015. That letter indicated that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The applicant responded to this letter by returning to the Tribunal a document entitled “response to hearing invitation” on 22 January 2015.
On 27 January 2015 the applicant handed the Tribunal a handwritten letter concerning his requirements for an interpreter. As I have explained above, either later on the same day or on the following day the applicant gave the Tribunal a document entitled “response to protection (class A) visa decision record”. It was in this document that the applicant made a request for “appropriate time” after the hearing to submit additional documents to support his claims. Importantly, the applicant explained that the documents he needed time to obtain “may include” an arrest order and a wanted order. He did not say how long it would take for him to get those documents and indeed, there is no indication that he could even get them.
In this case the applicant was on notice for a year that both his credit and the documents that he had used in support of his claims were in issue. He was, or at least ought to have been aware from the time he made his application to the Tribunal for review of the delegate’s decision that in order to improve his chances of succeeding, he required further information or corroborating evidence. The letter from the Tribunal acknowledging his application put him on notice that he was to rely on further information that he ought to provide as soon as possible. There is no question that, as a well-educated, English speaking person who had previously provided a large amount of documentation in support of his claims, was capable not only of understanding the importance of documents but of obtaining any documents relating to his claims. Critically, his request for further time was made the day before the hearing of the Tribunal and, most importantly, it was made in vague terms and without any cogent basis. In those circumstances, there is no basis to conclude that the Tribunal’s view that the applicant had had enough time was unreasonable or was inconsistent with the scope and purpose of the power to adjourn the review.
For those reasons, the Tribunal’s refusal to accede to the applicant’s request for further time to enable him the possibility of obtaining further documents to support his claims was not unreasonable in the sense required to vitiate its decision.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application is dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 30 September 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Standing
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