VPAD v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1146

FEDERAL COURT OF AUSTRALIA

VPAD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1146

MIGRATION – no issue of principle

VPAD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 1094 OF 2003

NORTH J
23 JUNE 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1094 OF 2003

BETWEEN:	VPAD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	23 JUNE 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for an extension of time within which to lodge a notice of appeal is refused.

2. The purported appeal is dismissed as incompetent.

3. The applicant is to pay the respondent's costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1094 OF 2003

BETWEEN:	VPAD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	NORTH J
DATE:	23 JUNE 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is a purported appeal from a judgment of the Federal Magistrates Court, delivered on 14 November 2003.  In a decision handed down on 22 April 2003, the federal magistrate dismissed the applicant’s application for review of a decision of the Refugee Review Tribunal (the Tribunal).  The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, the respondent, to refuse to grant the applicant a protection visa. 

2. Although the purported notice of appeal is dated 5 December 2003, it was filed on 9 December 2003 and was therefore out of time by four days: O 52 r 15(1) of the Rules of the Federal Court. 

3. The applicant is self-represented.  He asked the Court to adjourn the appeal to allow him to obtain legal representation.  That application was refused. Not only has the applicant had sufficient opportunity to find legal representation but it is necessary to have regard to the public interest in the timely disposal of such applications, the fact that the applicant was represented by pro bono counsel before the Federal Magistrates Court, the fact that the applicant’s grounds of appeal were drafted by Mr Harding, who appeared for him before the Federal Magistrates Court, and the fact that the applicant received the respondent's written submissions on about 10 May 2004.

4. In support of his oral application for adjournment, the applicant said that he wished a lawyer to look at some documents and evidence in support of his appeal which were not before the Tribunal.  This is not a sufficient ground to adjourn the appeal, because such documents and evidence cannot bear upon the grounds of appeal.

5. I explained to the applicant that his appeal could not be heard unless he applied for and was granted an extension of time within which to file the notice of appeal. The applicant does not speak English, but the proceedings were conducted through a Pashtun interpreter.  When it was explained that the applicant needed to apply for an extension of time, he responded again that he wished to have legal representation.  One can easily understand the applicant's difficulties in understanding the requirements of the Federal Court Rules and it is therefore the Court’s responsibility to take account of the applicant’s particular circumstances. It would be wrong to simply dismiss the application on the ground that the applicant had not applied for an extension of time.  Consequently, I intend to proceed on the basis that such an application has been made. 

6. In relation to an application for an extension of time, it is relevant to consider the likelihood of success of the appeal.  I turn to that question now. 

7. The course of the proceedings before the Tribunal and its findings are summarised in paragraphs [1] to [26] of the decision of the federal magistrate.  I will not set them out here, but they should be read as part of these reasons.  For present purposes it is necessary only to say that the applicant is a citizen of Pakistan of Pashtun ethnicity.

8. The factual foundation of his case before the Tribunal was that the applicant had been falsely accused of murder by relatives who wanted family land which was otherwise the applicant’s.  Before the Tribunal hearing the applicant filed written submissions in which he alleged a fear of persecution as a member of the particular social group of “Heirs”.

9. After the hearing, further written submissions were filed in which the applicant relied on membership of two other particular social groups, namely “Victims of a Blood Feud” and “Persons Forced Before Pakistani Tribal Councils”.  In these further submissions the applicant also claimed a fear of persecution on the basis of his Pashtun ethnicity.  The Tribunal rejected the claims.

10. Before the Federal Magistrates Court, the applicant argued that the Tribunal failed to consider the applicant faced persecution because of membership of the particular social group “Pashtuns Accused of a Crime”.  The federal magistrate said, at [27] to [32]: 

    ‘The applicant contends that the Tribunal failed to consider his claim that he feared imprisonment or other serious harm should he be repatriated to Pakistan because he is ethnically Pashtun and has been accused of a crime.  It is said by the applicant that such failure is a failure to accord natural justice and constructive jurisdictional error and that the evidence could have supported a finding that the applicant had a well-founded fear of persecution for reason of his race or ethnicity and/or membership of a particular social group, namely “Pashtuns Accused of a Crime”.

    On a fair reading of the Tribunal’s decision, it considered and rejected any claim that the applicant was being persecuted for reason of his ethnicity or race.  This was entirely a finding of fact to be determined by the Tribunal and cannot be subject to judicial review by this Court.  The Tribunal said:

    The complainant in this case is a Pakistan citizen of Pashtun ethnicity. 

    There is nothing to indicate that the claimant’s fears of mistreatment, or the motivations of those he claims to fear, have any connection to the applicant’s race or nationality.  I find that their [sic] fears of mistreatment cannot be categorised as being “for reason of” any of those Convention grounds.

    And further:

    The post hearing submission of the agent stated that the applicant is of Pashtun ethnicity and it was claimed that this exposes the applicant to adverse discriminatory treatment from the authorities.  This is a new claim and no evidence or country information was provided that the government discriminates against those of Pashtun ethnicity.  There is nothing in the country information available to the Tribunal to support such a claim.  There is nothing to support this claim in the country information lodged by the applicant’s adviser post hearing … it was stated that this claim of discriminatory treatment would be expanded upon further below (in the agent’s submissions) but it is not clear to the Tribunal that this has occurred, unless in the reference to Tribal Councils which has been commented on above.  The submissions of the agent attempted to make a link between the applicant’s ethnicity and the state’s failure to apply due legal process with respect to the charges made against the applicant.  The Tribunal finds that there is no evidence of discrimination against Pashtuns.  It has not been able to find any evidence of such alleged discrimination from available country information.  The Tribunal finds that there is no Convention nexus in relation to these claims contrary to the claim of the agent.

    The Tribunal considered the applicant’s evidence in relation to his concerns about the military government and the treatment he might receive from it as a Pashtun as well as the country information and legal submissions.  It concluded there was no evidence or country information that the government discriminates against Pashtuns as described above.  This is a finding of fact.  There has been no failure to accord natural justice or constructive jurisdictional error as alleged by the applicant. 

    The Tribunal made findings based on the submissions put by the applicant.  With respect to the social group “Victim of Blood Feud” it did not accept that the applicant’s paternal uncles had attempted or wished to kill the applicant who was his father’s heir and the owner of land.  As to the applicant being a member of the social group being a “Person Forced Before a Pakistani Tribal Council” it concluded that the claim appeared to be based on surmise only and that there was no evidence that the applicant would be forced before a tribal council.  I have already previously referred to the Tribunal’s consideration of the applicant’s claim that he was a member of the particular social group of “Heirs” and also whether he could fall within another defined social group – membership of his father’s family.  The Tribunal said the following as to the two social groups claimed by the applicant’s representatives and as referred to at the commencement of this paragraph:

    The Tribunal has doubts as to whether these constitute particular social groups, but it is unnecessary to make a finding in this regard because the Tribunal does not in any event accept that the applicant would fall within either of these groups as the Tribunal has explained above.

    The Tribunal finds that there is no evidence to support these two new claims that the applicant is the victim of a blood feud and would be forced before a tribal council.

    In relation to the claim now made by the applicant that the Tribunal erred in not considering whether the applicant had a well-founded fear of persecution for reason of his membership of a particular social group – “Pashtuns Accused of a Crime” – the applicant relies on Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389. However in that case the High Court placed significant emphasis on the need for a case upon established facts to be articulated before the decision-maker. Gummow and Callinan JJ held (at 24):

    To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.  (Emphasis added).

    and Hayne J (at 95):

    I agree that … the Refugee Review Tribunal failed to exercise its jurisdiction, and did not give the applicant natural justice in conducting its review, because it did not consider the claim which the applicant was then making, and had earlier made, for protection.

    And further, Kirby J (at 78):

    The Tribunal acts in a generally inquisitorial way.  This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis for which theoretically the Act provides relief.  This Court has rejected that approach to the Tribunal’s duties.  The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances.

    In this matter there was never a substantial and clearly articulated argument put before the Tribunal in relation to the applicant’s ethnicity (which the Tribunal considered) and/or particular social group of “Pashtuns Accused of a Crime”.  In particular, the latter claim was not made.’

11. In paragraph 3(1) of the notice of appeal, the applicant raised the following ground: 

    ‘The Federal Magistrate erred in law by her decision that there was no claim before the Refugee Review Tribunal that the applicant feared persecution on the basis of his membership of a particular social group (namely, Pashtuns accused of a crime); and his race.’

12. Nothing in the material before me indicates that the federal magistrate was wrong in concluding that no claim was articulated on the basis of membership of the particular social group of “Pashtuns Accused of a Crime”.  In any event, even if the federal magistrate was wrong on this issue, no material legal error is demonstrated in the decision of the Tribunal.  The Tribunal rejected evidence that the applicant was accused of a crime.  Without that evidence, the applicant could not be found to belong to the particular social group of “Pashtuns Accused of a Crime”. 

13. The Tribunal also found that there was no evidence that Pashtuns were discriminated against.  Without that evidence, the applicant could not succeed in establishing persecution based on Pashtun ethnicity. 

14. Furthermore, the Tribunal arguably found that the applicant's delay in lodging his protection visa application was a separate and distinct ground for rejection of the applicant's claim.  The Tribunal concluded (at page 21) that the delay -

    ‘indicates that the applicant, at the time of arrival, did not have a strong fear for his personal safety or future wellbeing in respect to returning to Pakistan.’

15. The second ground of appeal relied upon in the notice of appeal is that:

    ‘The Federal Magistrate erred in law by failing to consider the alternative basis upon which the Applicant put his claim, namely that the Refugee Review Tribunal’s decision was illogical in a way that affected the exercise of power.’

This ground is referable to paragraph 2 of the applicant’s application for review made to the Federal Magistrates’ Court, as follows:

Further or alternatively, the Tribunal made jurisdictional errors in its decision making process:

PARTICULARS

The Tribunal failed to accord the Applicant natural justice and/or identified the wrong issue and/or asked itself the wrong question and/or ignored relevant in a way that affected the exercise of power:

(a)the Tribunal’s conclusion that the Applicant had not been falsely accused of murder, his paternal cousins had procured 3 persons to bear false witness to the murder and that he did not go into hiding from the police after the murder were not based on probative evidence and/or are illogical;

(b)the Tribunal in arriving at the conclusions in (a) failed to comply with the requirements of section 430(1)(d) of the Act.

(c)The Tribunal in arriving at the conclusions in (a) ignored the evidence of the Applicant;

(d)The Tribunal’s conclusion that the Applicant did not go into hiding from the police after the murder was based on an error of material fact.

1. The Federal Magistrates Court did deal with this ground.  It stated at [33]:

   The Tribunal findings were based on probative evidence and did comply with s 430(1)(d) of the Act.  It referred to the evidence or any other material on which its findings of fact were based.  It couched in strong terms significant adverse findings against the applicant.  On a fair reading of the Tribunal’s decision, it has explained why it has reached a conclusion adverse to the applicant which complies with s 403(1)(d)  (see Thevendram v Minister for Immigration and Multicultural Affairs (2000) 182 ALR 290).

2. I asked the applicant if he wished to make any other submissions in support of his appeal.  He repeated his wish for legal representation and did not put any other arguments to the Court.  He indicated that he disagreed with one of the fact findings made by the Tribunal, but this is not a matter the Court can consider on appeal in judicial review proceedings.  It amounts to re-agitating the merits of the Tribunal's decision. 

3. It follows that the purported appeal is bound to fail.  Consequently, it is futile to grant any extension of time within which to file the notice of appeal. The application is dismissed.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North .

Associate:

Dated:             3 September  2004

Counsel for the Applicant:	Self Represented
Counsel for the Respondent:	Susan Moore
Solicitor for the Respondent:	R. Rigby, Blakes
Date of Hearing:	23 June 2004
Date of Judgment:	23 June 2004