FEDERAL COURT OF AUSTRALIA

Applicant S1039 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 353

MIGRATION – no point of principle

APPLICANT S1039 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 232 OF 2005

MOORE J

8 APRIL 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the respondent's costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This judgment concerns an appeal from a judgment of a Federal Magistrate of 31 January 2005.  On 9 January 1997 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 22 May 1997 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant the protection visa.  The appellant sought review of that decision by the Refugee Review Tribunal ("the Tribunal").  On 19 May 1998, the Tribunal affirmed the decision of the delegate of the Minister and refused to grant the appellant a protection visa. 

2                     The appellant became involved in litigation in the High Court commencing 14 December 1998.  It is unnecessary to detail what then occurred.  The appellant then sought judicial review of the Tribunal's decision in the Federal Magistrates Court on 11 May 2004.  However because of the appellant's earlier involvement in the High Court proceedings, it is common ground that this matter is to be approached on the basis that the application before the Federal Magistrate was to be assessed on the footing of whether an error could be demonstrated such as to give rise to relief under s 39B of the Judiciary Act 1903 (Cth):  see Applicant S1781 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 1038 and not on the basis that the Tribunal's decision was or might be a privative clause decision.  A Federal Magistrate dismissed the application for judicial review on 31 January 2005.  The appellant appeals against that decision.

Background

3                     The following is a summary of the appellant's claims in support of a protection visa.  The appellant is a citizen of Pakistan and of Muslim faith.  He arrived in Australia on 17 December 1996.  He and his family lived in Peshawar near the Pakistan/Afghanistan border where fundamental religious groups recruited Muslims to participate in fighting in Kashmir and Afghanistan.  The appellant and some of his friends were asked to join an unnamed religious group.  He was going to join but, after hearing the group had killed one of his friends, became scared and refused.  His refusal to join brought him a lot of trouble.  He was intimidated and threatened and an attempt was made on his life because he had information about the group's underground activities, and he decided to come to Australia.  He fears he would be killed if returned to Pakistan and considers no authority could protect him. 

4                     By letter dated 19 June 1997 to the Tribunal, the appellant claimed the previously unnamed religious group was Jamaat-i-Islami ("JI").  The legal representative for the appellant submitted, first, the appellant's subjective fear was based on his experiences in Pakistan at the hands of a "renegade extremist political religious group that operates with the knowledge of the Pakistani government and in a relatively unfettered fashion".  Secondly, it was reasonable to assume the appellant had knowledge of the identities within the group and their activities, including recruitment practices and training facilities.  Thirdly, the representative reiterated the appellant's belief that the police were incapable of ensuring his personal safety.  The appellant also provided the Tribunal with a number of news articles that reported recent acts of violence in Pakistan.

5                     At the hearing before the Tribunal on 23 February 1998, the appellant reiterated many of the claims made in his application.  In addition, he claimed he was a member of JI and had attended numerous training sessions, and provided the Tribunal with a copy of his training card.  The appellant claimed he was in particular danger because his friend told him lots of secrets about JI.  He received threats on his life and hid in Karachi before coming to Australia.  The appellant admitted that no members of his family had been harmed, although he stated that some had been threatened. 

The decision of the Tribunal

6                     For the reasons that follow, the Tribunal affirmed the Minister's decision not to grant the appellant a protection visa.  First, the Tribunal stated that it had serious doubts about the appellant's credibility.  In particular, the Tribunal had difficulty with the fact that the appellant did not mention the name of the religious group in his original submission and did not mention until the Tribunal hearing that he was actually a member of and had undergone training with JI.  The Tribunal was not satisfied the training card provided by the appellant was genuine or of the authenticity of another document provided by the appellant that purported to be a photocopy of a document hand-written in Urdu script.

7                     In relation to the card and the other document the Tribunal said:

3.  [The appellant] provided the Tribunal with what purports to be a copy of his Jamat Islami Training Card.  The Tribunal finds it curious that the card is written almost entirely in English, given that [the appellant] has only minimal ability to speak and write English.  The Tribunal notes the spelling on the card of " Jamat Islami" and notes that the more common way of spelling the organisation is " Jamaat-i-Islami" or " Jamiat-i-Islami" or " Jamaat-e-Islami".  The Tribunal is not satisfied that the card is genuine.

4.  [The appellant] provided the Tribunal with what purports to be a photocopy of a document hand-written in Urdu script which he has translated himself.  He claims that the document is an acknowledgement by himself that he has joined "the party" at his own risk and if he is killed the party will not be blamed and he will be responsible for his own actions.  The translation does not mention the Jamaat-i-Islami, nor does it disclose the date of the document.  Given that [the appellant] translated the document himself and the document contains no official markings of any significance, the Tribunal is unable to accept the document as genuine.

(Emphasis added)

8                     Secondly, while the Tribunal accepted the appellant was approached by a religious group and asked to join, it was not satisfied the religious group that approached the appellant was JI.  The Tribunal was not satisfied the appellant ever participated within the group to the degree claimed at the Tribunal hearing.  It based these findings on the fact that the appellant did not make these claims in his original submission and because he lacked detailed knowledge of the group and the activities he alleged he was involved in.  The Tribunal pointed out the appellant acknowledged the group was cautious not to disclose too much information to outsiders.  The appellant had not progressed past the most basic level of training.  The Tribunal was not satisfied that the appellant was ever in a position to know secrets about any militant, political or religious organisation as claimed.  The Tribunal was not satisfied there was any plausible reason why the appellant would pose a threat to any militant, religious or political organisation in Pakistan such that an organisation would want to eliminate him. 

9                     Finally, the Tribunal noted that even if it were wrong in concluding the appellant was not involved with JI, the appellant could safely relocate to another city such as Karachi.  The Tribunal noted the appellant had only a minor role in the organisation, if any at all, and it was unlikely he would pose any serious threat to the organisation.  The Tribunal did not accept that members of the group would search for him throughout the country.  In finding that it would be reasonable for the appellant to relocate to another part of Pakistan if he feared returning to Peshawar, the Tribunal noted the appellant was young, spoke Urdu, Punjabi and Pushtu and had an electrician's certificate and family support. 

The decision of the Federal Magistrate

10                  The appellant's grounds of review were, first, the Tribunal denied the appellant procedural fairness when making conclusions about his credibility.  The appellant submitted the Tribunal failed to put to him his failure to identify JI in his original application, his failure to mention training with JI and the reasons for doubting the authenticity of his training card and the translated undertaking.  The Federal Magistrate accepted the Tribunal did not make any positive finding that documents produced by the appellant were fraudulent or not genuine, although his Honour noted the Tribunal did express reservations in respect of the genuineness of the documents and whether they were corroborative of the appellant's claims.  On this matter, the Federal Magistrate said (at [40]):

I accept the respondent's submissions that the Tribunal did not make any positive finding that the documents submitted by [the appellant] were fraudulent or not genuine.  However, the Tribunal did express reservations in respect of the genuineness of the documents and whether they were corroborative of [the appellant's] claim.  The issue was [the appellant's] credibility and the authority reviewed above supports the contention that the decision-maker is not obliged to expose its mental process or any provisional view before making its final decision.  A fair reading of the Tribunal's decision indicated that this was the mechanism of the decision-making and it was not contrary to recognise authority on the approach to be adopted by a decision-maker.

11                  The appellant submitted, secondly, the Tribunal had made findings without evidence and made findings that were unreasonable in a Wednesbury sense and, thirdly, the Tribunal was unreasonable in a Wednesbury sense for failing to put certain issues to the appellant and in making adverse findings of fact when it appeared at the hearing that the Tribunal had accepted certain facts.  The Federal Magistrate indicated Wednesbury unreasonableness was an abuse of a discretionary power, a power not exercised by the Tribunal as it exercised a power to determine whether the statutory criteria under s 65 of the Migration Act 1958 (Cth) had been satisfied.  The Federal Magistrate found it was "nigh on impossible" to say the Tribunal's decision was unreasonable, irrational or illogical.  The fourth ground of review was that the finding that the appellant could relocate within Pakistan involved jurisdictional error.  The Federal Magistrate found that ground unsustainable.

The appeal and its disposition

12                  The appellant raised four grounds of appeal, although the first two are related.  Briefly summarised, the grounds were:

(i)                  The appellant was denied procedural fairness because the Tribunal did not raise with him the matters that led to its conclusion that the training card and undertaking were not genuine.  The Federal Magistrate erred in failing to conclude that he had been denied procedural fairness.

(ii)                The appellant was denied procedural fairness because the Tribunal did not invite him to comment on the information (from a third party) on which it must have based its conclusion about the various ways JI could be spelt. The Federal Magistrate erred in failing to conclude that he had been denied procedural fairness.

(iii)               The approach of the Tribunal to the appellant's claims was irrational, illogical or unreasonable. The Federal Magistrate erred in failing to conclude that its approach had been irrational, illogical or unreasonable.

(iv)              The approach of the Tribunal to the issue of relocation was based on no evidence or was unreasonable, irrational or illogical. The Federal Magistrate erred in failing to conclude that its approach had been unreasonable, irrational or illogical.

13                  In my opinion the only arguable point raised in the appeal is the first one (linked to the second).  As to the fourth ground, there is was no evidence before the Federal Magistrate to suggest that the Tribunal's consideration of the appellant's capacity to relocate was not based on any evidence.  It plainly was based, at least in part, on evidence given by the appellant himself.  As to the third ground, there is now a fairly well-developed line of authority in this Court that demonstrated illogicality or irrationality does not, of itself, constitute jurisdictional error: see the discussion in VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [15]-[18].  In any event the alleged illogicality or irrationality concerned the approach of the Tribunal in making a comparison between what was said by the appellant when he first made his application for a protection (or more specifically what the appellant failed to say in terms of detail) and what he later said.  While another approach could have been adopted, the Tribunal's approach is neither irrational nor illogical.  It was proceeding on the footing that the appellant could have been expected to articulate his claim with some precision at the outset, which he did not.  He only did so later.  The Tribunal was entitled to view this as casting doubt on the claims.

14                  The first and second grounds may conveniently be dealt with together.  There is authority which would support the proposition that the Tribunal could not reach a conclusion that the two documents were forgeries or fraudulent in some way without inviting the appellant to comment.  That is, it could not reach a conclusion they were not authentic, had not been issued by the bodies which the documents themselves suggest issued them and had been created for the purpose of supporting the appellant's claim for a protection visa without inviting the appellant to comment on the features of the documents (or perhaps matters extraneous to them) which might lead the Tribunal to that conclusion.

15                  However the starting point must be what the Tribunal meant when it used the word "genuine" in the passages referred to at [7] above.  I have already set out (at [10] above) how the Federal Magistrate viewed the approach of the Tribunal.  The views of the Federal Magistrate must be given significant weight: see Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 at [17].  The competing contentions about what the Tribunal might have meant can be illustrated by passages in WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597.  The Full Court said (at [51] and following):

…[The Tribunal] said that after having regard to the unsatisfactory nature of the appellant’s evidence and the “timing of the document” it was “not satisfied as to [the] genuineness” of the document. 

On its face the foregoing was a statement by [the Tribunal] the document was not authentic…

(…)

Alternatively, perhaps [the Tribunal] was not using the word “genuineness” in the sense of lack of authenticity in the document.  To make a bare assertion that the document was not genuine, that is to say, a forgery, would have been an arbitrary and unreasoned conclusion by [the Tribunal] unsupported by a scintilla of material.  If [the Tribunal] had acted in such a manner it would have raised the perception that the findings made by [the Tribunal] in that regard had been moulded to support a particular conclusion:  see:  Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 152, [42] … per Gleeson CJ, Gummow, Kirby and Hayne JJ at [42].  If that were so [the Tribunal] would not have performed the duty imposed upon it by the Act and the purported decision would be set aside as one made in the absence of authority or jurisdiction.

If, however, [the Tribunal] used the word “genuineness” in a loose sense intending to convey not that the document was a forgery but that the weight to be given to the content of the document provided no support to the “genuineness” of the appellant’s claim as to his degree of connection or involvement with Farahanipour, or the Marz-e-Porgohar group, then perhaps that was a conclusion available to [the Tribunal], notwithstanding the inappropriate or infelicitous expression of that conclusion.

Having regard to the reasons of [the Tribunal] in their entirety the latter construction should be accepted.

16                  Plainly any assessment of what a Tribunal member may mean in a particular passage in reasons for decision will depend on the particular claims being made, the material available to the Tribunal to assess those claims, events in the processing of the visa application leading to the decision and the reasons read as a whole.  Nonetheless the passage from the judgment of the Full Court quoted above illustrates the benevolent approach that this Court must take to reasons for decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 - 272 and 291.  With that in mind, it is possible to view, as the Federal Magistrate did, the Tribunal's observations about "genuineness" in the loose sense discussed by the Full Court.  Certainly no error has been demonstrated on the part of the Federal Magistrate in doing so.

17                  For the preceding reasons, the appeal should be dismissed with costs.

Associate:

Dated:              8 April 2005