FEDERAL COURT OF AUSTRALIA

SZHOA v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 501

SZHOA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1793 OF 2006

ALLSOP J

3 APRIL 2007

SYDNEY

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.

REASONS FOR JUDGMENT

1                     This is an appeal from orders made by the Federal Magistrates Court on 28 August 2006 in which the Federal Magistrates Court dismissed an application for judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”) handed down on 18 October 2005.  The application before the Federal Magistrates Court relevantly was in the form of an amended application which is in the Court book.  Three grounds were contained in the application.  The Federal Magistrate records that the second was not pressed before him and therefore there were two grounds, ground 1 and ground 3. 

2                     The appeal to this Court contained two grounds.  Those two grounds are in substance the two grounds argued before the Federal Magistrate.  An appeal is, of course, the correction of error of the Court below.  Given the substantial identity of the issues in the amended application with the notice of appeal, it can be taken that the essential character of the appeal is that the Federal Magistrate erred in failing to detect jurisdictional error in the Tribunal in the manner identified in the notice of appeal and in the amended application before the Federal Magistrate to the extent it was pressed. 

3                     It is appropriate at this point to say something about the applicant and the Tribunal's decision.  The appellant is a citizen of Pakistan who arrived in Australia in November 2004.  His claims under the Refugee Convention and Protocol (the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees) were based on a claim that he had been an active member of the Pakistan Muslim League, being the party of the former Prime Minister Nawaz Sharif who was removed from power in 1999 by a military coup at that time led by the chief of the Pakistan military at that time General Musharraf, now President Musharraf. 

4                     The appellant had claimed that as a result of his activities, he had been detained and beaten on two occasions and that an arrest warrant had been issued for him.  He claimed that if he was returned to Pakistan, he would be imprisoned, would not be able to freely express his political opinions and would suffer prejudice of a sufficiently serious kind to warrant the conclusion of persecution within the Refugees Convention.  Thus, he claimed to have a well-founded fear of persecution within the meaning of Article 1A(2) of the Convention. 

5                     The Tribunal was unable to reach a conclusion favourable to the appellant without having a hearing and thus invited the appellant to a hearing.  The appellant took advantage of that offer and appeared before the Tribunal.  There was some request to delay the hearing pending documents coming from Pakistan.  However, the Tribunal conducted the hearing on 22 August 2005.  At the hearing the appellant indicated that he was still awaiting documentation from Pakistan in support of his case.  The Tribunal agreed to delay finalising its decision after the hearing for some 20 days.  The appellant had asked for a further month. 

6                     What transpired was that material was forwarded to the Tribunal by the appellant. By the time it reached the Tribunal, the Tribunal had signed its reasons on 28 September 2005.  It is to be noted that the signing of these reasons on 28 September was significantly beyond the 20 days allowed for further information and more that the month asked for by the appellant.  A little under a week after the signing of the reasons, the Tribunal received a submission from the appellant.  The submission consisted of a restatement of the appellant's written statements and other material, including a transcript of the hearing.  The Tribunal created a file note recording its consideration of this material, which file note was in the following terms:

File Note

On 4 October 2005 the Tribunal received a submission from the Applicant after finalising its decision on 28 September 2005.  The Tribunal has reconsidered its decision in light of this further submission that has decided not to recall or alter its decision.

The Tribunal notes that this submission consists of a restatement of the Applicant’s written statements and a transcript of the hearing.  The submission suggests that:

“On perusal of this transcript, the Applicant has furnished some of the information given in his written statement, but the details he had explained in his statement has not come out fully.  We submit that the first information submitted along with the original refugee application seems more reliable rather than the answers that were supplied to the questions raised by the RRT Member.”

The Tribunal in making its decision placed emphasis on the Applicant’s oral evidence over an [sic] above the written evidence.  The Tribunal believes this approach is reasonable in view of the Applicant’s oral evidence to the Tribunal that someone else had completed the protection visa application and that although the Applicant had signed it, he [had] not read it and was unable to testify as to its accuracy.

The Tribunal notes that the submission includes a copy of a Warrant of Arrest issued on the 30 July 2005 to the Applicant requiring him to appear in court on the 17 September 2005 in respect to the committing of a crime.  As discussed with the Applicant at the hearing in light of the country information (set out at page 10 of the decision) indicating that the prevalence of fraudulent documents in Pakistan and in view of the unconvincing nature of the Applicant’s evidence as to why the authorities would wish to arrest him the Tribunal does not place weight on this document as establishing that the Applicant does face arrest or imprisonment on his return to Pakistan for a Convention reason.

7                     The Tribunal did not amend the reasons that it had drafted, nor change its decision that it had come to on 28 September.  That decision was to affirm the decision of the delegate not to grant a protection visa.  The unamended copy of the decision record being the reasons was sent to the appellant.  The file note was not sent to the appellant. 

8                     The amended application, to which I have already referred, was considered in some detail by the Federal Magistrate.  The first ground of the amended application was in the following terms:

1.                  That the Tribunal made the following erroneous finding because of its failure to to [sic] give proper weight to the claims the Applicant set out in detail in his original Statement of Claims (Court Book pages 23-25) and thereby ignored the Applicant’s claims which was a jurisdictional error as per the High Court decision in Craig.

“The Tribunal did not find the Applicant to be a credible witness.  The Tribunal acknowledges that, in assessing an applicant’s credibility a degree of latitude should be exercised and that an applicant should be given the benefit of the doubt when generally credible but unable to substantiate all claims”.  (Court Book Page 104, para 03)

The Applicant submit that in terms of sec. 414 of the Migration Act 1958, it was mandatory on the part of the Tribunal, ie “must review the decision”, to conform to its basic function of review and at this instance the Tribunal has failed to do that.

[emphasis in original]

9                     The Federal Magistrate considered in some details the terms of the reasons of the Tribunal and came to the view that the conclusion that the Tribunal had drawn as to the unreliability of the evidence of the appellant did not display any failure to attend to the task as laid down by the Migration Act or general law.

10                  Within this consideration by the Federal Magistrate of the first ground, the Federal Magistrate also considered a proposition inferentially put to him that the Tribunal had displayed apprehended or other bias in coming to the view it did about the evidence of the appellant.  I have read the reasons of the Federal Magistrate and I agree with the conclusions that he drew, that the findings on pages 12 and 13 of the reasons of the Tribunal were on their face open to the Tribunal to make and do not of themselves disclose either bias or any other failure to attend the legal task upon which the Tribunal was engaged.

11                  The second ground of the amended application pressed before the Federal Magistrate, being ground 3 in the amended application, was in the following terms:

3.              That the Tribunal was procedurally unfair because of its failure to consider the new information or the additional documentsthe Applicant submitted to the Tribunal on 04/10/2005 (decision was handed down on 18/10/05) despite the Tribunal having consented to receive these documents as per the agreement at Court Book page 105 para 04, last sentence).  The Applicant submit that due to this procedural unfairness and its decision to refuse the Applicant’s claims, the Applicant has suffered irreparable damage to his life.

The Applicant submit that the Tribunal’s finding to the effect “The Tribunal is not satisfied that the Applicant has a well founded fear of persecution by reason of his political opinion or any other Convention ground on his return to Pakistan” was not justified in these circumstances and therefore contrary to law.

[emphasis in original]

12                  This ground, as can be seen from its terms, was a complaint about an asserted failure to deal with the additional and late provided information.  As can be seen from my recounting of the events earlier, the Tribunal did take into account that later material.

13                  It is unnecessary to discuss whether the Tribunal was obliged to deal with the material.  It took the perfectly proper course of dealing with it having been received.  I tend to think that any other course would have been fraught with danger.  The Tribunal did examine the material and did not deny the appellant the benefit of the hearing rule within the rules of procedural fairness by not examining that material.

14                  I can see no reason why the procedure adopted by the Tribunal at the hearing was not entirely fair, and thus I do not think that there has been any failure to accord procedural fairness by reason of looking at the documents when they arrived after the preparation of the reasons.  The Tribunal's consideration of that material, as reflected in the file note, raises the question of the fairness of the approach to supporting documentation having its origin in Pakistan.  It is clear from the Tribunal's reasons that it raised with the appellant the question of the difficulty of relying upon documents sent from Pakistan (see page 8 of the Tribunal’s reasons).

15                  It can be seen from pages 12 and 13 of the reasons of the Tribunal that it was unimpressed with the lack of degree of detail and background knowledge displayed by the appellant in relation to his claims, and given what appears in the reasons of the Tribunal, I do not think it can be concluded that there was a failure of the Tribunal to address with the appellant the kinds of issues reflected in the file note. 

16                  That last discussion as to the operation of procedural fairness pre-supposes the free operation of those rules, notwithstanding the existence of s 422B in the Migration Act.

17                  The current jurisprudence on the effect of that provision can be seen in the Full Court's decisions in SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 andMinister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214.  SZCIJ is subject to an unheard application for special leave for the High Court.  Until the Full Court, or the High Court says otherwise, I propose to approach the question of the operation of s 422B for the purposes of this case on the basis that to the extent that s 424A deals with the subject matter of raising issues with an applicant by reference to material placed before the Tribunal, s 424A should be seen as a code.  Approaching the matter that way, the material placed before the Tribunal, which was examined after the preparation of reasons, plainly fell within s 424A(3)(b).  In any event, as I have said, I am not persuaded that there was any failure to accord procedural fairness by the way the Tribunal dealt with the matter as reflected in the file note.

18                  When this matter was before me in February, I raised with counsel for the Minister, the question of the operation of the High Court's decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592.  I have had the considerable advantage of the careful submissions of Mr Johnson on that issue.  The matter was not addressed by the appellant.  I am persuaded for the reasons set out in Mr Johnson’s submissions that no issue under SZBEL 231 ALR 592 arises.

19                  I also raised with counsel for the Minister in February the question as to the failure by the Tribunal to incorporate what it said in the file note in its reasons, or amended reasons.  As I have indicated, reasons were prepared; the late material came in; it was considered and a note was made by reference to that late-provided material.  The Tribunal did not change its views.  If I may say so without intending any personal disrespect to the Tribunal member, who was no doubt busy in her work, but it would have been more appropriate, I think, to incorporate those considerations into an amended body of reasons so that the appellant was not misled into thinking that his late file submissions had not been considered.  I hasten to repeat that that is not a personal criticism in the slightest, and I have not considered what may have persuaded the Tribunal to take the course it did.  As Mr Johnson said in his submissions to me, the Tribunal was not functus in relation to its task.  Nevertheless, the precise state of what was to be done in circumstances of the late provision of information after the body of reasons has been prepared, may have persuaded the Tribunal member to take the course she did. 

20                  In any event, on the last occasion I raised with counsel for the Minister, what the consequence of this was and whether there was a failure to comply with s 430 of the Act, and whether or not that led to a conclusion of jurisdictional error.

21                  Mr Johnson, in the second section of his submissions, has reminded me of a number of relevant cases.  In somewhat different contexts, the Courts, including the Full Court of this Court and the High Court, have dealt with the question of failure to provide reasons after the decision.  In Minister for Immigration and Multicultural and Indigenous Affairs v NBDS (2006) 90 ALD 614, I set out at [21] those decisions of the Full Court and the High Court, to which can be added Minister for Immigration and Multicultural Affairs and W157/00A (2002) 125 FCR 433. 

22                  In NBDS I said at [21] that a failure to give reasons is not of itself jurisdictional error.  I see no reason to re-evaluate the conclusion I drew on that occasion.  After the last occasion before Court, the appellant filed a document in support of his appeal entitled “Affidavit”.  It is a one-page document of nine paragraphs.  It set out the history of his claims with, if I may say so, precision, identified why he was not accepted by the Tribunal, and then set out reasons why the conclusion reached by the Tribunal was wrong.  The document also has a short submission on the late-provided material, which appears to work on the assumption that the Tribunal did not have regard to it.  Having read that document and the submissions contained within it, I am not persuaded that they reveal any jurisdictional error on behalf of the Tribunal.  The appellant put no further submissions to me orally.

23                  Therefore, having considered the reasons of the Tribunal, the reasons of the Federal Magistrate, and what has been put before me, I am not prepared to conclude that the Tribunal approached the matter in any way other than in accordance with the Act.  I am not persuaded that it failed to accord the appellant procedural fairness.  I am persuaded that there was no breach of s 424A.  I am otherwise unable to identify any error of a jurisdictional character, in particular arising from the treatment of the late provided submissions.

24                  Therefore, I am not persuaded that the Federal Magistrates Court erred in its conclusion that the Tribunal did not display jurisdictional error.  For those reasons, the orders of the Court will be that:

1.         The appeal be dismissed.

2.         The appellant pay the respondent's costs.

25                  The Court so orders.

Associate:

Dated:         11 April 2007