FEDERAL COURT OF AUSTRALIA

SZJGL v Minister for Immigration and Citizenship [2008] FCA 550

SZJGL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2477 of 2007

COWDROY J

28 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The Appellant pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1                          The appellant appeals from the decision of Federal Magistrate Nicholls delivered on 29 November 2007 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 1 August 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant the appellant a Protection (Class XA) visa (‘the protection visa’).

BACKGROUND

2                          The appellant is a citizen of Pakistan who arrived in Australia on 15 November 2005. On 30 December 2005 the appellant lodged an application for the protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for the protection visa on 8 March 2006. On 31 March 2006 the appellant applied to the Tribunal for a review of the delegate’s decision.

3                          The appellant claimed to have well-founded fear of persecution resulting from his political opinion. The appellant claimed to be a member of the Pakistan Muslim League Nawaz (‘the PML(N)’). The appellant claimed that he was persecuted and discriminated against after the fall of the PML(N) government in October 1999. The appellant also claimed before the Tribunal (but not in the protection visa application) that he had been a member of the city council in Sialkot City for one year.

4                          The appellant claimed that his brother had been the President of the PML(N) in the Sialkot Cannt area and was a close associate of the leading members of the PML(N). The appellant claimed that in 2004 he and his brother, along with other members of the PML(N), staged an anti-government protest. The appellant claimed that after the protest he was arrested and charged with possession of illegal weapons and with assault on a leader of the Pakistan Muslim League Quaid-e-Azam (‘the PML(Q)’). The appellant claimed that he spent 15 days in gaol before being released on bail. He claimed however that the matter was still under investigation and that he believed that ‘the Police can take action at any time and arrest me again’.

5                          The appellant claimed that a leader of the PML(Q) attempted to force him to join the PML(Q). The appellant claimed that upon his refusal the PML(Q) leader ‘threatened me with consequences’. The appellant further claimed that ‘the opposition’ interfered with his packaging and supply servicesbusiness which led to the appellant declaring bankruptcy.

6                          The appellant claimed that his brother had been arrested and detained ‘approximately 11 times’ and that his father had also been ‘harassed by the Police several times’. The appellant claimed that his ‘in laws’ had been ‘threatened and tortured by unknown gangs’.

7                          The appellant claimed that he paid a bribe of 5,000 rupees to gain a ‘clear character certificate’ from the police to renew his passport. The appellant claimed that he believed he would be ‘arrested and persecuted’ if he returned to Pakistan because of his affiliation with the PML(N).

THE TRIBUNAL DECISION

8                          The Tribunal noted that there were inconsistencies between the appellant’s evidence in relation to his brother’s role within the PML(N) and his own membership in the Sialkot city council. The Tribunal considered that such inconsistencies were relevant to the appellant’s credibility.

9                          The Tribunal noted that the appellant had claimed that Mr Ijaz Sheikh had been a member of the National Assembly for his local area. The country information before the Tribunal indicated that the Mr Ijaz Sheikh was a member of the Provincial Assembly, not a member of the National Assembly. The appellant claimed at the hearing before the Tribunal that Mr Ijaz Sheikh had been a member of both assemblies. The Tribunal noted that there was nothing in the information available to the Tribunal to indicate that this was correct. The Tribunal considered that the appellant’s evidence relating to Mr Ijaz Sheikh cast doubt on the veracity of the appellant’s claims that he himself had been a member of the PML(N) in Sialkot City; that he was a supporter of Mr Ijaz Sheikh; and that the appellant’s brother was a close associate of Mr Ijaz Sheikh.

10                        The Tribunal also noted that the appellant had claimed that no one from the PML(N) had been elected to the National Assembly from Sialkot in the 2002 election. The country information before the Tribunal indicated that one person had been elected to the National Assembly from Sialkot. The Tribunal considered that the appellant’s claim regarding the 2002 election cast doubt on the appellant’s claimed membership in the PML(N) in Sialkot City.

11                        The Tribunal did not consider that the appellant was a credible witness. The Tribunal did not accept the appellant’s claims regarding his own or his brother’s involvement in the PML(N).

12                        The Tribunal was not satisfied that the appellant had well-founded fear of persecution for any Convention Relating to the Status of Refugees 1951 (‘Convention’) reason. The Tribunal affirmed the delegate’s decision to refuse to grant the protection visa to the appellant.

APPLICATION IN THE FEDERAL MAGISTRATES COURT

13                        By application filed in the Federal Magistrates Court of Australia on 25 August 2006 the appellant sought judicial review of the Tribunal’s decision. The application raised four grounds of review with particulars, which claimed inter alia:

1.    The appellant would be at risk of suffering persecution if deported from Australia;

2.    The Tribunal erred in law ‘as it has misdirected its enquiries as to profile of the Applicant instead of directing its enquiries as to whether the appellant held political opinion’.

3.    The Tribunal decision fell into jurisdictional error by asking itself the wrong question and applying the wrong test. The Tribunal’s letter sent pursuant to s 424A of the Migration Act 1958 (Cth) ‘misdirected enquiries’ in relation to the appellant’s claims.

4.    The Tribunal decision was an improper exercise of the power conferred upon it by the Migration Act 1958 (Cth) because the Tribunal ‘failed to the effective state protection’.

14                        Federal Magistrate Nicholls considered that the first ground of review represented a request for the Court to engage in impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259. His Honour found that such ground did not identify any jurisdictional error in the Tribunal decision.

15                        In considering the second ground of review the Federal Magistrate found that the Tribunal had not failed to understand or properly apply the relevant principles and had not made any error in its application of any relevant procedure. His Honour accordingly rejected such ground.

16                        Nicholls FM considered the third ground of review and found that the Tribunal had not asked itself the wrong question or applied the wrong test ‘in that it did not fail to consider the applicant’s claims’. His Honour also found that the Tribunal’s questioning at the hearing and its invitation to comment by way of its letter dated 22 May 2006 pursuant to s 424A of the Migration Act 1958 (Cth) (‘the Act’) had not ‘misdirected’ the enquiry away from the appellant’s claims. His Honour found that the ground was not made out.

17                        The Federal Magistrate rejected the fourth ground of review because no obligation or issue of effective state protection had arisen before the Tribunal.

18                        Nicholls FM found that the grounds of review did not reveal any jurisdictional error in the Tribunal decision. His Honour accordingly dismissed the appellant’s application.

APPEAL TO THIS COURT

19                        On 19 December 2007 the appellant filed a notice of appeal in this Court which raised three grounds of appeal as follows:

1.    The Federal Magistrate erred in holding that the Tribunal erred in law ‘as it has misdirected its enquiries has [sic] to profile of the Applicant instead of directing its enquiries as to whether the applicant held political opinion’. The Tribunal looked at ‘specific non-relevant situation [sic] failed to consider the thrust of the Applicant’s claims’.

2.    The Federal Magistrate failed to find that the Tribunal decision fell into jurisdictional error by asking itself the wrong question and applying the wrong test.

3.    The Tribunal misdirected its enquiry in its questioning of the appellant ‘to ascertain if the applicant are [sic] wanted’. The Tribunal’s letter sent pursuant to s 424A of the Act ‘misdirected enquiries’ in relation to the appellant’s claims.

FINDINGS

20                        The first ground of appeal cannot be sustained. Federal Magistrate Nicholls made no finding that the Tribunal had erred as claimed in the first ground of appeal. However, the Court notes that the Tribunal did consider whether the appellant ‘held political opinion’, but concluded on the basis of its adverse credibility finding that the appellant held no such claimed political opinion.

21                        The allegation that the Tribunal erred because it ‘looked at specific non-relevant situation [sic] failed to consider the thrust of the Applicant’s claims’ was raised in substantially identical terms before the Federal Magistrate. Nicholls FM referred to such claim and found that it could only relate to the factual findings made by the Tribunal relating to the veracity of the appellant’s claims. His Honour said at [25]:

The Tribunal’s enquiries were both relevant to the applicant’s claims and, as I have said, they specifically arose out of the different aspects of the applicant’s claims and were, in my view, indeed comprehensive. Nor can I see jurisdictional error in the Tribunal’s finding about the applicants credibility.

22                        The Court is unable to discern any error in the decision of either the Federal Magistrate or the Tribunal as claimed.

23                        The second ground of appeal alleges that the Federal Magistrate ‘failed to hold that the RRT involved jurisdictional error affecting the decision’, and claims that the Tribunal asked the wrong questions and applied the wrong test. In the absence of any particulars, it is not established that the Tribunal ‘asked wrong questions and applied the wrong test’. The Tribunal decision contains no apparent error in the questions it asked and the tests it applied. The Court finds that the second ground of appeal does not constitute a rational ground of appeal. The Court accordingly rejects such ground.

24                        The third ground of appeal alleges that the Tribunal misdirected its enquiry by reason of the questions which it asked the appellant. Further, the appellant claims that the letter sent to him pursuant to s 424A of the Act (‘the s 424A letter’) ‘misdirected enquiries in relation to the Applicant’s claims’.

25                        The Tribunal was empowered to forward the s 424A letter to the appellant seeking comment upon the issues which were raised. No response was received from the appellant, and in the absence of a response, the Tribunal was required to determine the matter on the evidence before it. The Tribunal determined the matter accordingly. Further, the Tribunal was entitled to ask questions and to make findings based upon the answers provided to such questions.

26                        There is nothing before the Court to indicate that either the Tribunal’s questions or the s 424A letter ‘misdirected’ its enquiry. The Federal Magistrate did not consider that the Tribunal’s actions constituted misdirection. The Federal Magistrate did not err in this finding. The third ground of appeal is accordingly not made out.

27                        On 28 May 2008 the appellant filed written submissions in this Court which raised additional grounds of appeal. The first additional ground alleges that the Tribunal was biased against the appellant. As such ground was not raised before the Federal Magistrate, leave is required for the appellant to raise such ground on appeal: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[24]. If it is ‘expedient in the interests of justice that the question should be argued and decided’, leave may be granted: see O’Brien and Others v Komesaroff (1982) 150 CLR 310 at 319 (Mason J). Such consideration requires the Court to consider the merits of the ground sought to be raised: see Iyer at [24]; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26].

28                        The appellant claims that the Tribunal ‘made up decision before the hearing conducted’. Such claim asserts that the Tribunal made its decision by pre-determination, which constitutes an allegation of actual bias: see Dickason v Edwards and Others (1910) 10 CLR 243 at 260. An allegation of actual bias must be distinctly made and clearly proved: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531.

29                        The appellant has not provided any evidence to the Court to justify an allegation of actual bias in these proceedings. The only evidence the Court has before it is the Tribunal decision itself. In SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 the Full Court said at [16]:

It is likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the decision themselves…

30                        The Court considers that the appellant’s allegation of bias has no merit. It follows that it is neither expedient nor in the interests of justice to grant leave to the appellant to argue such ground.

31                        The second additional ground of appeal alleges that the appellant was ‘emotionally upset’ and ‘totally confused’ at the Tribunal hearing. No medical documentation was provided by the appellant in support of his claimed medical condition.

32                        The appellant’s claim relating to his psychological state was also made before the Federal Magistrate. Nicholls FM found that the appellant’s claim did not reveal any failure on the part of the Tribunal in providing a fair hearing or a fair opportunity for the appellant to be heard. His Honour also found that such claim did not demonstrate any jurisdictional error on the part of the Tribunal. This Court finds no error in the Federal Magistrate’s decision. The ground of appeal is accordingly rejected.

33                        There is no jurisdictional error apparent in the decision of either the Tribunal or the Federal Magistrate. It follows that this appeal must be dismissed.

Associate:

Dated:         28 May 2008