FEDERAL COURT OF AUSTRALIA

SZLZY v Minister for Immigration and Citizenship [2008] FCA 1655

Migration Act 1958 (Cth)

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

VAF v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 206 ALR 471

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

SCAA v Minister for Immigration & Multicultural Affairs [2002] FCA 668

NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 805

SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358

SZLZY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1297 of 2008

REEVES J

7 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an appeal against the judgment of Federal Magistrate Raphael delivered on 30 July 2008which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal’s decision was handed down on 24 January 2008 and affirmed a decision of a delegate of the first respondent to refuse the appellant a protection visa. The appellant contends that the Federal Magistrate erred in determining that the Tribunal’s conclusions on certain matters were not ‘information’ for the purposes of s424A of the Migration Act 1958 (Cth) (‘the Act’). The appellant also seeks to raise, for the first time, what appears to be an allegation of bias against the Tribunal.

FACTUAL SUMMARY

2                     The appellant is a citizen of Pakistan who arrived in Australia on 28 June 2007. On 13 July 2007 the appellant lodged an application for a protection visa and on 9 October 2007 a delegate of the first respondent refused that application. On 26 October 2007 the appellant applied to the Tribunal for a review of that decision.

3                     The appellant lodged a statutory declaration in support of his visa application which stated that he ‘had difficulties with the TNSM [Tehreek-e-Nafaz-e-Shariat-e-Mohammadi] since 1994’. The party advocates a very strict brand of Islam when [sic] extends to curbing any conduct perceived to be pro-Western. From 1994 [he has] observed a marked change in the social life of Swat [where he lives]. It has now reached a point where it is not safe to live in Swat unless you are a follower of the TNSM and conform to its laws’. The appellant went on to detail two confrontations he had with TNSM extremists in 2007, both relating to his support for his nieces and nephews.

4                     At the hearing before the Tribunal on 10 December 2007, the appellant claimed that he had been viewed as an opponent of the TNSM in Swat. The appellant claimed that he was known for demonstrating liberal tendencies and in particular for supporting equality of education. He claimed that the TNSM had attempted to force him to conform to their  religious standards, with which he could not agree, and he claimed that if he returned to Pakistan the authorities would not protect him and he would ‘be killed or forced to join the TNSM and fight a jihad’.

5                     The appellant produced his passport to the Tribunal, and provided a statement from a pharmacist to substantiate the head injury he claimed to have suffered at the hands of extremists, as well as newspaper articles about the general situation in Swat.

THE TRIBUNAL’S DECISION

6                     The Tribunal affirmed the delegate’s decision because it was not satisfied that the appellant’s claims were true because they lacked the necessary detail. Specifically, the Tribunal did not believe that he had spoken out about the education of girls and the value of polio vaccinations, nor that he would do so if he returned to Pakistan, as his views were ‘not sufficiently strong or even genuinely held’. Further, it was not satisfied that he was a victim of the TNSM. Specifically the tribunal attributed no weight to the statement from the pharmacist, noting that he was not a witness to the event and had merely recorded an account given by the appellant's brother.

7                     The Tribunal concluded that it was not satisfied that the authorities would fail to protect the appellant on his return to Pakistan, stating that the appellant had not satisfied it:

‘that he was the subject of particular adverse interest by the TNSM or that he was beaten by them in the past; or that even if [he] was, that the attacks were not random as opposed to  ...targeted at him specifically, despite his claims to the contrary’.

8                     For these reasons the Tribunal found that the appellant had not faced, and would not face, a real chance of Convention-related harm in Pakistan.

THE FEDERAL MAGISTRATE’S DECISION

9                     The  sole issue the appellant raised in his amended application before the Federal Magistrate, was that the Tribunal had failed to comply with s424A of the Act by not giving ‘adverse information written [sic in writing] to the applicant for comments, which constitutes jurisdictional error under s424A of the Act’.

10                  The appellant then provided eight particulars of the adverse information. The Federal Magistrate found that seven of the eight particulars were the conclusions reached by the Tribunal and, as such, did not constitute ‘information’ for the purposes of s 424A of the Act (see [13] of his reasons). In relation to the eighth particular, his Honour found it referred to independent country information and that was excluded from the operation of s424A(1) by  s424A(3)(a) of the Act. The Federal Magistrate therefore dismissed the appellant’s application for judicial review.

THE PRESENT APPEAL

11                  On 18 August 2008 the appellant filed a notice of appeal in this Court which relevantly alleges that:

1.                The Federal Magistrate erred in finding that the conclusions reached by the Tribunal were not information for the purposes of s 424A.

2.                The Federal Magistrate erred in not finding that the Tribunal approached the matter with a closed mind because it wrongly used evidence given by the appellant at the hearing in order to reject his claims.

3.                The Federal Magistrate erred in not finding that the Tribunal’s conclusions were the reasons for rejection of the appellant’s claim.

12                  At the hearing of the appeal before me on 3 November 2008, the appellant appeared in person, unrepresented, but assisted by an interpreter. Ms Pownall appeared for the first respondent.

13                  Ms Pownall pointed out in her submissions that, grounds 1 and 3 (above) appear to raise the same issue i.e. whether the Tribunal’s conclusions were information for the purposes of s 424A. That conclusion is supported by the fact that the non-summarised version of ground 3 refers to the eight particulars the appellant gave of the alleged breach of s 424A in his application for judicial review before the Federal Magistrates Court.

14                  Further, Ms Pownall submitted that ground 2 is effectively an allegation of bias and that was not raised before the Federal Magistrate. Ms Pownall therefore objected to that allegation being raised for the first time on appeal, submitting that it was not in the interest of justice to do so because that ground had no prospects of success.

15                  As noted above, grounds 1 and 3 allege that the Federal Magistrate erred in rejecting the appellant’s claims that the Tribunal had breached s 424A of the Act. The eight particulars provided by the appellant in support of the similar ground in his application for judicial review before the Federal Magistrates Court were as follows: 

i)          He does not claim to have been hospitalised as a result of that incident (CB 134);

ii)         He also claims his family has been relocated by the army due to fighting between the military and the Islamist [sic] (CB 134);

ii)         The [appellant] was unable to give sufficient particularised details of the events despite considerable prompting by the Tribunal to persuade it that he was a victim of the TNSM or that the TNSM had an adverse interest in him or that they would have an adverse interest in him if he returned to Pakistan now or in the reasonably foreseeable future (CB 134);

iv)        The Tribunal has found that the [appellant] is not of any interest to the police or TNSM, it follows that the issue of relocation does not arise CB 135);

v)         That the [appellant] could become a victim of random acts of violence, however this would, arguably, make him a victim of civil disorder and not necessarily a refugee from persecution (CB 135);

vi)        It is not a requirement that the state concerned guarantee the safety of its citizens from harm caused by none-state [sic] persons (CB 135);

vii)       The Tribunal is not satisfied that the authorities would fail to provide the [appellant] with the protection he would be entitled to should he return to Pakistan (CB 135);

viii)      The Tribunal is mindful of the situation in Pakistan and considers it not implausible that the [appellant] may become the victim of a random act of violence: however this does not make him a refugee from persecution (CB 136).

16                  In my view particulars (i) and (ii) are merely recounts by the Tribunal of the claims the appellant made to it. I do not therefore agree with the Federal Magistrate that they constitute conclusions drawn by the Tribunal, as described in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (‘SZBYR’). Even so, in my view, the material in those two particulars is plainly information the appellant “gave for the purposes of the application” to the Tribunal and, as such, is excluded from the operation of s 424A(1) by s 424A(3)(b): see SZBYR at [16].

17                  Otherwise, I agree with the Federal Magistrate that particulars (iii) to (vii) inclusive, variously include conclusions arrived at by the Tribunal in weighing up the evidence, or the subjective appraisals, thought processes or determinations of the Tribunal and, as such, do not constitute ‘information’ for the purposes of s 424A(1) of the Act: see SZBYR at [18].

18                  Conversely, and crucially, none of them constitutes information or knowledge of a factual character that was provided to, or gained by, the Tribunal: see VAF v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [26] and [27].

19                  As to particular (viii), I agree with the Federal Magistrate that it appears to be grounded on independent country information about the situation in Pakistan, which information is excluded from the operation of s 424A(1) by s 424A(3)(b). As to the balance of the information in that particular, I consider it constitutes a conclusion i.e. that the appellant may become the victim of a random act of violence, and a determination as to his refugee status under the Convention i.e. this does not make him a refugee from persecution, which together were ‘a part of the reason for affirming’ the delegate’s decision. However, in my view, the primary information upon which these conclusions and determinations were grounded for the purposes of s 424A(1), remained the excluded independent country information referred to above.  

20                  For these reasons, I consider grounds 1 and 3 have no merit and must be rejected.

21                  In my view ground 2 is quite obscure. It is in the following terms:

‘The Honourable Federal Magistrate erred in not finding that the Tribunal made a jurisdictional error when it did not follow proper procedure to assess the applicant’s claim. The Tribunal wrongly used the information which was given by the applicant at the hearing. The applicant informed the Tribunal that the local army relocate his family because they wanted to fight with the extremist people TNSM with minimum human loss. So the army could avoid serious loss. But the tribunal was mentally fully ready to reject the claim, so it took this reply as an opportunity to make a reason for rejection’.

22                  Ms Pownall has submitted that this ground effectively amounts to an allegation of bias. I presume that interpretation flows from the words: ‘the Tribunal was mentally fully ready to reject the claim, so it took this reply as an opportunity to make a reason for rejection’.

23                  If this ground does amount to an allegation of bias, in my view, it has at least two fundamental defects. First, it follows from the obscurity of its terms, as mentioned above, that it has not been distinctly made, as it is required to be: see Minister for Immigration and Multicultural Affairs v Jia Legeng  (2001) 205 CLR 507 (‘Jia Legeng’) at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. The appellant has provided no particulars of the allegation beyond the complaint that the Tribunal relied upon certain evidence he gave to reject his claims.

24                  Secondly, it has not been clearly proved, as it is also required to be: see Jia Legeng (above). No evidence has been provided to support the allegation. Instead, it appears to rely completely on the Tribunal’s reasons for decision and, in my view, they do not come close to establishing bias on the part of the Tribunal. It has been pointed out a number of times in this Court that it would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal: see e.g. SCAA v Minister for Immigration & Multicultural Affairs [2002] FCA 668 at [38] per von Doussa J, NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 805 at [25] per Hely J and SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ.

25                  On the other hand, if this ground is not to be interpreted as an allegation of bias, the only other reasonable interpretation of it is that it seeks to challenge the Tribunal’s assessment of the evidence the applicant gave to it about the local army relocating his family. If so, it amounts to an invitation to this Court to engage in a review of the Tribunal’s fact finding role which is not its function on an appeal of this kind: see Attorney-General of  NSW v Quin (1990) 170 CLR 1 at 34 – 36, Minister for Immigration and Ethnic Affairs  v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291 – 292, Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 at [132] – [134] and Minister for Immigration & Multicultural & Indigenous Affairs v Epeabaka (2001) 206 CLR 128 at [64].

26                  For these reasons, I agree with Ms Pownall’s submissions that ground 2 has no reasonable prospects of success and I refuse the appellant leave to raise it for the first time on this appeal.

CONCLUSION

27                  For these reasons, this appeal must be dismissed. I will hear the parties on the question of costs.

Associate:

Dated:         7 November 2008