FEDERAL COURT OF AUSTRALIA

SZOAR v Minister for Immigration and Citizenship [2010] FCA 777

THE COURT ORDERS THAT:

1.                  The notice of appeal filed on 30 March 2010 be dismissed.

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

1                     This is an appeal against a judgment of a Federal Magistrate delivered on 16 March 2010, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

background and procedural history

2                     The appellants are citizens of Pakistan who arrived in Australia on 6 March 2009.  On 6 April 2009 the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the Minister for Immigration and Citizenship (“the Minister”) refused that application.  The appellants then applied to the Tribunal for a review of that decision.  The Tribunal subsequently affirmed the delegate’s decision.  The appellants then made an application for judicial review of the Tribunal’s decision to the Federal Magistrates Court of Australia.

3                     The first appellant included his wife, the second appellant, in his application form.  The second appellant made no claims in her own right, having only completed an application form D.  I will refer to first appellant as “the appellant” throughout these reasons.

claims of political PERSECUTION

4                     The appellant claimed to fear persecution in Pakistan because the police suspect he is a member of Jammat ud Dawa (“JuD”).  JuD is an Islamic welfare and relief organisation which is suspected of having links to terrorist groups.  The appellant claimed that he rented out his house in Okara to a Mr Hassan, who was General Secretary of the JuD.  The appellant claimed that while he was away working in Lahore the police entered the house, arrested Mr Hassan and seized the property.  He claimed that a friend told him of the arrest and that he was wanted by the police for being an active member of the JuD.  The friend suggested that he should disappear.  The appellant also claimed that his friend told him that the police subsequently went to the house on three occasions looking for the appellant.

5                     The appellant claimed that after this incident, while he was working in Lahore, he received a telephone call from his wife informing him that a Deputy Superintendent of Police had been looking to arrest him.  The appellant claimed that while he has no links with the JuD, if he is to go back to Pakistan the police will treat him as being a member of that party and arrest him because the JuD is a banned organisation.

the TRIBUNAL AFFIRMS THE DELEGATE’S DECISION – APPELLANT NOT A CREDIBLE WITNESS

6                     The Tribunal did not accept that the police intended to arrest the appellant, as he claimed, nor that they had seized his house.  The Tribunal noted that the appellant initially claimed that the police arrested Mr Hassan and him in early December 2008, yet his evidence before the Tribunal was that the police found out about his interest in the property after 10 February 2009 and had been looking for him since then.  The Tribunal concluded that, had the police been interested in speaking to the owner of the house property, as the appellant had claimed, they would have done so much sooner than February 2009.

7                     The Tribunal also relied upon independent country information which suggested that, had the police suspected the appellant of being a member of the JuD in December 2008, they would have detained him then.

8                     Having found the appellant’s evidence lacked credibility, the Tribunal was not satisfied that the documents that he provided to it corroborated his claims.  Accordingly, the Tribunal was not satisfied that the appellant (or his wife) was a person to whom Australia owed protection obligations under the Convention, and it affirmed the delegate’s decision.

the federal magistrate finds no jurisdictional error

9                     The appellant filed an application for judicial review in the Federal Magistrates Court, which  raised the following grounds:

1.         The Tribunal failed to provide the applicant with an opportunity to appear before it, and it thus failed to comply with the mandatory requirements of section 425(1).

Particulars:

(i)         Section 425 mandates an oral hearing at which both the Applicant and the Tribunal are physically present (giving the word ‘before’ its natural English meaning, in the context, of ‘in front of’) in the one place, in order that the Applicant may present their case.

(ii)        The Tribunal was not physically present at the hearing, because the Tribunal was in Sydney, and thus the applicants did not ‘appear before’ the Tribunal.

2.         The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in s.424A which relevantly states...

            It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submission about the credibility problems in my evidence; therefore the Tribunal had erred by denying me procedural fairness in respect of that issue.

10                  In respect of ground 1, the Federal Magistrate noted that the Tribunal wrote to the appellant on 13 July 2009, stating that the hearing would be undertaken remotely, with the appellant being in Griffith and the Tribunal being elsewhere.  However, that letter also stated:  “If there is a preference to attend in person in Sydney, please contact the Tribunal as soon as possible.”  His Honour observed that the Migration Act 1958 (Cth) (“the Act”) clearly permitted the Tribunal to conduct hearings via video-link, and that s 425 does not require an applicant to appear in person, relying on SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712. Further, since the appellant did not object to this method of hearing, or claim that he was in some way impeded from giving his evidence or presenting his arguments, his Honour concluded that the Tribunal’s discretion to hold the hearing via video-link did not miscarry, in the circumstances.

11                  In respect of ground 2, the Federal Magistrate held that the Tribunal was only required to notify an appellant of “information” that constituted facts, not conclusions or concerns arising out of the appellant’s evidence before the Tribunal.  Accordingly, his Honour found that the Tribunal’s conclusion that the appellant’s evidence was not credible was not “information” for the purposes of s 424A, relying on SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26.  Finally, his Honour found that there was no evidence before the Court to suggest that the Tribunal gave any “undertaking” as the appellant alleged it had.

12                  The Federal Magistrate also rejected the appellant’s oral submissions that there was a lack of good faith on the part of the Tribunal and that it had failed to give proper and careful consideration to his claims and evidence.

13                  The Federal Magistrate therefore dismissed the appellant’s judicial review application for want of jurisdictional error.

The CONDUCT OF PRESENT APPEAL

14                  On 30 March 2010, the appellant filed a notice of appeal in this Court which alleged that:

1.         His honors judgment delivered on the 16 March 2010 failed to find the error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903.

2.         The Honorable FM failed to take into consideration that the Tribunal had not dealt with any substantive way, a key component of my claim that my life will be under threat on our return to Pakistan. By not dealing with this matter, there was a constructive failure to exercise jurisdiction on the part of the Tribunal, or lack of procedural fairness.

3.         The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.

4.         The Hon. FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.

            [Errors in original]

15                  At the hearing before me on 26 May 2010, the appellant appeared by telephone.  He had earlier applied to the Court for leave to do so, based upon his limited finances.  The appellant was unrepresented, but assisted by an interpreter.  Mr Baird appeared for the first respondent.

16                  The appellant relied on his application and made oral submissions to much the same effect as he did before the Tribunal.  That is, that both he and his wife’s lives will be in danger if they have to return to Pakistan and that Pakistan is not a safe place because innocent people are being killed.  Mr Baird relied upon the outline of written submissions that had been filed on behalf of the Minister.

consideration

17                  None of the grounds raised in the appellant’s notice of appeal was raised before the Federal Magistrate.  The authorities clearly establish that leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so:  see O’Brien v Komesaroff (1982) 150 CLR 310 at 319 and Branir Pty Ltd v Owston Nominees [No 2] Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [38].  Nonetheless, since the appellant is unrepresented, I will consider the grounds raised in the notice of appeal. 

18                  At the outset of that examination, it is appropriate to observe that the appellant’s grounds of appeal are quite formulaic in their terms and they are similar, if not identical to, the grounds of appeal that have been used before in other migration appeals, including a number of appeals before me in this sittings:  see SZKNA v Minister for Immigration and Citizenship [2007] FCA 1806 at [10]; SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 and SZNDJ v Minister for Immigration and Citizenship [2010] FCA 778.  Nonetheless, I have attempted to identify whether any of the grounds raises any apparent error on the part of the Federal Magistrate.

19                  Turning to the first ground, because of the unparticularised and general nature of it, it is not possible for me to even begin to assess whether the Federal Magistrate did in fact make any such errors.  The appellant’s first ground of appeal must therefore be rejected.

20                  In relation to the second ground of appeal, it is clear from the Tribunal’s reasons that it carefully considered each of the appellant’s claims, including his claim that he and his wife’s lives would be in danger if they were to return to Pakistan, and gave comprehensive reasons for deciding that the appellant did not face such a risk.  To succeed on this type of ground, the appellant must identify a specific claim he made to the Tribunal and then demonstrate that the Tribunal did not address that claim.   Here, it is not possible from the general and unparticularised nature of this ground of appeal, to begin to assess whether the Tribunal did in fact overlook any part of the appellant’s claims.  The appellant’s second ground of appeal must therefore be rejected.

21                  The appellant’s third ground of appeal asserts that the Federal Magistrate dismissed his application without considering the legal and factual errors contained in the decision of the Tribunal.  This ground of appeal is also general and unparticularised.  The appellant has not pointed to any error in the Federal Magistrate’s reasons, nor any specific legal error in the Tribunal’s decision.  Furthermore, I consider it is clear from the reasons for decision of the Federal Magistrate that each of the grounds of review raised by the appellant was dealt with in a clear and comprehensive manner.  As to the assertion there were factual errors in the Tribunal’s decisions, there is clear authority that such errors cannot, without more, amount to jurisdictional error:  see Abebe v Commonwealth (1999) 197 CLR 510 at 560; [1999] HCA 14 at [137].  The appellant’s third ground of appeal must therefore be rejected.

22                  As to the appellant’s fourth ground of appeal it, too, is unparticularised and in the most general of terms.  Moreover, whether the Tribunal’s decision was “unjust” and “made without taking into account … of [his] circumstances …” is redolent of a merits review, which of course, is not open in an appeal to this Court.  Furthermore, these are matters that fall squarely within the exclusive fact-finding role of the Tribunal:  see, eg NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9].  The appellant’s fourth ground of appeal must also be rejected.

23                  Finally, in case there may be some error in the Federal Magistrate’s decision that falls within these general and unparticularised grounds of appeal, I have examined the Federal Magistrate’s reasons (summarised at [10] to [12] above) and I cannot detect any such error in them.

conclusion

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

Associate:

Dated:         23 July 2010