Grounds two and three
29 The second and third proposed grounds of appeal, interpreted broadly, invite this Court to conduct its own review of the Tribunal's decision, or perhaps even of the Delegate's decision. Having regard to the appellant's status as a self-represented litigant, it is perhaps not surprising that the proposed grounds of appeal should be expressed in that way. I indicated to both parties that I proposed to interpret these two grounds of appeal as intending to allege that the Federal Circuit Court made an appealable error in failing to identify the jurisdictional errors committed by the Tribunal that had fairly been argued in that Court. Neither party objected to the Court interpreting the grounds in this way.
30 In assessing the merits of these proposed grounds, it is necessary to have regard to the nature of, and limits on, the jurisdiction of the Federal Circuit Court and the grounds of review that were argued before it.
31 Sub-section 476(1) of the Act confers on the Federal Circuit Court the same original judicial review jurisdiction in relation to the Tribunal's decision as the High Court has under paragraph 75(v) of the Constitution, subject to some exceptions that are not presently applicable. Its jurisdiction to grant relief by way of prohibition or mandamus, or to issue certiorari to quash the Tribunal's decision, could only be exercised if the Tribunal was shown to have made a jurisdictional error: see s 474 of the Act and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76].
32 As was said in Craig v South Australia (1995) 184 CLR 163 (Craig) (at 179), an administrative tribunal will make a jurisdictional error if it:
… falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
33 The list of errors embraced by the phrase "jurisdictional error" is not exhaustive: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf). In Yusuf, McHugh, Gummow and Hayne JJ said (at [82]), of the list in Craig:
[82] Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.
34 The Tribunal rejected the appellant's claim that he was an active or prominent member of Dawat-e-Islami. Although the Tribunal accepted that the appellant had been harmed in the past, it did not accept that the incidents in which he had been harmed were related in any way or that the events were "anything more than random, indiscriminate acts by unknown assailants for unknown reasons".
35 The application for judicial review was made on the following grounds (original spelling and grammar retained):
1. The procedure is too quick. I don't have a second chance to provide more evidence.
2. The Tribunal don't asked me to provide the original documents. I had all the original documents with me at all hearings.
3. The Tribunal thinks it is not genuine to my evidence but the Tribunal did not communicate with my authority to confirm evidence documents.
4. I had my passport since 2009, but that does not mean I had plan to travel with my mother to Umrah - I told the Tribunal my younger brother went to Umrah with my mother.
5. I disagree the Tribunal comment, number 35. He is not the driver only, he is also the active member as well. Maybe the interpreter had a mistake to translate, He is active member that's why target him, but luckily he saved his life.
36 The Federal Circuit Court correctly identified the first two grounds of review as involving a complaint that the appellant was deprived of the opportunity to provide the Tribunal with additional documentary evidence that he had in his possession at the hearing and that might have supported his claims. This ground was properly examined and rejected by the Federal Circuit Court Judge. At paragraph 13 of her reasons, the Federal Circuit Court Judge identifies numerous occasions in which the appellant had been given written invitations by the Tribunal to provide evidentiary material in support of his claims. It is not necessary for me to reproduce them here. I have read the written invitations and am satisfied that they were provided to the appellant.
37 The appellant cannot understand or read English. He relies on an interpreter to translate written materials to him. There is no evidence that the appellant complained before the Federal Circuit Court of being unable to have the written invitations translated to him, and he made no allegation of that kind before this Court. Rather, he said that he found the Tribunal procedures stressful and that the Tribunal hearing ended before he could provide the documents. The fact that the appellant had documents in his possession at the Tribunal hearing suggests that he had some understanding that documentary evidence could be provided to support his claims. Although he made a submission to this Court to the effect that he made a failed attempt to provide the documents to the Tribunal after the hearing had concluded, he did not allege that he had adduced any admissible evidence before the Federal Circuit Court to that effect. The Federal Circuit Court did not err in rejecting this ground of review.
38 The appellant's third ground of review was clumsily expressed. It was fairly interpreted by the Federal Circuit Court Judge as a contention that the Tribunal erred by failing to make its own enquiries as to the authenticity of documents that were said to support his claims. The appellant made no submission before this Court to the effect that the Federal Circuit Court had misunderstood the import of this ground or any other ground of review. He claimed that the grounds of review had been drafted by a friend and that he could not understand their meaning, even with the assistance of an interpreter.
39 In Minister for Immigration and Citizen v SZIAI [2009] HCA 39; (2009) ALJR 1123; 259 ALR 429 (SZIAI), the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) considered various judgments of this Court in which the failure of an administrative Tribunal to make obvious enquiries had been expressed in terms of a failure to comply with a "duty to enquire". The majority said (at [25]):
[25]. That term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
40 It was not necessary for the High Court to further explore those principles because, on the facts of the case before it, the further investigations it was alleged the Tribunal ought to have made would have yielded no useful result (at [26]).
41 In the present case, there is nothing to suggest that the Tribunal failed to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, in the sense described in SZIAI. The Federal Circuit Court Judge did not err in rejecting this ground of review.
42 By his fourth ground of review, the appellant alleged that the following passage from the Tribunal's reasons evinced an error:
[31] He told the Tribunal that he had never travelled outside Pakistan prior to travelling to Australia. He had no difficulties obtaining his passport or departing the country. He had already obtained his passport prior to these incidents as he planned to travel with his mother for Umrah.
43 In short, the appellant denies that he had planned to travel with his mother to Umrah. He submits the Tribunal erred in stating that he had obtained his passport in 2009 because he had planned to do so. Even if the Tribunal made a factual finding in that respect, the appellant has failed to demonstrate that the error is a jurisdictional error in the sense described in Craig or Yusuf. Moreover, the appellant did not dispute that his passport was indeed issued in 2009, nor did he dispute that he had no difficulties departing Pakistan. The inquiry as to whether the appellant was able to leave Pakistan without difficulty was a relevant one, having regard to the appellant's primary claim that he was a "main target" of Shia extremists. The question of whether or not the appellant obtained his passport in 2009 for the specific purpose of travelling to another locality with his mother is an issue properly described by the Federal Circuit Court Judge as one upon which nothing turned.
44 The appellant's fifth ground of review complained of an alleged error by the Tribunal in understanding and summarising the nature of the appellant's factual claims. The particular passage complained of relates to the appellant's claim that in 2010 he was driving the car of the Vice-President of Dawat-e-Islami when they were shot at. The Vice-President of the party was alleged by the appellant to have been killed in the incident and the appellant was also shot, but survived. The Tribunal said (at [35]):
[35] The Tribunal asked why particularly are they targeting him and was told because he was always with the main person, driving his car, they always target the main people and that is why they are after him now. The Tribunal asked whether he was a main person in this party and was told that Chand was the main person and he was driving his car, he was a member of the party, he is a member of Dawat-e-Islami.
45 The appellant alleges that the Tribunal failed to appreciate that the appellant was not merely a driver for the Vice-President, but that he was himself an active member of Dawat-e-Islami and was, for that reason, also a target of Shia extremists. There is nothing in the passage complained of to indicate that the Tribunal misunderstood the appellant's claim in that way. It is clear from a fair reading of the Tribunal's reasons as a whole that it understood the appellant to be claiming that he had been targeted because of his active and prominent involvement in Dawat-e-Islami. The Tribunal ultimately rejected the appellant's claims that he had been targeted for that reason, but the reasons do not disclose any jurisdictional error by the Tribunal, by asking itself the wrong question or failing to fulfil its statutory duty to undertake a "review" in the sense described by the High Court in SZIAI (supra).
46 The Federal Circuit Court Judge correctly interpreted the fifth ground of review as one alleging that the Tribunal had misinterpreted the appellant's claims. The ground of review was rejected on the basis that it was "not apparent that the Tribunal misconstrued or failed to consider the Applicant's claims" (at [29]). The Federal Circuit Court Judge was correct.
47 The reasons of the Federal Circuit Court disclose no appealable error in the exercise of its original jurisdiction to determine the application for judicial review brought by the appellant.
48 I dismiss the appeal. I will hear the parties as to costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.