BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 | Case summary

Federal Court of Australia|2017-09-15|Before: Flick J

The applicant's vulnerable circumstances 29 The third purported Ground of Appeal also mirrors the same argument as was advanced before the Federal Circuit Court: [2017] FCCA 202 at [67] to [76]. 30 The essence of the argument previously advanced was a claim on the part of the Appellant that when he first arrived in Australia a taxi-driver had taken him to Lakemba, being an area said to be dominated by Sunni Muslims, in circumstances where the Appellant was a Shia Muslim. As pointed out by the primary Judge, the Tribunal did address this claim and rejected the evidence relied upon by the Appellant. Such evidence, the Tribunal concluded, was an attempt to conceal details regarding the assistance in fact provided to the Appellant upon his arrival. 31 Again, there is no self-evident error in the conclusion reached by the primary Judge that the Tribunal did in fact consider the evidence adduced.

Not dealt with in accordance with law 32 The fourth purported Ground of Appeal is one of those Grounds which is "free standing", being an apparent argument not expressly directed to whether it is suggested that the Tribunal or the Federal Circuit Court failed to resolve the Appellant's "matter … in accordance with the law". 33 An appellant, even an unrepresented Appellant, cannot rely upon this Court to itself formulate an argument as to why he has not had a claim resolved in a legally correct manner. The present Ground of Appeal is no more meaningful than a ground which asserts that a primary Judge "failed to follow necessary laws applicable to me": cf. NAXD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 243 at [3]. That ground, North, Dowsett and Conti JJ concluded, also failed "to state 'briefly, but specifically the grounds relied upon in support of the appeal'". Similarly, a ground which simply asserted that "the learned primary judge erred in fact and law" has been held to be "starkly uninformative" and not in compliance with this Court's Rules: SQMB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 165 at [10] per Finn, Emmett and Bennett JJ. 34 Nor, with respect, is there any self-evident basis upon which it could be concluded that the Appellant's application for a protection visa has not been determined in accordance with law. 35 During the course of the hearing of the appeal, however, the Appellant explained that Ground 4 was intended to be directed to both his claims as to: inadequacies in translation; and error in the manner in which the Tribunal resolved the evidence and explanation as to why the Appellant was taken to Lakemba upon his arrival in Australia. As such, Ground 4 merely repeats Grounds 1 and 3. 36 Just as those two Grounds have been rejected, Ground 4 is also rejected.

The UNHCR guidelines 37 The fifth purported Ground of Appeal, in addition to not identifying any error said to have been committed by either the Tribunal or (more relevantly) the Federal Circuit Court, suffers an additional defect: it is directed to the "learned delegates of the Minister". 38 It was, moreover, not an argument canvassed before the Federal Circuit Court. Directed as it is to a decision of the delegate, it also confronts a serious question as to whether it is a matter in respect to which this Court has jurisdiction: Migration Act 1958 (Cth) s 476A. 39 Although it may well be that the Appellant seeks to, in some unspecified manner, invoke the United Nations High Commissioner for Refugees Eligibility Guidelines for assessing the international protection needs of religious minorities from Pakistan, this was not a matter referred to by the Tribunal nor relied upon before the Federal Circuit Court. The Guidelines formed part of the materials that were before the delegate - but no further reference was made to those Guidelines in the reasons for decision of the delegate. 40 In such circumstances, any argument on appeal would presumably require the leave of the Court to now advance. But no leave would in all probability be granted. The Guidelines formed no part of the submissions advanced to the delegate, the Tribunal or the Federal Circuit Court. Nor did the Guidelines form part of the reasoning process of the delegate, the Tribunal or the Federal Circuit Court. Any argument that those Guidelines in some unspecified manner impacted upon any of the decisions made seems unlikely to have any prospect of success. Leave to raise any new argument was (in any event) not sought and no explanation provided as to why any argument founded upon the Guidelines was not previously relied upon. 41 There is certainly no discernible error on the part of the Federal Circuit Court in not resolving an argument not advanced.

The failure to properly deal with evidence 42 The sixth proposed Ground of Appeal is one of those Grounds which is not directed to any alleged error on the part of the Federal Circuit Court and more directed to error on the part of the Tribunal. 43 It may be that this Ground overlaps the fourth ground of review relied upon before the Federal Circuit Court. It may also be the case that this Ground of Appeal was intended to separately contend that the Tribunal "failed to give proper, genuine and realistic consideration" to the claims advanced and, in particular, failed to consider "newspaper articles about Shias being killed in Pakistan". If so, that was an argument resolved by the Federal Circuit Court: [2017] FCCA 202 at [78] to [79]. But so much is not certain. 44 If that assumption be correct, no error is self-evident in the manner in which the Federal Circuit Court rejected that argument. As pointed out by that Court, the reasons for decision of the Tribunal refer to the newspaper articles: [2017] FCCA 202 at [79]. 45 If that assumption be incorrect, the content of the sixth proposed Ground of Appeal cannot otherwise be discerned. 46 Either way, the purported Ground is rejected. 47 This ground of challenge also suffers from the difficulty that the Tribunal rejected the very basis of the claim that the now Appellant feared persecution by reason of his being a Shia Muslim. The Tribunal found (in part) as follows: 44. The Tribunal does not accept, having considered all of the evidence that the applicant had any involvement with Shia organisations in Pakistan. The Tribunal considers it likely that the applicant has fabricated his claims to be a Shia in an attempt to provide a basis for Australia's protection and he is instead a member of the Sunni majority in Pakistan. In reaching these conclusions the Tribunal has considered the documentary evidence provided to the Department and the Tribunal and the submissions regarding the documentation. … (Footnote omitted.)

The threat to life 48 The seventh purported Ground of Appeal has some, but no necessary, correlation with the manner in which ground 3 of the grounds of review were developed before the Federal Circuit Court. 49 Before that Court there was some reference to the evidence before the Tribunal that the Appellant feared that "his life was in danger in Pakistan as a Shia Muslim": [2017] FCCA 202 at [69]. 50 As pointed out by the Federal Circuit Court Judge, that evidence was in fact considered by the Tribunal which concluded that the evidence there relied upon did not support "claims [that the Appellant] fled Pakistan because he feared harm": [2017] FCCA 202 at [72]. 51 There is no self-evident error in the conclusion reached by the primary Judge in respect to this aspect of the case. 52 If the seventh purported Ground of Appeal is intended to do more than re-canvas Ground 3 of the grounds of review before the Federal Circuit Court, it is difficult to give content to the argument sought to be conveyed. Although the reference to "the Respondents" would include the Second Respondent to this proceeding, namely the Administrative Appeals Tribunal, it is difficult to discern any basis upon which it could be concluded that the Tribunal either: did not "properly deal" with "the threat to the life of the applicant"; or failed to apply the "law of natural justice". As explained during the course of the Appellant's oral submissions before this Court, the expression "not properly dealt with" and the claim that the "law of natural justice was not applied" was an attempt to focus attention upon the manner in which the Tribunal resolved the Appellant's claims in respect to: the "medical report", being a Patient Discharge Slip in respect to the discharge of the Appellant from DHQ Hospital Faisalabad on 16 August 2009; and the need to relocate within Pakistan to avoid violence. The Tribunal unquestionably addressed the question as to whether there was a "real risk" that the now Appellant would suffer harm if he returned to Pakistan. Part of the Tribunal's findings thus state: 50. The Tribunal has found above that there is not a real chance that the applicant will suffer serious harm for any of the reasons he has claimed. The Tribunal has also not accepted that the applicant has suffered serious harm in the past. For the same reasons as those discussed above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm if he returns to Pakistan. Accordingly, having regard to the findings of fact above in relation to the real chance of serious harm, the Tribunal does not accept on the evidence before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm because of these reasons. Accordingly, the Tribunal is not satisfied that there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. There is no basis upon which it can be concluded that the claim advanced - that there was a "threat to the life" of the Appellant - was not "properly dealt with" by the Tribunal. The manner in which the Tribunal resolved particular aspects of the evidence and the weight given to that evidence was a matter for the Tribunal to determine. 53 This Ground of Appeal is also rejected.

The attached bundle of the written evidence 54 The eighth purported Ground of Appeal is again one of the "free standing" grounds which is not directed to any asserted error on the part of either the Tribunal or the Federal Circuit Court. 55 It suffers from an additional defect in that it fails to identify which particular piece of evidence is sought to be relied upon or the particular finding of either the Tribunal or the primary Judge which is said to be erroneous. 56 The purported Ground of Appeal, moreover, has all the hallmarks of an impermissible attempt on the part of the Appellant to either canvas an argument not previously relied upon before the primary Judge or an impermissible attempt to cavil with the factual findings of the Tribunal. 57 The eighth purported Ground of Appeal is also rejected.

An asserted denial of procedural fairness 58 The penultimate Ground of Appeal repeats the allegation that the Tribunal denied the Appellant procedural fairness. But the manner in which procedural fairness is said to have been denied is not further articulated. 59 To the extent that this purported Ground of Appeal seeks to repeat the first purported Ground of Appeal, it suffers the same fate. To the extent that it purports to identify some unidentified denial of procedural fairness, no content can be attributed to the Ground and it is rejected.

Fear of attack at the hands of Sipahe Sahaba 60 The final purported Ground of Appeal seems to be a repetition of the fifth ground of review as advanced before the Federal Circuit Court. 61 That ground of review was considered and rejected by the primary Judge: [2017] FCCA 202 at [87] to [90]. 62 There is no self-evident error in the conclusion reached by the primary Judge.

CONCLUSIONS 63 The appeal should be dismissed. None of the purported Grounds of Appeal have been made out. 64 It should be noted that considerable assistance has been provided by the careful reasons of the Federal Circuit Court Judge. In the absence of any Ground of Appeal identifying any clearly articulated appellable error on the part of a primary Judge, considerable judicial comfort can be gained on appeal from the detailed reasoning of a primary Judge and a recognition that arguments previously advanced for resolution have been carefully considered. 65 The repeated references in these reasons to the deficiencies in the formulation of the Grounds of Appeal, it should also be noted, are not a mere reliance on formalism. A reason why r 36.01(2)(c) of the Federal Court Rules requires the specification of the grounds of appeal is to provide assistance as to the precise question to be resolved. An appeal is not an opportunity for an appellate court to conduct some free-ranging and unstructured review of the reasons for decision of a primary judge to determine if it can discern an error otherwise not canvassed by any of the parties. Nor is an appeal an opportunity for the appellate court to consider whether it would have resolved the grounds of review relied upon at first instance in the same manner as the primary Judge. 66 There is no reason why costs should not follow the event such that the Appellant should pay the costs of the Respondent Minister. A fixed sum costs order in the amount of $4,203 is sought pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth). An affidavit filed in support of that application quantifies the amount that would likely be recoverable on taxation to be between $3,903 and $4,503, being between 65% and 75% of the Respondent Minister's professional costs. Costs should be ordered to be paid in the fixed amount as claimed.

THE ORDERS OF THE COURT ARE:

The appeal is dismissed.
The Appellant is to pay the costs of the First Respondent fixed in the amount of $4,203. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Migration Act 1958(Cth)s 476A, s 476A.

Federal Court Rules 2011(Cth)r 36.01(2)(c)

REASONS FOR JUDGMENT 1 The Appellant is a citizen of Pakistan. 2 In January 2014 the Appellant applied for a protection visa. He claimed his religion to be Shia Islam and to have been attacked by members of Sipah-e-Sahaba, a terrorist group. A delegate of the Minister refused that application in July 2014. Review was sought by what was then the Refugee Review Tribunal. In June 2015 that Tribunal affirmed the delegate's decision not to grant the protection visa. 3 Judicial review of the Tribunal's decision was sought. In February 2017 the Federal Circuit Court dismissed the proceeding: BGZ15 v Minister for Immigration and Border Protection [2017] FCCA 202. 4 The Appellant now appeals to this Court. He appeared before this Court unrepresented, albeit with the assistance of an interpreter. 5 The appeal is to be dismissed with costs.

THE GROUNDS OF REVIEW & THE GROUNDS OF APPEAL 6 The grounds of review relied upon before the Federal Circuit Court were expressed as follows (without alteration): 1. The second responded relied on a disputed interpretation of the applicant's responses. Also the tribunal hired an incompetent interpreter, who made numerous mistakes during translation, which were identified by the applicant's representative in subsequent responses. 2. The second responded did not considered full extent of evidence presented and omitted to take into account some trivial evidences. 3. The second responded failed to take into consideration applicant's vulnerable situation after arrival in Australia and have relied heavily on his residence in a "sunny dominated area" of Lakemba. 4. That the second respondent failed to afford to the applicant procedural fairness, by failing to give proper, genuine and realistic consideration to the applicant's claims. 5. The second respondent failed to take into account the applicant's articulated fear of attack at the hands of Sipahe Sahaba, and evidence to support it. 7 The Grounds of Appeal as set forth in the Notice of Appeal were more extensive or, at the very least, some of the grounds were expressed in very different terms and some would initially appear to raise very different arguments. Those Grounds of Appeal provide as follows (without alteration): 1. The second responded relied on a disputed interpretation of the applicant's responses. Also the tribunal hired an incompetent interpreter, who made numerous mistakes during translation, which were identified by the applicant's representative in subsequent responses. 2. The second responded did not considered full extent of evidence presented and omitted to take into account some trivial evidences. 3. The second responded failed to take into consideration applicant's vulnerable situation after arrival in Australia and have relied heavily on his residence in a "sunny dominated area" of Lakemba. 4. That the applicants matter was not dealt with in accordance with the law and the legal manners and as such it is without the jurisdiction. 5. That the learned delegates of the Minister were unable to determine the matter of the applicant in accordance with the criteria given in the protection as given the guidelines by the UNHCR. 6. That the killings of the minority Shias is widely known all around the world. It is beyond the understandings of the applicant that he was confronted and tortured by Sunni extremists, and have brought evidence before the Tribunal, the applicant has also brought in to the notice of the delegate and appeared before the RRT and made his submission by way of evidence. That the applicants evidence was not properly dealt and was simply ignored by the Respondents. This is miscarriage of the justice. 7. That the threat to the life of the applicant was not properly dealt with and the real harm to the life of the applicant was not addressed by the Respondents. The law of natural justice was not applied in the matter of the applicant. Whereas the failure of this application of the law has resulted in the grave miscarriage of justice. 8. That the applicant attached the bundle of the written evidence and the letters issued by the applicants party, all these letters are available on the file, the atrocities' committed on the Shia Muslims have a history of the sectarian violence, the applicant by way of the evidence attached all the reports given in the electronic and the print media. 9. That the second respondent failed to afford to the applicant procedural fairness, by failing to give proper, genuine and realistic consideration to the applicant's claims. 10. The second respondent failed to take into account the applicant's articulated fear of attack at the hands of Sipahe Sahaba, and evidence to support it 8 It should be noted at the outset that Grounds 1, 2, 3, 9 and 10 fail to identify any appellable error said to have been committed by the Federal Circuit Court Judge; the errors alleged in those Grounds are all expressly directed at challenging the decision of the Tribunal. To unquestionably endorse such an approach would be to impermissibly reduce the proceeding before the Federal Circuit Court to a "preliminary skirmish": Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ. Such an approach is to be firmly rejected: SZVBT v Minister for Immigration and Border Protection [2017] FCA 355 at [10] per Flick J. Such an approach also denies to this Court on appeal any real assistance as to why the primary Judge may have erred in her own resolution of the grounds of review advanced below. 9 The remaining Grounds, being Grounds 4, 5, 6, 7 and 8 are not expressly directed to any error, be it on the part of the Tribunal or the Federal Circuit Court. They seem to be "free standing" arguments not directed to any decision previously made. Ground 7 is perhaps in a different category in that it refers to "the Respondents". 10 It should not be left to this Court on appeal to itself review the reasons for decision of the primary Judge and attempt to identify appellable error. Nor should it be left to this Court to itself try to identify a ground of review that may have been available to the Applicant, irrespective of whether it was previously advanced for consideration. 11 In such circumstances, it is considered that the preferable approach that should be pursued is for this Court to review the reasons for decision of the Federal Circuit Court Judge and to determine whether there is any self-evident error as to the manner in which that Court resolved the grounds of review previously advanced for consideration and which it would appear are sought to be re-agitated on appeal. A course which construes Grounds of Appeal which impermissibly seek to repeat arguments directed to the question of whether the Tribunal erred as though they were expressed as an argument that the Federal Circuit Court erred in not accepting like arguments previously advanced is a course which: is commonly pursued in this Court; recognises difficulties confronting unrepresented appellants; and recognises that the Court's duty is not solely to the unrepresented litigant but "entails ensuring that the trial is conducted fairly and in accordance with law" and a duty to strike a "balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties" (cf. Hamod v New South Wales [2011] NSWCA 375 at [309] to [315] per Beazley JA, Giles and Whealy JJA agreeing; AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [39], (2016) 241 FCR 30 at 44 to 46 per Flick, Griffiths and Perry JJ). In striking that balance, it is necessary to balance compliance with the requirement imposed by r 36.01(2)(c) of the Federal Court Rules 2011 (Cth) to state "briefly but specifically, the grounds relied on in support of the appeal" and the need to ensure that an unrepresented appellant "suffers no meaningful disadvantage in the conduct of her or his case because she or he does not have the skills or knowledge of a lawyer" (MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 at [32] per Mortimer J). 12 In the absence of any appellable error having been specifically identified in the purported Grounds of Appeal, or in the absence of an ability to construe a Ground as meaning that the primary Judge erred in not accepting much the same argument as previously advanced, this Court has no general function to resolve an unspecified and unidentified error. A consideration as to whether there is any self-evident error, it is recognised, may well fall far short of a Judge of this Court independently parsing and analysing a Tribunal decision with a view to identifying a potential argument as to jurisdictional error and thereafter proceeding to resolve that newly formulated argument. In the absence of a self-evident error, this Court has no general duty or function to itself articulate a question of law. 13 With reference to the Notice of Appeal in the present proceeding, the unrepresented Appellant maintained in his oral submissions to this Court that he drafted the Notice himself but did not "know what to say" in respect to his failure to identify any error said to have been committed by the Federal Circuit Court. Needless to say, such a response provided no assistance in identifying any appellable error.

Deficiencies in translation 16 The first purported Ground of Appeal seeks to re-agitate the first ground of review advanced before the primary Judge. That was an argument to the effect that the standard of translation services provided in the hearing before the Tribunal was "incompetent". 17 An argument as to alleged deficiencies in translation was an argument advanced before the Tribunal and resolved by the Tribunal. The reasons of the Tribunal thus state in part as follows: 47. In considering these issues, the Tribunal has had regard to the claims regarding the interpretation difficulties. As stated above, the Tribunal has not accepted the applicant's claims regarding the interpretation difficulties. The Tribunal does not accept that the applicant's "friends" listening to the recording establishes that the interpreting was affected due to various factors. The Tribunal also considers that the "examples" identified by the applicant were in fact clarified during the hearing and although the Tribunal initially had some difficulties understanding the nature of the applicant's business, this was clarified by the applicant. The Tribunal notes that although the applicant's representative claims that the interpreter incorrectly interpreted the applicant's business as "toys and swings", the applicant's statement to the Department refers to his business in "Toys Manufacturing". The Tribunal does not accept that the initial difficulties the Tribunal had understanding the nature of the applicant's business were due to interpreting problems, but instead were due to the Tribunal seeking the clarify how he made an income from having swings and other equipment installed in parks. This issue was explained by the applicant and the Tribunal indicated during the hearing that the issue had been clarified. In addition, although the Tribunal accepts that the interpreter may have incorrectly interpreted his response as a small area of Layyah he subsequently explained during the hearing that he had said it was a small area close to Layyah, which was also accepted by the Tribunal during the hearing. The applicant has not identified any other areas of concern which are material to his claims and the Tribunal does not accept that he has identified any incorrect translation errors or mistakes, or that he has not done so because of "inadequate time". The Tribunal considers he has not done so because there are no interpreting errors which are material to his claims and evidence provided during the hearing. The Tribunal does not accept it is necessary or desirable to obtain a transcript of the recording or provide the applicant with additional time to listen to the recording. The applicant has clearly listened to the recording and has identified two areas of concern. The Tribunal has accepted that these areas of concern have been clarified, and indeed have been clarified during the hearing. 18 It was common ground that the Tribunal was obliged to afford procedural fairness when conducting the hearing. Subject to such statutory provisions as may otherwise apply, at the core of procedural fairness is an opportunity to be heard. The mere allocation of time to present evidence and submissions may fall well short of providing an opportunity to be heard where (for example) a party has no command (or very little command) of the English language. As a general rule, the requirements of procedural fairness cannot be met if a person does not understand questions being asked and is not given a fair opportunity to respond: Attorney-General v Udompun [2005] 3 NZLR 204 at 225 per McGrath, Glazebrook, William Young and O'Regan JJ. Many cases have recognised that deficiencies in translation may deprive a party of an opportunity to be heard: W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788; Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050, (2002) 122 FCR 322; Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230; SZJZS v Minister for Immigration and Citizenship [2008] FCA 789 at [32], (2008) 102 ALD 318 at 325 per Flick J; Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 at [223] to [231], (2006) 154 FCR 365 at 419 to 421 per Graham J. 19 But "[w]hether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case": SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [5], (2013) 219 FCR 212 at 215 per Allsop CJ. 20 So much was recognised by the primary Judge. The authority relied upon by that Judge as setting forth the principles to be applied was the decision of Edelman J sitting as a Judge of this Court in BZAID v Minister for Immigration and Border Protection [2016] FCA 508, (2016) 242 FCR 310: [2017] FCCA 202 at [44] to [58]. 21 In the circumstances of the present case, the primary Judge concluded that the first ground of review had not been made out. That Judge expressly addressed the deficiencies in the standard of interpretation previously relied upon and rejected the argument then advanced. 22 There is no self-evident error in reaching that conclusion.

BGZ15 v Minister for Immigration and Border Protection

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