SZNNV v Minister for Immigration and Citizenship

Judgment (8 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The appellant is a Pakistani citizen. He arrived in Australia on 10 August 2008 and about six weeks later lodged an application for a protection (class XA) visa. 2 He failed to persuade a delegate of the first respondent ("the Minister") or the second respondent on two reviews of the delegate's decision that he had a rightful claim. Although he succeeded in having the first tribunal's decision quashed, the second tribunal affirmed the Minister's decision, and he failed to satisfy a federal magistrate that there was any basis for setting that decision aside. It is from that judgment that he now appeals. The notice of appeal, like the application before the federal magistrate, focussed on the way in which he alleged his claim had been made to the tribunal. Before the federal magistrate his primary contention was that the tribunal had failed to consider his case because it had not understood the basis of his claim. He also complained that he had been deprived of an opportunity to be heard on what was "a central and determinative question". His appeal alleged error on the part of the federal magistrate in not accepting these contentions.

[2]

Background 3 The appellant supported his application with a two-page statement. In the statement the appellant said he was a member of the Pakistan Muslim League ("PML") and, when the PML split into two groups, called the PML(N) and the PML(Q); he joined the PML(Q). He claimed he established an office of PML(Q) in his area (in Lahore) and campaigned for its candidate in the November 2007 general elections. He said the PML(Q) was held responsible for the murder of Benazir Bhutto on 27 December 2007 and workers from the party she led, namely the Pakistan Peoples Party ("PPP"), "broke and burnt offices of PML(Q)". Some of them, he stated, threatened to kill him if he did not shut down the office and, when he did not do as they demanded, they destroyed it. On another occasion, he said, they came to his house when he was absent, armed with deadly weapons and "made firing". He also stated they stole his motorbike and torched it. Later, he declared, workers fired on him, injuring him in the leg. He claimed that "internal war is taking place in every city in Pakistan" and "no one is safe". 4 To qualify for a protection visa the appellant first had to demonstrate that he was a non-citizen to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol ("the Convention"): Migration Act 1958 (Cth) ("the Act") s 36(2). In short, that meant he first had to establish he was a refugee, namely, a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. (See Article 1A(2) of the Convention.) 5 Section 91R of the Act requires that he also show that: (a) the reason or reasons is or are "the essential or significant" reason or reasons for the persecution; (b) the persecution involves "serious harm" to him; and (c) involves "systematic and discriminatory conduct". 6 After the application was lodged the appellant supplied a number of documents to the Department of Immigration and Citizenship, including what purported to be: An undated certificate on the letterhead of the PML(Q) from a person whose position in the party was unexplained, stating that the appellant had worked "in this party" since 1996 and was "a very enthusiastic, energetic and young hard worker of our party"; An undated certificate from a medical practitioner in Lahore certifying that he had examined the appellant, saw a wound on his left leg and stating that "the burn may be due to bullet injury"; An affidavit from a friend of the appellant dated 6 September 2008 in essence summarising the claims that he made in his statement but adding that after he left Pakistan "his opponent are regularly threatening his parents that they will kill him". An affidavit from his brother bearing the same date and saying the same things. An affidavit from his mother also bearing the same date in substantially identical terms. 7 The appellant attended an interview with a delegate of the Minster on 24 November 2008. On 16 December 2008 the delegate refused the appellant's application. 8 On 3 January 2009 the appellant applied to the tribunal for a review of the delegate's decision and, on 11 March 2009 the tribunal ("the first tribunal") affirmed the delegate's decision. However, on 2 October 2009, by consent, the Federal Magistrate's Court issued a writ of certiorari quashing the tribunal's decision for jurisdictional error and mandamus requiring it to redetermine the application according to law. 9 The appellant's application for review of the delegate's decision was considered afresh by a differently constituted tribunal ("the second tribunal") in January 2010. After hearing from the appellant and his migration agent it, too, affirmed the delegate's decision. The appellant then applied to the Federal Magistrate's Court for an order quashing "the purported decision" of the delegate and compelling the Minister to redetermine the matter according to law. The application was filed out of time. Over the Minister's objection the court granted him an extension of time but dismissed the application.

Ground 1: Failure to consider the case 20 In Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259 [42] Allsop J (with whom Spender J agreed) said: The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act ... make it clear that the tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. This requirement is not confined to those claims that are expressly articulated. But the tribunal is not obliged to deal with claims that are neither articulated nor arise clearly from the materials before it: NABE at [60]. Where the tribunal fails to make a finding on "a substantial, clearly articulated argument relying upon established facts" there will be a breach of the rules of procedural fairness and also a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ, Hayne J agreeing at [95]. In NABE at [55] the Full Court postulated that the constructive failure to exercise jurisdiction might be seen as a failure to carry out the review required by the Act. 21 These are the issues raised by the first ground of the appellant's notice of appeal. 22 The federal magistrate summarised the argument run on the appellant's behalf before her consistently with the way it is put in the notice of appeal: 35. Counsel for the applicant submitted that while the applicant's claim was based on actual or imputed political opinion (in that he was a PML(Q) supporter), it was a claim that he would be persecuted not merely because he was such a supporter but also because he was well known. It was said to be implicit that the fact of his being well known would also make it well known that he was a PML(Q) supporter and itself encourage persecution. 36. It was contended however that the Tribunal had proceeded on a mistaken basis that the applicant claimed a fear of persecution on the basis that he was a PML(Q) supporter or was well known as a PML(Q) supporter. It was submitted that this was not a claim that the applicant made. Rather, it was submitted that what the applicant had actually said to the Tribunal as originally constituted was that he was "famous" in his local area. It was said to be clear that the reason the applicant was well known was independent from his activities with the PML(Q) but, as he explained to the Tribunal, was because he had completed university education in Lahore, many of the PML(Q) party members were uneducated and consequently he was held in high regard. 23 Her Honour went on to note (at [38]-[39]) that counsel also submitted that the tribunal failed to deal with the claim raised by the appellant or his evidence and the contentions before it and this was a failure of procedural fairness or a failure to conduct the review required by the Act and, therefore, a jurisdictional error. 24 Her Honour rejected the argument. She said: 55. It has not been established and cannot be inferred on the material before the court that there was a separate integer of the applicant's claims of a fear of persecution on the basis that he was famous or that his claim was that his fear was based on a combination of his fame as such and his involvement in the PML(Q). Rather, it is apparent, having regard to the whole of the material before the court, that the applicant claimed that he had a fear of persecution because he was a PML(Q) supporter. It was in the context of being asked by the first Tribunal what he actually did for the PML(Q) and to explain his role that the applicant said he attended meetings, home visits with members and rallies approximately twice a month and "eventually" told the Tribunal that he was "famous" in his local area, by which the Tribunal understood that he meant he was well known. In context, this was clearly a reference to a claim that his role in the Party was not determined simply by the level of office that he held, but rather that, unlike other members, he was an educated person and therefore he had a greater role and a greater respect at Party meetings. 56. In the absence of a transcript of the first Tribunal hearing, it is not apparent, and nor should an inference be drawn, that the applicant was making a claim that he had a high profile for reasons other than his political activities as well as a claim that he was also a PML(Q) supporter and that he had a fear of persecution on this basis. Rather, he was explaining what his involvement was in the Party, indicating, in effect, that his role in the Party was not determined simply by the level of office that he held. He was not claiming to fear persecution in part because he was university educated, or a member of an extended family in Lahore. What he was asserting was that he feared harm because he was a PML(Q) member and that he was an important member because, unlike others, he had a university education and that he had a greater role than would be suggested by the fact that he did not hold an official position in the party. His claims in that respect were all made in the context of an explanation of his role in the PML(Q). The evidence of what occurred at the first hearing is not such that it can be inferred that there was a claimed fear of persecution based in part on the fame of the applicant in his local area. Rather the applicant was addressing why he would be targeted by reason of his membership of the Party if he was not an office holder. 57. Consistent with this, at the second Tribunal hearing the applicant again stated, when asked about his involvement in the PML(Q), that he had never held any top-level position in the party but he had been quite famous. Again, it is not apparent that this was a claim that the applicant was famous apart from his involvement as a PML(Q) member, but rather that, as the Tribunal found, the applicant claimed that he was well known as a PML(Q) member, even though he did not hold a high-level position, as he had a greater influence than the absence of such a position would suggest. In other words, the applicant's claims indicate that his being well known was linked to his claimed political work. The first Tribunal recorded that the applicant claimed to have been famous or well known in his local area due to his level of education compared with other PML(Q) party members and for the advice he would give at party meetings on issues such as where to locate water pumps. It was for this reason that he was well known in his region. Contrary to the applicant's submissions, the applicant's claim to notoriety was clearly said to be linked with his claimed involvement in the PML(Q) and attendance at PML(Q) party meetings, albeit he also stated he may have been well known because he was part of an extended family in Lahore. 58. The Tribunal considered the applicant's claims to fear harm due to his political work and involvement with the PML(Q) on this basis. In its findings and reasons, the Tribunal specifically considered that the applicant did not claim to have been a member of the executive of his branch, but noted his claim that he was well known in his local area as a Party member and to have been involved in tasks such as calling meetings and providing advice. However the Tribunal did not accept that the applicant's contribution to the Party was ever at a level higher than that of general administrative support or that he had built a significant political profile for himself at any time due to the nature of the work he claimed to have done for the party and having regard to his residence in Islamabad for the 18 months before he left Pakistan. 59. The applicant's claim that he was well known in his local area as a PML(Q) supporter was addressed by the Tribunal. The Tribunal considered the claims raised by the applicant that he was at risk of harm as a PML(Q) party worker, a role for which he was well known. The Tribunal's finding that it was not satisfied that any of the information before it supported the applicant's claim that he was well known in his local area as a PML(Q) supporter, reflects the claim the applicant made to the Tribunal as recorded in the Tribunal reasons for decision. Its lack of satisfaction in relation to those claims was open to the Tribunal. It has not been established that the Tribunal failed to consider the applicant's case. No jurisdictional error is established on the basis contended for by the applicant. Ground one is not made out. 25 In my view this analysis does not disclose error. 26 The second tribunal summarised the appellant's claim at [73] of its reasons as follows: The Applicant claims that members of the Pakistan People's Party - PPP - wish to harm him because of his membership of the rival Pakistan Muslim (Qaid-e-Azam) - PML(Q). He also claims to fear harm through terrorist incidents in Pakistan. 27 This did not involve a failure to consider all the appellant's claims. Nor was it a basic misunderstanding of his case - quite the contrary in fact. It was precisely the way the appellant put his claims in the statement he submitted with his visa application, a statement he told the second tribunal was true. It also accorded with the way the Minister's delegate defined them. 28 None of the documents the appellant submitted in support of his claim mentioned that he was famous, let alone that he was famous for reasons unrelated to his membership of the PML(Q). The deponents of the affidavits described him as an active member of the PML(Q) and "a victim of two political parties enmity" whom the PPP tried to kill because he campaigned for the PML(Q)'s candidate in the elections. 29 The appellant did not depart from this line of argument before the tribunal. At [31] of its reasons the second tribunal noted: Asked why he had left Pakistan to come to Australia the Applicant said his life had been in danger. He had been working for the PML(Q) and members of another party, the PPP, would harm him. The PPP would do this because it was a rival party. Asked how he knew they would harm him he said they had come to his office on two occasions and things had happened. This was why he believed he had been targeted. 30 At [41] of its reasons the second tribunal did note that, although the appellant had never held a top level position in the party, he submitted that "he had been quite famous" in a particular area of Lahore. But nothing in that passage or anywhere else in the tribunal's reasons suggests that the appellant or his migration agent sought to establish that his fame was independent of his party membership or that the tribunal misunderstood his claim when it characterised it in [79] of its reasons as a claim that he was "well-known in his local area as a PML(Q) supporter". Based on the record of the tribunal's decision, which is the only material presented to the Court, the appellant's claim to fame, as enunciated in the application before the federal magistrate and in the notice of appeal to this Court, was neither expressly articulated to the tribunal nor did it arise clearly from the materials before it. 31 At the hearing of the appeal the appellant pointed out that the former Pakistani Prime Minister, Benazir Bhutto, was famous and she was killed. He asserted that he, too, was famous. He said he was famous in his area and in the PML(Q). I urged him to point to the material that was before the federal magistrate to support his contention that the second tribunal had misconceived the nature of the claim being made to it. He did not. I pressed him to show me where the error was in her Honour's reasons. He said he could not. 32 Ground 1 fails.

Ground 2: Want of procedural fairness 33 There is no doubt that a failure to afford a party an opportunity to be heard is a denial of procedural fairness which gives rise to jurisdictional error: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. The particular content of the requirement to accord procedural fairness to a person affected by a decision will depend on the facts and circumstances of the individual case, including the particular statutory framework: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 ("SZBEL") at [26]. The High Court explained in SZBEL (at [33]) that "the Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal". Section 422B of the Act provides that Division 4 is "taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with" and in the case of an on-shore visa applicant like the appellant, this means that Division 4 operates as a code which excludes the common law natural justice hearing rule: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [66]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [56]. 34 In the present case her Honour said that it appeared from the submissions for the appellant that what was being put was that there had been a breach of s 425 of the Act in the sense considered in SZBEL. Section 425(1) imposes an obligation on the tribunal to invite an applicant "to give evidence and present arguments relating to the issues arising in relation to the decision under review". (Emphasis added.) There are exceptions but they do not apply here. Importantly, as the High Court said in SZBEL at [34]: The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons. [Emphasis in original.] 35 Here, the second tribunal was not reviewing the first tribunal's decision. It, too, was reviewing the decision of the Minister's delegate. The delegate's decision record contained a summary of the appellant's account. That was that he had been an active member of the PML(Q) in Pakistan and "due to his involvement with the PML(Q), he suffered repeated harassment by the rival Pakistan Peoples Party (PPP)". The account differed somewhat from the account he gave in the statement submitted with his visa application. (For example, instead of saying that he set up an office of the PML(Q), he apparently told the delegate he "helped establish" it, and instead of saying that he was threatened with death if he did not shut down the office, he told the delegate that he and fellow PML(Q) workers were "harassed" by "telling them" to shut down the office.) There was, however, no mention in the delegate's decision record of the appellant fearing persecution for reasons associated with him having a high profile independent of his membership of the PML(Q). Indeed, the delegate recorded as the sole reason for his fear of harm or persecution "his political views and activities". She noted: The applicant states that he will be killed on return to Pakistan for reason of his political opinion. 36 The delegate went on to say that she did not accept that the appellant suffered persecutory treatment by the PPP "for reason of his political opinion" or that he faced a real chance of persecution on his return to Pakistan for that reason. She also observed that there was no evidence that the appellant faced a real chance of persecution for any other Convention reason. No question was raised before her that the appellant's fear of persecution arose because of a combination of political activity and a high profile in the community acquired for other reasons. 37 It is true that the tribunal is not confined to whatever may have been the issues the delegate considered (SZBEL at [35]). Still unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decisionmaker identified as determinative against the applicant. 38 Unlike in SZBEL, here the tribunal had defined the very issue that the original decision-maker identified as determinative against the appellant. 39 The substance of the appellant's contention as particularised in the notice of appeal and in the application below was that the tribunal did not inform him that it was an issue in the proceeding whether he had a well-founded fear of persecution by reason of his political opinion when his political activities were of a low level, despite otherwise having a high profile. The underlying premise for the contention (as the notice of appeal reveals) was that the tribunal accepted that the appellant had a high profile independent of his political affiliations and that he did not have a high political profile. The difficulty for the appellant, however, as the federal magistrate recognised, is that the underlying premise was not made out. It is true that the tribunal recorded that the appellant said that he had never held any top level position in the party but had been "quite famous". But her Honour was right to observe that the tribunal did not find that he had a "high profile". It is plain that the tribunal understood him to be saying that he was well-known in his local area as a PML(Q) supporter - a claim it rejected. 40 The tribunal put to the appellant that independent country information indicated that, "while political violence continues in Pakistan, there does not seem to be anything to indicate that people are being targeted simply because they are members of the PML(Q)". The appellant's response was to deny the proposition, not to assert any additional consideration that affected his case. The tribunal asked him why, if he were to return to Pakistan where he would not even be a member of the PML(Q) (having left the agency on his account before coming to Australia), the PPP would target him. He replied that they turned against him because of his membership of the party. He was then asked whether he had anything to add and submitted newspaper articles which, he said, showed that there was no safety in Pakistan in general terms. 41 On the only material available - the decision record - there is nothing to support the allegation in the notice of appeal that the appellant was deprived of a sufficient opportunity to give evidence, or make submissions, about what turned out to be a determinative issue arising in relation to the decision under review. It is evident from the tribunal's reasons that the central and determinative issue was whether the appellant would be at risk of harm if he were to return to Pakistan because of his membership of the PML(Q). There can be no doubt that the appellant had ample opportunity to be heard on that issue. 42 The tribunal did not identify a new issue for consideration because there was none. For the reasons given in relation to the first ground of appeal, the point made in the notice of appeal was not an issue that was articulated or that clearly arose from the material it had before it. 43 The federal magistrate concluded: It is clear that the second Tribunal raised with the applicant its possible thinking and what its possible findings may be and invited him to comment or respond to those issues. In so doing, it raised with the applicant dispositive issues as required by s.425 of the Act. No jurisdictional error has been established on this basis. 44 As with the first ground, at the hearing of this appeal the appellant was asked to indicate where the error was in the federal magistrate's reasons. He was unable to do so and neither am I.

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Judgment (8 paragraphs)

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