SZNNV v Minister for Immigration and Citizenship

The second tribunal hearing 10 The appellant appeared before the second tribunal on 15 January 2010. 11 The tribunal was not satisfied of the credibility of important aspects of the appellant's account of his experiences in Pakistan on which his claims to fear harm were based. It even doubted whether he was ever a member of the PML or the PML(Q). It is, however, unnecessary to deal with these matters as no challenge is made to any of the credibility findings and, on the question of his party membership, ultimately the tribunal was prepared to give him the benefit of the doubt. Nevertheless, the tribunal member said (at [79]): Having done so, however, I am not satisfied that his contribution to the Party was ever at a level higher than that of general administrative support or that he built a significant political profile for himself at any time….I am not satisfied that any of the information before the Tribunal supports his claim that he was well-known in his local area as a PM(Q) supporter. 12 The tribunal also doubted the appellant's claim that he was a target of the PPP as he did not leave the country until five weeks after he acquired a visa. It considered that the delay in his departure was inconsistent with his professed fears for his safety. It referred to what it perceived were other inconsistencies in his accounts and difficulties it had with the documents submitted in support of his claim. It was not satisfied that the appellant had developed any significant political profile anywhere in Pakistan or was ever subjected to harm at the hands of the PPP or anyone else for such a reason. It noted his evidence that he was no longer a member of the PML(Q), having left the party in 2008, before coming to Australia, and the different explanations he gave to the two tribunals for doing so. For these reasons it was not satisfied that there was a real chance he would suffer serious harm in Pakistan because of his political opinion, "either actual or imputed". 13 Finally, the tribunal considered the appellant's claim that he feared harm in Pakistan as a result of terrorism. It accepted that terrorist violence had become an increasingly serious problem in Pakistan but noted that the appellant could offer no reason why he specifically would be targeted. The tribunal was not satisfied that fear of such harm fell within the terms of the Convention or that it would amount to persecution. The member stated (at [95]): …I do not accept that if the Applicant were so unfortunate as to be harmed in this way, the harm could be said to have been directed specifically at him for any reason or that it would be more than a random and indiscriminate event. 14 The tribunal stated that it was not satisfied that there was a real chance the appellant would suffer serious harm in Pakistan amounting to persecution because of his political opinion or through terrorist violence, and noted he did not claim to fear harm for any other reason and no other reason was evident on the fact of the information before the tribunal. It was not satisfied he had a well-founded fear of persecution for a Convention reason if he were to return to Pakistan then or in the foreseeable future. 15 Accordingly, on 5 February 2010, the tribunal affirmed the delegate's decision.

The proceeding before the federal magistrate 16 The federal magistrate's jurisdiction was limited by the terms of s 474 of the Act to review for jurisdictional error: See Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 17 The federal magistrate rejected the first ground of appeal. She held that the material before the court did not establish that the appellant made a claim that he was well known independently of his political involvement or that this meant that the fact that he was a PML(Q) supporter would also be well known and make him a target. She also held that the material before the court did not squarely raise such a claim so as to amount to a breach of procedural fairness or a failure to conduct the required review and so to commit jurisdictional error (referring to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 ("NABE") at [63]).

The appeal 18 The notice of appeal contains the following grounds (without alteration): Ground 1. The second respondent ("the Tribunal") failed to consider the applicant's case. The learned Magistrate in the Court below erred in not so finding. Particulars i) The Tribunal proceeded on the basis that the applicant's fear of persecution was grounded in his "claim that he was well-known in his local area as a PML(Q) supporter". ii) This was not what they applicant claimed. Rather the applicant claimed that he was "famous", that is to say well-known in his area .... It is clear that the applicant explained to the Tribunal (and the Tribunal so understood that the "reason for this was that the applicant had completed university education in Lahore and many of the PML(Q) party members were uneducated. Consequently he was held in higher regard." iii) It is evident that the applicant did not claim a fear of persecution because of his high political profile. Instead he claimed he had a high profile (for reasons other than his political activities) and that he was also a PML(Q) supporter. His application for protection is grounded on the combination of these two factors. Ground 2. The Tribunal denied the applicant procedural fairness in that the Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out an determinative issue arising in relation to the decision under review. The learned Magistrate in the Court below erred in not so finding. Particulars i) The applicant claimed he had a high profile. The Tribunal did not challenge this and it is clear that the Tribunal accepted this. ii) The applicant did not claim a high political profile. iii) The Tribunal found that his political activities were low-level. iv) A central and determinative question was whether the applicant can be said to not have a well-founded fear of persecution for reason of political opinion when his political activities were of a low-level, and notwithstanding the applicant's otherwise high profile. v) The Tribunal did not identify to the applicant that this was an issue arising on the review. 19 The appeal is in the nature of a rehearing. But a rehearing is not a new hearing. Error must be shown: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 ("SLMB") at [11]. For the reasons that follow I do not consider that the federal magistrate fell into error.

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.

Conclusion 45 In the absence of error in the federal magistrate's decision, the appeal must be dismissed. The appellant should pay the Minister's costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.