SZTBR v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 The appellant seeks to appeal from orders made by the Federal Circuit Court on 6 December 2013 dismissing an application for judicial review of the decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant the appellant a protection Class XA Visa. The Minister filed extensive written submissions before the hearing, and made further oral submissions. The appellant appeared in person and attempted to make submissions as best as he has been able to. The appellant is not legally qualified and cannot be expected to understand the fine points of legal procedure, including that it is necessary for an appeal that there be identified a reviewable error in the decision which is the subject of appeal. The power of the court, however, is limited and is not a power to review the decision afresh or to substitute the court's view of how the decision ought to have been made if the decision itself is not otherwise legally erroneous. 2 It is perhaps sufficient to dispose of the appeal by saying that the grounds of appeal do not identify any legal error. The notice of appeal states, as the only ground of appeal, that "the judgment of the Federal Circuit Court is affected by legal error". That statement does not identify an error sufficient to ground the appeal which can, therefore, be dismissed. 3 It is not, therefore, necessary to consider whether the decision of the Federal Circuit Court is affected by error. However, in view of the fact that the appellant is a litigant in person, it may be desirable to say something about his Honour's decision, especially in light of the additional oral submissions made by the Minister's counsel in which he conceded (in fairness to the appellant and in discharge of his duty to the Court) that his Honour may have been in error in that part of his Honour's decision which relied upon s 434(3)(ba) of the Migration Act 1958 (Cth). 4 The appellant in the proceeding before the Federal Circuit Court had advanced three grounds upon which judicial review was sought of the Tribunal's decision. His Honour identified that the three grounds which were advanced by the applicant for review of the decision by the Tribunal were: a failure to observe s 425 of the Migration Act 1958 (Cth); a failure to observe s 424A of the Migration Act 1958 (Cth); and a failure to afford procedural fairness. His Honour preceded a detailed consideration of each of these three grounds by stating: 3. On an application for review of the delegate's decision, the second respondent (Tribunal), like the delegate, found the applicant was a credible witness and that the applicant had a well-founded fear of persecution if he returned to Quetta. The Tribunal too, however, refused to grant the applicant a protection visa. The Tribunal found there are Shi'a Hazara populations in Karachi and Peshawar that do not face the risks Hazaras face in Quetta, and that the applicant, therefore, would face no appreciable risk of the persecution he fears if he relocated to Karachi or Peshawar. The Tribunal further found the applicant was well placed to find employment and accommodation in Karachi or Peshawar because the applicant speaks a number of languages, he managed to find work in Australia and Great Britain, and he had a number of businesses when he lived in Quetta. 4. In his application to this Court for judicial review, the applicant claims that, in making these findings, the Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth) (Act). The applicant contends the Tribunal was required, but failed, to provide the applicant an opportunity to comment on whether he was well placed to find employment and accommodation in Karachi or Peshawar because of the applicant's ability to speak a number of languages, his education, and his past ability to find employment. The applicant further claims that the Tribunal did not comply with s.424A of the Act because, in finding that it was reasonable for the applicant to settle in Karachi or Peshawar, it relied on information that the applicant was relatively well-educated with prior work experience, and the Tribunal did not inform the applicant before the hearing that the Tribunal intended to rely on that information. 5. At the hearing of the application, the applicant, who was not legally represented, expressed what I would characterise as incredulity at the Tribunal's conclusion that it was reasonable for him to live in Karachi or Peshawar. The applicant submitted that "if Hazara people can relocate in Karachi or Peshawar, all of Hazaras they could relocate in Karachi or Peshawar". I have taken this as a claim that the Tribunal made a jurisdictional error in concluding that it was reasonable for the applicant to relocate to Karachi or Peshawar. More precisely, I will take this as a claim that the Tribunal did not ask itself the correct question when considering whether the applicant can reasonably resettle in Karachi or Peshawar. His Honour then considered each of the three grounds identified. 5 The appellant is a National of Pakistan who last arrived in Australia on 7 May 2012. He participated in an entry interview with an officer of the Minister's department on 9 June 2012. On 18 August 2012 he was notified in writing that the Minister had decided to exercise his power under s 46A(2) of the Migration Act 1958 (Cth) to permit him to lodge an application for a protection visa. An application for a protection visa was made on the same day by the appellant. A delegate of the Minister refused to grant the protection visa by a decision dated 3 January 2013. On 8 January 2013 the appellant applied to the Tribunal for a review of the delegate's decision, and on 4 February 2013, the Tribunal invited him to appear on 12 March 2013 to give evidence and to present arguments relating to the issues which had been raised in the delegate's decision. Written submissions were sent to the Tribunal by the appellant's representatives on 4 March 2013 in which he claimed to have a well-founded fear of persecution on the basis of his Hazara ethnicity, Shia religion, membership of a particular social group comprising failed asylum seekers from western countries, and an imputed pro-western political opinion. His claims for protection under the complementary protection regime were the same as those he had advanced under the Refugee Convention. On 21 June 2013 the Tribunal affirmed the delegate's decision concluding that he could reasonably relocate to Karachi or Peshawar where there was not an appreciable risk of the occurrence of the persecution he feared. The Tribunal had found that the appellant had a well-founded fear of persecution by reason of his ethnicity, religion and adverse opinions imputed to him by Sunni extremist groups if he were to return to his hometown of Quetta. It was on that basis that the Tribunal went on to consider whether he could relocate within Pakistan, and reached its conclusion, after making comprehensive findings concerning the appellant's ability to relocate within Pakistan. The Tribunal considered the appellant's written submissions but concluded that none of the matters raised in them would prevent him from relocating to Karachi or Peshawar. It also considered the appellant's claims for complementary protection but concluded that he could not meet the criterion for complementary protection in s 36(2)(aa) because the Tribunal considered that he could reasonably relocate to Karachi or Peshawar notwithstanding his well-founded fear of persecution for Refugee Convention reasons if he were to return to Quetta. These are all essentially findings of fact and are not for this court to reconsider on an appeal unless there was no basis upon which the facts could be found. 6 The first ground of challenge to the Tribunal's decision which was identified by his Honour was that the Tribunal had failed to comply with s 425 of the Migration Act 1958 (Cth) because it had not raised with him "whether or not he could reasonably and practically relocate with his family" to Karachi or Peshawar, or raise with him that he "should be well placed to find employment, accommodation and settled in Karachi or Peshawar by reason of the number of languages he spoke, his being relatively well educated and his prior work experience". His Honour rejected this ground on the basis that it was not open to him to find that the Tribunal had not raised the matter with the appellant. In NAOA v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 241 this Court said at [21]: On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed. His Honour had no transcript. (As mentioned, the tape is before us and we refer to it below.) The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice. His Honour was, therefore, correct to conclude that in the absence of evidence before him, the appellant had failed to establish what had been asserted in the ground. 7 His Honour, however, went on to consider the appellant's ground on the assumption that the Tribunal had not raised with him the matters he referred to. On that basis his Honour concluded that the appellant had sufficient notice of what was relevant to his application for review before the Tribunal and that the Tribunal was not required to raise with the applicant the matters which he subsequently said ought to have been raised with him. In that regard his Honour said: Was the Tribunal obliged to raise the Claimed Relevant Information with the applicant? 13. The circumstances in which the Tribunal may be required under s.425 of the Act to raise with an applicant matters on which the Tribunal may rely in rejecting an application for review were considered by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs. I summarised in SZSRB v Minister for Immigration & Anor the principles that are derived from that case as follows: a) Subject to b), the only issues that will be before the Tribunal on an application for review of a delegate's decision will be those which the delegate regarded as dispositive of the applicant's claim for a protection visa. b) The Tribunal, however, is not bound to decide an application of review by reference to the issues the delegate considered dispositive; subject to c), the Tribunal is free to identify additional or different issues which it may consider to be dispositive or potentially dispositive of the applicant's claim for a protection visa. c) The Tribunal can dispose of an application for review on the basis of additional or different issues only if the Tribunal has sufficiently alerted the applicant that the Tribunal may decide the application for review on the basis of the additional or different issues, and has provided the applicant an opportunity "to give evidence and present arguments relating to the issues arising". d) What the Tribunal must do to adequately alert the applicant that it may decide the application for review on the basis of additional or different issues will depend on the circumstances of the case. Where the additional or different issues on which the Tribunal may decide an application for review is the Tribunal's not accepting all or part of the applicant's account which the delegate accepted, "the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted". 14. Also relevant are the principles contained in the following passage from the joint reasons of French CJ and Kiefel J in Minister for Immigration and Citizenship v SZGUR: Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. 15. The application of these principles requires me to first consider whether the delegate regarded the Claimed Relevant Information as dispositive. And here the record of the delegate's decision makes it clear that he did regard the information as dispositive. Having concluded that, if the applicant were relocated to Karachi the chance of harm to the applicant because of his Shi'a religion or his Hazara ethnicity to be remote rather than real, the delegate also considered whether the relocation by the applicant to Karachi would be "reasonable and practicable, taking into account the applicant's personal circumstances". 16. On that topic, the delegate concluded: In this applicant's case he is a relatively young man. He is well educated and has significant work experience. He speaks fluent English and can speak Urdu and Pashto as well as his native Hazaragi. He is married with a child, however his wife remains in Quetta where she is employed as a public school teacher. The applicant has shown considerable resilience and adaptability in the past, having previously travelled to Australia, where he was able to leave after sourcing a bogus Australian passport with which to travel to the UK. In the UK he was able to find employment and remained there for 3 years. He has travelled to a number of countries unaided. He has also had access to funds, having sold properties in Quetta for reasonable sums. While I acknowledge Karachi suffers from various problems and strains because of the size of its population, there is no reason for me to consider, with his education, age, skills and proven adaptability and resilience that he could not live a reasonably normal life there. . . . 17. In support of his application for review by the Tribunal, the applicant, through his migration agent, provided detailed written submissions. Those submissions principally addressed the issue of whether Hazara Shi'a face persecution in Pakistan. The submissions did not address that part of the delegate's decision concerning the reasonableness and practicality of the applicant relocating to Karachi. 18. Given that the delegate regarded the Claimed Relevant Information in his decision as dispositive, the applicant was on notice that those matters would be relevant to his application for review before the Tribunal and, for that reason, had sufficient notice that they might have been matters on which the Tribunal too would rely for rejecting his application. For that reason, the Tribunal was not required to raise with the applicant at the hearing or otherwise the Claimed Relevant Information and that, accordingly, the Tribunal did not fail to observe s.425 of the Act as the applicant has claimed. 19. The first ground of the application for review, therefore, fails. His Honour's analysis and application of principle above was not shown to be erroneous. 8 The second ground which had been raised before his Honour was that the Tribunal had failed to observe s 424A of the Migration Act 1958 (Cth). In that regard the applicant failed before his Honour because his Honour concluded that the information relied upon by the Tribunal, and which might conceivably have been excluded by s 424A, fell within the exception to s 424A(1) found in either s 424A(3)(b) or s 424A(3)(ba). The appellant's claim had been that the Tribunal had been obliged by s 424A(1) to give him particulars, by one of the methods specified in s 441A, and to do the other things prescribed by s 424A(1), of the information which the appellant said had not been provided to him. His Honour found, contrary to the Minister's submissions before him, that the claimed relevant information was "information" within the meaning of s 424A(1) saying at [23]: 23. In my opinion, and contrary to the Minister's submission, the Claimed Relevant Information was "information" within the meaning of s.424A(1) of the Act. The Claimed Relevant Information was considered by the Tribunal and formed a part of the reason for the Tribunal affirming the delegate's decision. The reason was that the applicant did not have a well-founded fear of persecution as a Shi'a Hazari in Pakistan because he could reasonably be expected to relocate to Karachi or Peshawar. As can be seen from the following passage, the Claimed Relevant Information undermined the applicant's claim. The applicant speaks a number of languages including Urdu and English and is relatively well educated. He has managed to find work in Australia and Great Britain when he lived there and had different businesses when he lived in Quetta. Accordingly, he should be well placed to find employment, accommodation and settle in Karachi or Peshawar. He will no doubt want to make arrangements for his family to come and live with him there and the Tribunal considers the risk of harm for them as Hazaras to be no greater than it is for the applicant. As he will be well placed to find employment in Karachi or Peshawar, he will be able to provide for and settle his family there. His Honour held, however, that the information was not of the kind required to be particularised because it fell within the exception in s 424A(3). 9 Section 424A(3) excludes from the operation of s 424A(1) certain classes of information, including: (3) This section does not apply to information: […] (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that lead to the decision that is under review, other than such information that was provided orally by the applicant to the department. His Honour found that the relevant information in issue related to the personal circumstances of the applicant and was information which the applicant would know. In that regard his Honour said: 25. The Claimed Relevant Information relates to the personal circumstances of the applicant, and is information which the applicant would know. There is nothing in the material before me to suggest that the Tribunal became aware of that information other than as a result of the applicant giving the information to the Department of Immigration and Citizenship (DIAC) or the Tribunal, either during the process that led to the decision of the delegate or for the purpose of the application for review by the Tribunal of the delegate's decision. I find that the applicant gave the Claimed Relevant Information to either or both DIAC and to the Tribunal. For these reasons, the Claimed Relevant Information is information to which either or both of paragraphs (b) and (ba) of s.424A(3) applies or apply. That, in turn, means that the Tribunal was not required under s.424A(1) to give the applicant particulars of the Claimed Relevant Information. It appears from the oral submissions made by the Minister at the hearing of the appeal that his Honour may not have been correct in concluding that all of the relevant information fell within subsection 424A(1)(ba) because of the exception within that exception: namely "other than such information that was provided orally by the applicant to the department". The relevant information, however, did fall within s 424A(3)(b) and his Honour's failure to distinguish between the two provisions, and the absence of specific application of s 424A(3)(ba) to the relevant information, is perhaps explained by the fact that s 424A(3)(b) applied in any event. 10 The third ground of review which had been raised before his Honour was that the Tribunal had failed to accord him procedural fairness. That claim, however, had been based upon the same consideration as the first ground and was decided by his Honour against the applicant for the same reason as he had decided the first ground. 11 His Honour also went on to consider a matter which had not been raised by the applicant. The applicant had not raised whether the Tribunal had correctly applied the relocation principle but, notwithstanding that, his Honour considered whether there was any failure by the Tribunal in correctly applying the relocation principle that might afford the applicant a basis to challenge the Tribunal's decision. In that regard his Honour identified at [30] what was referred to by the "relocation principle", and at [31] his Honour noted the acceptance of the principle by the High Court in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18. His Honour noted at [32] that the correct application of the principles enunciated by the High Court requires the decision maker to undertake two inquiries and at [33]-[40] satisfied himself that the Tribunal had undertaken the required steps and that the Tribunal had reached conclusions that were reasonably open to the Tribunal on the materials which it had considered. 12 Accordingly, the appeal will be dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.