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Applicant S1815 of 2003 v Minister for Immigrationand Citizenship [2007] FCA 159 (20 February 2007)

Last Updated: 21 February 2007

FEDERAL COURT OF AUSTRALIA

Applicant S1815 of 2003 v Minister for Immigration and Citizenship [2007]
FCA 159

Federal Court of Australia Act 1976 (Cth) s 24(1A)
Migration Act 1958 (Cth) ss 424A, 430A, 430B

Federal Court Rules O 52 r 10(2A)(b)

Applicant S1815 of 2003 v Refugee Review Tribunal [2006] FCA 1202
Applicants S61 of 2002 v Refugee Review Tribunal and Another [2004] FCAFC 150; (2004) 206 ALR 461
Re Australian Nursing Federation; Ex parte Victoria [1993] HCA 8; (1993) 112 ALR 177
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241

APPLICANT S1815 OF 2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 1831 OF 2006

NICHOLSON J
20 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1831 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1815 OF 2003 Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	NICHOLSON J
DATE OF ORDER:	20 FEBRUARY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal be joined as the second respondent.
2. The description of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
3. The application for an extension of time to file and serve an application for leave to appeal and for leave to appeal be dismissed.
4. The applicant pay the first respondent’s costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1831 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1815 OF 2003Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIPRespondent

JUDGE:	NICHOLSON J
DATE:	20 FEBRUARY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application entitled ‘Application for Leave to Appeal’ from a judgment of a single Federal Court Judge (Gyles J) made on 29 August 2006. The application before his Honour sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 31 May 1999 refusing to grant a protection (class XA) visa to the applicant. The Tribunal had upheld a decision of a delegate of the first respondent to refuse to grant a protection visa to the applicant.
2 It is not entirely clear from the application whether it is one that seeks an extension of time to file and serve an application for leave to appeal and leave to appeal as well or is simply an application for extension of time to file and serve a notice of appeal: see Applicants S61 of 2002 v Refugee Review Tribunal and Another [2004] FCAFC 150; (2004) 206 ALR 461.
3 The judgment of Gyles J, from which the applicant seeks to appeal, is interlocutory in nature, dismissing an application for an order nisi on the basis that no arguable basis for the grant of final relief has been demonstrated (Applicant S1815 of 2003 v Refugee Review Tribunal [2006] FCA 1202 at [9]). Accordingly, leave to appeal is required: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The applicant also requires an extension of time to file and serve an application for leave to appeal, because of his failure to make his application within the 7 days prescribed at O 52 r 10(2A)(b) of the Federal Court Rules.

Applicant’s claims

4 The applicant is a citizen of Pakistan who arrived in Australia on 16 July 1997. On 13 August 1997 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (as it then was). The applicant claimed to fear persecution by reason of his political opinion. The applicant asserted he had been an active member of the Pakistan People’s Party (the PPP) for twenty years and was promoted to joint secretary. The applicant claimed the current government were arresting members of the PPP and the police issued fabricated First Instance Reports (FIRs) and arrest warrants against him because of his involvement. The applicant asserted his uncle had been killed as a result of his involvement in the PPP and that he had been a witness to his murder. The applicant claimed to fear he will be arrested and gaoled or that he may be killed if he returns to Pakistan.

Tribunal review

5 A delegate of the first respondent refused the application for a protection visa on 30 January 1998. On 2 March 1999 the applicant applied to the Tribunal for a review of that decision. On 15 December 1999 the Tribunal sent the applicant an invitation to attend a hearing. The applicant attended the hearing, lodged various documents and was assisted by an Urdu interpreter.
6 The Tribunal prefaced its findings with a statement that all documents lodged before it had been taken into consideration in reaching the decision and went on to discuss the documents presented to it. The Tribunal stated that the self serving nature of the documents and the finding that they were contrived and tailored to suit the claims of the applicant allowed the Tribunal not to give the evidence significant weight to substantiate the claims of the applicant. The FIRs tendered by the applicant were found, in particular, to be photocopies being inconsistent and flawed; and were given no weight.
7 The claims of the applicant in relation to his and his family’s election activities, his political profile, his brother and father’s hiding and relocation, his uncle’s death, his departure from Pakistan and the sealing of his bank accounts were found not to be credible or plausible as a result of inconsistent evidence. As a result, the Tribunal was unable to accept that he had anything other than a low political profile or that he was a credible witness.
8 The Tribunal also considered independent country information, which it states was put to the applicant, stating the situation of the PPP in Pakistan and found that there is no evidence the government is pursuing a policy of persecution or retribution against PPP members and as such no evidence that the applicant holds a political opinion
9 The Tribunal further assessed the risk to the applicant in the country as a whole rather than just in relation to his local district or state and found the applicant did not have a profile as a political activist such that would attract the interest of the authorities especially outside his local district and considering his education, employment, linguistic skills and age it was found that it would not be unreasonable to relocate to another part of Pakistan if he retained a subjective fear of harm in his local district.
10 Consideration was also given to the claim that the applicant would continue to be active in politics, and by inference face persecution, on his return to Pakistan. However, the Tribunal found that there was nothing to prevent members of the PPP undertaking an interest in politics.

Application to Federal Court

11 Following his unsuccessful application to the Tribunal the applicant joined in a class action determined by the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601. Leave was granted to file an application seeking an order nisi and the matter was remitted to the Federal Court of Australia to be heard. The following grounds were provided in support of the application for an order nisi:

1. The Tribunal erred in law by failing to weigh the credibility of the applicant’s evidence correctly according to law;
2. The Tribunal erred in law by breaching s 424A of the Migration Act 1958 (Cth) (the Act);
3. The Tribunal erred in law by breaching s 430A of the Act;
4. The Tribunal erred in law by breaching s 430B of the Act; and
5. The Tribunal breached the rules of procedural fairness.

12 In relation to the first ground his Honour found that this ground was doomed to fail as the applicant did not demonstrate that the Tribunal failed to have regard to any claim by the applicant of a significant nature. The second, third and fourth grounds were found to refer to sections of the Act which were not in force until after the decision of the Tribunal and as such these complaints would not lead to the setting aside of the decision, even if the complaints were correct.
13 The fifth ground was found to amount to a complaint that the Tribunal acted upon adverse material which was not put to the applicant. This ground was without example beyond reference to tapes and a transcript extract of the Tribunal hearing. The applicant was unable to point to anything in the reasoning of the Tribunal of which he was not aware. Although his Honour was unable to conclude that every piece of adverse material was put to the applicant it was found, in the absence of particulars of the material not put to him, to be likely that the substance and thrust of the adverse material was presented. He also asserted that the decision of the Tribunal was supported by a relocation finding derived from the evidence of the applicant. It was the opinion of his Honour that no arguable case was made by the applicant for prerogative relief.

Present application

14 In support of the application for leave, the applicant filed an affidavit and a draft notice of appeal claiming the following:

‘1 His Honour failed to find that the Refugee Review Tribunal made jurisdictional error. It did not consider all the information in its possession being Country and similar pertinent information including evidence that:

1.1 deportees to Pakistan having been refused protection visas are targeted by the Pakistani police, and
1.2 are liable to be harassed for money, and if unable to comply (which would be the case of the applicant), subjected to violence and unexplained disappearance’.
1.3 the police in Pakistan are largely unaccountable to the Government for their treatment of the those arrested.
1.4 the appellant lost the top joint to his right index finger during an attack upon him (and his uncle who was killed) by the opposing Muslim League because of his membership and office holding

2. His Honour refused to grant an adjournment to the appellant on a wrong consideration (House v R) therefore, natural justice was denied.

Particulars of wrong consideration:

The appellant had argued that the tapes referred to by his Honour in para 5 of his reasons contained materials (evidence) in his favour. His Honour therefore erred in holding this material was "...at the very most a fishing expedition...".

3. His Honour failed to find that the Refugee Review Tribunal did not put all adverse materials to the applicant, therefore the applicant did not have the opportunity to provide a response to all adverse materials.

4. His Honour failed to find that the Refugee Review Tribunal did not consider that the whole of Pakistan was controlled by a single police force therefore it would be unreasonable for the applicant to relocate to another part of Pakistan since he would be likely to be targeted by them in any part of Pakistan.’

15 At the hearing of the application the applicant sought to tender an affidavit containing evidence under the three headings ‘family background’, ‘country information’ and ‘further information re injury’. The application was ultimately confined to item C2, being a medical report from a doctor in Pakistan dated 15 October 1990. It was said to support findings that on that date the applicant had been brought in injured by a police officer. The application for leave to admit the evidence was held over for decision.
16 Item C2 was said to be relevant and to enhance the prospects of the applicant’s case because it is said to support the applicant’s claim that he was injured on the date his uncle died. The applicant’s case is that the death occurred because of an attack by political opponents in which the applicant was also injured. However, in its reasons the Tribunal found that it was unable to form any view as to whether this death resulted from an attack by political opponents. Further, the Tribunal concluded that ‘although the applicant claimed to have been present during the attack, very little happened to him, although the assailants would have had every opportunity to kill or seriously injure him at that time’. If the evidence was admitted it could only be used to seek to have this Court rework the merits of the facts as found by the Tribunal and as only open to it. It is not evidence which would of itself bring the applicant within the circle of persons attacked by the alleged political opponents. It is not evidence which will enhance the applicant’s prospects of success and its earlier non-production is not satisfactorily explained, save that the applicant has previously been self-represented. The application for leave to admit the affidavit therefore does not satisfy the tests for admission of fresh evidence at this late stage and must be refused.
17 Ground 2 relates to [5] of Gyles J’s reasons for judgment where he said:

‘... He again refers to the existence of tapes and sought to tender a two page rather than a one page extract from the transcript. It was objected to and I rejected it. The applicant has said that the tapes are in Griffith although, of course, the Urdu portion of them will not be decipherable or understandable. I am informed, as a result of inquiries made this morning, that the Tribunal may have the tapes in storage off site. I have considered whether or not I should adjourn the matter further to enable those tapes to be produced and played. However, it seems to me that that would not be an appropriate course to take. That would be, at the very most, a fishing expedition to see if there is something which would assist the applicant’s case rather than bearing out an argument which has been properly presented.’

This ground lies at the nub of the applicant’s case on this application. He asserts that his Honour was in error in refusing him an adjournment to translate and transcribe the tapes of the hearing before the Tribunal. His Honour’s reasons were that it would be a fishing expedition. In my view, the applicant entirely fails to establish that there was any error of law in this conclusion. Indeed, the applicant made it clear to the Court on this application that, without searching through the tapes, he was unable to provide support for his other grounds. That is partly occasioned by the fact that the applicant as a self-represented person attended all hearings prior to this one. His counsel on this application claims to be reliant on the tapes for information of possible relevance to the application. That in itself supports the conclusion made by Gyles J that the tapes were required for a fishing expedition.

18 There was no denial of natural justice in the decision of Gyles J in this respect. The Tribunal hearing took place on 31 May 1999. There have been seven years within which the tapes could have been examined. Even more significantly, the applicant is unable to instruct his solicitor (who also appeared as counsel) of any matters he considered to be adverse. This ground has no substance. It was well within his Honour’s discretion to refuse the applicant’s request for an adjournment, to allow the applicant an opportunity to adduce further evidence, in circumstances where the application was first made at the final hearing. Ground 2 must therefore be dismissed. To remove any doubts, the oral application made at the hearing for an adjournment to enable the tapes to be considered is now also refused.
19 With regard to proposed ground 1, while there may have been information before the Tribunal that was favourable to the applicant’s case, there was clearly independent country information before the Tribunal to support its findings. If the Court were to make its own assessment of the country information, it would be engaging in merits review, which it does not have power to do: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. Additionally proposed sub-grounds 1.1-1.3 seek to address irrelevant issues. Sub-ground 1.4 is in terms contrary to the finding of the Tribunal concerning the injury to the applicant, as set out above in relation to ground 2. Ground 1 cannot be understood as in any way enhancing the applicant’s prospects of success.
20 With regard to proposed ground 3 (entirely unparticularised), the Tribunal brought the substance or gravamen of the relevant country information before it to the applicant’s attention and sought his response. It did not have to do more: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [23]- [26]. Gyles J properly disposed of this ground at [6]. So far as the ground may rely on information which might have resulted from examination of the tapes (as to which there is no evidence of any such likelihood) it cannot assist the applicant.
21 With regard to proposed ground 4, the issue now sought to be raised under this ground was not one raised in the proceedings below and the applicant would require leave to argue this proposed ground. It seeks to cavil with the conclusions reached by the Tribunal on this issue. In any event, the Tribunal’s relocation finding was largely based on the applicant’s own evidence given at the hearing and, to the extent that it was dependent on independent country information, the substance and gravamen of that information was brought to the applicant’s attention at the hearing: NAOA FCAFC 241 at [23]-[26].
22 The test for the grant of an order nisi is that the applicant can show an arguable case for final relief: Re Australian Nursing Federation; Ex parte Victoria [1993] HCA 8; (1993) 112 ALR 177 at 183 per McHugh J; Applicants S61 of 2002 206 ALR at [35] per Branson J; Moore and Emmett JJ agreeing. The applicant has failed to show an arguable case for final relief before Gyles J, for the reasons set out in his Honour’s judgment at [6]-[9]. There is no error of law in the reasoning of his Honour.

Conclusion

23 For the above reasons the application must be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:`

Dated: 20 February 2007

Counsel for the Applicant:	D Knaggs

Solicitor for the Applicant:	Cross Law Lawyers

Counsel for the First Respondent:	A Marcus

Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	15 February 2007

Date of Judgment:	20 February 2007

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1	This is an application entitled ‘Application for Leave to Appeal’ from a judgment of a single Federal Court Judge (Gyles J) made on 29 August 2006. The application before his Honour sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 31 May 1999 refusing to grant a protection (class XA) visa to the applicant. The Tribunal had upheld a decision of a delegate of the first respondent to refuse to grant a protection visa to the applicant.
2	It is not entirely clear from the application whether it is one that seeks an extension of time to file and serve an application for leave to appeal and leave to appeal as well or is simply an application for extension of time to file and serve a notice of appeal: see Applicants S61 of 2002 v Refugee Review Tribunal and Another [2004] FCAFC 150; (2004) 206 ALR 461.
3	The judgment of Gyles J, from which the applicant seeks to appeal, is interlocutory in nature, dismissing an application for an order nisi on the basis that no arguable basis for the grant of final relief has been demonstrated (Applicant S1815 of 2003 v Refugee Review Tribunal [2006] FCA 1202 at [9]). Accordingly, leave to appeal is required: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The applicant also requires an extension of time to file and serve an application for leave to appeal, because of his failure to make his application within the 7 days prescribed at O 52 r 10(2A)(b) of the Federal Court Rules.

5	A delegate of the first respondent refused the application for a protection visa on 30 January 1998. On 2 March 1999 the applicant applied to the Tribunal for a review of that decision. On 15 December 1999 the Tribunal sent the applicant an invitation to attend a hearing. The applicant attended the hearing, lodged various documents and was assisted by an Urdu interpreter.
6	The Tribunal prefaced its findings with a statement that all documents lodged before it had been taken into consideration in reaching the decision and went on to discuss the documents presented to it. The Tribunal stated that the self serving nature of the documents and the finding that they were contrived and tailored to suit the claims of the applicant allowed the Tribunal not to give the evidence significant weight to substantiate the claims of the applicant. The FIRs tendered by the applicant were found, in particular, to be photocopies being inconsistent and flawed; and were given no weight.
7	The claims of the applicant in relation to his and his family’s election activities, his political profile, his brother and father’s hiding and relocation, his uncle’s death, his departure from Pakistan and the sealing of his bank accounts were found not to be credible or plausible as a result of inconsistent evidence. As a result, the Tribunal was unable to accept that he had anything other than a low political profile or that he was a credible witness.
8	The Tribunal also considered independent country information, which it states was put to the applicant, stating the situation of the PPP in Pakistan and found that there is no evidence the government is pursuing a policy of persecution or retribution against PPP members and as such no evidence that the applicant holds a political opinion
9	The Tribunal further assessed the risk to the applicant in the country as a whole rather than just in relation to his local district or state and found the applicant did not have a profile as a political activist such that would attract the interest of the authorities especially outside his local district and considering his education, employment, linguistic skills and age it was found that it would not be unreasonable to relocate to another part of Pakistan if he retained a subjective fear of harm in his local district.
10	Consideration was also given to the claim that the applicant would continue to be active in politics, and by inference face persecution, on his return to Pakistan. However, the Tribunal found that there was nothing to prevent members of the PPP undertaking an interest in politics.

15	At the hearing of the application the applicant sought to tender an affidavit containing evidence under the three headings ‘family background’, ‘country information’ and ‘further information re injury’. The application was ultimately confined to item C2, being a medical report from a doctor in Pakistan dated 15 October 1990. It was said to support findings that on that date the applicant had been brought in injured by a police officer. The application for leave to admit the evidence was held over for decision.
16	Item C2 was said to be relevant and to enhance the prospects of the applicant’s case because it is said to support the applicant’s claim that he was injured on the date his uncle died. The applicant’s case is that the death occurred because of an attack by political opponents in which the applicant was also injured. However, in its reasons the Tribunal found that it was unable to form any view as to whether this death resulted from an attack by political opponents. Further, the Tribunal concluded that ‘although the applicant claimed to have been present during the attack, very little happened to him, although the assailants would have had every opportunity to kill or seriously injure him at that time’. If the evidence was admitted it could only be used to seek to have this Court rework the merits of the facts as found by the Tribunal and as only open to it. It is not evidence which would of itself bring the applicant within the circle of persons attacked by the alleged political opponents. It is not evidence which will enhance the applicant’s prospects of success and its earlier non-production is not satisfactorily explained, save that the applicant has previously been self-represented. The application for leave to admit the affidavit therefore does not satisfy the tests for admission of fresh evidence at this late stage and must be refused.
17	Ground 2 relates to [5] of Gyles J’s reasons for judgment where he said:

18	There was no denial of natural justice in the decision of Gyles J in this respect. The Tribunal hearing took place on 31 May 1999. There have been seven years within which the tapes could have been examined. Even more significantly, the applicant is unable to instruct his solicitor (who also appeared as counsel) of any matters he considered to be adverse. This ground has no substance. It was well within his Honour’s discretion to refuse the applicant’s request for an adjournment, to allow the applicant an opportunity to adduce further evidence, in circumstances where the application was first made at the final hearing. Ground 2 must therefore be dismissed. To remove any doubts, the oral application made at the hearing for an adjournment to enable the tapes to be considered is now also refused.
19	With regard to proposed ground 1, while there may have been information before the Tribunal that was favourable to the applicant’s case, there was clearly independent country information before the Tribunal to support its findings. If the Court were to make its own assessment of the country information, it would be engaging in merits review, which it does not have power to do: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. Additionally proposed sub-grounds 1.1-1.3 seek to address irrelevant issues. Sub-ground 1.4 is in terms contrary to the finding of the Tribunal concerning the injury to the applicant, as set out above in relation to ground 2. Ground 1 cannot be understood as in any way enhancing the applicant’s prospects of success.
20	With regard to proposed ground 3 (entirely unparticularised), the Tribunal brought the substance or gravamen of the relevant country information before it to the applicant’s attention and sought his response. It did not have to do more: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [23]- [26]. Gyles J properly disposed of this ground at [6]. So far as the ground may rely on information which might have resulted from examination of the tapes (as to which there is no evidence of any such likelihood) it cannot assist the applicant.
21	With regard to proposed ground 4, the issue now sought to be raised under this ground was not one raised in the proceedings below and the applicant would require leave to argue this proposed ground. It seeks to cavil with the conclusions reached by the Tribunal on this issue. In any event, the Tribunal’s relocation finding was largely based on the applicant’s own evidence given at the hearing and, to the extent that it was dependent on independent country information, the substance and gravamen of that information was brought to the applicant’s attention at the hearing: NAOA FCAFC 241 at [23]-[26].
22	The test for the grant of an order nisi is that the applicant can show an arguable case for final relief: Re Australian Nursing Federation; Ex parte Victoria [1993] HCA 8; (1993) 112 ALR 177 at 183 per McHugh J; Applicants S61 of 2002 206 ALR at [35] per Branson J; Moore and Emmett JJ agreeing. The applicant has failed to show an arguable case for final relief before Gyles J, for the reasons set out in his Honour’s judgment at [6]-[9]. There is no error of law in the reasoning of his Honour.