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MIGRATION - Appeal from Refugee Review Tribunal decision - applicant feared forced recruitment from pro-Kashmir independence group - no jurisdictional error - application dismissed.

MZTAM v Minister for Immigration [2004] FMCA 588 (17 September 2004)

MZTAM v Minister for Immigration [2004] FMCA 588 (17 September 2004)
Last Updated: 12 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZTAM v MINISTER FOR IMMIGRATION
[2004] FMCA 588




MIGRATION - Appeal from Refugee Review Tribunal decision - applicant feared forced recruitment from pro-Kashmir independence group - no jurisdictional error - application dismissed.




Migration Act 1958 (Cth), ss.36(2), 424A

Judiciary Act 1903 (Cth), s.39B

Migration Legislation Amendment (Judicial Review) Act of 2001 (Cth)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6

VEAJ/2002 v Minister for Immigration & Multicultural Affairs [2003] FCA 678

Kioa v West (1985) 159 CLR 550

Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 174 ALR 585

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24

Li Shi Ping v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225

Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196

NARV v Minister for Immigration & Multicultural Affairs [2003] FCAFC 262

Stead v State Government Insurance Commission (1986) 161 CLR 141

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Re Minister for Immigration & Multicultural Affairs; Ex parte "A" (2001) 185 ALR 489

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

VCAS/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 368

VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228

Applicant:
MZTAM




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MZ 1035 of 2003




Delivered on:


17 September 2004




Delivered at:


Sydney




Hearing date:


6 August 2004




Judgment of:


Lloyd - Jones FM




REPRESENTATION

The applicant appeared in person with the assistance of an interpreter.

Counsel for the Respondent:


Mr Heerey




Solicitors for the Respondent:


Blake Dawson Waldron




ORDERS.

(1) The application is dismissed.

(2) The applicant pay the respondent's costs to be taxed in default of agreement.

(3) Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate

.FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MZ 1035 of 2003

MZTAM



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This judgment arises from an application filed by the applicant on

17 September 2003 seeking judicial review of the decision of the Refugee Review Tribunal ("the Tribunal") on 7 August 2003 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection (class XA) visa.

The history

2. The applicant is a citizen of Pakistan. He came to Australia on 21 July 2001 and lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs on

3 September 2001.

3. The applicant claimed that he can not return to Kashmir, Pakistan (the area in which he resided before leaving Pakistan) as he fears forced recruitment by a group called Laskar-E-Tayyiba ("LET"). According to the applicant, this group, which seeks to liberate Kashmir, is involved in border clashes with India and recruits young men to fight. He stated that he had previously been forced to fight for this group before fleeing Pakistan. He also claimed that if he returned and did not join this group, he would be mistreated by the community, who would perceive him as not fighting for the Kashmir cause. The applicant did not think the Pakistani authorities would provide adequate protection.

4. On 19 November 2001, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant to the applicant a protection (class XA) visa. The applicant applied for review of that decision by the Tribunal on 11 December 2001.

5. In the decision made by the Tribunal on 7 August 2003, the Tribunal affirmed the decision of the delegate not to grant the protection (class XA) visa. The Tribunal found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol). Consequently, the applicant did not satisfy the criterion under s.36(2) of the Migration Act 1958 (Cth) ("the Act") for the purposes of a protection visa. Specifically, the Tribunal found that the applicant would not face a real chance of persecution for a Convention reason, now or in the reasonably foreseeable future, if he were to return to Pakistan. It was further held by the Tribunal that:

a) the applicant did not fear seizure by, or forced membership to, the LET, highlighted by his return home to Pakistan for 12 - 13 days in July 2001;

b) the applicant's claims of threats, assaults, severe treatment and arbitrary detention, as contained in the applicant's written claims, were unsubstantiated;

c) there was no evidence to suggest the LET engaged in forced recruitment;

d) the applicant had no knowledge about the LET, with the Tribunal failing to accept that he had ever been a member;

e) there was no evidence to support the applicant's claim that he would be looked down upon in his community by not joining the LET;

f) the applicant would not be of adverse interest to both the LET and the Pakistani authorities if he were to return; and

g) the applicant's claims concerning his father were not relevant to the applicant's fear of persecution claims.

6. On 17 September 2003, the applicant lodged an application in this Court, being MZ 1035 of 2003, pursuant to s.39B of the Judiciary Act 1903 (Cth), for review of the Tribunal's decision. Summarily, the applicant stated that the Tribunal had failed to observe the proper procedures with regard to the applicant and had not acted in accordance with substantial justice. The applicant further asserted that the Tribunal had exceeded its jurisdiction. In the applicant's contentions of fact and law, filed on 10 December 2003, the applicant provided further particulars. The applicant argued, specifically, that the Tribunal had:

a) failed to exercise its jurisdiction, or alternatively exceeded its jurisdiction, by failing to enquire as the truth of the applicant's claims regarding his forced membership to the pro-Kashmir group;

b) failed to exercise its jurisdiction, or alternatively exceeded its jurisdiction, by not considering the applicant's claims regarding his father's forced membership to join the pro-Kashmir group and the persecution the applicant would be subjected to as a result; and

c) breached s.424A of the Act by failing to allow the applicant a reasonable opportunity to comment on the information used to make its decision; and

d) breached s.424A of the Act because the Tribunal relied on prior inconsistent statements of the applicant to make negative findings on credit without giving the applicant the opportunity to comment on the inconsistencies.

7. The respondent's contentions of fact and law, which were filed on 23 December 2003, rebutted the applicant's contentions, arguing that the Tribunal did not breach s.424A of the Act. The respondent argued that the information:

a) came under the s.424A(3) exception (which provides that information relating to a class of person of which the applicant is a member does not need to be put to the applicant for comment);

b) was put to the applicant during the hearing;

c) could not have been used by the applicant to achieve a different outcome; and

d) in light of the negative findings against the applicant, the information made no real difference to the overall result.

In relation to the applicant's arguments that the Tribunal had failed to consider the truth of the applicant's claims regarding his membership to the pro-Kashmir group, the respondent argued that the Tribunal had not erred; as it was not required to go beyond the applicant's claims as put to it. The respondent further contended that the Tribunal had considered the applicant's claims in relation to his father and did not find them relevant to the applicant's fear of persecution.

The law

8. This case is subject to the provisions of the Act as amended by the Migration Legislation Amendment (Judicial Review) Act of 2001 (Cth) which came into effect on 2 October 2001, which introduced a privative clause into the Act under Part 8, particularly s.474. In Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs ("S157") the High Court held that this Part is constitutionally valid. The effect of this is that unless some jurisdictional error or breach of natural justice or procedural fairness is found in the Tribunal's decision, no question arises as to whether S157 denies the operation of s.474 of the Act to the Tribunal's decision as a privative clause decision.

9. The High Court has also confirmed that the long-standing distinction between jurisdictional and non-jurisdictional error of law is to be maintained in Australia: Minister for Immigration & Multicultural Affairs; Ex parte Lam ("Lam") at [77]. An error of law, consisting of a misconstruction of or a failure to address or to comply with an express statutory provision, will not always constitute a jurisdictional error, even in the absence of a privative clause: Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission at [9]-[32].

10. A decision-maker does not err in failing to take into account a relevant consideration unless it was a consideration that he was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited; Li Shi Ping v Minister for Immigration, Local Government & Ethnic Affairs; Paul v Minister for Immigration & Multicultural Affairs. Ignoring relevant material, unless caused by an error of law, is of no legal significance.

11. If the Tribunal relies on any information obtained from a source other than the applicant, then it must be determined whether s.424A of the Act or the common law rules of procedural fairness, by themselves or in combination with s.424A, determine the way that information should be handled by the Tribunal.

12. Section 424A of the Act prescribes the procedure by which the Tribunal must give the applicant particulars of any information that it considers would be part of the reasons for affirming the decision that is under review and invite the applicant's comments. Section 424A(2) requires that the information must be given to the applicant by one of the methods set out in s.441A. Although inferred by this section, it has been subsequently decided that such particulars must be in writing: VEAJ v Minister for Immigration & Multicultural Affairs per Gray J. Information that is excluded from this requirement is set out in s.424A(3), in particular s.424A(3)(a):

"Information that is not specifically about the applicant or another person and is just about a class of person of which the applicant or the other person is a member."

and s.424A(3)(b)

"Information that the applicant gave for the purpose of the application."

These exclusions have been subject to two recent Full Federal Court decisions: VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs ("VHAJ") and NARV v Minister for Immigration & Multicultural & Indigenous Affairs ("NARV"). The majority in NARV held at [31] that the exclusion in s.424A(3) will not apply to information which, while perhaps related to a class of person of which the applicant is a member, may also go to another issue which is relevant to the reasoning process of the Tribunal.

13. As a result of the introduction of s.422B of the Act on 4 July 2003 which is an exhaustive statement of the natural justice hearing rule, the Act now states the requirements to be met when matters are dealt with. However, prior to that date, the Tribunal was obliged to follow the common law. As these proceedings were commenced prior to that date, the rules of natural justice are subject to the application of the common law.

14. The common law rules of natural justice required the Tribunal to give an applicant an opportunity to deal with adverse information that is credible, relevant and significant to the decision to be made: Kioa v West per Brennan J at 629. However, a Court may decline to grant relief for a breach of this rule if the breach could have had no bearing on the outcome: Stead v State Government Insurance Commission at 145 and 147; Re Refugee Review Tribunal; Ex parte Aala at [122]. This may apply in cases where it is not clear what, if anything, an applicant could have done with the information that had been provided to him: NAAV v Minister for Immigration & Multicultural & Indigenous Affairs at [18]; Re Minister for Immigration & Multicultural Affairs; Ex parte "A" at 500-1.

15. It is also necessary for an applicant to show that, absent the alleged error, the decision may have been different: Australian Broadcasting Tribunal v Bond at 384.

16. A breach of the rules of procedural fairness may constitute a jurisdictional error. However, cases need to be considered on their own merits giving the privative clause relevant weight: S157 at [33] per Gleeson CJ. For an error to amount to a jurisdictional error, it would have to be a "manifest" or "serious" error: S157 at [12], [13] and [18] per Gleeson CJ and at [160] per Callinan J. There is also the overriding issue that the concern of the law is with "practical justice" and not mere technicalities: Lam at [37].

Submissions

17. The applicant appeared in person with the assistance of an interpreter. Contentions of fact and law had been filed on behalf of the applicant on 10 December 2003 by his Solicitor, who has subsequently ceased to act. It was agreed between the parties, without objection, that those contentions would be relied upon as the applicant, although wishing to make a number of broad statements about his overall position and the merits of his case, did not wish to make any further submission in support of those contentions.

18. Paragraph C2(a) of the applicant's contentions complains that the Tribunal did not make further enquiry as to the truth of the applicant's statements "concerning his being forced to join the pro Kashmir group in Pakistan". The Tribunal indicates in its decision that, after the applicant's allegation of forced recruitment by the LET, the Tribunal researched a range of country information available to it but was unable to find any evidence of forced recruitment by the LET. This finding, combined with the applicant's evidence that, after a stay of approximately one month, he was able to leave the organisation unhindered and return to his home. The applicant could not demonstrate any detailed knowledge of the organisation structure, objectives, leadership or history, which led the Tribunal to conclude that it could not accept that the applicant was a member of the LET for even a relatively short period.

19. Country information also confirmed that the LET was not forcibly recruiting young Kashmiri men to join their ranks as there seemed to be an alternative source of hardened fighters who had participated in combat in both Pakistan and Afghanistan. Having rejected the applicant's evidence, the Tribunal was not required to go beyond the applicant's claim as to his fear of forced recruitment by the LET. In reaching this decision, the Tribunal had discharged its function without error of law: VCAS of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [7].

20. Paragraph C2(b) of the applicant's contentions complains that the Tribunal did not consider the applicant's claim that his father had been forced to join the LET and that therefore he would be subject to persecution as a family member. The Tribunal found that the evidence concerning the applicant's father was both vague and general. It was approximately twenty-five years since the Pakistani authorities had taken action against the applicant's father resulting in a jail term of twelve months. Ever since that time, the applicant's father, although absent from Pakistan due to work commitments, was returning at regular intervals for up to two to three months at a time without attracting adverse interest from the authorities or any other militant group. The father remained a citizen of Pakistan, travelled on a Pakistani passport and was actively involved in the employment arrangements in Abu Dhabi. The Tribunal found that there was nothing in the information concerning the applicant's father relevant to the applicant's claim of fear of persecution.

21. Paragraphs C3 and C4 of the applicant's contentions, complained that the Tribunal breached s.424A in respect of:

"Information gathered from a variety of sources referred to in its decision and prior inconsistent statements of the applicant."

The unparticularised nature of these contentions prevent the proper consideration of s.424A. under the authorities of both VHAJ and NARV.

22. The respondent's contentions focus on the issues that the Tribunal relied upon from the applicant's own evidence which led to its rejection of the applicant's claim of fear of persecution by being forced to join the LET. Those findings are:

a) the fact that the applicant returned to Pakistan and to his home area for thirteen days in July 2001, prior to travelling to Australia, which is not the action of a person with such claimed fears;

b) the finding that it is highly unlikely that the applicant would risk being seized by the LET, as claimed, in his home area in July 2001, and thus frustrated his plans to see his brother in hospital in Australia;

c) the finding that the applicant was not threatened or assaulted on several occasions and severely treated as claimed;

d) the finding that, if the applicant was held for one night only and then released, he was of no interest to the authorities, which does not substantiate a claim of arbitrary detention;

e) the applicant's claim that, after alleged forced recruitment by the LET, he returned home after a month, and thus if he had been recruited, he was able to leave unhindered;

f) the fact that the applicant knew nothing about the LET - he did not know when it was formed, he did not know who the leader was, he did not know of which major group it was the armed wing, he did not know that it had been banned and he did not know the expressed aims of the organisation;

g) the findings that, in view of the applicant's lack of knowledge of the LET, the Tribunal did not accept that the applicant was a member of LET, even for a short period of one month;

h) the fact that the applicant was able to obtain a passport without difficulty, renew it, enter and leave Pakistan without incident and he was of no interest to the authorities; and

i) the fact that the applicant's father was able to return to his family in Pakistan at regular intervals of up to two to three months at a time without attracting the adverse interests of the authorities or the interests of any militant group.

23. In the Tribunal's decision there is reference to a number of source documents containing various country information. However, the Tribunal did not provide any of this information to the applicant prior to the hearing. This country information was sourced by the Tribunal and was not provided by the applicant as part of his evidence or submissions. This raises the question whether the Tribunal failed to observe the common law rules of natural justice or the procedural requirements of s.424A by not providing the applicant with the information.

24. It was the respondent's contention that this information only went to the question of whether young Kashmiri Pakistanis, a class of person of which the applicant is a member, were being forcibly recruited by the LET. Because of this limited issue, it is argued that this information qualifies for exemption under s.424A(3)(a): NARV at [30]-[31].

25. During the course of the Tribunal's hearing on 20 February 2003, a range of country information was put to the applicant. This information related to the operations, policies and leadership of the LET and was put to the applicant to test his knowledge of that organisation. The Tribunal found that the applicant was unable to respond to many of its questions unless the Tribunal had prompted him and supplied him with the answers. This information was not relied upon by the Tribunal as contradicting any claim that the applicant had made but was used to establish a lack of knowledge on the applicant's part about LET's operations, policies and leadership.

26. In respect of the operation of s.424A(1)(a), the information which "would be the reason for affirming the decision that is under review" was not the country information about the LET, but was information about the applicant's lack of knowledge about the LET. It was submitted that this information was not known to the Tribunal until the course of the hearing. Consequently, the Tribunal did not breach s.424A in this regard. Nor did the Tribunal fail to provide procedural fairness during the course of the hearing as the applicant was given an opportunity to demonstrate his knowledge of the LET. He was unable to do this so the country information was put to him and he was given an opportunity to agree with it or challenge it and he agreed with it. It is thus not apparent what, if anything, the applicant would have done with such country information to achieve a different outcome.

27. The Tribunal put to the applicant country information relevant to the treatment in Pakistan of persons holding Kashmiri political opinion, that class of person of which the applicant is a member. That was the extent of the information and it did not cover any other relevant issues. Material restricted in this way falls within the exception under s.424A(3)(a): NARV at [30]-[31]. The Tribunal complied with the requirements of procedural fairness by putting the information to the applicant and giving him an opportunity to respond during the course of the hearing.

28. The Tribunal rejected the applicant's claim based on a number of matters raised by the applicant in his own evidence. These issues were outside of the scope of material raised by any of the country information. It was the respondent's application that, if the Tribunal breached s.424A or the requirements of procedural fairness in respect of any aspect of the country information, the supply of that information or the failure to supply that information, prior to the hearing, made no real difference to the outcome in view of the overwhelming negative findings made on the applicant's own evidence alone.

Conclusion

29. On the material before me, no jurisdictional error is established in the Tribunal procedures or decision. The application must be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: Menna McMullan

Date: 17 September 2004
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