FEDERAL COURT OF AUSTRALIA VAAI v Minister for Immigration & Multicultural Affairs [2002] FCAFC 123 MIGRATION – application for a protection visa – whether primary judge erred in concluding no reviewable error by Refugee Review Tribunal in finding that applicant had not made a particular claim in his application, in drawing inferences without any evidentiary basis, and in failing to have regard to relevant considerations – whether any jurisdictional or other legal error by Tribunal. Migration Act 1958 ss 427, 476(1)(g) Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, referred to VAAI v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 14 OF 2002 CARR, MOORE AND MARSHALL JJ 10 MAY 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 14 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE COURT BETWEEN: VAAI APPELLANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES CARR, MOORE AND MARSHALL JJ DATE OF ORDER: 10 MAY 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 14 OF 2002 BETWEEN: VAAI APPELLANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT ON APPEAL FROM A SINGLE JUDGE OF THE COURT JUDGES: CARR, MOORE AND MARSHALL JJ DATE: 10 MAY 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT THE COURT 1 This is an appeal from a judgment of a single judge of the Court ("the primary judge"). In his judgment the primary judge dismissed an application by the appellant for judicial review of a decision of the Refugee Review Tribunal ("the RRT"). The RRT had affirmed a decision of a delegate of the respondent that the appellant was not entitled to a protection visa. Background 2 The appellant is a 27 year old male who is a citizen of Pakistan. He is a Sunni Muslim. The appellant entered Australia on 13 February 1998 as the holder of a student visa which was valid until 23 July 2000. 3 The appellant was placed in detention at Maribyrnong Detention Centre on 21 March 2001 after overstaying his student visa. On 11 April 2001 he applied for a protection visa. A delegate of the respondent rejected the application on 15 May 2001. On 24 May 2001 the appellant applied to the RRT for a review of the decision of the delegate. The appellant appeared, with counsel (who was also a migration agent), at an oral hearing on 14 June 2001. By letter dated 25 June 2001 the appellant was advised of the decision of the RRT dated 22 June 2001. The RRT decided that it was "not satisfied that the applicant is a refugee and affirms the decision not to grant a protection visa." The appellant's claims 4 The appellant's claims were described by the primary judge at [2] of his reasons for judgment: "The applicant claimed that he had a well-founded fear of political persecution, if he returned to Pakistan, by reason of his association with a Sunni Muslim group known as Sipah-i-Sahaba ("SSP"). The applicant claimed that while in Pakistan he was involved with the SSP and, in particular, had a close association with one of its leaders, who was his karate instructor, Mohamed Saddiqi ("Saddiqi"). The applicant stated that, while he was in Pakistan, his family received threats concerning his involvement with the SSP but did not inform him of those threats until he was in Australia. Since his departure from Pakistan he claimed the threats continued and that Saddiqi was murdered. Those and other events which the applicant recounted were said by him to found his fear that he faced a real risk of harm by reason of his prior association with the SSP and one of its leaders, Saddiqi, if he returned to Pakistan." 5 The appellant did not name the Sunni Muslim group he belonged to as Sipah-i-Suhuba ("SSP") when advancing his claims until the hearing before the RRT. He also produced at the hearing some documents about the SSP and the murder of the appellant's Karate instructor, Mohammed Suddiqi. Additionally, the appellant's representative presented a document which was alleged to be the appellant's SSP identity/membership card. The RRT's reasons 6 The RRT did not believe the appellant's claim to be personally associated with the SSP. Central to this appeal were the following passages from the RRT's reasons: "In the initial stages of his application for a protection visa the applicant made no reference to any particular religious group. He merely claimed that he was active in an unidentified Sunni Muslim group. While accepting that he told his adviser at some stage that he was connected with the SSP there is no timely allusion to that in any of the material on file. In the initial application for protection the applicant made a lengthy statement with the assistance of his adviser. He gave instructions to his adviser who filled out the form on behalf of the applicant who then read it before signing a declaration that the information therein was, inter alia, "complete" and "correct". It is apparent that the applicant is competent with English. The Tribunal does not accept that the applicant would have allowed omission of any actual reference to the SSP at that time if he had had such an association, particularly as he now bases his case on the consequences of attachment to that particular group. In reaching its conclusion that the applicant was never a member of the SSP the Tribunal has also considered a card submitted by the applicant at the hearing that is purportedly a membership card for the SSP. The card is in pristine condition despite having an issue date of 1994. The content of the card has not been translated. A photograph of the applicant has been placed over some of the content of the card. The SSP is an extremist religious faction within the Sunni Muslim majority population of Pakistan with a history of serious violence towards Shia opponents (see, for example, "2000 Annual report on international religious freedom: Pakistan", Bureau of Democracy, Human Rights, and Labor U.S. Department of State, September 5, 2000). In its Country Information Report, 436/99 of 6 October 1999, DFAT observes that: "The SSP is an extremist Sunni political party which is known for its involvement in sectarian violence…" It appears unlikely that SSP members would be issued with cards helping to identify themselves as such, for example in the wake of inevitable official investigations of serious crimes perpetrated by some of them. In assessing all the material before it, including the applicant's initial omission of any reference to any association with the SSP, the Tribunal concludes that the SSP membership card belatedly furnished by the applicant is not a genuine document." Issues raised before the primary judge 7 At [10] of his reasons for judgment, the primary judge described the contentions raised before him as being whether: · "there was no evidence or material to justify the decision, which was based on the existence of a particular fact which did not exist, namely that the applicant made no reference to any particular religious group "in the initial stages of his application" (s 476(1)(g) of the Migration Act 1958 (Cth)); · the RRT erred in law by failing to consider whether, regardless of whether or not the applicant was personally associated with the SSP, he might have been imputed with a political opinion by reason of his personal association with Saddiqi (s 476(1)(e)); · the RRT was under a duty under s 427(1)(d) to make further enquiries in relation to the authenticity of the SSP identity card, including obtaining a translation of it (s 476(1)(a))." The primary judge rejected each of the three contentions. Issues raised on appeal 8 Counsel for the appellant essentially developed four main points. They were: · a "no evidence" argument based on s476(1)(g) of the Migration Act 1958 ("the Act"); · that in considering certain material before it the RRT drew two inferences in a way that involved an error of law; · a contention that the RRT had failed to consider relevant material; and · that such failure led the RRT into jurisdictional error The no-evidence ground 9 The primary judge dealt with this issue in the following way at [11] to [16] of his reasons for judgment: "11. I turn first to consider the "no evidence" ground. Section 476(1)(g) provides that a ground upon which the Federal Court may review a decision of the Tribunal is: "(g) that there was no evidence or other material to justify the making of the decision." Section 476(1)(g) is, relevantly, qualified by s 476(4)(b): "(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) ……………………… (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 12. In Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ("Al-Miahi") at paras [34] and [35] a Full Court stated: "The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place - Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6. Sections 476(1)(g) and 476(4) appear to have been intended to give effect to such principles. The application of s 476(1)(g) and s 476(4)(b) in any particular case requires the following steps: * A relevant particular fact first must be identified. * Then it is necessary to determine whether there was any evidence before the Tribunal to justify a finding of that fact. If there was such evidence, the ground cannot be made out. * If there was no such evidence, it is next necessary to apply the second limb of (4)(b). If there is no evidence, on review, to show that the fact did not exist, the ground cannot be made out. * If there is evidence, on review, to show that the fact did not exist, it is then necessary to apply the first limb of (4)(b). That requires an analysis of the Tribunal's reasoning to determine whether its decision was based on that fact. See, for example, Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [26] to [28]" 13. In discussing whether a decision is based on a particular fact the Full Court stated at [38]: "A decision may be based upon the existence of many particular facts. It will be based upon the existence of each particular fact that is critical to the making of a decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that it is of more obvious immediate importance. If a decision is in truth based, in that sense, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed, whatever the relative importance of the fact. There is no reason to read s 476(4)(b) in a way that would limit its operation to a predominant reason for the decision under review – Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221." 14. The particular fact relied upon by the applicant in the present case is based upon the finding of the RRT that: "[in] the initial stages of [the applicant's] application for a protection visa he made no reference to any particular religious group". In order to identify the particular fact relied upon it is necessary to consider that finding in the context in which it is made. In that context the omission to which the RRT was referring was the failure of the applicant to make any reference to the SSP in the course of the processing of his application, including the lodging of the application and the decision of the delegate. In my view the RRT was referring to the stages in which the applicant was entitled to make his claims and provide material in support of those claims to the Department, and not to what the applicant may, or may not, have told his adviser in private. That matter is dealt with in the succeeding sentences of the third paragraph of the RRT's reasons, to which I have referred, when the RRT accepted that the applicant told his adviser "at some stage" that he was connected with the SSP but there was no "timely allusion to that in any of the material on file". 15. Thus, the particular fact found by the Tribunal and upon which its decision is in part based, which is said not to exist, was not really in dispute before the RRT. Plainly, the finding that the applicant made no reference to the SSP in his application, nor in the course of the processing of his application by the Department and the delegate prior to his hearing before the RRT, was clearly correct. Thus, the evidence justified the particular fact found by the RRT. There is some substance in the complaint made by counsel for the applicant that in his initial application her client had explicitly referred to a "particular" religious group with which he is connected and that that reference was in the context of him later providing documentation to establish that connection, which he did at the hearing. However, that criticism goes to the weight given by the RRT to the failure to explicitly identify the SSP prior to the hearing. The weight to be given to a particular fact is a matter for the RRT rather than the Court. 16. There is a further difficulty with the applicant's reliance on the "no evidence" ground. Even if my view of the fact found by the RRT is incorrect, and the omission referred to was intended to embrace private conversations between the applicant and his adviser in the course of preparing the applicant's application, that does not assist the applicant's case on this issue. The RRT accepted that the applicant told his adviser about his involvement with the SSP "at some stage" but discounted that as being of assistance to the applicant as there had been "no timely allusion to that in any of the material on file". The RRT also relied on the applicant's failure to refer to the SSP in his application. Thus, on a fair reading of the decision, it was not based on the fact (in the sense discussed in Al-Miahi) that the applicant had not mentioned the SSP to his adviser when the application for a protection visa was being prepared." 10 We see no error in the approach taken by the primary judge on this issue. In the appeal counsel for the appellant sought again to characterise the contentious finding of fact as that the appellant did not refer to any particular religious group. However, the RRT's finding was, in context, that he made no reference to the SSP. The context included the sentence in the RRT's reasons which immediately followed the sentence (being the first sentence set out in the extract at [6] above), upon which the appellant relied in which the RRT referred to the applicant as having merely claimed that he was active in an unidentified Sunni Muslim group. This was the conclusion of the primary judge at [14] and [15] of his reasons. The primary judge was correct in reaching this conclusion. His Honour was also correct in rejecting the ground. The identity card 11 Counsel for the appellant raised several additional issues not raised before the primary judge. The first was that by rejecting the identity card as genuine, the RRT drew an inference about the operations of the SSP when there were no primary facts by reference to which the inference could be drawn. This was said to be an error of law. However, the independent country information the RRT referred to (in the extract quoted at [6] above) permitted it, in our view, to make the finding it did. This ground is not made out. Other new contentions 12 The next new issue concerned the RRT's finding that certain letters relied upon the appellant "contain(ed) a contrived and self-serving tone and language." Again the appellant contended that this was an inference drawn from primary facts concerning the tone of the letters and those primary facts could not have been found because the letters were in Urdu. However, the RRT had translations of the letters provided by the appellant and, in our view, it was entitled to reach the conclusion it did by reference to those translations. 13 Counsel for the appellant further submitted that the RRT failed to take into account the reference to the appellant's Karate instructor as being the person whom the appellant followed. This appears to us not to raise any ground of judicial review. 14 Counsel also submitted that the RRT did not consider a statement made by the appellant's counsel at the hearing that it was the counsel's error that no reference was made to the SSP in the original application for a protection visa. That submission is incorrect. The RRT did accept at p 7 of its reasons for decision that the appellant "told his adviser at some stage that he was connected with the SSP." However, it added that "there is no timely allusion to that in any material on file". We accept the submission of counsel for the respondent that the RRT took into account the evidence given at the hearing by the appellant's lawyer, but that the RRT attached greater weight to other material before it on the issue of the appellant's alleged membership of the SSP. 15 The contentions referred to in the preceding three paragraphs were said also to demonstrate that the RRT had fallen into jurisdictional error of the type referred to by the High Court of Australia in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. In our view, nothing in those parts of the RRT's reasons about which the appellant complains, suggests that it misunderstood the issues which it had to decide and the function it was obliged, by the Act, to perform. In our opinion the RRT did not fall into jurisdictional error or any other legal error. 16 Although counsel for the respondent objected to the appellant being permitted to raise additional grounds to those raised before the primary judge, we do not consider it necessary to decide that issue given that the new grounds lack merit in any event. Disposition 17 In our view the appeal must be dismissed, with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Carr, Moore and Marshall. Associate: Dated: 10 May 2002 Counsel for the Applicant: Mr Philip Crennan (who appeared pro bono) Counsel for the Respondent: Mr Cahal Fairfield Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 May 2002 Date of Judgment: 10 May 2002