FEDERAL COURT OF AUSTRALIA NAOU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 267 NAOU -v- MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1498 of 2003 RYAN, HEEREY and ALLSOP JJ 24 NOVEMBER 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1498 of 2003 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NAOU Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGES: RYAN, HEEREY and ALLSOP JJ DATE OF ORDER: 24 NOVEMBER 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for adjournment be refused. 2. The appeal be dismissed. 3. 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 NEW SOUTH WALES DISTRICT REGISTRY N 1498 of 2003 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NAOU Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGES: RYAN, HEEREY and ALLSOP JJ DATE: 24 NOVEMBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT 1 The Court has considered this appeal and is in a position to deliver judgment immediately. This is an appeal from orders of a single Judge of the Court made on 16 September 2003 dismissing the appellant's application for judicial review under s 49B of the Judiciary Act 1903 (Cth) of a decision by the Refugee Review Tribunal ("the Tribunal"). That decision affirmed a decision of a delegate of the respondent Minister to refuse the appellant a protection visa. 2 The appellant is a Pakistani national who claimed to have a well-founded fear of persecution in Pakistan by reason of his political opinion. That political opinion had found expression in his membership, since 1993, of the People's Party or, as it is referred to elsewhere in the material, the Pakistan People's Party ("the PPP"). 3 The appellant asserted before the Tribunal that he had been active as an organiser within the PPP and, as a result, had become a "main political target" of the rival Pakistan Muslim League ("the PML"). That targeting, he said, took the form of threats against the appellant and members of his family and, in particular, the lodging of a trumped-up charge against him of possession of illegal weapons and agitating citizens against the PML Government of Pakistan. 4 In prosecution of that charge, he claimed, he had been arrested, detained and mistreated and been forced to bribe his way out of prison. Then he went on an employment visa to Dubai and, once there, obtained a temporary business visa at the Australian Embassy. That visa, in turn, enabled him to enter this country and, on arrival here, he applied for a protection visa. 5 The learned primary Judge noted that the Tribunal had found the appellant not to be a credible witness. In particular, it rejected the high profile within the PPP which he had claimed. However, it was prepared to accept that the appellant had been an ordinary, or rank and file, member of that party. The primary Judge continued at [7]-[8] of his reasons; 'The Tribunal appears to have taken the view that a particular attack on the applicant which had occurred in 1994 did take place, but was satisfied that the chance of a similar attack occurring in the future was remote. The Tribunal also took the view that the various threats on the basis of which the applicant claimed to fear persecution were not of such a character as to constitute a real chance of persecution in the future. Particularly, however, the Tribunal did not for reasons set out in its reasons, accept that the Muslim League opponents of the Pakistan Peoples Party had registered a false case against him. In rejecting this claim the Tribunal paid attention to what it considered to be inconsistencies in the applicant's evidence. It may be thought that some of those inconsistencies were somewhat trivial, but that does not of itself suggest an error of law was committed let alone that the Tribunal had made a jurisdictional error.' 6 His Honour then noted that the Tribunal had found that the chance of the applicant's suffering harm as a result of the low level activity within the PPP which it had ascribed to him was now remote, both because of the lapse of time since his last encounter with political rivals and because of recent changes in the political landscape in Pakistan. 7 In his written application for judicial review, the appellant imputed to the Tribunal three errors: '(1) By holding that "There was no evidence before the Tribunal to suggest any current leaders or prominent members of the PPP, let alone ordinary members, had been targeted by the Musharraf Government." (2) By using "The Asylum and Appeals Policy Directorate of the UK Home Office (Pakistan Assessment, October 2002) Report to conclude that there is an independent and politically non-biased court system in Pakistan with, [scil. "without"] giving opportunity to the applicant to respond to that report. This is a denial of natural justice. (3) Holding that the applicant has an insignificant political profile. This is against the weight of the evidence.' 8 His Honour declined to hold that any of those matters amounted to jurisdictional error so as to support the issue of a constitutional writ directed to the Tribunal. 9 The first matter raising a "no evidence point" was analysed as simply a preference for evidence comprising by country information over the oral evidence given by the appellant himself. As to that matter, the learned primary Judge said at [13]-[14] of his reasons: 'However, it is open to the Tribunal to accept such evidence as it does accept, whether country information or otherwise. It is open to the Tribunal to reject the testimony of an applicant and the Tribunal commits no jurisdictional error in so doing. Unfortunately, what the applicant seeks in this Court is merits review rather than judicial review. The Court has no jurisdiction to conduct a review of the merits of his case. It is clear from the perusal of the Tribunal's reasons that there was material before the Tribunal which supported its view of the position in Pakistan and particularly supported the conclusion which it reached that the applicant would not face persecution in the future should he return to Pakistan.' 10 The second matter was framed as founding a finding that the Tribunal had denied natural justice to the appellant. His Honour accepted that the Tribunal had paid regard in this context to a report of the Asylum and Appeals Policy Directorate of the Home Office of the United Kingdom in concluding that there was an independent judiciary in Pakistan. However, the acceptance of this natural justice point was found to be confronted by two obstacles identified by the learned primary Judge. His Honour said this at [16]-[17] of his reasons: 'There are a number of difficulties with the submission. The first is that the applicant has not put before me the transcript of the proceedings in the Tribunal so that I have no basis upon which I could determine whether or not he was given the opportunity by the Tribunal of dealing with this matter. However, even if the claim is correct that the applicant was not given an opportunity to deal with the suggestion that the court system in Pakistan was unbiased, it is difficult to see, on the Tribunal's reasons, that the matter formed any real basis for the Tribunal's decision. The applicant's real problem is that the Tribunal did not believe him and the case which he put. Indeed, it was of the opinion that the suggestion of a false claim was a matter which the applicant had fabricated. On this basis it is hard to see whether or how the fairness of the Pakistan judicial system impacted upon the applicant's case. It might be noted here that there was no obligation on the Tribunal under s 424A of the Act to give notice to the applicant of the written material concerning the Pakistan judiciary because the obligation to provide country material is specifically excluded from the terms of s 424A(3). However, put more briefly, the argument that the civil judiciary in Pakistan was so non independent as to prevent the applicant being afforded a fair trial was merely a matter dealt with as an alternative to the non acceptance by the Tribunal of the claim by the applicant that he had been falsely charged with offences which were still current.' 11 The third matter involved an attack on the Tribunal's finding that the appellant had an insignificant political profile in Pakistan. His Honour characterised that as turning largely on the Tribunal's assessment of the applicant's credit and as one which, being a finding of fact, his Honour held could reveal no jurisdictional error. 12 In his notice of appeal to this Court the appellant has identified in his grounds three alleged errors by the Judge at first instance. They are: '(1) His Honour failed to find denial of natural justice and procedural fairness made by the RRT. (2) His Honour also failed to find the legally [sic] error on the decision made by the RRT. (3) His Honour has not considered the relevant points which I stated in my arguments by writing and verbally as well.' 13 We have considered those grounds against the background of his Honour's reasons and we have concluded that there is no identifiable error which would warrant this Court setting aside the orders below. As far as concerns the alleged denial of natural justice, we agree with his Honour that the reference to the material from the United Kingdom Home Office would really only have become relevant if the Tribunal had accepted the first premise of the appellant's case, which was that he had been the subject of false or trumped-up charges. However, as his Honour indicated, and we see no reason to depart from this view, the Tribunal had rejected that first premise when it found, for the reasons which it indicated, that the appellant had not been a target of the PML and had not been a victim of a false charge. 14 In respect of the claim of failure by the learned primary Judge to find any legal error in the decision made by the Tribunal, we agree that the Tribunal's decision turned essentially upon questions of credibility and that no error of law is discernible in its treatment of what were, essentially, questions of fact. We have not been able to identify any failure by his Honour to consider the arguments advanced in writing or orally by the appellant. His Honour seems to have canvassed each of the grounds which were agitated before him. Significantly, no such omission has been identified either in the grounds of appeal or today by the appellant when he was afforded an opportunity to amplify those grounds on the hearing of this appeal. 15 For these reasons it is the unanimous view of the Court that the appeal must be dismissed. Accordingly, the orders of the Court are: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court. Associate: Dated: 24 November 2003 Counsel for the Appellant: The appellant appeared in person. Counsel for the Respondent: Mr R Beech-Jones Solicitor for the Respondent: Clayton Utz Date of Hearing: 24 November 2003 Date of Judgment: 24 November 2003