BZAC of 2004 v Refugee Review Tribunal [2005] FCA 499

FEDERAL COURT OF AUSTRALIA

BZAC of 2004 v Refugee Review Tribunal [2005] FCA 499

Cases Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 Foll Muin v Refugee Review Tribunal (2002) 190 ALR 601 Cons

BZAC OF 2004 V REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS QUD 31 OF 2005 KIEFEL J BRISBANE 26 APRIL 2005

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 31 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: BZAC OF 2004

APPELLANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: KIEFEL J

DATE OF ORDER: 26 APRIL 2005

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 31 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: BZAC OF 2004

APPELLANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

JUDGE: KIEFEL J

DATE: 26 APRIL 2005

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 The appellant is a citizen of Pakistan who arrived in Australia as a temporary business entrant in November 2003 and applied for a protection (Class XA) visa on 8 January 2004. The Refugee Review Tribunal ('the Tribunal') affirmed the Delegate's refusal to grant a visa and the Federal Magistrates Court dismissed an application to review that decision. 2 The appellant was born into a Sunni Muslim family. His principal claims of fear of persecution in Pakistan were based upon the treatment he received when he became associated with Shia Muslims, joined a Shia organisation and married a woman of that sect in 1992. 3 He complained that he was threatened by Sunni people and arrested without charge on five or six occasions. At the end of 1997, the appellant left Pakistan without his family and moved to South Korea for five years to work. He returned to Pakistan and helped organise a Shia religious festival and received further threats on three or four occasions in July and August 2003. He said he was attacked by people who he assumed to be Sunni fundamentalists. He was arrested twice for insulting the Sunni religion. He was beaten by Sunnis who came to his house and spent three days in hospital. 4 Police refused to charge those involved and arrested him instead. Sunni fundamentalists continued to threaten him and members of his family. He was again hospitalised after an incident in September 2003. The police again refused to register his case. He had heard that a Sunni leader had encouraged others to kill him and other Shia followers. The appellant claimed that both the police and government in Pakistan openly discriminate against minorities such as Shia Muslims. The laws are discriminatory and he could have no protection there. He told the Tribunal that he would be denied the right to practise his faith and the basic rights to live and to work. 5 The Tribunal did not accept much of the appellant's story. It did not accept his claim that he was threatened by Sunni people after his conversion and marriage. It was not accepted that he was arrested prior to going to South Korea. He returned from South Korea and delayed three months after the grant of his visa before travelling to Australia. In the Tribunal's view this was not consistent with a person fearing persecution. The Tribunal did not accept that the police and government discriminate against Shia Muslims or that the police take the side of Sunni Muslims. It accepted that sectarian violence is a problem but converts are not targeted. Rather, indiscriminate violence is directed at places like mosques. A small number of people are affected by it and there was no real chance that the appellant would be targeted if he returned to Pakistan. 6 The Tribunal's decision was largely based upon country reports and information from various sources. The application to the Federal Magistrates Court was based upon an alleged denial of procedural fairness on the part of the Tribunal. The appellant contended that he was denied procedural fairness because the country information relied upon by the Tribunal was not given to him or explained to him prior to the decision being made. Had he known of the information, he would have produced material which showed his situation and the state of affairs in Pakistan in their true light. The applicant can be seen to seek to raise an issue such as that in Muin v Refugee Review Tribunal (2002) 190 ALR 601. 7 The difficulty in the appellant's case, Federal Magistrate Baumann held, was that the country information which the Tribunal identified as contrary to the appellant's position was put to him and he responded. Furthermore, he was given an opportunity, at his lawyer's request, to make further submissions and could have presented any further material. He did not do so. 8 The notice of appeal from his Honour's decision contains the following grounds: '1. His Honour erred in failing to hold that the Migration Review Tribunal made a jurisdictional error. 2. His Honour erred in failing to hold that the tribunal, ignored the relevant material which referred to the appellant's claims for persecution. 3. His Honour erred in failing to hold that the tribunal failed to put relevant questions to the appellant in relation to the appellant's documentary evidence, and thus committed jurisdictional error. 4. His Honour failed to hold that the appellant was denied natural justice and procedural fairness in circumstances where the tribunal failed to provide copies of the material and/or explain to the appellant such material which was relied upon in the tribunal's decision-making.' 9 The first ground is unparticularised and would appear to be only the conclusion sought from what follows. The second was really the only point which the appellant pressed on this appeal, perhaps in combination with three, although ground three was not specifically addressed. 10 The second ground of appeal appears to relate to the Tribunal's nonacceptance of documents, including hospital records, which the appellant produced to support his story and the evidence of a witness, who the Tribunal considered did not offer corroboration of the appellant's story. It is not however apparent to me how these matters can involve jurisdictional error. As his Honour, the Federal Magistrate held, the Tribunal was not obliged to accept this evidence. It found it to be unreliable based upon other aspects of the evidence. This is an orthodox approach to a consideration of evidence. Matters of fact and the acceptance of evidence are par excellence matters for the Tribunal and are not subject to review by either the Federal Magistrates Court or this Court. 11 The applicant also submitted on the appeal that the Tribunal should have made further enquiries if it was not satisfied with the documents he put forward. This involves a misunderstanding of the Tribunal's function. It is not obliged to make those enquiries. 12 Ground 3 also raises a new ground, namely that the Tribunal should have put relevant questions to the appellant about this documentary evidence. It is not apparent to me what the Tribunal should have asked. It is apparent from the transcript in any event that the Tribunal indicated clearly to the appellant that it did not accept the documents as genuine. It was open to the appellant to put forward any further material with the further submissions, which were permitted by the Tribunal. There is no jurisdictional error identified. 13 The remaining ground was that taken by the lawyers for the appellant in the Federal Magistrates Court but not really taken up here. The appellant did not appear to really understand what it involved, although some discussion was had with him about it. The point made by his legal representatives before FM Baumann was that copies of the country information which the Tribunal relied upon ought to be have been made available so that the appellant could have commented upon them. The simple answer to the proposition was dealt with by his Honour. The transcript and the Tribunal's reasoning are replete with references to information contained within the country reports on a number of topics and the appellant's response to them is noted. 14 In any event, it is not necessary for a Tribunal to provide an applicant with general information as distinct from information which is personal to him or to another person: see the decision in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264In this case the Tribunal went further and did give a clear opportunity to the appellant to respond to the information at the hearing and to make further submissions, an opportunity which he did not take up. 15 The one point made by the appellant on the appeal was that the general information did not apply to him. It was not however apparent how the appellant could make good this contention or how he could take it out of the realm of fact-finding on the part of the Tribunal. 16 No jurisdictional error is shown in the reasoning of the Federal Magistrate. The appeal must be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.