FEDERAL COURT OF AUSTRALIA SZHAH v Minister for Immigration & Multicultural Affairs [2006] FCA 1012 SZHAH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL No NSD 581 of 2006 FINN J 2 AUGUST 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 581 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZHAH Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FINN J DATE OF ORDER: 2 AUGUST 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first 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 NSD 581 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZHAH Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FINN J DATE: 2 AUGUST 2006 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate rejecting an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") refusing to grant a protection visa to the applicant. The grounds of appeal to this court are a condensed version of the grounds of the application to the Federal Magistrate, the errors ascribed to the Federal Magistrate being in substance the same errors as were alleged against the Tribunal. 2 The appellant is a Pakistani citizen who came to Australia on 2 March 2004. His claims have twice been to the Tribunal, the first of these being the subject of a successful appeal to the Federal Magistrates Court. 3 The grounds of appeal against the Federal Magistrate's decision are three-fold: first, that his Honour erred in finding that the Tribunal did not take account of relevant considerations which are then particularised; second, his Honour erred in finding that the Tribunal did not carry out its statutory duty, the essence of this complaint being that the Tribunal failed to discharge its duty bona fide, a grave and unsubstantiated allegation as I will later indicate; and, third, his Honour erred in finding that the Tribunal's decision was not irrational, illogical and based on an unwarranted assumption. Background 4 It is sufficient for present purposes to refer to several parts of the Tribunal's findings and reasons to expose the subject of complaint on this appeal. The two principal claims made by the appellant was that he was an activist for women's rights and he was threatened by the Tehreek-e-Nafaz-e-Shariat-e-Mohammadi ("TNSM") for that reason. The TNSM is a proscribed organisation in Pakistan, its primary objective being the imposition of Shariat in Pakistan. Ideologically, according to country information, it is dedicated to transform Pakistan into a Taliban style State. The second claim related to the appellant sending his children to an English medium school which again was said to be a cause of fear of persecution by the TNSM. 5 In dealing with the appellant's case, the Tribunal expressed the view that significant aspects of his evidence were confused and inconsistent both internally and with the independent evidence. The Tribunal said the evidence lacked credibility. It did not accept that the appellant was a women's rights activist or that he was threatened by the TNSM prior to leaving Pakistan. The Tribunal was of the view that the applicant fabricated this claim in an attempt to create for himself the profile of a refugee. 6 It rejected the claim of women's rights activism in the following terms: "Firstly, the applicant is a forty-four year old man who has worked as a seaman since he was about twenty years old. The applicant's evidence indicated that as a seaman he spent significant periods of time at sea and therefore away from his community. In my view, the applicant's profile is not that of an activist. Secondly, the applicant's evidence indicated that he was unaware of any other organisations working in the area of women's rights either in Pakistan generally, or in the NWFP in particular. In my view, if the applicant were someone who was committed to the advancement of women's rights and had actively worked with other people to achieve that end, he would have at least some familiarity with some of the organisations working in this field. I am of the view that this would be the case even if the applicant were not working in a leadership capacity. Thirdly, the applicant's approach to the issue of women's rights was extremely simplistic. The applicant's evidence suggested that the only activity in which his group was engaged was talking to people about the lack of women's rights. The applicant appeared unable to suggest any other ways in which women's rights could be advanced. Even allowing for the applicant's lack of sophistication, I am of the view that if he had been genuinely engaged in the issue of promoting women's rights, he would show somewhat more awareness of what was being done or could be done to achieve this aim." 7 In support of his claim that he was persecuted by the TNSM, the appellant claimed that, in September 2003 members of that group came to his house wanting to kill him. It was his evidence that (i) that organisation had opposed him since the time he had been seriously involved in promoting women's rights (about five years previous to the alleged incident in 2003); and (ii) that he had been threatened by the organisation on many occasions. Of this the Tribunal observed that "if TNSM members or anyone else was opposed to him and wanted to kill him, it is implausible that they would wait for some five years before taking steps to do so. The appellant asserted that under Pashtun tradition they could take revenge on him in ten year's time". The Tribunal did not find this explanation convincing. The Tribunal gave an account of the incident in September 2003. It is clear, without setting out the details of it, that the appellant gave somewhat inconsistent versions of what happened at that incident which permitted him to escape detection by the TNSM members. It is unarguable, in my view, that there was not some change in his evidence, a matter to which I will return to below. 8 The appellant provided to the Tribunal documents which he said supported his case. The first of these, which related to his complaint to the police about the September 2003 incident, was contained in a copy of a First Information Report (FIR). Of this, the Tribunal said, "even if this is a genuine document, the fact that a report was made to the police about a particular incident does not mean that the incident in fact occurred". The appellant also provided what was said to be a letter from an official of a council in his home region whom he said he had known all of his life. The Tribunal dealt with this letter in the following way: "There is independent evidence before me indicating that there is a culture of patronage in Pakistan which can lead to such letters being written for a number of different reasons. The applicant did not disagree that this was the case. In the circumstances, I do not consider that these two documents constitute reliable evidence of the credibility of the applicant's claims, and I place no weight on them in this regard." 9 As noted above, the appellant also claimed fear of persecution by the TNSM on account of his sending his children and in particular a daughter, to an English medium school. The Tribunal noted that his children continued still to attend that school and took the view that if they had been harmed or threatened with harm, the appellant would have taken steps to move them to a safer environment. It concluded that in the circumstances the fact that the appellant chose to send them to that school did not of itself give rise to a well-founded fear of persecution for a Convention reason. 10 In sum, the Tribunal concluded: "Overall, I reject the [appellant's] claim that he was an activist for women's rights and the TNSM threatened him for this reason. I do not accept that the [appellant] had an association with human rights activists. I am of the view that the [appellant] fabricated these claims in an attempt to create for himself the profile of a refugee. I do not accept that the [appellant] was of adverse interest to TNSM members or to anyone else at the time he left Pakistan. While I accept that the [appellant] sends his children to an English-medium school, I am not satisfied that this gives rise to a well-founded fear of persecution for a Convention reason. As I do not accept that the [appellant] was of any interest to the TNSM at the time he left Pakistan, I am of the view that the chance that the [appellant] would face harm from TNSM members if he returned to Pakistan is remote." The Present Appeal 11 The first ground of appeal is that the Federal Magistrate erred in finding that the Tribunal did not fail to take account of the following matters by improperly dismissing the appellant's evidence. These were: (i) that the appellant was involved in promoting women's rights; (ii) that members of the TNSM visited his home in September 2003; and (iii) the documents provided by the appellant in support of his application. 12 It is impossible to view this particular ground of appeal as being based on anything other than a desire to secure a review of the matter on its merits. The Tribunal well and truly considered each of the above three matters and arrived at conclusions adverse to the appellant's claims. It may well be the case that a differently constituted Tribunal may not have made the same findings, but that of itself provides no ground for ascribing jurisdictional error to the Tribunal member's decision. Each of the above matters was considered by the Federal Magistrate and, I should say, I agree generally with His Honour's detailed treatment of them. 13 As to the women's rights activism, it is fair to say that the individual reasons given for the Tribunal member's conclusions may not be overpoweringly cogent but in appraising the Tribunal's reasons it is obviously important to avoid that form of scrutiny condemned by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. That in substance is what I am being asked to engage in in this appeal. In my view, against the background of the view taken by the Tribunal of the appellant's credibility, and considering the reasons given in aggregate, I do not consider that the matters relied upon in relation to his alleged activism cannot be said to be capable of sustaining the conclusion arrived at. Those matters all fall within the legitimate fact finding function of the Tribunal and I do not consider they disclose the error alleged. 14 It equally is the case in relation to the September incident, that the significance in the change in evidence of the appellant may be a matter upon which opinions might differ. Nonetheless it clearly was open to the Tribunal to conclude that the appellant tailored his evidence at the hearing in response to the Tribunal's reasons, such as would justify both its making an adverse judgment on his credibility and its disbelieving his claim that he was of adverse interest to the TNSM. 15 The third matter – placing no weight on the documentation provided by the appellant – is in my view a finding entirely open to it to be made. It matters not whether another Tribunal member would have dealt with the matters differently. It was open to the Tribunal, in light of the country information, to consider that the letter of support belonged to a class of documents to which it was unsafe to give any weight. 16 The first ground of appeal, in my view, is not made out. 17 The second involves an allegation of lack of bona fides. The lack of bona fides is said to lie in the Tribunal's not making an honest attempt to carry out its duty by (i) rejecting evidence on an improper basis; and (ii) by basing the decision on unwarranted assumptions and irrational and illogical findings. This, in my view, is a claim that should not have been made on the material before the court. What is required to be established to make out a case such as the present was discussed at some length by Gyles J in NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210 at [16] ff. His Honour pointed out at [24] it requires the finding "that the Tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him". Bad faith, as his Honour noted, cannot be constituted by recklessness in the sense of negligence no matter how gross the negligence. Neither can a Tribunal member "blunder into bad faith no matter how stupid and careless the Tribunal member". I am content to rely upon his Honour's observations for present purposes. 18 The assertion of bad faith made in this case is not advanced by the use of pejorative adjectives. There is not the slightest foundation for a bad faith allegation, even assuming that the Tribunal committed jurisdictional error in rejecting the evidence and that it acted on unwarranted assumptions and made irrational and illogical findings. This allegation was improperly made. 19 I should add for the sake of completeness that the appellant sought to justify this allegation by relying upon what is asserted to be a less stringent test of bad faith stated by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [18]. Properly understood, I do not consider that there is the alleged difference between the test formulated by the Full Court in shorthand form in that case and that of Gyles J: see also SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19]. More importantly for present purposes, the appellant's allegation falls far short of even the standard he claims is set in SCAR. 20 The third ground of appeal is that the decision was irrational and illogical and was based on unwarranted assumptions. 21 The particular given of unwarranted assumptions in the Amended Notice of Appeal related to the giving of no weight to the documentary evidence referred to earlier. As I have indicated above, the view taken by the Tribunal was properly open to it in the circumstances. 22 More generally this ground is another attempt at inducing merits review of the Tribunal's decision. It proceeds upon the assumption that if the documentary evidence (which was not given no weight) had been accepted and if the "insignificant" inconsistency (as the appellant would describe it) in the appellant's account of the September 2003 incident was disregarded, the appellant's claim would have been successful. I need not repeat what I earlier said about merits review. I will only add that, as with the Federal Magistrate, I do not see the vices of irrationality and illogicality besetting the Tribunal's reasoning or its decision. 23 The appeal will 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 Finn. Associate: Dated: 2 August 2006 Solicitor for the Appellant: Mr R Turner Counsel for the Respondent: Ms L Clegg Solicitor for the Respondent: Sparke Helmore Date of Hearing: 2 August 2006 Date of Judgment: 2 August 2006