Applicant A91 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1388

FEDERAL COURT OF AUSTRALIA

Applicant A91 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1388

Migration Act 1958 (Cth)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

APPLICANT A91 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 81 OF 2003

MANSFIELD J
28 NOVEMBER 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 81 OF 2003

BETWEEN:

APPLICANT A91 OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

28 NOVEMBER 2003

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay to the respondent costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 81 OF 2003

BETWEEN:

APPLICANT A91 OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	MANSFIELD J
DATE:	28 NOVEMBER 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This application commenced in the High Court on 25 June 2002.  The applicant sought orders quashing a decision of the Refugee Review Tribunal (the Tribunal) given on 17 May 2002, and directing the Tribunal to re-hear his application for review of a decision of a delegate of the respondent refusing to grant him a protection visa.

2. On 7 February 2003, the matter was remitted to this Court for hearing.  The grounds of the application are now reflected in an amended application filed on 24 October 2003.

3. The applicant is a Pakistani citizen.  He is a Muslim from Rawalpindi.  He has an Arts degree which he obtained in 1995.  He subsequently came to Australia on a student visa on 22 April 1997, and apart from brief returns to Pakistan he has remained in Australia since that time.  His student visa was valid to 22 July 2001, but was subsequently cancelled on 8 May 2000.

4. The applicant applied for a protection visa under the Migration Act 1958 (Cth) (the Act) on 12 May 2000. As noted, a delegate of the respondent refused that visa on 25 July 2000. The Tribunal’s decision affirming the refusal to grant the applicant a protection visa under the Act was made on 17 May 2002. The Tribunal was not satisfied that the applicant met the criterion for the grant of a protection visa specified in s 36(2) of the Act, namely that he is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention). In practical terms, the Tribunal needed to be satisfied that the applicant is a ‘refugee’ as defined in Art 1A(2) of the Convention. Because the Tribunal was not satisfied that the applicant met the criterion, s 65(1) of the Act directed that it affirm the decision of the delegate not to grant him a protection visa.

   THE CLAIMS AND THE TRIBUNAL’S REASONS

5. The Tribunal accepted much of the applicant’s claims about his past activities.  It also accepted that the applicant’s father had been an active and prominent supporter of the PML. The applicant was active in student politics from 1993, including being an active member of the student wing of the Pakistan Muslim League (PML).  After competing his university degree, he worked for the PML, including as secretary of the local branch, and was prominent and active in promoting its interests including in the election campaign which completed in about February 1997.  The PML was then successfully elected to government.

6. In April 1997, when the applicant was 21, he first came to Australia as a student.  He returned briefly to Pakistan in September 1997, and in January to March 1999 for visits.  He claimed, but the Tribunal did not accept, that his returns on those occasions were to do more work for the PML. 

7. The applicant claimed that he had a well-founded fear of persecution by reason of his political beliefs in the light of events which have happened in Pakistan since he first came to Australia.  There was a military coup in October 1999 during which the PML Prime Minister Nawaz Sharif was deposed.  The Tribunal accepted that, following the military coup, a number of the more prominent supporters of the PML were interrogated and in some instances arrested by the military authorities.

8. The applicant claimed that, by reason of his political profile, he too feared arrest and abuse at the hands of the military regime in Pakistan.  He said that he had returned to Pakistan between 4 January 2000 and 15 February 2000 for his sister’s wedding.  On that occasion, he claimed that on 18 January 2000 he was a passive observer of a public gathering speaking against martial law.  Some gunfire occurred during that gathering.  He claimed that on the evening of that day the police arrested him and alleged that he had been in a gunfight.  He was questioned about his PML activities.  He was beaten and abused.  His father secured his release after one day, but he was hospitalised for three days.  He said he was falsely charged with participating in a violent demonstration, but was able to get bail with the support of his family.  He then left Pakistan, on his own passport, to return to Australia on 13 February 2000.  He claims to have been convicted on 28 February 2000 in his absence of the charge of participating in a violent demonstration, and that arrest warrants had been issued for him.  A number of supporting documents were produced to the Tribunal.

9. The Tribunal did not accept that the applicant, by reason of his activities with the PML up to his departure for Australia in April 1997, was of such a profile as to have attracted the attention of the military authorities following the military coup in October 1999.  It said:

   ‘There is nothing which indicates that people who had positions in local branches of the party, as did the applicant were subjected to police interest and I am not satisfied that the police did so in respect of the applicant, particularly given that he had been away from the country for so long and had not been actively involved since April 1997.’

10. It also did not accept that the particular incident of 18 January 2000 occurred as the applicant alleged.  It found his version of having been arrested, detained, mistreated, and then subsequently sought by the police as not credible.  It said:

    ‘I do not accept that the applicant has a profile of a kind which would lead the authorities to act to suppress his political involvement.  He has not been actively involved in the PML since April 1997, as I have stated already some two and a half years before the coup.  He was involved in campaigning and organisation of the party at a local level.  Independent information outlined above indicates that the PML supporters who have been arrested and detained for varying periods by the authorities since the coup were those (described as dozens) who were close to the Sharif government, including family members, and later some hundreds of people who were alleged to be involved in planning such events after the imposition of the ban on outdoor political gatherings in March 2000.  As well, in March 2000 seventeen PML people making provocative speeches were arrested, and at some time cases were registered against 33 people for chanting anti-government slogans.  Recently, it has been people associated with the ARD (which includes PML and PPP people) planning protest actions who have been arrested.  I have noted the newspaper article dated 16 May 2000 about PML members going underground but the other evidence about what has happened to PML people has led me to conclude that such action was not generalised nor that it continued.

    I am unable to accept that the documents he has provided in support of his claims are as he has described them – that is, evidence of trumped up charges and evidence of political persecution.  I have had in mind the information outlined above about the extent of document fraud but even if the documents are genuine, I do not accept that the weight of evidence indicates that they are charges made because of the applicant’s political involvement.  The supporting documents which point to a political motivation for the charges (the letters from the lawyer, the politician and his family) do not in my view outweigh the evidence against the credibility of the applicant’s claim of political persecution.

    I do not accept that the applicant is a PML member of concern to the authorities and I do not accept that he was in January 2000 arrested, detained, mistreated while in custody or subsequently sought by the police as he has claimed.  In the context of all the evidence, I am unable to be satisfied that the applicant’s parents were harassed by the police because of the applicant’s father’s or the applicant’s political involvement and I am not satisfied that the reason for the applicant’s parents departure from Pakistan concerned a fear of political persecution.’

11. The Tribunal was also asked to accept that, by reason of the war on terrorism, the prospects of the applicant being persecuted by reason of his political associations had increased.  It did not accept that the war on terrorism has had any appreciable impact on the chance of the applicant facing persecution because of his political opinion and involvement. 

12. It was therefore left simply with the significance to the applicant of his past political interest and activities and the possible consequences to him if he were to return to Pakistan.  It said:

    ‘I have accepted that the applicant is a PML member and I accept that he may seek to resume his involvement with the party if he were to return.  He may also seek to be involved in the movement pressing for the restoration of democracy in Pakistan.  My assessment of the evidence about the treatment of PML members and other political activists by the authorities has led me to conclude that there is not more than a remote chance that the applicant would be among those who would be arrested, detained and mistreated or otherwise subjected to serious harm if he were to resume his political activity upon return.  In reaching this conclusion, I have had regard to the nature and extent of his past political involvement, the long period of his absence from the country and the consequent limited profile of the applicant in politics.  I have also been mindful that there have been PML and ARD people arrested and detained but note that the numbers of people who appear to be subjected to extended detention are low and that the few people subjected to serious mistreatment have a political profile and involvement not at all comparable with that of the applicant.  I record too that I do not consider that being unable to take part in outdoor political gatherings of the kind prohibited by the military government in Pakistan is treatment of a character which constitutes persecution: while obviously a limitation on a right we are able to take for granted here in Australia, I do not accept that in the applicant’s circumstances such a denial would involve serious harm.’ 

    Overall, therefore, the Tribunal was not satisfied that there was a real chance that the applicant would face persecution because of his political opinion if he were to return to Pakistan and so it was not satisfied that it has a well-founded fear of persecution if he were to do so.

    CONSIDERATION OF GROUNDS OF APPLICATION

13. The grounds of the application as amended are four fold.  In addition, a further issue emerged from the course of submissions.

14. Each of the grounds of review in the amended application, if made out, may be sufficient to support a finding of jurisdictional error on the part of the Tribunal.  However, in each instance, I do not think that the material advanced to make out the asserted ground of review demonstrates the alleged error on the part of the Tribunal.

15. First, it was contended that the Tribunal had asked itself the wrong question and therefore applied the wrong test in law in considering the applicant’s claims.  In particular, it was contended that the Tribunal’s rejection of the documents evidencing charges laid against the applicant, and arrest warrants issued in respect of him, as produced by the applicant involved jurisdictional error.  The Tribunal is alleged to have taken into account an irrelevant consideration in rejecting that material.  The argument is that its rejection of that material was made notwithstanding an inconclusive report from an independent document examiner as to the authenticity of all but one of those documents, and that the Tribunal made its decision by reference to independent information about document fraud in Pakistan.  It is claimed that the taking into account of that independent information amounted to taking into account an irrelevant consideration so as to demonstrate jurisdictional error.

16. The Document Examination Unit of the Department provided a report on 25 July 2000 concerning certain of the documents in relation the applicant’s claim.  As to the authenticity of his membership card, the examiner simply was unable to comment.  That is unimportant as the Tribunal accepted that the applicant is a member of the PML.  As to the various documents produced from the police, including investigation reports, search warrants, bonds, charges and the arrest warrants, the examiner noted their form of presentation and reported that, because there was no known genuine specimen of any of the documents with which to make a comparison, he was unable to reach any conclusive opinion about the veracity of any of those documents.  The report noted that the examination of the particular documents did not provide any evidence that they are not what they purport to be, but that a lack of authenticated specimens was a significant factor ‘considering the propensity for bogus documentation from Pakinstan’.  Consequently the document examiner was unable to reach any conclusive opinion about any of those documents.  The third category of document examined was a letter from an advocate said to be acting for the applicant, and confirming the charges laid against him.  The document examiner concluded that the quality of the document made it very difficult to accept it as genuine.

17. The Tribunal also had regard to general information concerning document fraud in Pakistan.  It noted that from 1994 any kind of civil documentation may be purchased or obtained, and that there was widespread acceptance of corruption.  Such confirmation of that state of affairs continued with independent country information as recently as July 2000, namely that a large proportion of documents submitted are forged or falsified or issued as a favour on request by or for the claimant.  The same report noted that nearly all warrants of arrest and letters from lawyers turn out to be forged or incorrect as to their contents.  That information was sourced to the Canadian Immigration and Refugee Board Research Directorate ‘Pakistan:  Information obtained from the German authorities on fraudulent documents’ 25 September 2000.

18. In my judgment the Tribunal was obliged to consider the authenticity of the documents produced by the applicant in support of this claim, particularly arising from his alleged mistreatment as a result of the incident which he asserted on 18 January 2000.  The Tribunal is not shown to have overlooked the document examiner’s report.  The report did not advance the applicant’s claims as to the authenticity of those documents, and in one instance the report suggested that the document was not authentic.  The Tribunal in addition was entitled to have regard to the general information about fraud of documents emanating from Pakistan.

19. In my judgment, the Tribunal by its process of reasoning cannot be said to have taken into account a consideration which, by reason of any provision of the Act, was irrelevant so as to demonstrate jurisdictional error on its part.  See e.g. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 356. It was entitled to have regard to the material to which it referred in reaching its conclusion. No provision of the Act was identified as excluding the general country information about document fraud in Pakistan from its consideration.

20. Moreover, the Tribunal indicated that the documents, even if genuine, did not point to the fact that the charges laid against the applicant were because of his political beliefs as distinct from being charges laid because of a suspicion (whether rightly or wrongly held is not to the point) of involvement in violence during a demonstration.  As for the documents which specifically pointed to a political motivation from the charges, namely, the letter from the lawyer, the Tribunal did not accept that material as genuine, and in any event did not consider it outweighed the evidence against the credibility of the applicant’s claim of political persecution.

21. The second ground of review concerned the Tribunal’s conclusion that, on the basis of independent country information, persons who had engaged in the level of activity in support of the PML which the applicant had undertaken prior to his departure for Australia were not subject to particular police interest following the military coup in October 1999.  It was submitted that the Tribunal failed to take into account particular information identified as a report from the Department of Foreign Affairs and Trade ‘Pakistan Muslim League:  Country Information Report No.211/95’ of 1 December 1995.  That report refers to mutual harassment of the PML and of the then opposing political party, by the disruption of political rallies or party meetings of their opponents.  It noted that the harassment is localised and low level.

22. I reject the contention that that is information which is relevant to the Tribunal’s finding.  It related to a period of time before the military coup in October 1999.  The Tribunal did not err by not having express regard to that information, even assuming that there is some material which the Tribunal might have been expected to have mentioned in the course of its reasons.  It could not have been expected to have mentioned material relating to a period of time and to a political circumstance which was not relevant directly to the applicant’s claims.

23. Consequently I reject the contention that the failure of the Tribunal to mention that piece of evidence amounts to a failure to take into account a relevant consideration in determining the applicant’s claim to persecution.

24. The third ground of review concerns the finding of the Tribunal rejecting the applicant’s claims about what happened to him in January 2000.  The Tribunal had regard to newspapers published prominently in India on 19 and 20 January 2000.  It was unable to find reference to a large demonstration in Rawalpindi on 18 January 2000 which was broken up by police.  It is alleged that the Tribunal should have made further inquiries and sought further evidence relating to the applicant’s claim of detention and physical torture upon his return to Pakistan in 2000, so that its failure to do so amounted to jurisdictional error.

25. The proposed further inquiries were not specified.  There is no provision in the Act which, generally speaking, requires the Tribunal exhaustively to undertake such investigations as a party might suggest or require.  Compare ss 425A and 426.  In fact there was no request made (at least as far as the submissions to the Court identified one) that the Tribunal should carry out further inquiries either in response to the notice given under s 425A or otherwise.  The circumstances in which the Tribunal might commit jurisdictional error by failing to conduct inquiries are very limited:  see e.g. Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155. However, in this case no such error was demonstrated. It is not suggested that there is either a request to the Tribunal to carry out such inquiries, or if it had carried out such inquiries that it would have discerned some other significant piece of information. Moreover, the Tribunal noted the information or lack of information concerning the demonstration asserted by the applicant but added: ‘… but an absence of reports does not indicate that an event did not happen.’  As the passage set out in [10] above demonstrates, the absence of such a formal report or a newspaper report of the incident played little or no part in the Tribunal’s ultimate reasons for rejecting that part of the applicant’s claims.  I have dealt with this contention on the assumption that, for the purposes of demonstrating jurisdictional error, there may be circumstances in which a failure to conduct inquiries by the Tribunal may amount to jurisdictional error on its part.  I have rejected the contention on the particular facts.  It is not necessary to have determined the validity of the assumption, or if it is valid the circumstances in which it might be applicable.

1. Finally the Tribunal was said to have committed jurisdictional error by failing to consider information relevant to the applicant’s claims.  The point was not enlarged upon in the course of submissions except in very general terms.  As I understood it, it was a complaint that the Tribunal had made certain findings which were not reasonably open to it on the evidence.  Those particular findings were not identified except in the one respect to which I am now about to advert.  In those circumstances, the general complaint is not made out.

2. The particular findings which require attention arise from the concluding part of the passage in the Tribunal’s reasons referred to in [10] above.

3. It has been the subject of the opportunity for further submissions.

4. The Tribunal’s findings may at first sight seem contradictory.  It has accepted the applicant may seek to resume his involvement with the PML if he returns to Pakistan, including pressing for restoration of democracy.  But it accepted that the applicant would be unable to take part in outdoor political gatherings ‘of the kind prohibited by the military government’ (on the material before the Tribunal, all outdoor political gatherings in opposition to the military government).  The apparent contradiction is avoided if it be assumed that the Tribunal found that the applicant’s further political involvement would probably not involve any public activities seeking to restore democracy, notwithstanding that in 1997 and earlier the applicant had been publicly politically active.

5. It did not consider there is any real chance of the applicant attracting the adverse attention of the authorities if he did so.  It referred to his past political involvement.  It is hard to see how that is directly relevant to the risk to the applicant of him undertaking political activities in Pakistan now, except as indicating a regional but public focus for his potential activities.  His past activities were in a different political context.  It is also hard to see how his absence from Pakistan for some years is capable of informing how he might be treated by the military regime if he returns to Pakistan and (as it accepted) presses for restoration of democracy.  The absence of any political profile in another context, prior to the military coup, would not seem to have much to do with that issue.

6. Had that understanding of the Tribunal’s reasons not been available, there would at least be reason for concern that the Tribunal had asked itself the wrong question, or had misdirected itself in law.  The first of those two possibilities might have arisen because the Tribunal may have determined that a law which prohibits public political dissent, if complied with, would not itself amount to persecution.  But the Tribunal was faced with a claim that the applicant would engage in public political dissent.  The question then may be whether the consequences imposed by the military regime of doing so would amount to persecution.  The second of those two possibilities is that the Tribunal regarded the applicant as a person who may engage in public political dissent but who would not be subject to ‘extended detention’ or ‘serious mistreatment’, because his political profile would not attract the higher range of adverse state reaction.  In that event, whether the possible consequences to the applicant might amount to persecution would nevertheless need to be addressed.  Section 91R does not confine persecution to prolonged detention or serious mistreatment.  See also the remarks of Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 570 and per McHugh J in Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at 18-21. Apart from the Tribunal’s recitation of material referred to it by the applicant, under the heading ‘Relevant additional independent information about Pakistan’ it has recorded extensive contemporary material showing effectively all public political gatherings in opposition to the regime are banned, and those who participate in such gatherings are arrested, sometimes with the use of excessive force. Those detained from time to time are numbered in the hundreds, and are clearly not confined to the elite or senior members of the PML or its successor the ARD.

7. However, whilst there is room for disquiet about the Tribunal’s reasoning, I do not think it is shown to have fallen into jurisdictional error in this matter.  Its reasons are to be read beneficially, rather than with an eye attuned to the perception of error:  Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Adopting that approach, I think the Tribunal intended to convey that it was not satisfied that the appellant’s political beliefs were so strong as to impel him to public anti-government demonstration. And, if he did not do so, there was material to support the Tribunal’s view that the applicant as a private but active political opponent of the incumbent regime, and being a person whose past activities and his absence from Pakistan such that he presently would not have a high political profile, would not face a real chance of being persecuted for his political beliefs if he were to return to Pakistan.

8. Accordingly, I have reached the view that the Tribunal’s decision was not infected with jurisdictional error.  The application should therefore be dismissed.  The applicant should pay to the respondent costs of the application.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             28 November 2003

Counsel for the Applicant:	Mr M Clisby
Solicitor for the Applicant:	M W Clisby
Counsel for the Respondent:	Mr K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 November 2003
Date of Judgment:	28 November 2003