Applicant S1815 of 2003 v Minister for Immigration

[2008] FMCA 653

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1815 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 653

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal obliged to make enquiries as to authenticity of documents.

Migration Act 1958 (Cth) s.424A

Abebe v Commonwealth (1999) 197 CLR 510
Applicant S1815 of 2003 v Refugee Review Tribunal (2006) FCA 1202
Applicant S1815 of 2003 v Minister for Immigration & Citizenship (2007) FCA 159
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
M164 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Puafisi v Minister for Immigration & Citizenship [2008] FCAFC 39
Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437

Applicant: S1815 of 2003

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2561 of 2007

Judgment of: Barnes FM

Hearing dates: 12 December 2007 & 15 April 2008

Delivered at: Sydney

Delivered on: 5 June 2008

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr J. Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2561 of 2007

S1815 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal dated 31 May 1999 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. The applicant, a citizen of Pakistan, arrived in Australia in July 1997. In August 1997 he applied for a protection visa. The application was refused and he sought review by the Tribunal. After the Tribunal decision of 31 May 1999 the applicant sought judicial review by joining the Muin  and Lie class action in the High Court of Australia (see Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601). His application was remitted to the Federal Court of Australia. On 29 August 2006 Gyles J dismissed the application for an order nisi (Applicant S1815 of 2003 v Refugee Review Tribunal [2006] FCA 1202). Leave to appeal from that decision was refused by Nicholson J (Applicant S1815 of 2003 v Minister for Immigration & Citizenship [2007] FCA 159). The applicant commenced the present proceedings by application filed in this Court on 20 August 2007.

3. In essence, the applicant claimed to fear persecution by reason of his political opinion, based on his support for and membership of the Pakistani People's Party (PPP).  He claimed that his family had been active members of the PPP for some 20 years and that he had been "promoted to joint secretary".  He claimed, among other things, that a number of false charges had been brought against him, that he faced imprisonment as a result of such charges and that he feared that he would be killed.  In connection with his protection visa application the applicant provided the Department with untranslated copies of what were said to be a First Information Report (FIR) dated 16 May 1997 in relation to a charge under U/S 16 Maintenance of Public Order 1960 and an arrest warrant dated 3 June 1997 on a charge under “16 MPO 1960” marked “non bailable”.  In his protection visa application he claimed that these documents were sent to him by his parents, as he had not received them in Pakistan as he was in hiding.  However he told the Tribunal that this FIR was served on him in 1997 in Pakistan. 

4. He claimed that the government had issued warrants for his arrest and that he would be gaoled for three years on the basis of this FIR.  He also provided a copy of a post-mortem report in relation to his uncle that indicated that he died in 1990 from a gunshot wound and being struck with a blunt object.

5. The applicant provided the Tribunal with a number of other documents, including a submission from his adviser in which it was claimed that further FIRs had been issued since the applicant left Pakistan and that the applicant’s brother and "several other senior members" of the PPP in his area had fled Pakistan. 

6. The applicant claimed that his father and brother were in hiding and that he believed arrest warrants had been issued for them. He claimed that he and his peers in the PPP had been targeted because the district had returned a PPP member to parliament. Opposition parties were said to have sought to destroy the local PPP branch with the help of the police. He also claimed that despite the size of the PPP in Pakistan, his circumstances had to be seen in the context of local events. He provided a copy of a certificate on letterhead in the name of a person said to be the general secretary of the PPP in a city in Pakistan certifying that he was a "devoted worker" of the PPP and joint secretary of the party in a named district and that he took an active part in party activities.

7. The applicant attended a Tribunal hearing.  In its reasons for decision the Tribunal recorded that the applicant provided it with copies of further documents, including other FIRs he said he had recently received, newspaper reports, letters of support and letters from family members in Pakistan.  After the hearing the applicant lodged further documents with the Tribunal, including news items and a faxed copy and translation of a further FIR.

The Tribunal decision

1. In the findings and reasons part of its decision the Tribunal addressed the applicant’s claims about his level of involvement in the PPP. It noted that PPP membership cards provided by the applicant did not attest to any length of membership and that documents from party officials appeared to contain contradictory information as to the office he held in the PPP. The Tribunal had regard to the applicant’s evidence that he had been a joint secretary in his local branch and that as such he was a "minor official in his local area" and to the fact that newspaper reports in relation to targeting of important active PPP workers did not refer to such minor officials. On this basis it did not accept that "any political activities of the applicant were carried out at any such level as to lead him to be termed an important active worker". It noted that the applicant had not claimed to be involved in strikes and riots or in an attack on an Assembly member. Nor did he claim to have been sought or targeted by the MQN. The Tribunal observed that press reports the applicant had provided illustrated that leading PPP officials were in fact able to stage public rallies and that PPP members were not averse to being photographed by the media in support of the object of such rallies.

2. The Tribunal addressed information the applicant had provided in relation to what had happened to three named persons in the PPP. It found that those persons were prominent persons and leading figures in Pakistan, whereas the applicant had no such standing. The Tribunal did not accept that targeting of such leading figures was "in any way indicative of a trend against minor officials and ordinary party workers".

3. The Tribunal had regard to the fact that the applicant had "enlarged his claims regarding his political activities and importance over time", noting among other things that in oral evidence and documents lodged at the Tribunal hearing it was claimed that he was responsible for the electoral success of the PPP in his district, but that he had conceded that there were a large number of election workers in the district. While he claimed the government party (the PML(N)) was concerned that the PPP held this seat, he also gave evidence that the government (which had won a landslide victory in the 1997 election) had accepted the election result in his electorate. In light of this evidence the Tribunal had "difficulty in accepting the claim advanced by the applicant of the alleged emphasis by the government on the fact that it was unable to win this seat allegedly because of the role of the applicant, and that as a consequence he was of adverse interest to it".

4. On the applicant's own evidence as to the number of officials and active members involved in the election in his district, the Tribunal found that even if he had been active as claimed at the hearing he was a "minor official, one of many". Hence the Tribunal found that even if it were to accept that he was an active worker during the election "it would be unable to find it credible that he was the person responsible for the PPP's success, and therefore he was targeted as the PML were pursuing a program, with the help of police, to destroy the local PPP branch and to ensure the election of the PML in the next election".

5. Nor did the Tribunal find credible the applicant's claims at the hearing that he and his family had monitored the election to prevent rigging (and that for that reason cases were constituted against his family and other PPP members causing his father and brother to go underground). It was of the view that such claims were "too important to the applicant's claim to fear persecution from political opponents because of his political opinion to have been overlooked earlier". It did not accept that the applicant was responsible for the electoral success of the PPP in his district or that any cases were lodged against him and his family for that reason.

6. Noting that the applicant’s original claims about political activities had been “modest”, for reasons set out the Tribunal did not accept that he had "other than a low political profile". In reaching that conclusion the Tribunal also found that letters which claimed that the applicant had a number of official positions in the PPP beyond that of joint secretary (which he claimed to have) constituted a "further attempt to exaggerate the political position and contribution of the applicant" and had been “tailored to suit the applicant's claims". The Tribunal concluded that such letters were self-serving. Given the variation in the claimed position of the applicant and the self-serving nature of the correspondence it was "unable to accept that the applicant held any local official position in the PPP".

7. The Tribunal considered the claims in supporting letters that “many cases” had been lodged against the applicant. One supporting letter stated that action was to be undertaken to have the cases dismissed. The Tribunal noted that there was no evidence as to whether such action had been taken. It observed that none of the supporting letters had stated what the alleged cases were. The Tribunal found these claims to be vague and unsubstantiated and that this correspondence was also contrived and tailored to suit the applicant's application. It noted that aerograms lodged by the applicant from persons making such claims contained the full names and addresses of the authors and found that such exposure was "an unlikely action if indeed the applicant was wanted by the authorities".

8. The Tribunal found the applicant's claim in his original application that his parents had advised him by telephone that the police were looking for him, harassing the family and that unknown persons were calling and asking for him to be vague and lacking detail. The Tribunal had regard to the fact that the applicant had left Pakistan by way of Karachi Airport legally and on his own passport. It found his claim that the police were looking for him not to be credible, as his departure could easily have been checked and his alleged political profile and activities were not other than modest. Hence it did not find it plausible that such profile and activities would attract the attention claimed.  The Tribunal did not accept that such evidence deserved any "significant weight". It concluded that these claims were contrived and tailored to suit the applicant's claims, referring to its findings in relation to the FIRs lodged by the applicant.

9. As to the applicant's claim that his brother had left the country and was in hiding, the Tribunal stated that it had no evidence before it to enable it to draw a conclusion that this was in any way connected with the applicant or with any political activities of his brother. The Tribunal did not accept that the applicant's father was in hiding, or that his move to Karachi was connected with any political activity of the applicant, given the conclusions it had reached regarding the applicant's low political profile.

10. The Tribunal accepted that the post-mortem report in relation to the applicant's uncle's death established that the cause of death was as stated in that report. However it was unable to form any view on the evidence before it as to whether that had resulted from an attack by political opponents as claimed. It found that there was no evidence that the applicant’s uncle was politically active, but that even if he was there was no evidence of “what this constituted”. The Tribunal noted that nothing had happened to the rest of the family (who were also claimed to support the PPP) and that "very little happened" to the applicant, although he claimed to have been present during the attack on his uncle and that nothing had happened to him in the subsequent seven years he remained in Pakistan. Given the low political profile of the applicant the Tribunal concluded that there was no inference to be drawn from an alleged incident in 1990 that he would suffer serious harm if he returned to Pakistan now or in the foreseeable future.

11. The Tribunal considered the applicant's claim at the hearing that he had gone into hiding when the government changed in 1990 and after the attack on his uncle. Having regard to an unsatisfactorily explained inconsistency in his claims about where he had lived and in light of the applicant’s low political profile, it did not accept that he spent two years in hiding underground as claimed.

12. The Tribunal addressed the fact that the applicant had made inconsistent claims about his departure from Pakistan and whether he had difficulty obtaining his passport. It had regard to the applicant’s explanation, to the fact that his passport was in his own name and that on his own evidence he left Pakistan legally despite his claim that an FIR and a non-bailable warrant for his arrest were issued in 1997, before his departure. The Tribunal noted that he had made inconsistent claims as to receipt of these documents. It had regard to the fact that the FIR related to a minor offence which country information indicated was referred to in some suspect FIRs and was an offence which was “rarely ever brought to court.” The Tribunal concluded that these documents were not authentic. The Tribunal recorded that it had put this information to the applicant at the hearing. It also noted that the documents he had lodged were photocopies and referred to the inherent problems of such documentation. In light of these findings the Tribunal was confirmed in its conclusion that the applicant was of no interest to the authorities when he left Pakistan.

13. The Tribunal addressed the applicant’s claim that a newspaper report he provided which referred to an unnamed "accused criminal" involved in a breach of peace related to him. The Tribunal concluded that the report was vague and lacking in detail. It placed no weight on it. In addition, based on country information in relation to document fraud, it did not accept that the document was a genuine news report.

14. The Tribunal considered the other documentation lodged by the applicant, in particular the copies of FIRs provided during the course of the Tribunal review. The Tribunal found the document described as an FIR dated 12 September 1997 was internally flawed and fraudulent and for that reason was unable to place any weight on it. It referred to the fact that the document stated that it had been issued under the legislative provision relied on in “suspect” documents, that it described the applicant as general secretary of the PPP in a particular city (whereas he had claimed to be one of the joint secretaries), that it stated that he had been arrested in relation to many cases and released and that “he should forthewith (sic) be arrested and detained for three years”. The Tribunal had regard to independent country information to the effect that an FIR was the initial claim or complaint written up by the police when a police investigation was sought, rather than a document which recorded the result of a police investigation. It found that the content of the document provided was inappropriate in an FIR.

15. The next document considered by the Tribunal was a document described as an FIR dated 15 August 1997 in relation to the father of the applicant. It referred to an alleged incident in which the father and another two named persons were said to have killed a man. The Tribunal also found this document to be internally flawed and fraudulent based on independent country information. It noted that although the document referred to named persons in relation to an incident on 15 August 1997 "in its final paragraph it departs from the alleged subject matter of the FIR and refers to the applicant" stating that the applicant was also wanted by the government of Pakistan "against many cases" and that he was “a great threat for our life and properties.  I approach you with the request to they proceed in this regard”. The Tribunal found that such request was an “inappropriate inclusion” in an FIR concerning an alleged case against other persons. It also observed that it had not been claimed that there were "many cases" against the applicant and that the case with a date prior to this document had been found by it to be fraudulent. The Tribunal concluded that it was unable to place any weight on this document.

16. The Tribunal described the document said to be an FIR dated 12 December 1998 as a “poorly reproduced faxed copy with faxed translation”. While the Tribunal accepted that this was an "expeditious method" for this document to be sent to Australia, it again had regard to the nature of an FIR and the content of the document. The document stated that the Superintendent of Police had issued a direction to get a detention order for the applicant under certain sections of the MPO (including s.16 the provision said to be relied on in suspect FIRs) and referred to the applicant as having been involved in a “clash” of the late President and the purchase of the services of the pilot of the plane involved (this seems to be intended to be a reference to an airline crash). The document also stated that the applicant was "wanted to the state in various murder cases.  Hence, he may be arrested and be recompensed through proper judicial procedure".

17. The Tribunal again referred to independent information that the purpose of an FIR was an initial claim or complaint written up by police when investigation was demanded, not the result of a police investigation and to the fact that the police may not investigate an FIR without the order of a Magistrate. As the alleged FIR stated that the applicant was to be arrested and put through proper legal process, the Tribunal found that it anticipated the result of police investigation and a Magistrate's order. It also found that the alleged offence of murder of the late President by suborning the pilot of the military plane that had exploded in 1988 after take off with the President on board was “fanciful”, in light of independent country information to the effect that the cause of the crash was unknown. The Tribunal also found that it strained credibility that although the applicant's political opponents had been in government on more than one occasion since the President's death in 1988, they had chosen a date almost 18 months after the applicant left Pakistan to file this FIR against him. The Tribunal also found that the alleged FIR as translated displayed "unusually poor literacy skills for what purports to be a legal document". For these reasons the Tribunal was unable to place any weight on this document.

1. The Tribunal noted that the alleged FIRs appeared to be photocopies in relation to which it was a simple matter to make substitutions and alterations and which could not be unequivocally authenticated. It had regard to this factor (and referred to country information about document fraud in Pakistan) in addition to internal inconsistencies and flaws in the documents in finding it was unable to place any weight on them and that they were not genuine. The Tribunal observed that there was no general rule to the effect that a Tribunal was under a duty to verify the authenticity of documents such as FIRs and warrants.

2. The Tribunal also addressed other claims of the applicant, including a claim that his bank accounts had been sealed. It found that there was nothing to suggest that he had suffered discrimination in this regard or that such action was motivated by his political opinion. Nor was it able to accept that the fact that his farm had trouble with irrigation and that this had resulted in poor crops had occurred because the applicant was being targeted by his political opponents. It found that even if such events had occurred as claimed it did not accept that they amounted to persecution.

3. On the basis of its reasons the Tribunal did not find the applicant to be a credible witness. In considering whether the applicant, as a person who did not have a high political profile, faced a real chance of persecution, the Tribunal addressed country information in relation to the situation of PPP members and supporters in Pakistan since the change of government in 1997. It found no evidence to suggest that the State was pursuing a policy of persecution or retribution against such members or of officially sanctioned use of security forces by the government against PPP members or other political opponents or to suggest that PPP members, workers and supporters were prevented from expressing their political opinions. The Tribunal found that the applicant did not hold a political opinion which was not tolerated by the government or authorities in Pakistan. It had regard to the applicant's claim that his circumstances should be viewed in the context of local events, but found that the evidence showed that the PPP was one of the two largest parties in Pakistan and that while high-profile people had been targeted, the applicant did not possess such a profile.

4. The Tribunal concluded that given the implausibility of much of his evidence, it was unable to find that the applicant had the political profile claimed or that he had attracted the amount of adverse attention claimed to have been associated with such an alleged profile from the authorities or political opponents. It did not accept as plausible his claims that his life was in danger or that he would be arrested or gaoled on fabricated charges.

5. Moreover the Tribunal found based on independent country information that even if it accepted the applicant’s claims in relation to the extent of his political profile, he would not face a real chance of persecution on the basis of political opinion or imputed political opinion. It also found that if the applicant was the subject of an FIR or arrested thereafter he could receive an open public trial and that there was no evidence to indicate that his legal rights within the justice system would be abused because he was a member of the PPP. It had regard to measures introduced in Pakistan to attack corruption. It found that there was no evidence that the applicant was wanted on false charges of involvement in corruption. It also had regard to independent country information in relation to the availability of a fair trial in Pakistan and also the absence of any general threat to a returnee on the basis of being a member of a particular ethnic group or party.

6. Having regard to all the evidence before it, the Tribunal found there was not a real chance that the applicant faced persecution for reason of his political opinion or any other Convention reason if he returned to Pakistan.

7. The Tribunal also addressed the issue of relocation.  It had regard to the evidence before it in relation to the applicant's tertiary education and employment, his ability to communicate in Urdu, his youth and adaptability (as illustrated by his coming to Australia) as well as his family's resources in Pakistan and the fact that he did not have a high profile as a political activist that would attract the interest of authorities (especially outside his local district).  It found that if the applicant feared for his safety in his local district or elsewhere it would not be unreasonable to expect him to relocate to another part of Pakistan (such as Karachi where his father resided and where he claimed to have resided in the past without incident).

8. Finally the Tribunal addressed the applicant’s claim that if he returned to Pakistan he would continue to be active in politics and, by inference, face persecution. It found that there was nothing to prevent PPP members from undertaking an active interest in politics. It noted that the applicant had not done so when he claimed he had relocated to Karachi in the past and that he was not sought by the authorities for any Convention reason. The Tribunal determined that it would not be unreasonable to expect the applicant to relocate to an area of Pakistan other than his local district or the Punjab if he retained a subjective fear of harm there.

9. The Tribunal was not satisfied that the applicant was a refugee and affirmed the decision not to grant him a protection visa.

This application

1. The applicant relies on an application filed on 20 August 2007. Ground 2 in the application addresses the possibility that the application might be dismissed as vexatious or an abuse of process. It is not necessary to consider that contention as the matter is being considered at a final hearing.

2. The applicant relies on two general and unparticularised grounds.  The first is that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied him procedural fairness "in that the Tribunal failed to investigate [his] genuine claims" within the requirements of the Migration Act 1958 (Cth). The other ground is that the Tribunal applied the wrong test "by requiring independent evidence of a fact before the Tribunal would accept a claim being made by the applicant.  The Tribunal was, in fact, placing too high an onus of proof on the applicant and failing to give the applicant the benefit of the doubt".

3. After the application was filed the first respondent filed a notice of motion seeking summary dismissal. On 12 December 2007 leave was granted to the first respondent to withdraw the notice of motion and directions were made, including a direction that the applicant file and serve any affidavit evidence relied on including any transcript of the Tribunal hearing and any amended application on or before 29 February 2008. He did not do so. Nor did he file written submissions as directed. However at the hearing the applicant sought to tender what was said to be “part” of a transcript of the Tribunal hearing, although not in the form of affidavit evidence. It was objected to and I rejected it.

4. The applicant sought to rely on the claimed partial extract from the transcript of the Tribunal hearing in support of a general proposition that the Tribunal had accepted his claims during the hearing but then had rejected them in its decision. Beyond this general assertion he did not point to particular issues that were raised in relation to the conduct of the hearing. On their face his expressed concerns seek merits review. While not expressed in those terms, insofar as the applicant might have been taken to be seeking an adjournment to put further evidence before the Court (such as a complete transcript of the hearing in proper form), I considered this but was not satisfied that it would be in the interests of the parties or the interests of justice to adjourn the hearing. The applicant has had ample opportunity to put a complete transcript before the Court. I note that in his past judicial review proceedings in relation to the same Tribunal decision the applicant had, similarly, unsuccessfully sought to tender a partial extract from the transcript of the Tribunal hearing. (See Applicant S1815 of 2003 v RRT [2006] FCA 1202 at [4] – [6] and Applicant S1815 of 2003 v Minister for Immigration and Citizenship [2007] FCA 159 at [17] – [18]).

Failure to investigate claims

1. Insofar as the applicant contended generally that at the hearing the Tribunal appeared to accept what he was saying but then made a decision on the basis that it did not accept what he said, the Tribunal’s account of what occurred in the hearing does not establish this contention. Rather it is apparent that the Tribunal asked a number of questions of the applicant in order to elicit further detail from him in relation to his claims. It also appears that the Tribunal made the applicant aware of concerns that it had in respect of certain aspects of its claims and that it had difficulty in believing some aspects of his claims and raised with him concerns about the authenticity of documents he had submitted.

2. The Tribunal was not obliged to put its provisional reasoning to the applicant in the hearing and the general concerns expressed by the applicant do not establish that there was any lack of procedural fairness in the sense considered in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 (and see SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2006) 228 CLR 152 at [29] and Puafisi v Minister for Immigration & Citizenship [2008] FCAFC 39). Nor do they establish that there was a failure by the Tribunal to comply with s.425 of the Migration Act as it stood at the relevant time.

3. Apart from a general complaint about the manner in which the Tribunal made its decision, the applicant has not pointed to any aspect of its reasons for decision that was based on something of which he was not aware or to any particular failure by the Tribunal to put to him any dispositive issues, either in relation to his claims or the evidence which he submitted. In that regard I note that the delegate’s decision alerted the applicant to the issue of the authenticity of the FIR he had initially submitted and more generally to the fact that even if he was the subject of an FIR and an arrest warrant in Pakistan his claims did not sit well with country information concerning the situation in Pakistan in relation to treatment of members of the PPP and the nature of FIR reports and the civil and criminal justice system in Pakistan.

4. The applicant claimed that the Tribunal erred by failing to investigate his "genuine" claims and that this constituted a failure to exercise jurisdiction or a denial of procedural fairness. Insofar as this ground seeks merits review and asserts that the applicant's claims were genuine, it does not establish jurisdictional error.

5. This is not a case in which the Tribunal was under an obligation to investigate as contended. There is no general duty on the Tribunal to investigate (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 998 – 1000 per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at 1009 – 1020 per Callinan J). Insofar as this is a contention that the Tribunal failed to have regard to the situation in Pakistan, it is apparent from its reasons for decision that the Tribunal did have regard to country information in relation to the situation in Pakistan relevant to the applicant’s circumstances.

6. Insofar as it is contended that the Tribunal failed to exercise its power to investigate, it has not been established that the Tribunal’s failure to do so was unreasonable in the sense that no reasonable Tribunal would have failed to carry out such investigation. Nor has it been established that the Tribunal misunderstood its power or failed to exercise it out of capriciousness. In particular it has not been established that there was readily available material that was reasonably available to the Tribunal and critical to the decision (see Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155).

7. The applicant did not clarify what investigations it was contended should have been carried out by the Tribunal. In oral submissions counsel for the first respondent addressed the possibility that an issue was raised in relation to the question of the authenticity of the documents submitted to the Tribunal by the applicant. Reference was made to the decision of the Full Court of the Federal Court of Australia in M164 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16. In that case a majority of the Full Court (Lee and Tamberlin JJ) found that there may be circumstances where the Tribunal’s failure to make enquiries, in the sense of investigating the authenticity of particular documents, may give rise to a jurisdictional error. Lee J (with whom Tamberlin J agreed) referred to the Tribunal’s power under s.427(1)(d) of the Act to initiate an investigation and receive a report, noting that it did not impose a duty on the Tribunal to do so (at [75]). However his Honour continued (at [76]):

   If the material before the Tribunal and the circumstances are such that the need for further enquiry is obvious, and no impediment to the conduct of such an enquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding.  In particular that issue will arise where the Tribunal is prepared to draw adverse inferences from material before it on grounds that are slight and in the absence of the assistance to the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under s.427(1)(d).

8. The Tribunal in M164 of 2002 had reached a finding of a lack of credibility on the part of the applicant. In the course of doing so it had made no finding about a supporting letter from a priest which appeared to confirm consistency in the applicant’s claims. Lee J found at [60] that it was to be assumed that the Tribunal treated that document as fraudulent. Moreover that Tribunal had made no reference to a document described as an extract from a police information book which purported to record details of complaint made by the applicant’s husband about death threats and seeking police assistance, presumably (according to Lee J at [62]) on the basis that the Tribunal considered that it was able to disregard that document “by reason of the findings of implausibility it had made in respect of some elements of the applicant’s account”.

9. The majority of the Full Court of the Federal Court found in those circumstances that that the Tribunal’s failure to exercise its power of enquiry meant that the process was not “practically fair” (Lee J at [73]). As his Honour stated at [89] “There was no material before the Tribunal on which it could make the finding that the documents presented by the appellant had been fabricated for the purpose of the claim.  The statement by the Tribunal that the documents were not genuine was a bare assertion.  The Tribunal did not identify in any respect how the documents could be so characterised.” His Honour found that it was not a case in which the substantive claims of the applicant had been found to be dishonestly made so that any corroboration necessarily was similarly affected and could be disregarded in accordance with the principles discussed in Abebe v Commonwealth (1999) 197 CLR 510 per Gleeson CJ and McHugh J at [84] – [85]. As his Honour stated at [90]: “… serious findings of forgery, fraud or perjury cannot be based on a superficial examination of relevant events and materials, particularly where the conclusion reflects no more than a suspicion held by the Tribunal, and where that suspicion remains untested by reasonable use of powers available to the Tribunal to have further enquiries made in the exercise of the Tribunal’s inquisitorial function”.

10. Tamberlin J agreed with the reasons for decision and orders proposed by Lee J and criticised the Tribunal for its unsatisfactory observations that assertions were “implausible” (at [111]). His Honour made the point that “a positive finding that documents are contrived or fraudulent is a strong adverse finding.  Such a serious determination requires a proper foundation and a careful examination of all the relevant evidence bearing on the issue of credibility.  A view that part of a claim cannot be accepted does not mean that any documents relating to that claim must be contrived or false and should be disregarded.  Each of the documents should be examined and considered on its face and in context” (at [117]). Tamberlin J pointed out that in the case before him several important documents had been dismissed, “without any proper investigation, examination or consideration”. In particular the two central documents had been dismissed “in a summary fashion and without any proper consideration” (at [118]).

11. There are, however, significant distinctions between the circumstances in M164 of 2002 and those in this case. In M164 of 2002 the Tribunal’s decision was said to have been based on statements that the applicant’s claims were “implausible,” despite the fact that, as Lee J put it, the matters described as implausible “were not claims disproved by proven facts nor events so contradicted by common sense or human experience that they could be dismissed by the Tribunal as possible occurrences” (at [86]). The Tribunal had engaged in speculation as to what a more likely course of events may have been but Lee J found that it had no basis on which it could say that the events claimed had not happened and no material on which it could convert a doubt about whether such events had occurred into a positive finding that they had not. In those circumstances the Tribunal was said to be “bound to examine and deal with the documents and justify by appropriate findings of fact and reasoning therefrom as treatment of the material” (at [86]). However in this case the Tribunal did not base its rejection of the applicant’s claims on mere “implausibilities” but rather on a number of matters, including country information, the applicant’s own evidence and the fact that he had enlarged his claims over time and specific internal flaws or other issues in relation to items of supporting documentation. It also dealt with his claims on the alternative basis that if he was the subject of an FIR or arrested he could receive a fair trial and found that he would not face a real chance of persecution as a member of the PPP or if he had the political profile claimed.

12. In particular the Tribunal did not simply reject the documents such as FIR’s on the basis of findings of implausibility and lack of credibility on the part of the applicant in relation to his claims generally. The Tribunal addressed the supporting documentation provided by the applicant in detail. In M164 of 2002 the supporting documents in issue came from sources potentially supportive of the applicant’s claims and provided contact details – not from authorities the applicant claimed to fear, such as the FIRs said to have been recorded by the police in this instance. In this case the Tribunal considered each of the documents submitted (the FIRs and also the other documents submitted by the applicant) and outlined its specific concerns in relation to each of these documents. The Tribunal had regard to country information, internal inconsistencies and flaws in the documents.

13. There is no evidence of any suggestion from the applicant that he wished the Tribunal to make enquiries of the Pakistani police in relation to the authenticity of the claimed FIRs. The Tribunal finding that it was unable to place any weight on such documents based on internal inconsistencies and flaws in those documents and its assessment based on country information that they were not genuine differs significantly from the circumstances in M164 of 2002. In that case the Tribunal did not give any real consideration at all to the authenticity of the documents in issue. In this case the Tribunal closely considered each of the FIRs and other documents and made findings in respect of them. It has not been established that the Tribunal was unreasonable in failing to make enquiries about the authenticity of the documents submitted by the applicant or that it in any way denied procedural fairness to the applicant or otherwise fell into jurisdictional error. In particular, as contended by the first respondent, it has not been established that the Tribunal erred in failing to undertake an investigation as to the authenticity of the documents relied on by the applicant in the manner considered in M164 of 2002.

1. I note that the Tribunal did consider whether it should verify the authenticity of the documents in this case, but decided in the particular circumstances that it was not necessary to take such a step. It may be that the Tribunal was referring to whether or not documents should be examined as to their validity, rather than whether it should make further enquiries in Pakistan, but it is nonetheless apparent that it had in mind whether or not it should make some further enquiries in relation to the authenticity of the documents.

2. The Tribunal also addressed the documents relied on by the applicant other than the first information reports. It gave reasons for not giving weight to such documents which were not simply based on the implausibility of the applicant’s claims, but rather addressed particular aspects of the documents in issue. While the Tribunal concluded that the letters from persons in positions of authority in the PPP were self-serving and had been tailored to suit the applicant’s claims, this was not the only basis on which such documents were not given weight. It found that the claims made as to the offices held by the applicant differed from the claims which the applicant himself had made. It was on that basis that the Tribunal was unable to accept that the applicant held any local official position in the PPP. As to letters lodged by the applicant claiming that “many cases” had been lodged against him, the Tribunal again addressed specific aspects of such correspondence (and in one case the absence of evidence as to whether or not the action referred to in the letter had been taken) and the absence of detail in relation to the alleged cases and found that the claims were vague and unsubstantiated.

3. The Tribunal also addressed newspaper reports in some detail. It considered a newspaper clipping which the applicant said related to him. Based on specific issues in relation to such document and the actions of the applicant, it placed no weight on that report and independent country information led the Tribunal not to accept that it was a genuine news report. No failure to make enquiries in a manner constituting jurisdictional error has been established.

Whether the Tribunal erred by requiring independent evidence

1. This ground is not made out. There is nothing in the material before the Court to indicate that the Tribunal required independent evidence of facts before it accepted any claims made by the applicant. On the contrary, the Tribunal's reasons for decision indicate that it analysed the material and evidence put before it by the applicant and other evidence including independent country information in reaching its conclusion. In some respects it accepted aspects of the applicant's claims (such as the fact that he was a member of the PPP and had some (albeit a low) political profile. The Tribunal did not consider it was bound to reject the applicant's claims in the absence of corroboration. Rather it had regard to the applicant's own evidence, internal inconsistencies in his own and supporting evidence and internal flaws in documents such as the FIRs provided. Its findings in relation to relocation were based on the evidence given to it by the applicant in relation to his circumstances.

2. The applicant has not referred to any specific aspect of the Tribunal decision in relation to this ground. Neither his general assertion nor consideration of the Tribunal decision establishes that the Tribunal erred in the manner contended for by the applicant. The Tribunal assessed the various claims made by the applicant. There is no indication that it considered itself bound to have corroborating evidence before it could accept any particular claim made by the applicant.

Section 424A

1. In addition, in an affidavit sworn on the same day as the application, the applicant claimed that there had been a breach of s.424A of the Migration Act 1958 (Cth). However that provision was added to the Migration Act by the Migration Legislation Amendment Act (No 1) 1998, No. 113 of 1998, assented to 11 December 1998, which took effect from 1 June 1999.

2. The Tribunal made its decision on 31 May 1999. The issue of the application of s.424A was considered by Gyles J in connection with the applicant's application for an order nisi (see Applicant S1815 of 2003 [2006] FCA 1202 at [3]). His Honour rejected a s.424A argument on the basis that the section came into effect the day after the Tribunal's decision. In refusing the application for leave to appeal (see Applicant S1815 of 2003 [2007] FCA 159 at [22]) Nicholson J found that there was no arguable case for final relief before Gyles J and no error of law in the reasoning of his Honour. The ground raised in the affidavit is not made out. The Tribunal had made its decision and thus exercised its jurisdiction prior to the coming into effect of s.424A and thus was not bound to follow the procedures laid down by that section.

3. As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  5 June 2008