Baig v Minister for Immigration & Multicultural Affairs

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FEDERAL COURT OF AUSTRALIA

Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380

MIGRATION – protection visa – whether Refugee Review Tribunal failed to observe a procedure required – failure to invite applicant to comment on material relied on by tribunal as part of the reason for its decision – material in fact tended to support applicant’s case but was misconstrued by tribunal – whether applicant denied the possibility of a successful outcome – whether no evidence or other material to justify the making of the decision – finding that there was no by-election near the applicant’s home in which he could have campaigned – whether finding of the existence of a particular fact – whether finding expressed in negative terms can be such a finding – whether tribunal based its decision on particular fact – whether there was other evidence or material justifying the decision

Migration Act 1958 (Cth) ss 5(1), 36(2), 424A(1), 424A(3), 424A(4)(b), 476(1)(a), 476(1)(g), 476(4)(b), 481(1)(b)
Federal Court Rules O 80

Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 applied
Stead v State Government Insurance Commission (1986) 161 CLR 141 considered
Giretti v Commissioner of Taxation (1996) 70 FCR 151 considered
Abriel v Australian Guarantee Corporation [2001] FCA 165 referred to
Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 301 referred to
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82 considered
N258/00A v Minister for Immigration & Multicultural Affairs [2000] FCA 993 (2000) 101 FCR 478 referred to
Ordeniza v Minister for Immigration & Multicultural Affairs [2001] FCA 35 referred to
Pei Lan He v Minister for Immigration & Multicultural Affairs [2001] FCA 446 referred to Kheirollahpoor v Minister for Immigration & Multicultural Affairs [2000] FCA 1350 referred to
Abila v Minister for Immigration & Multicultural Affairs [2001] FCA 1186 referred to
Sarancharkh v Minister for Immigration & Multicultural Affairs [2001] FCA 1461 referred to
Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 considered

ABDUL KHALIQUE BAIG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 358 of 2001

GRAY J
9 APRIL 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 358 of 2001

BETWEEN:

ABDUL KHALIQUE BAIG
APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

GRAY J

DATE OF ORDER:

9 APRIL 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The decision of the Refugee Review Tribunal, made on 9 May 2001, be set aside.

2.        The matter be referred to the Refugee Review Tribunal, differently constituted, for
further consideration.


           

3.        The respondent pay the applicant’s costs of the proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 358 of 2001

BETWEEN:

ABDUL KHALIQUE BAIG
APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

GRAY J

DATE:

9 APRIL 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The nature of the proceeding

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Details
Case
[2002] FCA 380
Decision Date

CaseChat Overview and Summary

Baig, an applicant for refugee status, sought judicial review of a decision by the Refugee Review Tribunal that dismissed his application. The primary issue for the court was whether the Tribunal had erred in its handling of evidence and procedure, particularly in relation to the applicant's claims about participating in a by-election and subsequent threats to his life. The court found that the Tribunal had failed to observe a procedural requirement by not giving the applicant an opportunity to comment on certain evidence, which potentially could have influenced the outcome of the case. The Tribunal had relied heavily on the absence of evidence of a by-election, which the applicant could have contested. The court held that this procedural failure could have denied the applicant a fair hearing, leading to the decision being set aside. Consequently, the matter was remitted to the Tribunal, constituted differently, for reconsideration. The court also ordered that the respondent pay the applicant’s costs of the proceeding.

Orders

Orders of the court

1. The decision of the Refugee Review Tribunal, made on 9 May 2001, be set aside.

2. The matter be referred to the Refugee Review Tribunal, differently constituted, for

further consideration.

3. The respondent pay the applicant’s costs of the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It is clear that the absence of a by-election was not the only ground on which the Tribunal rejected the applicant’s story. As I have said, it did so for a number of reasons based on the applicant’s credibility, inconsistencies in his evidence and its view of the implausibility of his story. It must be accepted, however, that the only hard evidence on which the Tribunal relied to refute an element of the applicant’s case was the Agence France Presse items. The Tribunal relied on the absence of any record of a by-election in any of the material it searched. It was entitled to rely on the absence of material, but it is necessary to recognise that such reliance carries only so much weight as the competence of the searches allows. An absence of evidence is not itself hard evidence. In the Agence France Presse items, the Tribunal believed it had specific evidence that there was not, on 15 April 1997, a by-election for a National Assembly constituency close to the applicant’s home. If it had given the applicant an opportunity to comment on the Agence France Presse material, it is possible that the applicant might have been able to point out that the second item left open the possibility that the by-election he claimed to have participated in had taken place. The Tribunal might then have taken a more benevolent view of the applicant’s credibility if it had found in his favour on this issue. In turn, that view might have affected the view that the Tribunal took on the applicant’s credibility in other respects. Whether it would have been sufficient to turn around the Tribunal’s adverse opinion of the applicant and his story is another question. The applicant still had considerable ground to make up even if the Tribunal had accepted that he had campaigned in a by-election for the National Assembly that took place on 15 April 1997. The ultimate result is not, however, one for this Court to determine. This Court is not a trier of fact when exercising its jurisdiction to hear applications for judicial review of decisions of the Tribunal. I am left with the real possibility that the failure of the Tribunal to observe a procedure it was required to observe denied the applicant a successful outcome of his application. The proper course is to set aside the decision of the Tribunal and return the matter to the Tribunal, differently constituted, for reconsideration.The “no evidence” issue Strictly speaking, my conclusion as to the ground of failure to observe a procedure required by the Act makes it unnecessary for me to deal with the “no evidence” ground. In deference to the arguments put on this ground, and because of the way in which the hearing before me was conducted, I should set out my conclusions in relation to it. To make out the ground specified in s 476(1)(g) on the basis referred to in s 476(4)(b), the applicant had to establish that the Tribunal had based its decision on the existence of a particular fact and that fact did not exist. The particular fact selected by the applicant, as particularised in the amended application filed on 16 October 2001, was that there was no seat held by Makhdoom Ahmed Mahmood which was required to be recontested in a by-election during March 1997 or at any other time.

Decision

Reasons for decision

GRAY J
On 24 April 2001, the Tribunal forwarded to the applicant another letter, seeking comment pursuant to s 424A(1) of the Migration Act. The subject of this letter was inconsistency between the applicant’s claim that he went into hiding five or six days after the by-election and his employment references, which indicated that he was working throughout 1997 and until September 1998. By letter dated 2 May 2001, the applicant gave an explanation for this inconsistency.The Tribunal’s reasons for decision In its reasons for decision, the Tribunal made no finding of fact favourable to the applicant. It described him as “a most unsatisfactory witness.” It found that, on several occasions, he had made statements and then denied having said them. It gave one example, concerning the issue of when his earlier passport had expired. The Tribunal also referred to the applicant as having given evasive answers on the question why he did not see the feudal lord when requested to do so during his period back in Pakistan. In most cases, the Tribunal made findings rejecting what the applicant had said on the basis of inconsistencies in his own evidence, or the “implausibility” of his story. Thus, the Tribunal thought that it was far-fetched that the applicant would approach the chairman of the Muslim League, who was then Prime Minister of Pakistan, to try and sort out the problems he was having with the feudal lord in his own area, when he would not try to approach someone in his area or at a lower level. The Tribunal took the view that it was inherently implausible that supporters of the party that won a by-election would try to harm and kill the applicant, whose involvement in politics was limited to campaigning outside working hours in respect of one by-election. The Tribunal found inconsistencies between the applicant’s employment history and his evidence that he was in hiding and being supported by friends. It found that the fact that he was able to remain in Pakistan for over a year with nothing happening to him, and to return to his local area in November 1999 with no consequence but a threat, was inconsistent with the risk that he would be killed. The Tribunal also noted the applicant’s failure to mention during his airport interview that he had been shot and to provide any medical evidence to support this claim. It doubted that the applicant had been shot and expressed the view that, even if he had, it was not by reason of any Convention ground. In one respect, the Tribunal’s rejection of the applicant’s case was based on material not specific to the applicant, concerning the 1997 general election. That material indicated that all constituencies in the general election were contested except for seats reserved for women and minorities. The Tribunal took this to be inconsistent with the applicant’s claim that the local feudal lords were outraged at the local candidate for daring to contest the by-election. It found that it was implausible that the feudal lords were seeking revenge, particularly when their candidate had won the by-election and the Muslim League had won 137 seats in the general election, compared with the PPP’s eighteen.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Full text does not contain this section.