Jawaid v Minister for Immigration & Multicultural Affairs

[1998] FCA 1807

JUDGMENT No. L .... 807 . .... ... . -... .-.

FEDERAL COURT OF AUSTRALIA

MIGRATION - review of decision of Refugee Review Tribunal - Pakistan - enmity between Islamic sects (Shia and Sunni) - danger of basing decisions of the RRT on findings of credibility in presentation at hearing

Migration Act 1958 (Cth)

SYED MUHAMMAD HAIDER JAWAID v MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS

NG 487 of 1998

THE HON JUSTICE MARCUS EINFELD

SYDNEY FEDERAL COURT

18 SEPTEMBER 1998 OF AUSTRALIA

21 IAN 2003

L~BIPARY

0

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 487 of 1998

BETWEEN:

SYED MUHAMMAD HAIDER JAWAID

APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:	THE HON JUSTICE MARCUS EINFELD
DATE OF ORDER:	18 SEPTEMBER 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed.

2. the applicant pay the respondent's costs.

Note:

Settlement and entry of orders are dealt with in Order 36 of the Federal Court

Rules.

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 487 of 1998

BETWEEN:

SYED MUHAMMAD HAIDER JAWAID

APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:	THE HON JUSTICE MARCUS EINFELD
DATE:	l 8 SEPTEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The applicant was born in the Punjab in Pakistan where he had some 17 years of education culminating in an Arts Degree and a Law Degree and Post Graduate Diploma until he left for Australia in the second half of 1996. In Pakistan he was in practice as a lawyer although he had been out of his country in South Africa for a period in 1995. In Australia he lodged an application for refugee status on the basis that he feared persecution if he was returned to Pakistan. He was first refused a protection visa by the Minister's delegate and again by the Refugee Review Tribunal on 22 April 1998, the Tribunal rejecting some of the examples of persecution, or worse, said to have been committed against the applicant's family during his absence, and against him while he was in the country. He now applies for judicial review of this refusal.

The applicant's case before the Tribunal was that, as a member of the Shia sect of Islam, he feared persecution at the hands of members of the Sunni sect. He said that he had been caught up in sectarian violence in Pakistan between groups of these sects in the past. Quite apart from his history of being a leader of a Shia group and a Shia activist as a member of the local Bar Association and in other capacities, he said that upon return, he would be recognised by Sunni Muslims as a Shia, wherever he was living, and he would then be susceptible to violence by Sunnis. No doubt, I suppose, if Sunnis were asked for

their view about the matter, they would say that they were at risk of violence at the hands

of Shias.

It is now widely known that these sects engage in what must amount to terrorism, certainly to violent crime, on each other and sometimes on people not in any particular sect. The Tribunal found, on the basis of information obtained from various sources, that violence arising from rivalry between Shias and Sunnis:

... has been a persistent feature of the Pakistan political landscape over the last 15

years especially in Punjab Province.

There can be little doubt that that finding was correct. Sbiites form about 15 per cent of Pakistan's population of in excess of 130 million people but they are a majority in neighbouring Iran. To the extent to which the present projected confrontation between Iran and Afghanistan is based upon a confrontation between Sunnis and Shias - and it

would be wrong to think that that would be the only basis for the confrontation - there is

'.

every possibility that Pakistan will be in some way caught up in that confrontation. There are already a large number of Afghan refugees living in Pakistan as a consequence of the long instability and civil unrest in Afghanistan, and there must be very little doubt that a confrontation between Iran and Afghanistan may involve or affect at least some part of Pakistan's population.

This Court's role in the review process is limited by Parliament to narrow legal questions. But it can safely be said that the Tribunal's analysis of the facts in this connection would have to be upheld, as well as its conclusion that there was every chance that the applicant,

as a qualified intellectual if for no other reason, might very well be caught up in these

disputes and might become a victim.

The Tribunal accepted that the applicant had a fear of being involuntarily implicated in this violence and I think did so correctly. No doubt, to the extent to which that fear was analysed, it was found to be a genuine well-founded fear. However, in the Tribunal's view, this fear was not Convention-related because it was not generated by anything particularly specific to the applicant himself but rather because the situation in the

country makes many people, including the applicant, susceptible to such violence.

The Tribunal considered that the present government of Pakistan is making some effort to attack the deterioration of law and order in the country. It is difficult to accurately assess the actions of any government of Pakistan. Several governments in recent times have promised to crack down on lawlessness and violence without actually doing very much to wipe it out and certainly without any particularly notable success in doing so. However, the present government of Pakistan has passed an Anti-Terrorism Act and has attempted, by various other means, to remove or reduce some of the violence, including outlawing men riding as pillion passengers on motorcycles, seen to be one of the sources of violence because some of the pillion passengers were gunmen. Nevertheless, as the Tribunal found, the violence at the moment is still widespread and endemic in some parts of the country and it is therefore proving very difficult to stamp out completely. Furthermore, it seems that not only must the Central Government of Pakistan take steps in this regard. Provincial Governments also have to act but because of corruption and other matters, including religious confrontation within such administrations, it is proving very difficult in some cases.

The Tribunal's decision turned on really three matters. I have dealt with one already - that the applicant's fear of persecution was not in truth Convention-related. A second was its rejection of some specific allegations made by the applicant of how persecution had come to him and his family in the past. There is concern that some recent decisions of the Tribunal have been placing too much emphasis on questions of credibility. It is difficult enough to reject the truthfulness of individuals when they are giving evidence in English as their first language before an open court with the advantage of counsel and cross-examination. In an inquisitorial tribunal where these things are entirely lacking, it would be a rare case where a decision would be based on the lack of credibility of a person as helshe presents to and gives evidence at that tribunal, as opposed to inconsistencies between what the person says orally and what appears in contemporaneous written documents. Even then, the discrepancies would, it seems to me, have to be fairly extreme to have the result that the credibility of the person concerned was totally destroyed such that the evidence should be entirely rejected. Although this

Court is not enabled by law to reverse such a finding, and could rarely do so as a fact, even if permitted by law, having not had the opportunity of directly hearing the questioned evidence, there are other ways in which this Court could in a given case reject an inadequate use of such a means of disposing of an application.

However, it is not necessary to consider this issue here because it is the third basis upon, which, in addition to the absence of Convention grounds for the fear of persecution, this decision was made that is more supportive of its justification. The Tribunal found that although there was still much violence in Pakistan and there was reason to fear persecution, even systematic persecution, in appropriate cases and appropriate areas of the country, the people of the country including the applicant could in considerable measure avail themselves of the protection of their own government, if necessary by relocating to less violent parts of the country. Despite the applicant's assertion that he would be recognised as a Shia wherever he was and would therefore be susceptible to sporadic or systematic violence at the hands of radical Sunnis, the evidence available to the Tribunal established satisfactorily enough that there are many parts of Pakistan where there is comparatively little violence and little confrontation and where people do live reasonably normal, uninterrupted, peaceful lives.

There are a number of countries in which from time to time law and order breaks down in certain areas with the result that law abiding citizens are subjected to forms of violence which ought not to exist in free and democratic countries. But the refugee structure was established to enable people suffering persecution or serious harm to seek the intervention of thud countries when they cannot avail themselves of any effective protection by their own government because it is either the persecutor itself or connives in or condones or does not stop their persecution by others. There was ample credible evidence that the present government of Pakistan is attempting to provide protection to its citizens. Thus the determination by the Tribunal that this applicant could avail himself of the protection of his own country in increasing areas of the country seems to me to be unchallengeable. As a qualified experienced lawyer, there would apparently be little to stop him from being able to gain remunerative employment in several parts of the country. I cannot see how in the circumstances the Tribunal can be found to have made an error of law when in fact it seems to have applied itself to the legal principles reasonably well.

In the circumstances I cannot find any basis for overturning the decision on any of the bases permitted by the Migration Act and the application will therefore be dismissed.

[After discussion]

I order that the applicant pay the respondent's costs.

I certify that this and the preceding

four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld

Dated: 18 September 1998

The Applicant appeared in person.

Counsel for the Respondent:	MS V. Hartstein
Solicitor for the Respondent:	Australian Government Solicitor
Date of Judgment:	18 September 1998