Kahloo, Mohammed Aslam v Minister for Immigration and Multicultural Affairs

[1998] FCA 1449

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG1119 of 1997

BETWEEN:	MOHAMMED ASLAM KAHLOO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE(S):	WILCOX, FOSTER AND LINDGREN JJ
DATE:	9 NOVEMBER 1998
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:   This is an appeal against a decision of a judge of the Court, Davies J, dismissing an application for review of a decision of the Refugee Review Tribunal.  In my opinion the appeal must be dismissed.

Two matters were argued.  The first matter was that the Tribunal misconceived its function.  It is said this is evident from the amount of time spent at the Tribunal hearing in interrogating the appellant in relation to matters extraneous to his claim for refugee status.  It is clear from the transcript, to which Mr Reilly took us, that the Tribunal member asked many questions about the appellant's way of life since he has been in Australia; his work on a farm at Leeton; matters such as the farming techniques used there and so on.  

I can understand a Tribunal member might think it desirable to settle down an applicant by commencing with some non-controversial questions which the applicant is easily able to answer.  This is probably a good idea; giving evidence on such an important occasion must be stressful to most applicants.  However, it is a fair comment that the amount of time spent during this hearing on asking questions of this nature was inordinate.  In particular, it is difficult to see why the Tribunal member came back to such questions at the end of the hearing, after the relevant questions had all been put and answered.  Having said this, it seems to me that, in determining whether or not the Tribunal misunderstood the nature of its function, it is necessary to look at the Tribunal's reasons in relation to the matters it did have to decide, and not determine the matter upon the basis of whether or not it unnecessarily expended time on extraneous matters.  

This brings me to the second point.  The complaint is that the Tribunal's reasons inadequately dealt with the issues and, for this reason, the Court should hold the Tribunal fell into error of law or denied the applicant substantial justice.  We had the advantage of reading Mr Reilly's written submissions in regard to this point before we came into court and have heard oral elaboration of them.

For my part, I am unpersuaded.  The Tribunal's reasons were relatively short, but that is not necessarily a defect.  The duty of the Tribunal is to explain to the parties why it has come to a particular decision.  It ought to deal with the claims made by an applicant and indicate, either by express findings or by implication, whether or not it accepts or rejects those claims.  I agree with the primary judge that the Tribunal performed that task in the present case.  It made some express findings.  In relation to other matters, the Tribunal indicated it accepted the claims made by the applicant and then dealt with the case on that basis.  I see no error in this approach.  Other Tribunal members may have written more elaborate reasons, but I do not think the reasons given in this case failed to perform the duty placed on the Tribunal.  The Court should not be quick to upset Tribunal decisions, simply because the reasons are somewhat sparse or less elegantly expressed than they might have been if someone else had performed the same task.

At the conclusion of his judgment, the primary judge said this:

“However reading the reasons as a whole it seems to me that the Tribunal member looked at the problems which Mr Kahloo faced in Pakistan and came to the view that his problems did not give rise to a fear based on Convention reasons, but were based on issues which had arisen between Mr Kahloo's family and the other land-owning family.”

I agree with this comment and I think it fairly arises out of the reasons the Tribunal member gave.  In my view there was no error of law or defect in the essential procedures required of the Tribunal.  I would dismiss the appeal.

FOSTER J:   I agree with the orders proposed by the learned presiding judge and with the reasons that he has advanced for them.

LINDGREN J:  I also agree with the orders proposed by the presiding judge and with his Honour's reasons.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox, Foster and Lindgren JJ

Associate:

Dated:             9 November 1998

Counsel for the Applicant:	T Reilly
Solicitor for the Applicant:	Ramrakha Jenkins
Counsel for the Respondent:	A F Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 November 1998