Khalil v Minister for Immigration and Multicultural Affairs

[1999] FCA 1062

FEDERAL COURT OF AUSTRALIA

Khalil v Minister for Immigration & Multicultural Affairs [1999] FCA 1062

IMRAN KHALIL v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 327 of 1999

MOORE J
SYDNEY
27 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 327 OF 1999

BETWEEN:	IMRAN KHALIL Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	MOORE J
DATE OF ORDER:	27 JULY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1         The application is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 327 OF 1999

BETWEEN:	IMRAN KHALIL Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	MOORE J
DATE:	27 JULY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(delivered ex tempore)

1. This is an application by Imran Khalil ("the applicant") for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 22 March 1999, affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the applicant a protection visa.  The applicant is a citizen of Pakistan who arrived in Australia in June 1992.  The applicant applied for a protection visa on 8 July 1993 and the application was rejected by the delegate of the Minister on 29 March 1993.  Somewhat curiously, the Tribunal took nearly six years to deal with the application for review, and the only explanation offered by counsel for the Minister for the delay was a supervening application by the applicant for a visa of a different character.  However, that delay assumes no legal significance in these proceedings.

2. The applicant was born in Kuwait in November 1965.  There was originally some uncertainty on the Tribunal's part as to where the applicant was born, however it was ultimately accepted that it was Kuwait, and the Tribunal proceeded to deal with the application on that basis.  The Tribunal accepted the applicant suffered persecution in Pakistan from 1984 until the time he left for Australia in the middle of 1992.  It is instructive to set out the Tribunal's conclusions on this issue.  The Tribunal said:

   I accept that the applicant joined the People's Student Federation, the student wing of the PPP [People's Party of Pakistan], in 1984, and that he joined the PPP itself in 1987.  I accept that he was an active member of both the PSF and the PPP, and that he was involved in organising meetings and in campaigning in the elections in 1988 and 1990.  I accept that he lived in an area dominated by the MQM [Mahajir Qaumi Movement] and that as a result he received taunts and threats from the MQM.  I accept that in November 1990 he was kidnapped and tortured by the MQM and that he suffered various physical injuries which required hospitalisation for three weeks.  I accept, however, that, as the Applicant indicated at the hearing before me, the psychological effect of his kidnapping had been more prolonged and damaging than his physical injuries. 

   I accept that after the kidnapping the Applicant took a step back, as he put it, and reduced his political involvement.  I accept that he was nevertheless attacked again in September 1991 and that in January 1992 someone fired on him in his car.  I accept that after this incident the Applicant received telephone calls, threatening him with abduction of the sort he had experienced in 1990 and also threatening his family.  I accept that as a result of these telephone calls, the Applicant decided to escape from Pakistan and came to Australia.  I accept that the Applicant's family in Karachi continue to receive abusive or threatening telephone calls, and that these are attributable to the applicant's involvement in politics.  I accept that the applicant was threatened and that he believes that his life was still in danger if he returns to Pakistan now, or in the foreseeable future as a result of his political opinion, that is, his allegiance to the PPP.

3. In this application for judicial review one ground only is relied on. That is the ground identified in section 476(1)(e) of the Migration Act 1958 (Cth) that the decision of the Tribunal manifests an error of law. That is, an error involving incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.

4. The focus of the submissions made on behalf of the applicant concerned the consideration by the Tribunal of the existing political situation in Pakistan, and whether having regard to that situation, the applicant presently has a well-founded fear of being persecuted were he to return to Pakistan. 

5. In its reasons the Tribunal surveyed the changes that have occurred in the political situation in Pakistan since the mid to late 1980's.  It noted the changing influence of the MQM in the political system in Pakistan and it did so as part of a process of ascertaining whether or not the authorities in Pakistan would be likely to afford the applicant protection were persecution of the type he earlier experienced threatened again.  The Tribunal approached the matter, in my view correctly, on the footing that it should consider whether the authorities in Pakistan would afford the applicant a level of protection of the same character as provided generally within the community and whether that level of protection would be sufficient to enable or sustain a conclusion that the applicant did not presently hold a well founded fear of persecution were he to return.

6. In my view the approach of the Tribunal to these questions is unexceptionable.  It engaged in a comparatively detailed analysis of the past, present and likely future political environment in Pakistan, and also engaged in a consideration of whether in the future the applicant would be afforded a level of protection of the type I have just discussed.  The Tribunal concluded:

   I do not consider that the evidence before me shows that the law enforcement agencies would not or could not provide the applicant with a level of protection sufficient to remove a real chance of his being persecuted by the MQM if he returns to Pakistan.

   That conclusion then led to the ultimate conclusion that the Tribunal did not accept the applicant had a well founded fear of persecution by reason of his political opinion if he returned to Pakistan.  In my opinion there was material available to the Tribunal to sustain both conclusions and its consideration of the issue does not manifest any error of law. 

7. A further issue was raised on behalf of the applicant in relation to how the authorities in Pakistan might have approached the kidnapping of the applicant in 1990 had the incident been reported.  It was submitted that the Tribunal's approach to this issue manifested legal error.  That was because the Tribunal did not pose for itself the question of what would have happened had the applicant reported his kidnapping in 1990.  In my view it did pose that question.  The Tribunal did not accept the applicant's account that nothing would have happened.  Having regard to independent material before it, the Tribunal reached the conclusion that the authorities would not have acted in the way contended for by the applicant.  The Tribunal was entitled to proceed in this way and its approach does not, in my opinion, manifest legal error. 

8. While I have no doubt the Tribunal (as do I) had sympathy for the applicant having regard to the experiences he suffered, the conclusions of the Tribunal and the manner in which it approached the application do not in my opinion evidence an error of law of the type contemplated by section 476(i)(e) of the Act.  Accordingly I dismiss the application with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             27 July 1999

Solicitor for the Applicant:	Simon Diab, John Maait & Co
Counsel for the Respondent:	Sarah McNaughton
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 July 1999
Date of Judgment:	27 July 1999