Khan, Azam v Minister for Immigration & Ethnic Affairs

[1996] FCA 778

IN THE FEDERAL COURT OF AUSTRALIA                  ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY                 )  No NG 746 of 1995
  )  
GENERAL DIVISION  )     

BETWEEN:  AZAM KHAN  

Applicant

AND:  MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

Respondent

Coram:           Davies J.
Date:              21 August 1996
Place:              Sydney

REASONS FOR JUDGMENT

This application seeks orders of judicial review with respect to a decision of the Refugee Review Tribunal ("the Tribunal") given on 29 August 1995.  The applicant, Mr Azam Khan, lodged an application seeking recognition as a refugee on 7 March 1991.  That application was refused in 1992 and Mr Khan sought review by the then Refugee Status Review committee.  The matter came on for hearing before the Tribunal and a decision rejecting Mr Khan's application was given on 12 January 1993.

Before s.48A had been introduced into the Migration Act 1958 (Cth), Mr Khan lodged a further application seeking recognition as a refugee and a protection visa. That application was refused and in due course the matter came again before the Tribunal which handed down its decision refusing the visa on 29 August 1995. In making its decision the Tribunal exercised the powers conferred on it by s.416 of the Migration Act which provides:

"416. If a non-citizen who has made:

(a)an application for review of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or

(b)applications for reviews of RRT-reviewable decisions that have been determined by the Tribunal of the Administrative Appeals Tribunal;

makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application:

(c)is not required to consider any information considered in the earlier application or an earlier application; and

(d)may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information."

The present application to the Court is in the following terms, inter alia:

"Application to review the decision of the Refugee Review Tribunal dated 29 August, 1995 (which incorporated and affirmed the decision of the Refugee Review Tribunal dated 12 January, 1993) that the Applicant is not a refugee..."

In my opinion, the decision of August 1995 did not incorporate the decision of 12 January 1993 nor did it affirm it.  Rather, the Tribunal took the view that it was entitled to have regard to, and to take as correct, the decision that had previously been made.  The earlier decision is, however, not totally irrelevant to the matter now before the Court and I shall return to it.

The application to the Court is an application under s.476 of the Migration Act which provides inter alia:

"476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one of more of the following grounds:

...

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

..."

The matter to which the Tribunal directed the most attention was the claim that Mr Khan was subject to persecution by reason of a possibility of his arrest by Fijian authorities in relation to arms smuggling charges.  In relation to this matter, the Tribunal said inter alia:

"When interviewed by the Department in relation to his second application on 19 April 1995, Mr Khan claimed for the first time that he was sought by the authorities in Fiji in relation to arms smuggling charges.  He stated that he had called his mother three months earlier and she had told him that the army were still looking for him in relation to the question of arms going into Fiji.  He believes that the police want to talk to him because his name is similar to that of someone from England who was involved in shipping arms.  He was not involved in a plot to bring arms to Fiji, but believes that many people have [sic] who were not involved have been falsely charged with involvement in the plot.

At the hearing Mr Khan said that he had been told by his mother that a warrant had been issued for his arrest on these charges about three weeks ago.  He was also advised by a friend in the police force that the Fijian police had tried to telephone him when he was in the detention centre, but the call had not been put through to him.  He said that he was under suspicion of involvement in an arms smuggling plot because his brother, who has resided in New Zealand, is called Aziz Khan and the man who master minded the arms smuggling plan was also called Aziz Khan.  Mr Khan said that the Aziz Khan who was involved in arms smuggling was arrested in Britain, but despite this he and his brother were still under suspicion.   Mr Khan said that he had been questioned by the police regarding the arms smuggling while in Fiji on several occasions.  They had asked him his name, his brother's name and where they got the money to buy the arms.

The Tribunal advised Mr Khan that it was extremely difficult to accept that he would have been suspected of involvement in arms smuggling merely because his brother had the same name as someone who was arrested in connection with the plot and that the police would have issued a warrant for his arrest so long after his departure from the country.  Mr Khan continued to insist that his claims were true and added that they could be checked with the Fijian Police.

Mr Khan was also advised that, even if it were accepted that a warrant had been issued for his arrest, the evidence before the Tribunal indicated that such charges would be dealt with through the courts in an appropriate manner.  Mr Khan stated that he did not believe that he would be given a fair trial because as an Indian Fijian he is seen as a second class citizen.  He believes that some of those charged with involvement in arms smuggling were falsely accused, but beyond expressing general distrust in the Fijian legal system could offer no reasons as to why he believed this to be true.

The Tribunal advised Mr Khan that it would consider investigating this claim with the Fijian police and would advise him prior to finalising the case whether it intended to undertake these investigations.  Upon reflection it was decided that further investigations were unnecessary and Mr Khan was advised of this by letter.

...

The evidence before the Tribunal indicates that some 20 people were arrested in connection with the arms smuggling plot referred to by Mr Khan in June 1988.  They were tried in open court the following year, following which nineteen were conditionally discharged and one was acquitted.  Attempts to extradite one of the accused from Britain failed (Amnesty International, Annual Report 1991, Sydney Morning Herald, 18 January 1990 and Fiji Voice, "Court frees 18 in Arms Trial No.12, February/March 1990).  None of the evidence before the Tribunal suggests that those who were tried at that time have experienced further problems with the authorities or that the Fijian authorities are seeking additional people in connection with the incident.  Furthermore, evidence before the Tribunal indicates that the person arrested in Britain was named Mohammed Kahan, not Aziz Khan as claimed by Mr Khan (Canadian Immigration and Refugee Board Documentation Centre, Ottawa Information requestion Number: FJI6734, 3 August 1990).

In these circumstances, I am extremely sceptical of Mr Khan's claim that a warrant has been issued for his arrest seven years after the arrest of the other suspects and more than six years after he left Fiji.  I also note that Mr Khan did not mention that he was suspected of involvement in arms smuggling until his first application for refugee status had been rejected by both the Department and the Tribunal.  Furthermore, I did not find him to be a generally truthful witness as he gave substantially different accounts of his involvement in the FLP and his resignation from the police force to the Department and [sic] in first and second applications for review."

It will be noted that the Tribunal took into account the fact that Mr Khan did not mention that he was suspected of involvement in arms smuggling until his first application for refugee status had been rejected by both the department and the Tribunal. 

Counsel for Mr Khan, Ms J.V. Coombs, submitted that this finding was erroneous and she referred to an application which had been lodged by Mr Khan on 11 December 1988 for a grant of residence status on compassionate or humanitarian grounds.  Paragraph 9 of that application contained the following information:-

"9.        If, in your opinion, it is not appropriate for you and persons included in your application to depart Australia and apply for migration to Australia at an overseas post, state why.

It is inappropriate in the circumstances mainly because of the threats directed to me personally and conveyed to my parents - and possible detention by the security forces should my trip to Australia be known to the security forces especially in view of the Fiji arms scandal - the name "KHAN" is a strong suspect."

Counsel for the Minster for Immigration & Ethnic Affairs, Ms R.M. Henderson, said, however, that it had not been shown that that matter was ever brought to the attention
of the Tribunal.  She said that, as that application was in a file different to the file on refugee status that the Tribunal dealt with, it may well be that the document was not before the Tribunal. 

A more important point is that the matter as put by Mr Khan before the Tribunal was not put in that application.  Mr Khan's case before the Tribunal was that the police were actively seeking him in relation to the arms smuggling scandal.  The information contained in para. 9 refers merely to possible detention should the trip to Australia become known, particularly because he had the same name, Khan, as people who had been involved in the arms smuggling affair.  It does not seem to me that para. 9 of the application of 11 December 1988 would have influenced the view of the Tribunal.  The Tribunal was sceptical of Mr Khan's claim that a warrant had been issued for his arrest seven years after the arrest of other suspects, many years after they had been tried and more than six years after he had left Fiji.

I agree, moreover, with the submission of Ms Henderson that, if there was any error in this matter, it was an error of fact which is not reviewable. I agree with Ms Henderson's submission that s.476(1)(g) of the Migration Act, the ground that there was no evidence or other material to justify the making of the decision, does not apply to this matter.  The finding of the Tribunal, that Mr Khan did not mention that he was suspected of armed smuggling until his first application for refugee status had been rejected, was not a decision but merely a finding.  This is not the type of case in which a decision could be set aside on the ground of no evidence.

Another matter raised by Ms Coombs was that the Tribunal did not refer in its reasons for decision to every part of a relevant report in the US Department of State Country Reports on Human Rights Practices For 1994.  Ms Coombs pointed to the fact that the following paragraph in the relevant report was not specifically mentioned by the Tribunal:

"c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. - Police sometimes physically abuse detainees; the authorities have punished the offending officers in some instances, but punishments have been light and thus have not served as an effective deterrent to others.  The police department's internal affairs unit investigates complaints of police brutality and has begun to work with the Ombudsman's office to ensure impartial observers in the investigation of complaints about police conduct."

The failure to mention every part of a report such as that does not constitute an error of law.  The Tribunal was quite entitled to mention only those parts of the report as seemed to it to be most pertinent.  The paragraph to which Ms Coombs referred, would not, of itself, be a sufficient basis on which to base a finding of a real chance of persecution of Mr Khan for a Convention reason.

Ms Coombs also submitted that the Tribunal dealt with Mr Khan's application in a piecemeal manner, dealing only with specific items one at a time and not considering  the matter as a whole.  Plainly, in matters such as these, the claims as a whole should be looked at.  In Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481, Kirby J said at 507-508:-

"8. Because the test propounded by this court in Chan involves the necessity of a measure of speculation about what the chances held in store for an applicant, and whether there was a `real chance' that made an established fear of persecution `well founded', an indication that the delegates had put all speculation out of account would certainly show legal error.  So would an indication that the evaluation of the `chance' and its `reality' had been made by a test of weighing the probabilities.  Two points must be made here.

First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An overnice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court of law conducting a trial that to the proper performance of the functions of an administrator, even
if the delegate of the minister and even if conducting a secondary determination.  It is not an error of law for such a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, so long as, in the end, he or she performs the function of speculation about the `real chance' of persecution required by Chan. 

Secondly, the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material.  Evaluation of chance, as required by Chan cannot be reduced to scientific precision.  That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: `What if I am wrong?'  Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems `likely' or `entitled to greater weight', the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a `real chance' of persecution." (emphasis added)

By way of example, Ms Coombs referred to the decision of Lindgren J in Mataka v Minister for Immigration & Ethnic Affairs (unreported, 24 May 1996).  However, in that case, his Honour followed Minister for Immigration, Local Government & Ethnic Affairs v Mok Jek Bouy (1994) 55 FCR 375 and the Full Court decision in Wu Shan Liang v Minister for Immigration, Local Government & Ethnic Affairs (1995) 57 FCR 432. Wu, which followed the approach adopted in Mok, has now been set aside by the High Court of Australia and the approach adopted by the Federal Court in those two cases criticised.  In Mataka, his Honour also referred to, and relied on, Guo Wei Rong v. Minister for Immigration, Local Government & Ethnic Affairs (1996) 135 ALR 421. That case also relied on Mok and Wu and, accordingly, suffers from the problems which were pointed out by the High Court in Wu.  The High Court has granted special leave to appeal in Guo.

Notwithstanding that, the fundamental point made by Ms Coombs is correct, namely, that a decision-maker should, in considering refugee status, consider the effect of the totality of the facts, as well as looking at the individual facets of the case.

For that reason, I think it useful to look at the decision made on 12 January 1993
to see whether that was the approach taken there.  It seems to me that there was no error in the Tribunal's approach.  It is true that the Tribunal dealt first with claims relating to political opinion, then with claims relating to race and then with claims relating to religion, but that was a convenient thing to do, for the claims had different bases and political opinion, race and religion are separate Convention grounds.  The Tribunal did not, however, simply examine the matters separately; it considered the matter as a whole. The Tribunal concluded:

"I accept that Mr Khan may have faced harassment and threats as a result of his Indian ethnicity, his Muslim religion and his membership of the Fiji Labour Party in the immediate aftermath of the 1987 coups in Fiji.  However, I find the chance that he will experience treatment amounting to persecution as a result of his race, religion or political opinion on return to Fiji to be remote and find that he does not have a well-founded fear of persecution for a Convention reason."

In the decision under review in this Court, the Tribunal dealt with the new material which was put forward which involved a reconsideration of some of the matters which had been earlier considered by the Tribunal.  One of the problems which faced the Tribunal was that the evidence given on behalf of Mr Khan differed in some respects from that which had earlier been given.  This confirmed the Tribunal in the view which had earlier been formed that Mr Khan's evidence was suspect.  Having regard to all the matters which were newly raised, the Tribunal concluded:-

"I do not accept that Mr Khan faces a real chance of persecution for a Convention reason on return to Fiji.  He is therefore not someone to whom Australia owes protection obligations and not entitled to a visa."

It does not seem to me that the Tribunal failed in its duty to consider the overall position of Mr Khan.  I see no error in its approach.  Its decision on the facts was, of course, a matter for the Tribunal and not for this Court. 

For these reasons, the application will be dismissed with costs.

I certify that this and the preceding 8 pages
are a true copy of the reasons for judgment of
the Honourable Justice Davies.

Associate:

Date:   21 August 1996 

Counsel for the applicant:  J.V. Coombs

Counsel for the respondent:  R.M. Henderson

Solicitor for the respondent:  Australian Government Solicitor

Date of hearing:  21 August 1996

Date of judgment:  21 August 1996