Khan, Daniel Rashad v Minister for Immigration & Multicultural Affairs

[1997] FCA 1450

FEDERAL COURT OF AUSTRALIA

MIGRATION - Application for refugee status by Pakistani national - Application made on basis that applicant had a well-founded fear of persecution for political opinion - Application refused - Appeal to Refugee Review Tribunal - Oral hearing held - While decision pending applicant stated he had converted to Christianity - Tribunal member sought information to consider the significance of this conversion in connection with possible persecution on religious grounds - Written material submitted - No further oral hearing - No request for further  oral hearing - Whether Tribunal denied the applicant substantial justice - Discussion of circumstances in which Tribunal should seek additional information - Discussion about Tribunal’s obligation or entitlement to afford a second oral hearing.

Migration Act 1958, ss 420, 425 and 476.

NG684 of 1997

DANIEL RASHAD KHAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

JUDGES:	WILCOX, FOSTER AND EMMETT JJ
DATE:	27 NOVEMBER 1997
PLACE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG684 of 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DANIEL RASHAD KHAN Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	WILCOX, FOSTER AND EMMETT JJ
DATE:	27 NOVEMBER 1997
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The applicant pay to the respondent his costs of the appeal.

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	NG684 of 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DANIEL RASHAD KHAN Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	WILCOX, FOSTER AND EMMETT JJ
DATE:	27 NOVEMBER 1997
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: This is an appeal against a decision by a Judge of the Court, Lockhart J, dismissing an application by Daniel Rashad Khan for a review of a decision of the Refugee Review Tribunal. The ground of review pressed before us is that the Tribunal denied Mr Khan substantial justice in the hearing of his application for review, see s 420(2)(b) of the Migration Act 1958. During the course of submissions it emerged there were three bases of the appellant's case.

First, it was submitted the Tribunal denied the appellant substantial justice because the Tribunal did not give an intimation to the appellant or his representative, the Refugee Advice and Casework Service (“RACS”), that the evidence he had submitted concerning his alleged conversion to Christianity was not considered probative.  Secondly, it was said there had been a denial of substantial justice because there was no invitation extended to Mr Khan to participate in a second oral hearing; the first oral hearing having been devoted exclusively to his claim for refugee status on account of a well-founded fear of persecution on the basis of political opinion.  Thirdly, it was complained that no opportunity was given to Mr Khan to advance further documentary evidence. 

It is possible to dispose immediately of the third ground, by reference to the letter of 17 June 1996 from a case officer at the Tribunal to Ms Lyn Payne, a solicitor at RACS representing Mr Khan.  That letter included the following paragraph:

“The Tribunal does not propose to seek further information about Mr Khan's claims unless Mr Khan wishes to add to his submission dated 26 May 1996 about his conversion to Christianity.  The Tribunal considers that it is able to make a decision on the evidence before it.  Unless you have any objection to this course the Tribunal will proceed to make a decision on the application as soon as possible.”

Ms Payne responded on the following day with a letter which included the following:

“No further information is to be submitted.  We would very much appreciate a decision on Mr Khan's application as soon as possible.”

It seems clear the Tribunal gave Ms Payne an opportunity to put any further material that she wished; she appreciated this, indicated no further information was to be submitted and sought an early decision.

The first basis is the one most elaborately argued by counsel for the appellant, Mr Peter Gwozdecky.  His submits there is an onus on the Tribunal to indicate to an applicant any matter in respect of which the Tribunal is minded to make an adverse decision.  In support of that proposition he referred to the decision of Gummow J in Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 98 ALR 180. In that case Gummow J was concerned with an application under the Administrative Decisions (Judicial Review) Act 1977. The applicant was a priest who claimed to have founded a religious order near Nowra. The delegate rejected the case put by the priest without taking any action to draw the attention of the applicant to the desirability of corroboration of his claims regarding the work he was doing. At 189 Gummow J dealt with the situation in comprehensive terms. He pointed out the obligation to accord a hearing does not usually carry with it an obligation to direct attention to omissions in an applicant’s case. However, he went on to note there is an overriding requirement to adopt a reasonable and fair procedure. He suggested there are cases where it is necessary to draw attention to the absence of corroboration, in a case where corroboration is important and can readily be obtained.

I have no difficulty with the approach taken by his Honour and I respectfully agree with it.  I think it accords with doctrine adopted in this Court in respect of one aspect of manifest unreasonableness.  The question is whether the Broussard approach applied in this case.  When asked what information might have been obtained, if there had been an intimation to Mr Khan that the decision maker or the Tribunal member was not impressed by his claim to have converted to Christianity, Mr Gwozdecky said inquiries could have been made about the frequency of telephone contact between Mr Khan and his family in Pakistan.  He said this information would have given some clue as to the family’s attitude; the suggestion being, if they had called less frequently, that they had reacted badly to his having converted from Islam to Christianity.

I assume it might have been possible to obtain records of calls made by Mr Khan out of the detention centre at Villawood; if so, this might provide information as to any change in the pattern of his ringing his family.  It is not apparent to me there would have been any readily available information as to the frequency of calls to him from Pakistan.  It is conceivable records were kept but I do not know and would find this surprising. 

Mr Gwozdecky suggested people on the staff at Villawood should have been asked to search their memories for any changing patterns concerning the number of times Mr Khan had been called to the telephone.  I think this is rather fanciful.

In any event, even if it were shown there was some change in the pattern of contact from Pakistan, that would not prove very much.  It might indicate a perception amongst members of his family that he had become a Christian, but they could have obtained this perception only second hand; it would be consistent with no more than the fact he had so claimed to members of his family.  It  would not prove the conversion was genuinely made, without an ulterior motive of improving his chances of being acknowledged as a refugee in Australia.

Secondly, it was said the Tribunal could have taken evidence from the man who was responsible for the alleged conversion, John Riley, and perhaps other people involved with the church of which Mr Riley was a member.  Perhaps this could have been done, but Mr Riley had already furnished a statement in which he dealt with the steps necessary for a convert to become a Christian, commented that Mr Khan had already taken the first step and referred to having witnessed in him a great joy and zeal for the things of Jesus and the repelling of sin in his mind.  Plainly Mr Riley accepted the genuineness of the conversion.  I have difficulty in seeing how interrogation of Mr Riley or an oral hearing would have carried the matter any further in favour of Mr Khan.  In relation to co-religionists, it is not clear to me who might have been asked to attend or in what way they could have assisted the case.

I reject the submission that the Tribunal was required to have a second oral hearing. Mr Gwozdecky referred to s 425 of the Act but that section clearly does not require a second hearing. It is concerned with the situation where the Tribunal is initially unable to reach a decision favourable to the applicant, on the papers, in relation to the ground claimed in the original application for refugee status. However, there is nothing in the Act that precludes a second oral hearing. If that is what is required, in a particular case, in order to provide substantial justice, that is the course that ought to be taken. The question in this case is whether there was denial of substantial justice because the Tribunal member decided to deal with the claim for conversion solely on the basis of the written material submitted to her.

I do not think the Tribunal’s decision in this regard represented a denial of substantial justice.  Mr Khan had been in detention for a considerable period.  There must always be concern about time dragging on when someone is being held in detention.  It was the Tribunal member herself who drew Mr Khan’s attention to the possible significance of his alleged conversion to Christianity.  She invited material on the matter.  In response, Mr Khan provided a lengthy statutory declaration setting out the circumstances of his alleged conversion.  This was supplemented by Mr Riley's letter.  In those circumstances, it  is difficult to see that much would have been gained by another oral hearing.  A further oral hearing would have caused delay and that was undesirable.

Although I agree the Tribunal has its own responsibility in regard to ensuring substantial justice, and cannot absolve itself of that responsibility because of a dereliction of duty by a person representing an applicant, it is reasonable to have regard to the attitude of an applicant's representative when deciding whether a particular course represented a denial of substantial justice.  This is especially the case where the representative is a solicitor well experienced in refugee cases, as here.  As I have already pointed out, it was made plain to Ms Payne that the Tribunal was minded to proceed to a decision, if the appellant did not wish to submit further evidence.  It must have been obvious to her that this would be done without a further oral hearing.  Ms Payne not only acquiesced in this, she asked for a decision as soon as possible.

I emphasise that, if I had reached the view the course taken was unjust, I would think it not an answer to say the solicitor had failed to complain and had acquiesced in that course.  But when one is considering an element such as substantial justice, the contemporaneous attitude of experienced people is not irrelevant.  In my opinion the failure to have a second oral hearing did not constitute a denial of substantial justice to Mr Khan.

I do not think there is merit in any of the argued grounds.  I would dismiss the appeal.

FOSTER J:  Mr Gwozdecky has presented a most cogent and comprehensive argument on behalf of his client.  He quite properly conceded in my view that the nub of his submissions related to the letter of 17 June 1996 forwarded by the Tribunal to the appellant's solicitors.

That letter followed upon a number of procedural steps that had already been taken including an oral hearing which had been accorded to the appellant.  The letter stated that the Tribunal did not propose to seek further information about Mr Khan's claims.  It went on to say, however, that, unless Mr Khan wished to add to his submission dated 26 May 1996 about his conversion to Christianity, the Tribunal considered that it was able to make a decision on the evidence before it.

I should indicate that the submission of 26 May 1996 had been in a most comprehensive form with the inclusion of supporting documentary material bearing upon the appellant's conversion to the Christian faith and the likely consequences of any persecutory activity that might be directed towards him in that regard should he return to Pakistan.

The letter continued by stating:

“Unless you have any objection to this course the Tribunal will proceed to make a decision on the application as soon as possible.”

That letter was directed to the appellant's solicitors who were well versed in the law relating to refugees and the procedures applicable to it.  The submission made by Mr Gwozdecky is that the letter does not go far enough and its failure to do so constitutes a flaw in procedural fairness to which his client was entitled.  His submission is that the letter should have indicated in reasonably explicit terms that the Tribunal viewed the appellant's alleged conversion to Christianity and its consequences with scepticism and, perhaps, that that scepticism was based upon material which included the hearing and other matters which had already come before it for consideration.

It is put that the failure to advert to these matters constituted, as it were, a blot upon the procedure because it did not put the appellant in a position where he could properly understand that he was in some peril of an adverse decision unless he were to take steps immediately to supplement the material he had already given.

The letter was answered, in fact, by a letter on the following day from his solicitors.  In that letter some additional information was provided but then the quite positive statement was made:

“No further information is to be submitted.  We would very much appreciate a decision on Mr Khan's application as soon as possible.”

Viewing those two communications in the light of the whole of the evidence in the matter I am quite unable to accede to a suggestion that substantial injustice had occurred or conversely that substantial justice had been denied to the appellant by the Tribunal by its failure to signal further in that letter of 17 June that it had formed an adverse view on the question of the conversion to Christianity and its effects, which would require further evidence to be given if it were to be removed.  For those reasons and for all the reasons which have been given by the learned Presiding Judge in relation to other aspects of the matter that have been argued before us today.  I am totally unpersuaded that any relevant flaw has been demonstrated in the proceedings of or the decision of the Tribunal.  Accordingly I agree with the order that has been proposed.

EMMETT J: I agree that the appeal should be dismissed for the reasons advanced by my brothers Wilcox and Foster JJ. I only want to add for the record that counsel for the appellant also relied on the ground contained in s 476(1)(e) of the Migration Act that the decision involved an incorrect application of the law to the facts as found by the decision maker. When pressed as to that ground, I understood counsel to be repeating his submissions concerning the failure to comply with procedures which would be a ground under s 476(1)(a).

I do not consider that there has been any incorrect application of the law to the facts as found and that no grounds were made out.  Otherwise I agree with the orders proposed.

[There was discussion on costs.]

WILCOX J:   The order of the Court will be that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate:

Dated:            27 November 1997

Counsel for the Applicant:	P Gwozdecky
Counsel for the Respondent:	R M Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 November 1997