Khan v Minister for Immigration and Multicultural Affairs
[1997] FCA 717
•4 August 1997
FEDERAL COURT OF AUSTRALIA
IMMIGRATION - application for protection visa refused - applicant made a further claim after hearing but before Tribunal delivered decision - applicant submitted further evidence but did not ask for an oral hearing - whether failure to give applicant oral hearing on further claim was a breach of s 420(2)
Migration Act 1958: ss 420, 475, 476
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 379
Dai Xing Yao v Minister for Immigration & Ethnic Affairs, unreported, 18 September 1996, (Davies J)
Eshetu v Minister for Immigration & Multicultural Affairs, unreported, 10 July 1997, (Davies, Burchett & Whitlam JJ)
Heshmati v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 123
Minister for Immigration & Ethnic Affairs v Singh (1997) 142 ALR 191
Sarbjit Singh v Minister for Immigration and Ethnic Affairs, unreported, 18 October 1996, (Lockhart J)
Somaghi v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 100
DANIEL RASHID KHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and JILL TOOHEY, CONSTITUTING THE REFUGEE REVIEW TRIBUNAL
G 588 of 1996
LOCKHART J
SYDNEY
4 AUGUST 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) G 588 of 1996 ) GENERAL DIVISION )
BETWEEN: DANIEL RASHID KHAN
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RespondentJILL TOOHEY, CONSTITUTING THE REFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE(S): LOCKHART J PLACE: SYDNEY DATED: 4 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application is dismissed.
The applicant pay the respondent’s costs of the proceeding, including reserved costs, if any.
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 ) G 588 of 1996 ) GENERAL DIVISION )
BETWEEN: DANIEL RASHID KHAN
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentJILL TOOHEY, CONSTITUTING THE REFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE(S): LOCKHART J PLACE: SYDNEY DATED: 4 AUGUST 1997
REASONS FOR JUDGMENT
This is an application by Daniel Rashid Khan for review of a decision of the Refugee Review Tribunal (the Tribunal) which affirmed the decision of a delegate of the Minister for Immigration and Ethnic Affairs that the applicant was not entitled to a protection visa. The application for review is made pursuant to s 475(1)(b) of the Migration Act 1958 (the Act). The ground on which the application for review is made is that ‘procedures that were required by this Act ... to be observed in connection with the making of the decision were not observed’ (s 476(1)(a) of the Act).
The source of that ground of review is s 420(2) which requires the Tribunal, in reviewing a decision, to ‘act according to substantial justice and the merits of the case’. Counsel for the applicant argued that the Tribunal did not so act and that, in the result, the applicant’s case falls within s 476(1)(a) because procedures that were required by s 420 to be observed in connection with the making of the decision were not observed.
The particular matters on which reliance was placed by counsel for the applicant as indicating that the Tribunal did not act according to substantial justice and the merits of the case will be mentioned and discussed later.
The relevant facts may be briefly stated. They are taken from the Tribunal’s reasons for decision and documents that were available to the Tribunal when reaching its decision.
The applicant is a national of Pakistan. He left Pakistan in April 1995 and travelled to Thailand where he stayed until September 1995. He arrived in Australia from Thailand on 6 September 1995, travelling on an Indian passport in the name of Dilbargh Singh and in the company of six other persons, also travelling on Indian passports. On his arrival at Sydney airport the applicant’s passport was examined by an officer of the Department of Immigration and Multicultural Affairs (the Department). The passport was found to be ‘photosubstituted’, that is, the photograph in the passport was not the original inserted in it at the time it was issued. The applicant was refused immigration clearance and was taken from the airport to the Villawood Immigration Detention Centre where he remains in custody.
On 13 September 1995 the applicant lodged an application for a protection visa with the Department. On 20 December 1995 a delegate of the Minister decided that he was not entitled to the visa. On 22 December 1995 the applicant sought review of that decision by the Tribunal, which affirmed the delegate’s decision.
It is a criterion for the grant of a protection visa that, at the time the decision is made, the Minister is satisfied that the applicant is a person to whom Australia has ‘protection obligations’ under the Refugees Convention: clause 866.221 of Schedule 2 to the Migration Regulations (the Regulations). The Refugees Convention is the 1951 Convention relating to the status of refugees (the Convention) as amended by the 1967 Protocol relating to the Status of Refugees: clause 866.111 of Schedule 2 to the Regulations. Australia is a party to both instruments and thus has ‘protection obligations’ to persons who are refugees as defined by them. The meaning of ‘a refugee’ is to be found in Article 1A(2) of the Convention, which provides that a refugee is any person who:
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
What constitutes a ‘well-founded fear of being persecuted’ depends on the circumstances of each case. The facts must be examined objectively in order to determine whether a fear is ‘well-founded’: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379 per McHugh J at 429. A fear of persecution is ‘well-founded’ if there ‘is a real chance that the refugee will be persecuted if he returns to his country of nationality’: Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407 and McHugh J at 429. A ‘real chance’ is a chance that is substantial not remote or insubstantial (per Mason CJ at 389 and Toohey J at 407).
The word ‘persecution’ is not defined by the Convention; what constitutes persecution depends on the circumstances of the case. There must be ‘some serious punishment or penalty of some significant detriment or disadvantage’ if the applicant returns to his or her country (Chan per Mason CJ at 388).
Whether an applicant has a well-founded fear of persecution must be determined in the light of the circumstances as they exist at the time when the determination is made: Minister for Immigration & Ethnic Affairs v Singh (1997) 142 ALR 191.
The Tribunal examined the relevant facts and the history of the applicant’s application for review of the delegate’s decision in considerable detail, which it is unnecessary for me to recite. The two principal questions before the Tribunal were whether the applicant had a well-founded fear of being persecuted for reasons of political opinion or religion. The applicant’s claims relating to political opinion were the basis of his application for review and it was not until the Tribunal had completed the hearing of the evidence before it that the applicant’s claim relating to religion arose. The question whether the applicant has a well-founded fear of persecution for reasons of political opinion focuses on the applicant’s membership of a body known as the Muslim League Nawaz Sharif Group and his having been the Information Secretary of the Pakistan Muslim League (PML) in his residential area. The PML is currently the principal opposition party in Pakistan.
The Tribunal was not satisfied that the applicant had been truthful about the nature and extent of his involvement in the PML for reasons which the Tribunal gave. A considerable amount of documentary material was placed before the Tribunal by the applicant to support his claim. The Tribunal found that it was satisfied that many of the relevant documents were not genuine and had been fabricated for the purposes of the applicant’s application for refugee status; and that the applicant was unable to frame his claims without them. It found that the production of certain of those documents after the decision of the delegate had been made rejecting the applicant’s application was ‘consistent with a pattern of enhancing the claims as the application had proceeded’.
The Tribunal considered whether the applicant faced a real chance of persecution by virtue of his support for the PML. The Tribunal accepted the possibility that a member of the PML from the relevant region in which the applicant lived may face some form of harassment by members of the ruling political party in Pakistan; and it accepted the possibility that a member of the PML from Haripur may face some form of harassment and, depending upon the circumstances, may have a well-founded fear of persecution there. However the Tribunal was not satisfied that the applicant was such a person. The Tribunal found that, although it accepted that the applicant was a supporter of the PML, his evidence about his actual involvement in that body and the incident which he says led to his fleeing Pakistan was in very general terms only and there were inconsistencies in his own statements. The Tribunal said that the applicant’s evidence:
“... in general has been so lacking in credibility that I do not accept that he has been persecuted in the past. I find no basis in the evidence before me for a conclusion that there is a real chance that he faces persecution in the future. Even if there is a real chance of harassment in Haripur, the evidence from the Department of Foreign Affairs and Trade (DFAT) indicates the harassment it refers to is localized. I am satisfied that Mr Khan can find protection elsewhere in Pakistan if necessary and that it is reasonable to expect him to do so.”
The Tribunal said that PML members or supporters as a class do not for that reason alone face a real chance of persecution; but that this does not preclude the possibility that an individual member or supporter may be persecuted. It depends upon the circumstances of the case. The Tribunal was not satisfied that the applicant was such an individual.
The Tribunal’s finding concerning the applicant’s claim based on persecution for political opinion were not challenged. It is the claims of the applicant relating to religion that are the subject of this application for review.
The applicant’s claims relating to religious persecution were dealt with by the Tribunal in the manner and terms which I shall briefly describe.
In May 1996, after the conclusion of the hearing of the evidence before the Tribunal (8 March 1996), but before the Tribunal gave its decision (28 June 1996), the applicant raised with the Tribunal the question of a well-founded fear of being persecuted for reasons of religion. The applicant claimed that since being held in custody in the Villawood Detention Centre he had been converted to the Christian faith. The documents provided by him asserted that he had become disenchanted with the PML because its members did not assist him during his period in detention in Australia. This lack of assistance and apparent complete lack of care for him led the applicant to ‘my first exploration of Christianity’. He became very friendly with one of the Christian detainees at the Centre and began to discuss the differences between Christianity and Islam. He began attending regular meetings led by members of the New Covenant Pentecostal Church, presumably at the Detention Centre. Other steps were taken by the applicant, so he says, which led to his conversion to Christianity. He asserted that about May 1996 he officially converted to Christianity and changed his name to Daniel as his first name. It was the name given to him by the Church and he freely accepted it. He had not undergone the sacrament of baptism at that time, but it would appear from what I have been told by his counsel that he has since undergone baptism, that is after the Tribunal’s decision was made. He claims that since his conversion to Christianity he has been completely ostracized by all the Muslims in the Detention Centre, particularly the other Pakistanis. Also, relations between his family in Pakistan and relatives in Japan have become very tense and they have rejected him because of his conversion to Christianity. He informed the Tribunal that members of the PML in Australia did not attend his hearing before the Tribunal and give evidence on his behalf because of his conversion to Christianity.
The Tribunal sought further information from the applicant about his conversion to which it made reference in its reasons for decision. The Tribunal considered the documents which were before it concerning the alleged conversion of the applicant to Christianity; and they included two letters from the New Covenant Pentecostal Church stating that two of its members visit Villawood regularly and that the applicant had expressed to them his ‘earnest desire to embrace Christianity’, that he hoped to be baptised and to change his name to Daniel. Also before the Tribunal were reports from the United States Department of State’s Country Reports on Human Rights Practices for 1995 and from Amnesty International about the treatment of Christians in Pakistan which the Tribunal summarized.
The Tribunal said it was not satisfied that the applicant faces a real chance of persecution for reasons of his religion. The Tribunal said that the claim of the applicant that he had converted to Christianity did not arise until very late in his application, after the Tribunal hearing at which it was made clear to him that the Tribunal had serious doubts about his documents and his evidence in general. The Tribunal did not accept that the applicant’s claim to refugee status based on religion was a genuine claim. The Tribunal said in its reasons:
“I do not accept that Mr Khan’s claim to conversion had anything to do with the failure of a representative of the PML to attend the hearing and give evidence on his behalf. Mr Khan did not suggest at the hearing that he had converted to Christianity or that he wanted someone from the PML to give evidence on his behalf. If he did ask someone from the PML to attend the hearing and if they did refuse, I am not satisfied that it had any connection with his religion.”
Counsel for the applicant informed me that on his instructions the applicant had converted to Christianity before the hearing before the Tribunal on 8 March 1996, but that at that stage the conversion had not been completed by the act of baptism.
The Tribunal accepted that Christians in Pakistan may face a real chance of persecution on account of their religion, but it was not satisfied that the applicant faced a real chance of persecution for that reason. It said:
“All he has done is assert that he is now a Christian. There is no reliable way to test his assertion. Given Mr Khan’s pattern of adding to and enhancing his claims as his application had progressed, I find that this claim has been made solely for the purpose of advancing his application for refugee status.”
The Tribunal accepted that a well-founded fear of persecution may arise by virtue of events which occur after an applicant was already outside the country of nationality. The Tribunal cited from the judgment of Gummow J in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100, at 118 that:
“actions taken outside the country of nationality ... which were undertaken for the sole purpose of creating a pretext of invoking a claim to well-founded fear of persecution, should not be considered as supporting an application for refugee status. The fear of persecution, to which the Convention refers, in such cases will not be ‘well-founded’.”
The Tribunal referred also to Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 123
The Tribunal said that applying the principles set out in Somaghi it was not satisfied that the applicant had a well-founded fear of persecution for reasons of his religion.
Before turning to the specific attacks made on the Tribunal’s findings, it is necessary to examine the authorities concerning the nature of the Court’s jurisdiction and powers when conducting a review pursuant to s 476 of the Act. Section 476(1) provides that, subject to sub-s (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of seven grounds which are set out in sub-s (1). The two grounds which are relied on here by the applicant are:
(a)that procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed (s 476(1)(a)); and
(b)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 (s 476(1)(e)).
Section 476(2) provides that the following are not grounds upon which an application may be made under sub-s (1), namely:
(a)that a breach of the rules of natural justice occurred in connection with the making of the decision; and
(b)that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.
It will be remembered that s 420 provides that the Tribunal in reviewing a decision must act according to substantial justice and the merits of the case (s 420(2)). The relationship between ss 420 and 476(1) of the Act have been considered in a number of cases by judges of this Court at first instance where differing opinions were expressed, but a Full Court of this Court considered the question in Eshetu v Minister for Immigration and Multicultural Affairs, 10 July 1997, unreported (Davies, Burchett and Whitlam JJ). Davies J found that s 420 prescribed procedures with which the Tribunal is bound to comply and that a breach of them is a ground of review under s 476(1) of the Act. His Honour said that the words ‘act according to substantial justice and the merits of the case’ refer to more than mere matters of procedure. His Honour applied the reasoning given by him in an earlier case of Dai Xing Yao v Minister for Immigration and Ethnic Affairs, unreported, 18 September 1996, by Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs, unreported, 18 October 1996 and by a Full Court of this Court (Black CJ, von Doussa, Sundberg and Mansfield JJ) in Minister for Immigration and Ethnic Affairs v Singh (1997) 142 ALR 191 where their Honours cited with approval the relevant observations of Davies J in Dai Xing Yao and Lockhart J in Sarbjit Singh.
Davies J found that the procedural elements prescribed by s 420 may be challenged under s 476(1)(a).
His Honour dealt with the proposition that, if a decision-maker makes an error that would breach the rules of natural justice at common law or that was so unreasonable that no reasonable person could have made it, then consideration of that error is precluded by s 476(2). His Honour cited a number of observations made by single judges of this Court to that effect. His Honour disagreed with that approach. He found that if the Tribunal, by its procedures or decision, had not complied with the requirement of s 420 that the mechanism of review shall be directed to arriving at the “substantial justice and the merits of the case” then the decision of the Tribunal may be set aside. His Honour said (at 8 and 9):
“It matters not that the breach may also have amounted to a breach of the rules of procedural fairness developed by the common law. The matter is to be determined not by the common law but by the words of the statute. A breach of the statute is not saved by s 476(2). ...
Therefore, s 420 and the other procedural sections of the Act are given full force and effect by the operation of s 476(1)(a) of the Act while s 476(2) excludes the operation of the nominated common law principles. Each provision achieves an appropriate operation without encroaching on the other.
Similarly, ‘although unreasonableness’ in the sense expounded in Associated Provincial Picture Corporation v Wednesbury Corporation [1948] 1 KB 223 is excluded as a ground of review by s 476(2), the fact that a decision is so unreasonable that no reasonable tribunal should have arrived at it does not exclude examination of the decision to see whether an error of law, being an error involving an incorrect interpretation of the applicable law, has occurred.”
Burchett J came to the same conclusion as did Davies J for substantially the same reasons. Whitlam J dissented. His Honour said that strictly speaking the observations of Davies J and Burchett J on the construction of s 420 and its relationship to s 476(1)(a) and (e) appeared to be obiter.
If the observations of Davies J and Burchett J to which I have referred were not obiter, but an essential ingredient in the reasoning of their Honours which led to the conclusion which they drew, then I would be bound by those observations: Cornelius v Phillips [1918] AC 199, at 211; Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851, at 864. If obiter dicta, although not bound by them, I would accord them great weight, sitting as a single judge of the Court. The problem does not arise because I agree entirely with those observations of Davies J and Burchett J.
The application (the initiating process in this case) stating various grounds of attack upon the Tribunal’s decision dismissing the applicant’s claim of well-founded fear of persecution for reasons of religion; but only some of them were pressed before me on the final hearing of the matter, and it is to those that I shall turn.
The first submission of counsel for the applicant was that the Tribunal failed to observe the requirement of s 420 to act according to substantial justice and the merits of the case in that the Tribunal failed to recall the applicant after 8 March 1996 to give oral evidence concerning the question of the genuineness of his conversion to Christianity.
As mentioned earlier, the hearing before the Tribunal took place on 8 March 1996; its decision was given on 28 June 1996, and the question of fear of persecution based on religious grounds was not advanced before the Tribunal until May 1996. The documents before the Tribunal on this question included:
an undated letter from the applicant stating that he had been converted to the Christian faith and that he no longer had connections with the Muslim community, whose members refused to communicate with him or attend the hearing before the Tribunal;
a letter of 14 May 1996 from the Tribunal (Mr David Bollen, case officer) to Ms Payne, the solicitor assisting the applicant, stating that on 13 May a Mr John Reilly had telephoned the Tribunal and spoken to a member of its staff stating that he was ringing on behalf of the applicant to inform the Tribunal that the applicant was having difficulty getting documents from his Pakistani contacts because of his conversion to Christianity. Apparently Mr Reilly told the Tribunal officer to whom he spoke that he was the person through whom the applicant converted to Christianity;
a statutory declaration of the applicant dated 27 May 1997 setting out the facts relating to his conversion to Christianity;
a letter of 26 May 1996 from Ms Payne, a solicitor with the Refugee Advice and Casework Service (NSW) Inc, enclosing the applicant’s statement, referring to various matters, and enclosing two letters from the New Covenant Pentecostal Church. The two letters referred to describe, amongst other things, the activities of that Church;
an extract from a report of Amnesty International for 1995;
an extract from Human Rights Watch Report of 1996;
the US Department of State Report on Human Rights Practices in Pakistan, 1995.
A letter was sent on 17 June 1996 by the Tribunal (Mr Bollen) to Ms Payne on behalf of the applicant, in which the following statement appears:
“The Tribunal does not propose to seek further information about Mr Khan’s claim. 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 replied to the Tribunal by letter dated 18 June 1996 in which, after referring to an incident involving a telephone conversation between the applicant and his aunt in Pakistan, the letter concludes with the following statement:
“No further information is to be submitted. We would very much appreciate a decision on Mr Khan’s application as soon as possible.”
As stated earlier, the application of the applicant was decided by the Tribunal on 28 June 1996.
The Tribunal gave detailed consideration to the applicant’s application based on fear of persecution for reasons of religion or political opinion. The statement by the Tribunal that it would proceed to decide the matter unless there was any objection to the course there proposed; the reply from the applicant’s solicitor that no further information would be given and the absence of any suggestion that the applicant wished to give oral evidence to the Tribunal, when viewed in the context of the Tribunal’s conduct of the matter including the oral hearing on 8 March 1996, establish that it cannot be said to be unreasonable or a failure to discharge its duty for the Tribunal not to require the applicant to attend before it to give further oral evidence.
The next ground for attacking the Tribunal’s findings is that the Tribunal is said to have erred in law in making the statement on page 35 of its reasons (to which reference was made earlier) in these terms:
“The independent evidence certainly indicates that Christians in Pakistan may face a real chance of persecution on account of their religion. However, I am not satisfied that Mr Khan faces a real chance of persecution for that reason. All he has done is assert that he is now a Christian. There is no reliable way to test his assertion. Given Mr Khan’s pattern of adding to and enhancing his claims as his application had progressed, I find that this claim has been made solely for the purpose of advancing his application for refugee status.”
This passage from the Tribunal’s reasons was said to illustrate its failure to properly consider and assess the evidence before it concerning the question of the applicant’s conversion to Christianity.
The material before the Tribunal would, in my view, support a finding that the conduct of the applicant was consistent with his conversion to Christianity. The applicant had attended church meetings, bible reading sessions and participated in other discussions with ministers of the Church and others including Mr Reilly. But the point of the Tribunal’s finding is that, because of the adverse impression that it formed about the applicant’s credit on critical questions, it could not accept the honesty of his conduct; nor could it accept the honesty of his assertions. The source of the evidence concerning the members of the Muslim faith ostracizing the applicant is statements by the applicant.
Even if the applicant had truly converted to Christianity the Tribunal was entitled to conclude, given its findings on credit, that the conversion had been made solely for the purpose of advancing the applicant’s claim for refugee status. Given this conclusion, the Tribunal was correct to find that the applicant did not have a well-founded fear of persecution in Pakistan on account of his conversion to Christianity.
In my opinion no ground has been established for disturbing the decisions and findings of the Tribunal.
In the light of my findings it is not necessary to consider the notice of objection to competency filed in this matter by the Minister.
The application is dismissed with costs.
I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lockhart
Associate:
Dated: 4 August 1997
Counsel for the Applicant: Mr P Gwozdecky Counsel for the Respondent: Miss R Henderson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 23 July 1997 Date of Judgment: 4 August 1997
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