Khan, Zia Ur-Rehman v Minister for Immigration and Multicultural Affairs

[1998] FCA 1180

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG652  of   1997

BETWEEN:	ZIA UR-REHMAN KHAN APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		FINN J
DATE OF ORDER:		24 JULY 1998
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

The application be 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
VICTORIA DISTRICT REGISTRY	VG652 of 1997

BETWEEN:	ZIA UR-REHMAN KHAN APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FINN J
DATE:	24 JULY 1998
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

This application can be dealt with shortly. It is for an order of review under Part 8 of the Migration Act 1958 (“the Act”) of a decision of the Refugee Review Tribunal of 24 October 1997 affirming a decision that the applicant, Zia Ur-Rehman Khan, not be granted a protection visa.

Of the variety of the grounds advanced in the application only three have been prosecuted (although I will refer to a fourth which was in effect abandoned during submissions).  Those grounds are:

(i)the Tribunal committed an error of law in applying the real chance test in that while it made a range of findings it failed to consider at all or give sufficient weight to particular evidence;

(ii)the Tribunal constructively failed to exercise its jurisdiction (Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 433-434) in that in not considering the matters as in (i) above, it failed to consider all matters relevant to its proper exercise of jurisdiction; and

(iii)the Tribunal did not act according to substantial justice and merits of the case and so failed to observe the procedures it was required to observe, the relevant failure being that referred to in (i) and (ii) above.

It is, of course, well accepted that it is not part of this court’s function in a proceeding of the present type to engage in merits review.  This, unfortunately, is the actual burden of this application.

The Tribunal’s Findings and Decision

So clearly misconceived is this application that I consider it unnecessary to recount the Tribunal’s narrative of the facts in extensive detail.  The following will suffice.

(i)Mr Khan is a Pakistan national who is a Mohajir from Karachi.  He completed a degree in Pakistan and worked in Karachi in a family owned business.

(ii)From 1986 he was a member of the All Party Mohajir Students’ Organisation (“the APMSO”).  That body is associated with the Mohajir Quami Movement (“the MQM”).  He became the person in charge of publicity at his college and in that role he publicised the organisation.  He did not have a prominent organisational role in the APMSO and he saw himself as being “small fry”.

(iii)Mr Khan claimed he was arrested on 10 August 1995;  was accused of inciting violence and creating a general disturbance at a demonstration;  and was detained for 28 days during which time he was seriously mistreated.

(iv)Mr Khan further claimed that his release was procured by bribery;  he then went into hiding for 10-15 days after which he left for Australia.  He said he was still in serious pain as a result of his detention when he arrived in Australia.

(v)Mr Khan asserted that his brother, sister and parents had been arrested and tortured as a consequence of the authorities pursuing him.  He claimed an arrest warrant had been issued against him in relation to three murders.

(vi)A cousin who came to Australia with him gave corroborating evidence of Mr Khan’s story.

The Tribunal did not accept the applicant’s evidence, nor the cousin’s evidence in corroboration, in relation to any of the claims and assertions made in (iii) to (v) above.  This adverse finding as to Mr Khan’s credibility was not challenged in the present proceeding.
Of the applicant’s situation at the time of leaving Pakistan, the Tribunal concluded:

“In assessing all the material before it the Tribunal is not satisfied that the applicant was detained in 1995 or at any other time by reason of his political opinion.  It notes that the applicant was never charged with any offence and that he left Pakistan on his own passport.  The Tribunal finds that the applicant was not of interest to the Pakistani authorities for any Convention reason when he departed Pakistan.”

The Tribunal then went on to consider “country information” as it related to discrimination against Mohajirs.  This constitutes the largest single portion of the reasons.  Its burden can be captured in the following:

“(a)     Aforementioned country information demonstrates a protracted and violent struggle between Mohajirs and rival ethnic groups to which both sides unnecessarily contributed.  A resurgence of that violence caused chaos in Karachi, especially in 1995.  The State was either unable or unwilling to quell the ethnically based violence there.  A disturbingly large number of Mohajirs and others were killed or otherwise harmed in Sind province.

(b)Violence involving the MQM over the past two years ‘has receded’

…

(c)      The report of Dawn, dated 27 August 1997 and submitted by the applicant, confirms the continuance of some strife in Karachi, although it is not clear from that report that the three murders reported arose from political rivalry rather than from random acts of violence.  There is nothing in that report to indicate that the applicant himself faces a similar risk by reason of his political opinion.”

Having considered recent developments resulting in a political accord between the MQM and the Pakistan Muslim Movement, the Tribunal concluded:

“In view of the aforementioned information and the particular circumstances of this case, the Tribunal finds that the prospect of the applicant being persecuted due to his former support of the MQM is remote.”

The Tribunal then went on as it said it was “required” to do, to consider the risk to Mr Khan on a country as a whole basis, its conclusions to that point having been directed in my view to the circumstances in Sindh and particularly in Karachi.  It noted that the situation elsewhere in Pakistan for Mohajirs was “considerably more settled” and, if Mr Khan feared for his safety in Karachi or elsewhere in Sindh, it would not be unreasonable to expect him to relocate to another part of Pakistan.  In this the Tribunal noted his age, education and work experience.

Thus the Tribunal concluded:

“In considering all the circumstances of this case, including cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason.”

The Applicant’s Case

The case as pursued at the hearing turns pivotally upon the following proposition in the applicant’s written submissions and/or on the material to which it refers:

“The Tribunal had before it but failed to consider at all or give sufficient weight to the following evidence:

(1)evidence submitted by the Applicant that a colleague of his had been killed by police for attempting to flee Pakistan;

(2)evidence in “country information” that violence against MQM supporters has not ceased since 1995, albeit that it has receded;

(3)evidence submitted by the Applicant in a “Dawn” report that politically motivated killings were continuing.”

The evidence referred to in (1) was contained in a letter sent by a migration agent to the Department of Immigration and Multicultural Affairs.  It relied upon information supplied by Mr Khan and friends of his who also were visa applicants.

Of the three matters referred to, it is simply incorrect to claim that the Tribunal failed to consider matters (2) and (3).  The Tribunal referred to the Dawn report expressly in its reasons.  And a fair reading of its reasons – see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 – would not suggest that it found that violence against MQM supporters had ceased. At best, the applicant’s complaint in relation to (2) and (3) can only be as to the weight given the evidence and that is simply a matter for the Tribunal itself: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 at 41.

As to the evidence relating to the first of the three matters, it was not referred to in the Tribunal’s reasons. The Tribunal is required by s 430 of the Act to set out in its reasons its findings on any material questions of fact and to refer to the evidence or other material on which the findings were based. It is not obliged to refer to every matter that may have some relevance to the issue(s) to be decided: cf Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 – the more so when it has made adverse credibility findings against the person proffering the evidence. Even if it be said that the particular evidence in question in this case could be elevated to the level of a relevant consideration – and I do not suggest it was – the failure to have regard to it does not provide a ground of judicial review under the Act: s 476(3)(e).

Notwithstanding the various ways in which it has been put as I have noted at the outset of these reasons, the applicant’s case is that the Tribunal was bound to consider the totality of the evidence and the “cumulative effect” of the evidence:  Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 550. If it fails to do so, so it is claimed, then (a) it “fails to address the correct question committed to it for decision”: Guo Wei Rong v Minister for Immigration and Ethnic Affairs, above, at 434; (b) there is an “unjust exclusion” of evidence bearing on the issue to be determined: cf Guo Wei Rong, above, at 461; and (c) there is a failure to act according to the substantial justice and merits of the case seemingly because the Tribunal then fails to make a decision on the issues clearly posed for it as to whether there was a “real chance” of persecution: Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 at 198.

I do not consider that it has been established that the Tribunal in some way, wittingly or otherwise, failed correctly to address the Convention question required by the Act to be answered in the circumstances of this case. It clearly did so. There was not constructive failure to exercise its jurisdiction. It may have failed at least explicitly to have addressed a piece or pieces of evidence that may (or may not) have been relevant and credible. But that is another matter. It does not result in a reviewable error even if, as I have noted, that evidence could be independently elevated to the status of a relevant consideration: cf s 476(3)(e) of the Act.

I likewise am unable to accept that a failure to advert to a particular matter of itself results in an incorrect application of the law to the facts.  The argument the applicant advances seems to be that if not all the evidence is considered explicitly then, when the law is applied, it is being applied to something less than the material to which it should be applied, hence there is an error in its application. The critical matter in this would seem to be that if what is said to be relevant evidence is not referred to in the reasons expressly or impliedly, such an error can be inferred. Section 430 does not impose so onerous an obligation in relation to reasons for decision as this submission requires. Likewise the submission itself, if accepted, would render superfluous in administrative law generally the more limited ground of judicial review of failure to take a relevant consideration into account and, under the Act, it would by a circuitous route negate the provisions of s 476(3)(e) of the Act.

Insofar as the applicant’s submission is based on s 420(2)(b) of the Act, Li’s case and Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621, it fails for the reasons (i) that a decision was, on any view “actually made in respect of the significant issues posed in the case”; Li’s case, at 198, and (ii) that the applicant has not pointed to any breach of s 420(2)(b) “procedural element” such as would ground a claim under s 476(1)(a) of the Act: see Velmurugu v Minister for Immigration and Ethnic Affairs (1998) 48 ALD 193; and insofar as reliance is placed upon a “substantive element” arising from s 420(2)(b), the complaint made has to be one founded on a ground in s 476 of the Act and that relied upon – error of law because of the failure to consider the three matters referred to above – is not made out for the reasons I have already given. What is being sought is no more than merits review.

I reject the applicant’s submissions and would dismiss the application.

I would note finally that the applicant sought initially at the hearing - as also in written submissions – to ascribe error to the Tribunal’s reasons because of the allegedly objectionable manner in which it considered the availability of the option to relocate within Pakistan if the applicant had fears for his safety in Karachi. 

When it is recognised that the Tribunal, before considering this matter, had in its reasons focussed all but exclusively on the circumstances in Sindh and Karachi, its comments in relation to Pakistan more generally (which it said it was “required” to make) and to the possibility of relocation in any event seem quite unobjectionable.  I understood counsel for the applicant to have conceded as much during submissions and, in effect to have abandoned this challenge.  If such was not his intention, then I would reject the submission.  It simply misapprehends the structure of reasons of the Tribunal and the place of the comments on relocation within that structure.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn

Associate:

Dated:             24 July 1998

Counsel for the Applicant:	A. Flower
Solicitor for the Applicant:	Fernandez Canda & Co.
Counsel for the Respondent:	P Booth
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 July 1998
Date of Judgment:	24 July 1998