M168 of 2003 v Minister for Immigration
[2005] FMCA 1461
•6 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M168 OF 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 1461 |
| MIGRATION – Whether inference tribunal did not read part B documents – whether applicants misled and denied procedural fairness – whether failure to consider relevant documents and information. |
| Migration Act1958 (Cth), s.417 |
| Muin v Refugee Review Tribunal [2002] HCA 30, (2002) 190 ALR 601 Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929 |
| Applicant: | APPLICANT M168 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 301 of 2004 |
| Judgment of: | Phipps FM |
| Hearing date: | 2 May 2005 |
| Last Submission: | N/A |
| Delivered at: | Melbourne |
| Delivered on: | 6 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the Respondent: | Mr Fairfield |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The order nisi is discharged.
The application is dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $7,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 301 of 2004
| APPLICANT M168 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFIARS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are Ahmadi Muslims from Pakistan. They applied for protection visas claiming they had a well founded fear of persecution because of their Ahmadi religion if they returned to Pakistan. Their applications were rejected by the Refugee Review Tribunal and they now allege that there was jurisdictional error by the tribunal.
The jurisdictional errors they allege are:
a)breach of procedural fairness because they were led to believe by the tribunal that favourable material contained in the Part B documents would be considered by the tribunal, but it was not. They allege that it can be inferred from the tribunal's decision that the tribunal did not have regard to the Part B documents. The reason this is said is that the tribunal's findings either contradict or are not supported by Part B documents.
b)The tribunal erred in failing to bring adverse material on which it relied to the attention of the applicants.
The application was commenced in the High Court and seeks, amongst other things, writs of certiorari and mandamus. The High Court Rules which applied at the time, require an application for certiorari must be made within six months of the date of the decision (o.55 r.17), and an application for mandamus must be made within two months of the date of the refusal to hear a matter (o.55 r.30). Whether the applicant requires an extension of time was raised as an issue by the respondent. Since Weinberg J. B. granted an order nisi, at this issue seems to have been decided. In any event, the application does not succeed on substantive grounds, and so it is unnecessary to consider the issue of an extension of time.
The applicants argued that the errors are of the sort identified by the High Court in Muin v Refugee Review Tribunal [2002] HCA 30, (2002) 190 ALR 601.
History
The husband arrived in Australia on 1 December 1996, the wife on
10 July 1996. They applied for protection visas on 24 December 1996. A delegate of the Minister refused to grant the protection visas on 30 June 1997 and on 22 July 1997, the applicants applied to the tribunal for review of the decision. The applicants did not immediately seek judicial review. By letter dated 22 July 1998, they sought the consideration by the Minister of the exercise of his discretion under s.417 of the Migration Act1958 (Cth). The application was unsuccessful and were notified by letter dated 21 December 1998.
The applicants then applied for a Change in Circumstances (Residence) visa if the. That application was refused and the refusal affirmed by the Migration Review Tribunal.
The applicants apparently joined the Muin and Lee class action. They then commenced the current preceding by filing documents in the High Court on 26 May 2003. It was remitted to the Federal Court. On
15 March 2004, Weinberg J. made an order nisi and transferred the matter to the Federal Magistrates Court.
The applicants claims
Ahmadis are a religious group regarding themselves as Muslims. In Pakistan they are regarded as a separate, non-Muslim group. The applicant and the s claim that brings them within the operation of penal laws in Pakistan which provide that it is an offence for non-Muslims to claim to be Muslims. They do not feel safe in Pakistan. They claimed that police in Pakistan do not protect persons they know to be Ahmadi.
The tribunal's decision
The tribunal considered there was nothing in the evidence to suggest that the applicants or their families had been restricted in their education or career opportunities.
The husband gave evidence that there were a number of Ahmadi mosques in Karachi and that he had not experienced any incidents that had inhibited his ability to worship according to his faith. He and his non-Ahmadi friends often talked of the Ahmadi religion and his friends and neighbours knew he was an Ahmadi. In the circles in which the husband moved, he was not discriminated against.
Pakistan has a law which makes it a criminal offence for any Ahmadi to describe himself as a Muslim, perform Moslem Religious Rights, propagate the Ahmadi faith, or refer to Ahmadi places of worship as mosques. The tribunal referred to country information which showed few prosecutions.
The tribunal concluded that while there have been cases of persecution against Ahmadi in Pakistan, that was not universally so for all Ahmadis. The tribunal considered that the applicants’ own evidence showed that the group of Ahmadi in Pakistan, of which they are members, have not suffered persecution. The applicants were unable to bring evidence that the group were likely to suffer persecution. The tribunal concluded that the chance of the applicants being persecuted by reason of religious belief is remote.
The applicants’ arguments
The Part B documents contain country information documents that the delegate considered. At the hearing, the tribunal member said that she had read those documents. The applicants argue that the tribunal member could not have had regard to them, as its findings, on some points, either contradict or are not supported by the part B documents. The applicants claim that the documents contain material favourable to them and they were deprived of the opportunity to bring favourable material to the tribunal's attention. They were deprived, they claim, because they were lead into thinking that the tribunal would consider this favourable material
Finding about random violence
The tribunal said that independent country information such as a US State Department Report indicate that the majority of random attacks by fanatics occurred in country regions, and very few in major cities such as Islamabad, to which the wife's family moved on her father's promotion, or Karachi, where the applicant and his wife lived. As a first step in their argument, the applicants’ contentions claim that the tribunal's conclusion that urban Ahmadis face a lesser likelihood of random violence than the rural counterparts was unsupported by any evidence.
The report is the US Department of State Country Report on Human Rights Practices for 1996: Pakistan. The tribunal referred to it earlier in its reasons. The evidence might not be in a part B document, but the tribunal is not confined to part B documents. There is no justification for the attack on the finding.
Ahmadi population in Karachi
The applicants argued that the tribunal member inferred that the Ahmadi population in Karachi was larger in relative terms than elsewhere in the country. The tribunal was considering the wife's claim to have suffered social discrimination during her childhood. It said:
She was not living in a centre where there was a large Ahmadi population with numerous mosques as in Karachi.
The applicant argued that this was contrary to information contained in part B documents that:
a)Ahmadis are scattered throughout Pakistan but they are more numerous in Punjab and Sindh provinces, both in rural and urban districts. They are not concentrated in particular areas (Document CX8630);
b)The Ahmadi community in Karachi is relatively small (Document PAK3114).
The passage from the tribunal's reasoning relied on by the applicant was in the context of contrasting the Ahmadi community in Karachi with the community the wife lived in when she was at school. The wife claimed she suffered social prejudice at school because of her religion. The tribunal concluded there was no evidence that the wife and her family suffered any treatment which would amount to persecution. This did not depend on the tribunal's reference to the size of the Ahmadi community in Karachi.
The passage in Document PAK3114 which the applicant refers to is:
The Ahmadiyya Muslim Association officers in Toronto estimate that the Ahmadi community in Karachi is relatively small, numbering no more than 100,000 individuals. …… There are approximately 10 Ahmadi mosques in Karachi
The applicants claim the inference is that the tribunal member had not read document PAK3114. The more likely inference is the opposite, that the tribunal member had not only read the document, but was using its information to compare the size of the wife’s Ahmadi community when she was at school compared to the Karachi community. Compared to where the wife lived, a population of 100,000 Ahmadis is large and 10 mosques are numerous. There is nothing contradictory in the other document or an inference that the tribunal member did not read it.
Religious offences and bail
The applicants argue that the tribunal put to them at the hearing that Ahmadis charged with religious offences were almost always released on bail. They then argued that because the tribunal did not refer to some information relevant to bail hearings in part B documents, the inference is that the tribunal did not read those documents.
The tribunal said in its reasons that it put to the applicants independent country information from the US Department of State Country Report on Human Rights Practices for 1997: Pakistan. The tribunal said this about bail applications:
Ahmadi leaders stated that, of 156 Ahmadis awaiting trial on various charges relating to the religious beliefs, as of December, 151 were free on bail. Four of the five remaining were released from prison after their applications for bail were approved by the Supreme Court. The applicants acknowledged that this was the case.
The documents which the applicants claim the tribunal cannot have read are:
a)document CX 8630 which says of bail applications that there are allegations from time to time that in some instances an offer of a bribe can influence a decision;
b)document PAK10351 which says that every Ahmadi can be prosecuted and that largely depends on whether a neighbour, colleague or someone who is not on good terms with the Ahmadi reports a “violation of law” to the police Department.
Neither document is inconsistent with the information about bail the tribunal put to the applicants. Indeed, the information in document PAK10351 is consistent with what the tribunal was putting because a bail application necessarily means that prosecution has commenced or is being contemplated. No inference can be drawn that the tribunal did not read those documents.
Failure to consider relevant matters
An argument not immediately apparent from the written contentions appeared was put on behalf of the applicanst. They argued that the tribunal had not considered relevant matters in the part B documents.
To the extent that this argument depends on an assertion that the tribunal had not read those documents, it fails. A tribunal does not have to refer to, or necessarily take into account, every piece of information in documents it reads. The manner in which a tribunal deals with country information is for it to decide, unless it ignores a relevant consideration so that there is jurisdictional error (Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929 at [72].
There is no information or consideration in the part B documents referred to in argument which meets this description. The tribunal's decision is based on findings of fact about the applicants’ personal circumstances. The tribunal accepts that there have been cases of persecution against Ahmadis in Pakistan. It refers to the penal laws under which they could be prosecuted because of their religious beliefs, and it discusses evidence of instances of prosecution under these laws and the result. It referred to evidence that in rural areas some fanatics have been assisted by police.
The tribunal said the applicants own evidence showed that the group of Ahmadis in Pakistan of which they are members have not suffered persecution. The applicants were unable to adduce evidence that they and their group were likely to suffer persecution. They belong to a group of Ahmadis who are members of prosperous, well educated families in a large urban centre in Pakistan where they are able to conduct their religious observances with few restrictions.
The tribunal concluded that the chance of the applicants being persecuted for reason of their religious belief is remote.
The tribunal said that it had read the part B documents. The transcript of the hearing shows this. No inference can be drawn from its reasons that it did not read the documents. There are no relevant considerations arising out of the part B documents that the tribunal did not consider.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Phipps FM
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