NAOU v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1075

FEDERAL COURT OF AUSTRALIA

NAOU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1075

MIGRATION – application for review of a decision of the Refugee Review Tribunal to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to the applicant the grant of a protection visa – where the applicant claimed that the Refugee Review Tribunal had made findings that were contrary to the evidence or not supported by it – where the applicant claimed he was not afforded an opportunity to respond to certain country information.

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 424A, 474

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 – followed

NAOU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N511 OF 2003

HILL J
16 SEPTEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N511 OF 2003

BETWEEN:	NAOU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	16 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent Minister’s costs.

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	N511 OF 2003

BETWEEN:	NAOU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	16 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applies to the Court for judicial review, under s 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) made applicable by the provisions of the Migration Act 1958 (Cth) (‘the Act’), of a decision of the Refugee Review Tribunal (‘the Tribunal’) which refused the grant to the applicant of a protection visa and affirmed the decision to that effect of the respondent Minister for Immigration and Multicultural and Indigenous Affairs.

2. Since the recent decisions of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, it has been clear that the provisions of s 474 of the Act (the privative clause) will not preclude the Court from giving the relief referred to in s 39B of the Judiciary Act, at least where the Tribunal in the decision under review has made a jurisdictional error.

3. It is not necessary in the present case to consider what comprises a jurisdictional error. It suffices to say that there will be such an error where there has been a denial of natural justice, or where the Tribunal has made certain kinds of legal error, for example by failing to exercise its jurisdiction.  It was the applicant's case before the Tribunal that he had been a political activist and belonged to either the People's Party or the Pakistan People's Party since 1993.  He told the Tribunal that he had held various positions within the party and had led processions, organised party meetings, handed out leaflets and made many speeches urging the people to participate in and support the Pakistan People's Party.  As a result he said that he had become a political target with the Pakistan Muslim League, which has resulted in him being assaulted and intimidated.

4. According to the applicant, numerous threats had been made against him and also members of his family to dissuade him from his political activities.  The applicant claimed that the governing Muslim League had lodged a false and fabricated case against him, charging him with being involved in processing illegal weapons and being responsible for agitating the people against the Muslim League government.  In the course of the Tribunal proceedings the applicant elaborated on this matter suggesting that he had been arrested, detained and mistreated in this connection and that he had paid a bribe to get out of prison, although the case was still pending against him.

5. The applicant ultimately went to Dubai in which country he had obtained an employment visa.  That visa ultimately came to an end and instead of returning to Pakistan, the applicant applied to the Australian Embassy for a temporary business visa, and once he arrived in Australia he applied for protection visa.  It is a criterion for the grant of a protection visa that the applicant be a person to whom, in the opinion of the Minister, or in the event of proceedings before the Tribunal, the Tribunal is of the opinion that Australia has protection obligations.  Put briefly, Australia will have protection obligations to a person who falls within the definition of a ‘refugee’ in the Convention relating to the Status of Refugees, done at Geneva on 28 July 1951, as affected by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967 (‘the Convention’).

6. Article 1(A)(2) of the Convention provides that a refugee is a 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;…’

7. The Tribunal's reasons set out in some detail a statement of the law on this point, which is unexceptional and which seems now to be adopted in every case by Tribunal members.  The Tribunal set out in more detail than I have done the claims of the applicant. However, the Tribunal did not find the applicant to be a credible witness.  It did not accept that he held any positions in the party as he claimed, although it was prepared to accept that he was an ordinary member of the Pakistan People's Party.  The Tribunal appears to have taken the view that a particular attack on the applicant which had occurred in 1994 did take place but was satisfied that the chance of a similar attack occurring in the future was remote.  The Tribunal also took the view that the various threats on the basis of which the applicant claimed to fear persecution were not of such a character as to constitute a real chance of persecution in the future.  Particularly, however, the Tribunal did not, for reasons set out in its reasons, accept that the Muslim League opponents of the Pakistan People's Party had registered a false case against him.

8. In rejecting this claim the Tribunal paid attention to what it considered to be inconsistencies in the applicant's evidence.  It may be thought that some of those inconsistencies were somewhat trivial, but that does not of itself suggest an error of law was committed let alone that the Tribunal had made a jurisdictional error. 

9. Finally, the Tribunal concluded that the chance of the applicant being harmed for the low level political activities which the Tribunal found he had in the past engaged in, was now remote having regard both to the time which had elapsed since his last encounter with political rivals and the recent changes in the Pakistan political landscape to which the Tribunal referred.

10. In his application the applicant claimed the Tribunal had erred in three respects.  These in summary from the application read as follows:

    (1).      By holding that there was no evidence before the Tribunal to suggest any current leaders or prominent members of the PPP, let alone ordinary members, had been targeted by the Musharraf Government.

    (2).      By using the asylum and appeals policy directorate of the U.K. home office (Pakistan assessment, October 2002) report to conclude that there is an independent and politically non biased court system in Pakistan with (sic) giving opportunity to the applicant to respond to that report.  This is a denial of natural justice.

    (3).      Holding that the applicant has an insignificant political profile.  This is against the weight of the evidence.

11. These three matters were expanded by the applicant in a written argument containing six points which I discussed with the applicant during the course of the hearing.  None of the three matters to which the applicant refers in his grounds when properly analysed involved jurisdictional error. 

12. The applicant's first claim which is expanded in his written arguments is really that the Tribunal based its decision on what is often referred to as country information, which the applicant refers to as general media information, rather than upon the evidence which the applicant gave before the Tribunal. 

13. However, it is open to the Tribunal to accept such evidence as it does accept, whether country information or otherwise. It is open to the Tribunal to reject the testimony of an applicant and the Tribunal commits no jurisdictional error in so doing.  Unfortunately what the applicant seeks in this Court is merits review rather than judicial review.  The Court has no jurisdiction to conduct a review of the merits of his case. 

14. It is clear from the perusal of the Tribunal's reasons that there was material before the Tribunal which supported it's view of the position in Pakistan and particularly supported the conclusion which it reached that the applicant would not face persecution in the future should he return to Pakistan. 

15. The Tribunal clearly did take into account the asylum and appeals policy directorate of the U.K. home office in concluding that there was an independent judiciary in Pakistan.  The applicant claims that in accepting this report the Tribunal gave him no opportunity to respond to it.  This is claimed to be a denial of natural justice. It may be accepted that if there were a denial of natural justice the Tribunal would have made a jurisdictional error. 

16. There are a number of difficulties with the submission. The first is that the applicant has not put before me the transcript of the proceedings in the Tribunal so that I have no basis upon which I could determine whether or not he was given the opportunity by the Tribunal of dealing with this matter. However, even if the claim is correct that the applicant was not given an opportunity to deal with the suggestion that the court system in Pakistan was unbiased, it is difficult to see, on the Tribunal's reasons, that the matter formed any real basis for the Tribunal's decision. The applicant’s real problem is that the Tribunal did not believe him and the case which he put. Indeed, it was of the opinion that the suggestion of a false claim was a matter which the applicant had fabricated. On this basis it is hard to see whether or how the fairness of the Pakistan judicial system impacted upon the applicant's case. It might be noted here that there was no obligation on the Tribunal under s 424A of the Act to given notice to the applicant of the written material concerning the Pakistan judiciary because the obligation to provide country material is specifically excluded from the terms of s 424A(3).

17. However, put more briefly, the argument that the civil judiciary in Pakistan was so non independent as to prevent the applicant being afforded a fair trial was merely a matter dealt with as an alternative to the non acceptance by the Tribunal of the claim by the applicant that he had been falsely charged with offences which were still current. 

18. The final matter referred to in the application contests the Tribunal's finding that the applicant had an insignificant political profile in Pakistan.  This finding turned largely upon the Tribunal's assessment of the applicant's credit.  The finding involves no jurisdictional error.

19. In the circumstances, I have no alternative but to dismiss the applicant's application.  The applicant said from the bar table that he has been trying to obtain some real evidence of the false case to which he referred in his claim to the Tribunal but has to date been unable to obtain that.

20. I can only say that if there were strong and credible evidence of a false case laid against him, which indeed put him in the danger which he claimed, then that evidence could be put before the Minister who would have at least a residual discretion to permit the applicant to stay notwithstanding the Tribunal's decision.  However this is not a matter that I can take into account.  I would accordingly dismiss the application. 

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             3 October 2003

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	M Wigney
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	16 September 2003
Date of Judgment:	16 September 2003