NARD v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1166

FEDERAL COURT OF AUSTRALIA

NARD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1166

MIGRATION – protection visa – application for judicial review of a decision of the Refugee Review Tribunal.

NARD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 644 of 2003

HILL J
29 SEPTEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N644 OF 2003

BETWEEN:	NARD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	29 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

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

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	N644 OF 2003

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

JUDGE:	HILL J
DATE:	29 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applies for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) refusing to grant to him a protection visa.  It is a criterion for the grant of a protection visa that the decision maker is satisfied that the applicant is a person to whom Australia has protection obligations.  It can be said, generally speaking, that Australia has protection obligations to a person who falls within the definition of ‘refugee’ as defined in Article 1(A)(2) of 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 which together are compendiously referred to as ‘the Convention’.

2. Article 1(A)(2) of the Convention relevantly defines a ‘refugee’ to be 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;…’

3. The applicant's application was rejected by a delegate of the respondent Minister, and the applicant, thereafter, applied to the Tribunal for review of the delegate's decision.

4. It was the applicant's case that until his departure from Pakistan, he had been a self-employed farmer.  He said that he had, from time to time, made donations to the SSP, a Muslim organisation largely consisting of Sikh Muslims, but had not joined that association until shortly before the events of 18 December 1996, when he participated in a peaceful procession of Lahore organised by the SSP.  The demonstration ultimately became violent and a number of participants, including the applicant, were arrested.

5. The applicant claimed, however, that he escaped from the police, but the police retained possession of his wallet, which had fallen out of his pocket, which enabled the police to find him and press charges.  He claimed that his solicitor had arranged for pre-arrest bail, but that this was later revoked and an arrest warrant was issued against him.  His claim was that he was sentenced to 3 years imprisonment, and had no alternative but to leave the country.

6. The applicant travelled to Brunei and came to Australia on a tourist visa.  It was his case that if he returned to Pakistan he would be arrested and sent to prison.  There was an alternative, but somewhat in the view of the Tribunal a vague case, that he was in danger of attacks upon him by Sikh neighbours from surrounding areas.

7. In support of his case in the Tribunal, the applicant produced a number of documents including a letter from his solicitor with a number of attachments, and various copies of orders and arrest warrants, which are detailed in the Tribunal's decision. 

8. The Tribunal found that the applicant was a national of Pakistan and accepted that he had joined the SSP and participated in the demonstration.  It accepted also that he had been arrested and granted pre-arrest bail.  The Tribunal, in the course of the proceedings before it, raised with the applicant a number of matters which it thought raised doubts about many of the documents which the applicant had given to the Tribunal in support of his case. 

9. Ultimately, the Tribunal rejected the authenticity of most of these documents which led it to the conclusion that it did not accept that the applicant had been convicted at any time by any court or judicial authority in Pakistan, or that he was genuinely sought after by the authorities after the issue of his pre-arrest bail, or that he was sentenced to three years detention, or that a warrant for arrest had been issued against him.

10. The Tribunal also concluded that the essential and significant reason behind the registration of the First Information Report against him was his participating in a violent demonstration rather than any Convention reason and concluded there was only a remote chance he would come to the attention of the authorities if he returned to Pakistan.

11. The Tribunal concluded, therefore, that it was not satisfied that any fear of persecution he had was well founded.  Indeed, it concluded that he would be entitled to adequate state protection, particularly having regard to matters, such as, presumption of innocence, and a generally adequate judicial system.

12. The applicant then applied to this Court.  His application contained five grounds, which can be shortly summarised as follows:

    1.That the Tribunal ignored various affidavits and other documents going to his credibility.

    2.That there was no evidence that the First Information Report was registered against him merely because of his participation in a demonstration and not for a Convention reason.

    3.That there was no evidence that he wasn't persecuted, and his fields burnt, and harassed by Sikh neighbours.

    4.That the Tribunal had a closed mind as apparent from the rejection of evidence he had put forward.

    5.That there was no evidence that he had received adequate state protection in the past, or would receive adequate state protection in the future if he returned to Pakistan.

13. The applicant was not represented before me.  He indicated that he had nothing to add to the grounds in his application.  I should say that none of them demonstrate any error on the part of the Tribunal.  It is entitled to take into account such matters as it does on questions of credibility, and was entitled to reach the three conclusions of which the applicant says there was no evidence.  There is nothing in the Tribunal reasons which indicates that it had a closed mind at the start of the hearing.

14. The applicant sought to tender to me three documents.  Two of these were before the Tribunal being respectively a letter indicating that the respondent Minister was prepared to grant a visa to him to act as a chef in Australia for four years on the application of an Australian restaurant, and the second, a copy of register of land holdings.  The applicant submitted that the significance of the first document was that it indicated he could have come to Australia by taking up the offer in the letter but that he had not done so because of his fear to return to Pakistan where he would be persecuted.

15. The significance of the second document was said to be that it demonstrated that the applicant was quite wealthy in Pakistan, and essentially, that he was not coming to Australia as an economic migrant because he had no need to.  Neither of those documents, however, require the conclusion that the Tribunal, in any way, erred in reaching its conclusion.  It was a matter for the Tribunal and not a matter for this Court to determine whether the applicant was a refugee within the meaning of the definition.

16. The applicant sought to tender a third document, being it was said a letter from his fiancée in Pakistan received after the Tribunal's decision which, inter alia, showed that she had been waiting for some 6 years and was praying for him.  The letter, the applicant said or suggested, went to the merits of his case. Again, and not surprisingly, the applicant, not being a lawyer, does not understand the difference between a merits review, which goes to the merits of the decision, and judicial review, which goes to the legal basis of the decision.

17. As the applicant put it to the Court, he was not satisfied with the Tribunal's decision and that is why he came to the Court to get justice.  He said that if he went back he thought that something dangerous would happen to him, and he concluded by requesting that I display mercy.

18. I can understand that an applicant whose application has been unsuccessful and particularly on the grounds that various documents he has produced, including those purporting to come from his solicitor, were forgeries, would be dissatisfied with the decision.  However, that does not mean that the Tribunal has made a jurisdictional error.  Had the Tribunal not given the applicant the opportunity of dealing with the various matters, which it took into account in determining that the documents were forgeries, it might be the case that the Tribunal had given procedural fairness to the applicant.

19. However, the present is not such a case.  The question whether the documents were or were not forgeries was ultimately a matter for the Tribunal, and it was entitled to conclude, as it did, that a large number of them, at least, were not authentic.  Since I am unable to see any jurisdictional error on the part of the Tribunal, I have no alternative but to dismiss the application and order the applicant to pay the respondent Minister's costs of it.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:            21 October 2003

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	29 September 2003
Date of Judgment:	29 September 2003