NAZL v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 945

FEDERAL COURT OF AUSTRALIA

NAZL v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 945

NAZL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N22 OF 2004

EMMETT J
28 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N22 OF 2004

BETWEEN:	NAZL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	28 APRIL 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the proceeding. 

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	N22 OF 2004

BETWEEN:	NAZL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	28 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a national of Pakistan.  He arrived in Australia on 11 December 2002, and on 9 January 2003 lodged an application for a protection visa under the Migration Act 1958 (Cth) (“the Act”). On 5 February 2003 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa, and on 5 March 2003 the applicant sought a review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 6 November 2003 the Tribunal affirmed the decision not to grant a protection visa.

2. On 6 January 2004 the applicant commenced this proceeding in this Court seeking, in effect, constitutional writ relief pursuant to s 39B of the Judiciary Act 1903 (Cth).

3. The Minister contends that the decision of the Tribunal, which was notified to the applicant on 3 December 2003, is a privative clause decision as that term is defined in s 474(2) of the Act. If that contention is correct then not only is the application out of time, but any interference by the Court in the decision of the Tribunal would be precluded by the operation of s 474(1) of the Act, which provides that a privative clause decision is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called in question in any Court and is not subject to any constitutional writ relief in any Court on any account.

4. Section 474 of the Act provides that a privative clause decision is a decision of an administrative character made under the Act. On its face, of course, the decision of the Tribunal of 6 November 2003 is a privative clause decision, because it appears to be a decision of an administrative character made under the Act. However, if the decision was affected by jurisdictional error, then the Act would not operate in the manner in which I have just described. The application filed on 6 January 2004 refers to grounds for review stated in the accompanying affidavit filed on the same day. The grounds in that affidavit are as follows:

   (a)the decision made by the Tribunal was an improper exercise of the powers conferred by the Act and the Regulations;

   (b)the decision involved an error of law being an incorrect interpretation of the applicable laws and an incorrect application of law to the facts.

   No particulars are furnished of those grounds.  A question would arise as to whether, in any event, those grounds however particularised could give rise to jurisdictional error.  In order to explain the written and oral submissions made by the applicant in person, it is necessary to say something about the claims and the reasons for the Tribunal’s decision.  In its reasons the Tribunal recorded that the applicant claimed that he had taken up employment at the Karachi Holiday Inn in 1987 and worked there until 1992.  He claimed that the hotel was exceptional in that its workers did not have a union.

5. The Tribunal stated that the applicant made it clear in his primary application to the Minister that he was working there in 1992 and that the hotel did not have a union.  The applicant claimed that he had a role in lobbying for a union although the Tribunal recorded that at the hearing before the Tribunal he provided little detail.  The applicant claimed that the prime instigator of the union was sacked before he started working there and that he left the hotel some years before the union was authorised.  He said at the Tribunal hearing that his role in the process was not active.

6. However, the applicant claimed that he was harassed to the point where he quit working at the hotel.  He claimed that the police acting on behalf of the hotel’s owners and managers falsely charged him in late 1991 with attempted murder and that those charges have never been dropped.  He claims that he fears persecution from the owners of the hotel and their friends and the police over his role in trying to form a union.  It appears to have been assumed for the purposes of the reasoning that if those facts were established they would constitute persecution for a convention reason.  I make no comment about that one way or the other.

7. In its reasons the Tribunal recorded that it asked the applicant what happened to the people who stayed in Pakistan and saw their union established.  The applicant indicated that nothing happened to them.  He said the threats that he and others received were attempts to prevent the formation of the union.  He added also that after the Courts authorised the establishment of the union no further threats could have had any effect on preventing it from coming into existence.  He said that the unionists who remained in Pakistan were thus no longer being threatened over the matter.

8. The Tribunal’s reasons stated that the Tribunal put to the applicant that it was hard to see that the threats and charges of 1991 would still hang over him if they no longer hung over his alleged comrades.  The Tribunal emphasised that the applicant must have been a minor player in the intermediate stages of trying to get the union recognised.  The Tribunal’s reasons record the applicant’s reply as being that he had been charged with attempted murder of the personnel manager of the hotel and that the file against him had not been closed.

9. The Tribunal considered that it was relevant that the applicant did not demonstrate how he could possibly know that the file against him was still current.  The Tribunal stated that the applicant seemed to be making an unsupported assertion.  In answer to questions about what action had been taken in relation to the alleged charges, the applicant said that he was arrested and detained but then released.  The Tribunal asked the applicant why he was released and he said he did not know.  In response to a proposition put by the Tribunal that the matter might have been dropped as early as 1991, the applicant said that an arrest warrant was issued in his name after he left Pakistan.

10. The applicant claimed that he was first arrested in December 1991 and that he subsequently left Pakistan in April 1992.  The Tribunal considered that it was implausible that the police, assuming they were in the pockets, as it were, of powerful local businessmen, would release, without apparent reason, a person they so wanted to neutralise.  The Tribunal considered that it was all the more implausible that they would wait another four months or more to go back to the ‘drawing board’ and commence an action against the applicant again.

11. The Tribunal also had regard to the fact that, in any event, the union was formed some time after the alleged arrest warrant was issued and all attempts to stop the union ceased upon the Court recognising it.  The applicant asserted that there was no guarantee that the case against him had been dropped.  However, the Tribunal considered that ‘that sounded not only like an unsupported assertion but also like an ambit’.  The applicant told the Tribunal that the Karachi Holiday Inn was sold and that no one concerned with contesting the issues raised by him arising in the early 1990s remained associated with the hotel.  The Tribunal considered these facts to be relevant to the claims about the currency of the police charges. 

12. The Tribunal then considered evidence proffered by the applicant of the charges against him.  The Tribunal ultimately dismissed as fraud the so-called charge sheet proffered by the applicant at the hearing.  It concluded that the providence of the documents was highly dubious and its appearance was amateur and haphazard, lacking reliable evidence of authentication.  I shall return to that matter because it was the subject of substantive submissions made by the applicant before me.

13. However, the Tribunal considered that even if it were wrong in that conclusion about the police report or charge sheets, it would have to take into account the applicant’s claim that actions against his comrades, who, in his account, must have included him, were dropped after the union was recognised by the Courts.  The Tribunal considered that there were strong grounds based on the applicant’s own assertions, for concluding that any mischief launched against him in 1991 by the police and the owners of the Holiday Inn has long since been abandoned.

14. That conclusion was one of fact made by the Tribunal based on the material before it.  It was a conclusion reached even on the assumption that the police charge sheets or reports tendered by the applicant were genuine.  That is sufficient to dispose of any contention on the part of the applicant that there was some jurisdictional error in dealing with the alleged false charges.  The second matter that was raised by the applicant in his claims was his contention that he was involved in some way in a political movement known as MQM.

15. The applicant claimed that he had made friends within the membership of the then notoriously violent MQM party in his college days.  He also claimed he had friends who were opponents of the MQM.  He claimed that he had never joined the MQM but was eventually treated as a traitor by his friends in that party for having friends who opposed it.  The Tribunal considered that the applicant’s evidence in relation to this matter suffered considerable inconsistency.  The Tribunal outlined the inconsistencies that led it to the conclusion that it should reject the applicant's evidence concerning a fear arising from any involvement with the MQM.  The Tribunal observed that there was no evidence of any attacks by the MQM upon the applicant while he continued to work at the Holiday Inn.

16. The Tribunal also referred to evidence of the stability of the applicant's life in 1991 and 1992 derived from the fact that he graduated from Karachi University in 1992 and thus could only have been working part-time or casually at the hotel.  The fact that the applicant graduated in 1992 and went abroad in the same year and immediately took up work in Malaysia indicated to the Tribunal that the applicant had a few things quite well organised that year.  The Tribunal considered it reasonable to perceive his departure from Pakistan as something timed to follow his graduation.  The Tribunal observed the applicant left Pakistan legally on the passport issued in his own name.  The Tribunal dismissed as concoction the applicant’s story about betraying the MQM.  The Tribunal considered the story to be internally inconsistent and the applicant failed to explain how such hot-headed assassins as he described left him alone either for 10 or four months, depending upon which of the applicant’s disparate accounts one might accept.

17. Nevertheless, the Tribunal was prepared to accept that the applicant has or had friends with MQM affiliations.  The Tribunal considered that the applicant’s level of affiliation with the MQM had been slight, at best social, and altogether transient since he left Pakistan in 1992.  The Tribunal also dismissed as concoctions, the applicant's claims about persecution from other political parties.  The Tribunal concluded that the applicant lived a stable life in Karachi in the relevant years, from the late 1980s to 1992, and would be able to do so in the event of returning there with the skills and experience he had acquired, both in Pakistan and Malaysia.

18. The Tribunal concluded that the applicant only left Pakistan in 1992 when he was ready to do so after completing his studies and lining up paid work or the possibility of taking it up in Malaysia.  The Tribunal therefore, was not satisfied that the applicant faced a real chance of a convention-related persecution in Pakistan. 

19. In his written submissions to this Court the applicant concentrated on two matters; the first concerned the authenticity of the police charge sheets and the second related to his alleged involvement with the members of MQM.

20. I shall deal with the second matter first.  The submissions concerning the applicant’s involvement with MQM do not go beyond inviting the Court to reach a different conclusion on the evidence that was before the Tribunal.  It may be that a different Tribunal may have come to a different conclusion in relation to those matters.  That is not a question upon which the Court should embark.  The only question is whether or not any error in the way the Tribunal dealt with the allegations of involvement with MQM, indicate that there was some jurisdictional error on the part of the Tribunal.  I do not consider that the submissions go anywhere near establishing a jurisdictional error in relation to the way in which the Tribunal dealt with the allegations of a fear of persecution arising out of involvement with MQM.

21. That is sufficient to dispose of the application.  However, I shall say something briefly about the submissions concerning the police charge sheets.  A hearing before the Tribunal had originally been fixed for 23 October.  However, the applicant’s advisers arranged on the day before the hearing, for the hearing to be postponed.  The hearing was in fact postponed to 28 October 2003.  On 27 October 2003, the applicant's adviser informed the Tribunal that the applicant would be forwarding some supporting documents by facsimile that day and would be attending the hearing on the following day.

22. Later in the day of 27 October 2003 copies of three documents were sent by facsimile communication to the Tribunal, only a small part of one of which was in English.  Those documents were referred to by the applicant at the hearing before the Tribunal on 28 October 2003.  The applicant’s complaint is that the Tribunal had no regard to the documents in the course of the hearing, saying that on their face there was no guarantee that they were authentic.  The applicant apparently said in the course of the hearing that he had a translation of the documents stamped by the High Court in Pakistan saying that they were true translations of genuine charge sheets.

23. On 29 October 2003 the applicant’s adviser sent a letter to the Tribunal saying:

    ‘I am faxing six pages with this one.  These are translation (sic) of police reports which were handed to The Member on the time of the hearing.  These translation (sic) were faxed to me from Pakistan, should you need the original document, please advise so that I can ask [the applicant] to get them for you, which may take around a week.’

24. The documents faxed together with that letter of 29 October 2003, on their face appear to be incident reports recording such things as the date and time of the report, the name and address of the informant or complainant, the short form of any offence that might be involved, the place of the incident and the investigation to be carried out.  That material was contained in what appear to be pre-printed boxes, followed by a narrative of particular incidents.  There were three reports dated 22 December 1991, 6 February 1992 and 11 March 1992.  The applicant is mentioned in two of the reports.

25. The documents contain notes that the case will be registered for legal action, although it is by no means entirely clear what the legal action was.  An inference might be drawn that assuming the documents specify genuine charges laid, there would be a description in the box containing information about the short form of offence.  For reasons that have not been explained, that material was not drawn to the attention of the Tribunal Member, who made a decision without reference to the translated material.

26. As I have said, the decision was made on 6 November.  On 10 November, the Tribunal wrote to the applicant saying that the decision would be handed down on 3 December 2003.  It appears that the applicant wrote to the Tribunal on 18 November 2003, although that communication is not in evidence.  It appears, however, that a further version of the translation, together with a further copy of the documents that had been proffered to the Tribunal at the hearing, was forwarded to and received by the Tribunal on 18 November.

27. A pro forma document was then brought into existence entitled ‘Material Received After Signing of Decision’.  That document appears to have been completed by the Tribunal Member who marked the option:

    ‘I have decided not to recall my decision.  Please proceed with handing down notification and send letter to applicant.’

28. Handwritten reasons were set out as follows:

    ‘All these documents (now altered by stamps that were not on previously presented copies of the same) have already been presented at the RRT hearing and have been considered.  The alterations to the documents do not give them any more weight; nor do the translations, for the documents were explained to the RRT at the RRT hearing.’

29. That note was dated and initialled by the Member.  The only apparent difference between the copies of the documents referred to in that note and the copies of the documents that had been proffered to the Tribunal was that a translator’s stamp appeared on the copies referred to in the document of 18 November 2003.  When I say translator’s stamp, the translations were certified as correct by an oath commissioner in Karachi.  The Tribunal’s reasons that had been formulated prior to consideration of those documents were in the following terms:

    ‘The applicant tabled a photocopy of a FAX purporting featuring the text of a police charge sheet.  The document had the appearance of being a handwritten exercise set within a printed or desktop published pro forma.  The Applicant said it was a genuine charge sheet falsely implicating him in attempted murder and other crimes.  The Tribunal put it to him that the document bore no signs of authenticity.

    The applicant then said that elsewhere he had a document stamped by the High Court in Pakistan, being an English translation of this document, saying that it was a true translation of a genuine charge sheet.

    The Tribunal considered this, even though the applicant failed to produce the translation.  The Tribunal considered that the body authenticating the translation would not be competent to assess the genuineness of the original.  The Tribunal also considered it implausible for the highest Court in Pakistan to be using its time vetting the quality of translations.

    The Tribunal asked the Applicant to explain the provenance of the FAX.  He said his brother paid someone to obtain it from the police.  The Applicant was vague about the details of this.  In his account, the whole process seemed perfunctory.

    The Tribunal questioned this process in detail, raising with the Applicant the concern that if there are people who would demand a fee to obtain such a document, to which they had no right of access (for it had nothing to do with them directly), then there might just as easily be people who would demand a fee in exchange for generating such material, which would be an easier (and preferable) process than trying to use part of the bribe one just received to obtain something from someone else.  The applicant dismissed these scenarios.

    The ‘police sheet’ has only a handwritten ‘reference number’.’

1. In its conclusion the Tribunal said:

   ‘The Tribunal dismisses as fraud the so-called police report or charge sheet submitted by the Applicant at the hearing.  Its provenance is highly dubious and its appearance is amateur and haphazard, lacking in reliable evidence of authentication.

   Were the Tribunal wrong about the police charges, and it is highly confident that it is not, then it would still have to take into account the Applicant's claim that actions against his comrades… were dropped after the union was recognised by the Courts.’

2. The way in which the Tribunal dealt with the documents causes some disquiet.  However, it does appear that notwithstanding that the decision was made without reference to the certified translations, the Tribunal did, after the event, have regard to them and concluded that its first view ought not to be changed.  However, as I have already said, while there may be some disquiet arising from the way in which the Tribunal dealt with the documents, the ultimate decision of the Tribunal was not based upon the authenticity or otherwise of the documents.

3. The Tribunal concluded that even if there were charges made, as might be inferred from the police reports, the Tribunal did not consider that it was plausible that such charges against the applicant would still be current if he were to return to Pakistan after an absence of more than 10 years. In the circumstances, I am not persuaded that there was any error on the part of the Tribunal such as would constitute jurisdictional error or any other error that would prevent the decision from being a privative clause decision within the meaning of s 474. It follows in my view that the application should be dismissed.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            20 July 2004

The Applicant appeared in person
Counsel for the Respondent:	Mr D Jordan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 April 2004
Date of Judgment:	28 April 2004