Siddiqi v Minister for Immigration and Multicultural Affairs

[1999] FCA 694

FEDERAL COURT OF AUSTRALIA

Siddiqi v Minister for Immigration & Multicultural Affairs
[1999] FCA 694

MAHBOOB Z SIDDIQI v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 181 OF 1999

LEHANE J
14 MAY 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 181 OF 1999

BETWEEN:	MAHBOOB Z SIDDIQI Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	LEHANE J
DATE OF ORDER:	14 MAY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for review be dismissed.

2.        The applicant pay the respondent’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	N 181 OF 1999

BETWEEN:	MAHBOOB Z SIDDIQI Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	LEHANE J
DATE:	14 MAY 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for review, under Pt 8 of the Migration Act 1958 (Cth), of a decision of the Refugee Review Tribunal dated 5 February 1999. The applicant is a Pakistani citizen.

2. The case is perhaps unusual in this respect, that the applicant has been in Australia since October 1987.  He has lived and apparently worked here since that time. His application for a protection visa, however, was lodged only on 25 November 1998.

3. Mr Siddiqi's evidence to the Tribunal, consistently with his statement in support of his application for a protection visa, was that he is a Mohajir and was, when in Pakistan, a member of a movement known as the MQM.  He did some work, principally office work, for that movement.  Up to the time of his departure from Pakistan, he faced no particular problems arising from his membership or resulting from general violence which took place between 1985 and 1987.  He came to Australia for business purposes, obtained work here and stayed. His evidence was that during the 1990s he had some contact with his family in Pakistan and heard that the police had raided his house on two occasions looking for him, on the basis that he was known as an MQM member.

4. Mr Siddiqi referred in his evidence to the Tribunal, and submissions lodged by advisers for him referred in more detail, to conflicts which were occurring in Pakistan involving the MQM and, to put the matter very generally, human rights abuses that were committed both by and against the MQM.  The Tribunal also had before it a substantial amount of information, some of it provided by Mr Siddiqi's advisers, concerning the evolving political situation in Pakistan and particularly in the area from which Mr Siddiqi came.

5. The Tribunal considered Mr Siddiqi's claim that it would be dangerous for him to return to Pakistan and, particularly, that he would be subject to persecution on account either of his membership of the MQM, that is to say on account of an actual or imputed political opinion, or on account of his race.  The Tribunal recorded in its reasons that Mr Siddiqi did not in the end press a claim that he would be subject to persecution on account of his race (that is, as a Mohajir) but that he did maintain strenuously the claim that his known membership of the MQM gave rise to a well‑founded fear of persecution.

6. The Tribunal considered that claim in the light of the information before it.  It found that Mr Siddiqi's involvement with the MQM involved minimal responsibility, was occasional and part time and was confined to low-level paper work.  It found also, indeed it recorded this as evidence which Mr Siddiqi had given to it, that Mr Siddiqi both had not been involved with the MQM while in Australia and had disclaimed any intention of engaging in political activity if he returned to Pakistan.

7. The Tribunal accepted that in the early 1990s the police might have made some inquiries about Mr Siddiqi but found that there was no evidence that those inquiries had been followed through or that any formal process against Mr Siddiqi had been initiated.  The Tribunal found, taking into account that the events of which Mr Siddiqi gave evidence occurred many years ago, that the Pakistani authorities had no continuing serious interest in Mr Siddiqi. 

8. The Tribunal found as a consequence that there was no real chance that Mr Siddiqi would face harm or mistreatment from any political or militant group if he were returned to Pakistan.  It is plain that in reaching that conclusion the Tribunal took into account not merely the particular evidence relating to Mr Siddiqi's position and activities but also the material which it had before it about the conflicts which have occurred in Pakistan and the political situation there.

9. The application for review, which Mr Siddiqi apparently prepared himself, claims that the Tribunal failed to observe requirements required to be observed by the Act and Regulations in connection with its decision (relying thus on the ground in s 476(1)(a) of the Migration Act).  It claims also that the decision involved an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found (relying thus also on s 476(1)(e)).

10. The other grounds stated in the application are as follows: first, that the Tribunal member refused to accept that Mr Siddiqi had a well-founded fear of persecution for Convention reasons; secondly, that the Tribunal failed to accept the claim that Mr Siddiqi’s failure to respond to a “recall to duty” had given him the profile of someone who was anti‑government and that the Pakistani authorities had imputed a political opinion to him as a consequence, without (the application claims) any material or proof to support the Tribunal's decision; and, it is added, the Tribunal failed to give Mr Siddiqi the benefit of the doubt.

11. No particular procedural failure is pointed to nor is any particular error of law particularised.  I have considered the Tribunal's reasons and the relevant documents which have been filed, and I am unable for myself to identify any error of law made by the Tribunal or any procedure which the Act or Regulations require to be observed which was not in fact observed by the Tribunal.  The other grounds on which review is sought raise matters going to the Tribunal's findings of fact, that is, to the merits of the Tribunal's decision; but the Court has no power to review a decision of the Tribunal simply because it may take the view that the Tribunal took a mistaken view of the factual material before it.  I do not suggest that in this case the Tribunal took a mistaken view of the facts; it is simply not a matter which I have considered or which it is appropriate for me to consider.

12. In short, I have not been able to identify, and Mr Siddiqi, who has addressed me through an interpreter, has not pointed to, any reviewable error.  The matters relied upon are simply findings of fact which are not open to review and matters which might be described as humanitarian concerns which, while they may be matters affecting any discretion exercisable by the Minister, are not matters which I can consider on an application for judicial review.

13. Accordingly, I must conclude that no basis has been established on which the Tribunal's decision should be set aside and the application therefore fails.  The appropriate order is that the application for review is dismissed. 

14. The Minister applies for an order that the applicant pay his costs.  The applicant says in response that he is not in a position to pay costs.  Whether the Minister seeks to enforce an order for costs, and the means by which the Minister does so, are matters for the Minister; but an inability on the part of an applicant to pay costs is not a ground on which the court will ordinarily refuse to make an order in the Minister's favour.  Accordingly the orders of the court are:

    1.        The application for review is dismissed.

    2.        The applicant is to pay the respondent's costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated:             14 May 1999

Counsel for the Respondent:	Ms S M McNaughton
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 May 1999
Date of Judgment:	14 May 1999