Syed, Kamran Ali v Minister for Immigration & Multicultural Affairs

[1997] FCA 1210

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG87  of   1997
GENERAL DIVISION

BETWEEN:	KAMRAN ALI SYED APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		FINN J
DATE OF ORDER:		24 OCTOBER 1997
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

The application is dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG87 of 1997
GENERAL DIVISION

BETWEEN:	KAMRAN ALI SYED APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FINN J
DATE:	24 OCTOBER 1997
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

This is an application by Mr Syed under Part 8 of the Migration Act 1958 (Cth) (“the Act”) to review a decision of the Refugee Review Tribunal (“the Tribunal”) of 3 February 1997 in which the Tribunal was not satisfied that Mr Syed was a refugee and which affirmed the decision not to grant him a protection visa.

Though a multiplicity of grounds were formally advanced in support of the application, the only ground prosecuted at the hearing was that, by not acting “according to substantial justice and the merits of the case”: the Act, s420(2)(b); the Tribunal did not observe the “procedures that were required by [the] Act ... to be observed in connection with the making of the decision”: s476(1)(a). I was, in other words, invited to adhere to the majority view expressed in the Full court of this Court in Eshetu v Minister for Immigration and Ethnic Affairs, (1997) 145 ALR 621. For the reasons I give below, this issue does not in fact arise in this matter.

Before turning to the Tribunal’s decision it is appropriate to refer to certain background facts.

(1)Mr Syed, a citizen of Pakistan, is a Mahajir (that is, a Muslim whose family moved from what is non-India to Pakistan on partition in 1947).

(2)On 11 June 1995 he arrived in Australia and on 19 October of that year he applied for refugee status.

The Tribunal’s Decision

The operative part of the Tribunal’s fifteen page decision can be set out in full.  It is brief to the point of being Delphic without the aid of a knowledge of the factual material on which it is based and of the actual findings made by the Delegate whose decision the Tribunal reviewed.  But as I will indicate, with that knowledge, the decision is unexceptionable.

“DISCUSSION OF APPLICANT’S CLAIMS.

I do not accept the evidence of the applicant.  At the hearing of this application he advanced a claim of abduction and torture which had never been advanced at any time in his application.  Nor was this claim referred to in the lengthy submission prepared and submitted to the Tribunal on behalf of the applicant by his adviser.  Moreover, the applicant withdrew the previous claims he had made in support of his application, doubtless because of the many inconsistencies and contradictions in those claims which had been described in the decision of the Delegate.  In short I do not accept that the applicant was a witness of truth.  I find that his claims in respect of abduction and torture were of recent invention and are completely false.  Moreover, I do not accept that the applicant was ever a member of the Islamic Jamit-ul-Talaba, nor that his family ever suffered as claimed by the applicant.  Having withdrawn his previous claims in relation to an alleged shooting incident, I find that his he has advanced no claims under the Convention.

I do not accept the assertion that merely because he is a Mohajir he is at risk of persecution.  Having rejected the applicant’s evidence I find there is nothing to indicate that he has any political profile, actual or imputed.  There is no evidence which I have accepted that the applicant has suffered or been at risk of suffering any adverse consequences as a result of him being a Mohajir.  The applicant has not made any claims which I have accepted to show why he personally would be at risk.  Accordingly I find that he does not have a well founded fear of persecution on account of his Mohajir background.”

While the applicant had previously made unspecific claims of kidnap and torture, the “claim” referred to in the second and third sentences of the first of the above paragraphs relates to a specific incident said by the applicant to have occurred in either April or May 1995 - about two months before he came to Australia.  The transcript of the proceedings before the Tribunal (pp 19-20) leave no room for doubt as to this as also that the two sentences referred to (above) accurately reflect the evidence before the Tribunal.

The sentence in the Reasons referring to Mr Syed’s withdrawal of previous claims made requires some elaboration.  It is necessary to refer by way of background to the Delegate’s decision of 21 June 1996 to which the Tribunal itself referred.

Mr Syed’s brother, Imran, had previously applied for refugee status in Australia.  The Delegate, in considering Mr Syed’s claim, had regard to Imran’s file in the following way for the purpose of illuminating two events - (i) a raid by the army on his home;  and (ii) a shooting incident - said to have occurred in September and November 1992.

“5.2.2  In the brother Imran’s application I found two major inconsistencies with the applicant’s claims.  I also found several documents and newspaper articles submitted by Imran in support of his case.

5.2.3    Imran had claimed that at the time of the army raid in September 1992 a brother and his father were arrested by police.  Kamran, the applicant, claimed that nobody was arrested.

5.2.4    Imran had claimed that at the time of the shooting of the friend Sajid in November 1992, Sajid died in hospital and the applicant, Kamran, was also shot in the leg and admitted to hospital.  Kamran claimed that he had hid in the house and was not hurt.

5.2.5    The newspaper articles, copies at folios 95, 94, 92, 91 and 90, were examined by a departmental document examiner.  He concluded that the articles were false, although he noted that he was examining photocopies and not originals.

5.2.6    the articles support the claims of the applicant’s brother, Imran, that a brother and the father were arrested in September 1992 and that the applicant, Kamran, was shot in the leg in November 1992 in the company of the friend Sajid who later died in hospital.

5.2.7    When the applicant was told of the existence of the articles at an interview on 19 June 1996 he stated that he couldn’t recall all the many incidents that had occurred, that he was confused when taken through the incidents one by one and that another thing that had happened to him that he hadn’t mentioned was that he had been shot in the leg.  When asked about the incident in which he was shot he stated that he couldn’t remember when it happened because too many things had happened to him and that he could only recall that it had happened near his home when he was with a friend.  I put it to the applicant that according to his brother’s claims it had happened when Mr Sajid died.  The applicant stated that he had told the truth and that he had difficulties remembering all the details of things that had happened to him.  The applicant also stated that he no longer had a scar where he was shot.

5.2.8    I do not accept the applicant’s explanation of the discrepancies between his and his brother’s claims.  Being shot in the leg is, in my view, an extremely significant event and not likely to be omitted or forgotten.  I conclude that the applicant was not shot in the leg and that this claim had been contrived by the applicant’s brother to enhance his own application for refugee status.  I conclude that, not being able to substantiate the shooting with physical scarring, the applicant had omitted the claim from his own application.”

During the course of the hearing before it, the Tribunal put directly to Mr Syed’s legal representative (Mr Vimal) whether Mr Syed was relying upon the “shooting incident”.  It gave Mr Vimal the opportunity to discuss this with Mr Syed - a break of some 30 or so seconds occurred while Mr Vimal and Mr Syed discussed the matter - and it was then indicated by Mr Syed that he agreed that matter was not to be pursued.

The applicant in the present proceedings invited me to admit an independently prepared transcript of what transpired at the time, apparently for the purpose of demonstrating that such a concession was not made.  The respondent in turn invited me to listen to the relevant part of the tape made by Auscript of the hearing before the Tribunal.  I acceded to both of these invitations.

It is unnecessary to set out the transcripts and the tape in detail.  The description I gave above of what transpired at the Tribunal hearing is based upon the applicant’s translation/transcription of the tape.  The time lapse for the discussion between Mr Vimal and Mr Syed referred to above is my own estimate based on listening to the tape.

The conclusion that the applicant withdrew his claim in relation to the shooting incident is irresistible on the applicant’s own transcript.  I note particularly (without reproducing) page 26 of that transcript.  It probably also is the case, but I express no concluded view on this, that he withdrew reliance upon the army raid as well.

It was, in my view, quite open to the Tribunal to reach the finding it did on the applicant’s credibility in light of the matters to which it had previously referred (including the Delegate’s decision).  Notwithstanding that Mr Syed had made generalised allegations of kidnap and torture, it was likewise open to the Tribunal to reject these - the more so because of the manner in which, and time at which, the April/May 1995 claim was made.

The applicant’s case as I understand it is that the Tribunal did not discharge its s420(2)(b) obligation in that (i) it failed to disclose the materials on which its findings were based; (ii) it disregarded the applicant’s general allegations of abduction and torture; and (iii) the applicant did not withdraw his claim in relation to the shooting incident.

I have dealt already with (ii) and (iii) of these.  As to (i), I have indicated that when considered in light of the transcript of the Tribunal hearing and of the Delegate’s decision (both of which were in evidence) it is plain beyond argument what were the matters to which the Tribunal was referring in the crucial three sentences to which I have made express reference above.

The application is one lacking in any substance at all. No question of a breach of s420(2)(b) arises on the material before me. The contrary is the case.

The order of the Court will be that the application is dismissed with costs.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn

Associate:
Dated:            23 October 1997

Counsel for the Applicant:	I Bowditch
Solicitor for the Applicant:	R T Howard & Associates
Counsel for the Respondent:	C Gunst
Solicitor for the Respondent:	Australian Government Solicitor
Dates of Hearing:	22 October 1997