SZCZV v Minister for Immigration and Multicultural Affairs

[2006] FCA 1002

FEDERAL COURT OF AUSTRALIA

SZCZV v Minister for Immigration & Multicultural Affairs [2006] FCA 1002

SZCZV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

No NSD 784 of 2006

FINN J
4 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 784 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCZV
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FINN J
DATE OF ORDER:	4 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

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	NSD 784 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCZV
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FINN J
DATE:	4 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal refusing the appellant a protection visa. The two issues in the appeal fall within a very small compass. Both relate to an alleged failure of the Tribunal to afford procedural fairness to the appellant in its dealing with one particular document (a detention order). The Tribunal’s decision was given on 1 May 2000 although the matter was not heard in the Federal Magistrates Court until 5 April 2006. Because of the date of the Tribunal’s decision the provisions of s 424A of the Migration Act 1958 (Cth) have no present relevance. His claims are to be determined by reference to the common law rules of procedural fairness.

   BACKGROUND

2. The appellant is a Pakistani national who claimed a number of bases of association with the Peoples Students Federation (“PSF”) which was a student wing of the Pakistan Peoples Party (“PPP”).  He claimed to have been in fear of persecution from the Muslim League (“ML”) which constituted the Government at all relevant times before he left Pakistan in 1997, from the Muslim Student Federation (“the MSF”) which is its student wing, and from the police which acted in the interests of those in power.  He referred in his evidence to an incident in January 1997 where members of the MSF opened fire on a group from the PSF.  This resulted in written false complaints against PSF members and arrest warrants were issued which led to his incarceration for a period.  On 15 May 1997 he said an order was issued for his detention for activities said to be dangerous and prejudicial to public safety. 

3. A body of documents was submitted with the protection visa application to support the claim.  I need only refer to two of these which the Tribunal described as follows: 

   “There was also submitted an undated unsigned letter on the letterhead of a Lahore advocate addressed to the Applicant and advising that a detention order has been issued against him by the district magistrate/deputy commissioner ‘on political grounds’;  that the police have come to his house and ‘forced your brother and other family members in a false and frivolous political case’;  and that the Applicant is likely to be arrested if he returns to Pakistan.  Finally, there was a photocopy of what purports to be a document signed by the Lahore District Magistrate/Deputy Commissioner, dated 15 May 1997, stating that the Applicant has been indulging in activities in a manner prejudicial to public safety and ordering his detention.”

4. At the hearing the Tribunal put to the appellant directly whether the documents he had submitted were genuine and accurate.  The appellant asserted that they were.  The Tribunal then put some number of those documents to the appellant.  Again I need only note the following:

   “The Tribunal asked the Applicant about the detention order dated 15 May 1997 which had been submitted.  The Applicant stated that he came to know about this two or four days afterwards, in late May 1997.  He had received his lawyer’s (undated) letter telling him about this some 15 or 20 days afterwards.  The Applicant stated that his lawyer had sent it to him by fax as well as by post, when he was living in the north-east and that he received it three days before he left Pakistan.  The Tribunal put to the Applicant that the wording of his lawyer’s undated letter clearly indicated that it had been sent after he had left Pakistan.  The Applicant then stated that he had received it first while still in Pakistan but that at his request his lawyer had sent it to him again over here;  his lawyer had also sent a second copy of the detention order.  The Applicant was unable to satisfactorily explain why his solicitor would have written to him twice in this way.

   The Tribunal put to the Applicant that the Muslim League is no longer in government in Pakistan or in the Punjab but had been displaced in October 1999 and that the Muslim League is not in a position to prevent a charge or case involving a member of another political party from being heard fairly in accordance with established legal procedures.  The Tribunal put to the Applicant that on the face of it he had served a month in jail in relation to the 10 January 1997 complaint and there was no connection with the later May 1997 document.  The Applicant stated that he had fears from the police and the MSF which although it is not in power could harm him because his relations with them are not good.  The Applicant stated that last year some PPP members who had been accused of charges had been killed in a police encounter.  The police could do what they liked to people in custody, including kill them.”

5. The Tribunal returned to the undated lawyer’s letter under the heading in its reasons of “Credibility/Evidence”.  It said:

   “The Applicant’s evidence about some other matters was also unsatisfactory, including the undated letter from a Lahore lawyer (for some reason, a carbon copy rather than an original) which the Applicant at first stated he had received while in hiding in the north-east in late May 1997 and then, when it was pointed out that the wording clearly referred to the Applicant having left Pakistan, said that he had first received the letter in Pakistan but that at his request the lawyer had written to him again in Australia.”

6. Before turning to the Tribunal’s decision as it related to the detention order, there are several additional factual matters to which it is necessary to refer.

7. At the Tribunal hearing, the appellant was requested to, and did, provide his passport to the Tribunal member.  He also gave evidence of his departure from Pakistan through Lahore having “met his family there and got his ticket organised”.  He gave no evidence of experiencing any difficulties in departing Lahore.

8. The appellant also was questioned by the Tribunal about his concern that the police acted in the interests of those in power and the fact that the Muslim League was no longer in power and was not in a position to prevent a charge or case involving him from being heard fairly.  His responses to this and the question which followed it were:

   “AI have fears from the police and the MSF although they are not in power right now because my relations with these (indistinct) are not good although they’re not in power.  Also last year one of the Pakistan People’s Party members who was acquitted of all the charges against him already has been killed in a police encounter. 

   Q161Whatever the motivations of particular individuals in lodging a complaint against you to the extent that you face charges or court proceedings in Pakistan, that doesn’t of itself necessarily amount to persecution for a convention reason.  The Australian Department of Foreign Affairs has advised us previously that in relation to Pakistan those involved in criminal cases would face a trial in court with the right and ability to defend themselves.  So matters to be considered include first of all whether there are in fact any charges still outstanding against you and secondly, whether the fact that someone has laid a complaint against you and charges have resulted, whether that of itself necessarily amounts to persecution in the circumstances.

   AThis is persecution over there.  Police don’t listen to anyone and those (indistinct) that is terrorists over there, they don’t care about whether it’s a Muslim League government or military rule or whatsoever, if they intend to kill someone they just go and do it.”

   THE TRIBUNAL’S DECISION

9. The Tribunal indicated that the appellant was not a satisfactory or credible witness and indicated that given the fundamental and unexplained discrepancies in his evidence (which it had earlier illustrated), it was not prepared to accept his claims at face value.  His claims were systematically rejected with reasons and the contradictions between his documents and his version of events were exposed. 

10. The Tribunal dealt with the detention order on two different bases as follows:

    “This leaves unaccounted for the 15 May 1997 document apparently ordering the Applicant’s detention because of unspecified ‘student activities’.  There are a number of unsatisfactory aspects to this document which is typed in English on a photocopied letterhead.  It contains misspellings (eg ‘secrete’ for secret’) and does not refer to any specific grounds for the order, although the January 1997 incident would have been an obvious point.  Notwithstanding the detention order, the Applicant was able to subsequently depart openly through Lahore airport on his passport in his own name.  There is also the unsatisfactory evidence about the undated covering letter from the Applicant’s solicitor providing him with this document.  Under the circumstances, the Tribunal does not accept that this document is genuine or that the Applicant was in fact wanted by the police or subject to a valid detention order at the time he left Pakistan.

    In any event, and even if the document was genuine, the Tribunal is not satisfied that it gives rise to a real chance that the Applicant would therefore be detained, arrested and subjected to treatment amounting to persecution by the present authorities in Pakistan in relation to an order issued more than three years ago by a different government (which the present government overthrew in 1999).”

11. These two paragraphs embody the two points of focus of the appellant’s procedural fairness claims.

12. As to the first paragraph, it is said the Tribunal should have, but did not, put to the appellant for comment the significance that could be, and was, attributed to his being able to depart openly through Lahore on his own passport notwithstanding the alleged detention order:  (the “document is not genuine” finding).

13. As to the second paragraph, it is said that the view expressed in that paragraph should have been, but was not, put to the appellant for comment:  (the “document is genuine” assumption).

14. The appellant accepts that to succeed on the appeal he must succeed on the latter ground.  I will deal with it first.

    The “document is genuine” assumption

15. By way of additional background information, I should note the following.  While the appellant invited me to accept a particular reading of the second paragraph quoted above, he did not refer to the more than one page of reasons that immediately followed that paragraph which illuminated its burden.  I was simply asked to conclude that in that paragraph the Tribunal expressed the view that the current government in Pakistan does not enforce or otherwise act upon detention orders issued by the previous government.  This, it is said, ought to have been put to him.

16. It is necessary to refer in part at least to the Tribunal’s ensuing reasoning which clearly demonstrates both that the view ascribed to it by the appellant is untenable and that there was no denial of procedural fairness.

17. The reasons continued:

    “The Tribunal is satisfied that the Applicant’s immediate concern is in fact that expressed by him towards the end of the hearing:  that he had borrowed money when his party was in power which he had not repaid and therefore fears that the present military regime will investigate him.  There have been numerous reports that a major focus of the investigations by the government of previous political corruption has been the taking of loans from government banks by persons with political connections (or family members) without any intention or effort to repay them.  The Tribunal accepts the Applicant’s statement that prominent figures from all different political parties who owe money have been jailed and that his own brother is in that situation.  However, in these circumstances the adverse consequences of unpaid loans does not of itself amount to persecution for a Convention reason, especially as the Applicant himself noted that all political parties have been targeted by such investigations by the present authorities.

    To the extent that the Applicant faces any charges or court proceedings in Pakistan (whether in relation to unpaid loans or incidents during the 1997 election campaign) this does not of itself necessarily amount to persecution for a Convention reason.

    The Tribunal has regard to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Geneva 1992, at paragraphs 56 to 60, that persons fleeing from prosecution or punishment for a (common law) offence are not normally refugees by virtue of that fact alone, unless the person may be liable to excessive punishment amounting to persecution, or that the charge itself violates accepted human rights standards.  There was no claim or evidence that these exceptions were applicable in this instance.

    This issue has also been helpfully discussed in Welivita v Minister for Immigration and Ethnic Affairs, FCA, Lindgren J, NG958, 18 November 1996 (unreported).  In particular (at p 21):

    ‘Clearly, the mere fact that a person will, upon returning to his or her country of nationality, be prosecuted and penalised for a criminal offence does not establish the existence of a wellfounded fear of being persecuted for reasons of political opinion … the mere fact that the criminal offence was “politically motivated” makes no difference.’

    …

    The Tribunal concludes that the suggestion that the Applicant might be charged with a criminal offence on return to Pakistan does not by itself equate to a real chance of persecution for a Convention reason.  It does not accept that the MSF or ML would prevent him from obtaining a fair hearing.  There is nothing in the current country material to suggest that under the present military government any particular political party is in a position to prevent a charge or case involving a member of another political party from being heard fairly in accordance with established legal procedures.”

18. When the impugned paragraph (in which the detention order is assumed to be genuine) is read in this larger context – and it clearly was intended so to be read – it is perfectly clear that the Tribunal was not expressing the conclusion the appellant seeks to attribute to it.  Rather, it was addressing the issue of whether, with the change of government, the appellant would if charged, be fairly heard in accordance with Pakistani legal procedures and without interference from the ML or the MSF.  That issue, which was suggested by the way in which the appellant’s claims were put to the Tribunal, was as I have earlier noted raised directly with him at the Tribunal hearing. 

19. There was no denial of procedural fairness in this regard.  For this reason alone the appeal must be dismissed. 

    “The document is not genuine”

20. This matter can be dealt with briefly.  The intersecting reasons for the Tribunal’s finding that the detention order was not genuine – a finding made in a context both where as was obvious to the appellant, an adverse view had been taken of his credibility and where the genuineness of his documentary evidence was in issue – were, first, unsatisfactory aspects of the document itself;  secondly, the appellant’s open departure from Lahore notwithstanding the detention orders;  and, thirdly, the unsatisfactory evidence concerning the lawyer’s letter providing the copy of the order to the appellant.

21. The second of these reasons, in my view, involves the assumption that, where a genuine detention order has been issued for a person’s arrest, procedures would have been likely to have been in place at Lahore airport to detect the impending departure of that person from Pakistan so that action against that person could be taken to prevent departure.  In other words, having regard to the information and documents supplied by the appellant relating both to the detention order and to his departure, that assumption helped inform the Tribunal’s conclusion that the document was not genuine.

22. The appellant’s case is that the conclusion so informed was an adverse one which was not obviously open on the known material.  Procedural fairness required that it be put to him.  Reliance in this was placed on the Full Court’s decision in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592.

23. The respondent Minister’s contention is that the apparent contradiction between the appellants being subject to a detention order and his being able to leave Pakistan without stated difficulty was obvious:  Alphaone Pty Ltd, at 592. Emphasis, furthermore, is placed on the fact that the material which was prejudicial to the appellant had been provided by the appellant himself: cf Pilbara Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at [70]-[71]: a circumstance which ordinarily relieves a decision-maker of the obligation to invite comment.

24. For my own part, I regard this as a borderline case given that the appellant was made well aware that his credibility and the genuineness of his documentation was in issue and that there were “fundamental” discrepancies in his evidence which he was unable to explain.  I accept that a decision maker is generally not obliged to invite comment on the evaluation of a person’s case.  I equally accept that a person in the appellant’s position is not entitled to respond to an adverse conclusion on material and information supplied by him which is not an obvious and natural evaluation of that material:  see generally Alphaone Pty Ltd at 592; Pilbara Land Council, at [70]-[71]. Nonetheless, I am satisfied that the assumption made by the Tribunal was not one which would be obvious to a person not shown to have some understanding of the procedures that might be adopted by a government and its agencies in regulating the emigration of its own citizens. While I accept that the appellant may well have appreciated that caution may have been required at the point of departure from Pakistan (assuming the detention order was genuine), I do not consider it would have been obvious to him that his ability to depart Pakistan as he did would itself call into question the genuineness of the detention order. I consider that, as a matter of fairness, he should have been invited to comment on this matter.

25. Accordingly, I consider that this was a denial of procedural fairness but, for the reasons I previously gave, it has no operative significance in the disposition of this appeal.

    CONCLUSION

26. I will order that the appeal be dismissed with costs. 

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:        4 August 2006

Counsel for the Appellant:
Solicitor for the Appellant:	Mr N Dobbie
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	2 August 2006
Date of Judgment:	4 August 2006