SZFEZ v Minister for Immigration
[2005] FMCA 1592
•27 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFEZ v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1592 |
| MIGRATION – Refugee – fear of persecution based on political opinion – credibility – Wednesbury unreasonableness – reasonableness of relocation – no reviewable error – application dismissed. |
| Migration Act 1958, ss.36(2), 65 Federal Magistrates Court Rules 2001, r.21.02(2)(a) |
| NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547 |
| Applicant: | SZFEZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3593 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 27 October 2005 |
| Date of Last Submission: | 21 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. J.A.C Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal be joined as the second respondent in these proceedings.
The application is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $3900 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3593 of 2004
| SZFEZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
This is an application filed in this Court on 9 December 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 October 2004 and handed down on 10 November 2004 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent to these proceedings.
The applicant is a citizen of Pakistan who arrived in Australia on 28 January 2004. He lodged an application for a protection visa on 27 February 2004 with the first respondent's Department. On 18 May 2004 a delegate of the respondent Minister refused to grant a protection visa, and on 16 June 2004 the applicant applied for review of that decision. The applicant’s claims to refugee status are found in his application to the first respondent’s Department (Court Book (“CB”) 1 to CB 36), in his application for review to the Tribunal (CB 44 to CB 48 – the statement at CB 48 is a restatement of the claims made to the first respondent’s Department) and in the Tribunal’s decision record (CB 75 to CB 89) which contains an account of what the applicant said at the hearing before the Tribunal on 8 September 2004. The applicant also provided a statutory declaration that contained his claims on
6 September 2004 (CB 58 to CB 63).The applicant’s claims to the first respondent’s Department, which were before the Tribunal as they had been repeated and expanded on, both in writing and at the hearing that the Tribunal conducted with the applicant, were that he faced a real chance of persecution at the hands of the Pakistani Government, and in particular from the Pakistan Muslim League (Q) (“PML(Q)”) because of the his involvement with the opposition party the Pakistan Muslim League (Nawaz) (“PML (N)”) and his close association with a particular prominent person in the party, Afzal Khan. Specifically the applicant claimed that:
1)In October 1999 there had been a “great disturbance” and that at the time he had been “information secretary” for the student wing of the PML (N) in his district. After the PML (N) left Government he was physically tortured and badly beaten and that when he reported his difficulties to local police they could not help him. As a result he claimed he then knew that this was because of “government people”.
2)That in April 2003 he was kidnapped by three people and kept in a dark room for 16 days and beaten and that he subsequently came to know that this group was involved with the Students Federation of the PML (“PML (QA)”) because the president of the PML (QA) called him and “explained about my kidnap”.
3)Following the arrest of a senior party official in November 2003 many of the party members left Pakistan for their protection, and as a consequence his father and brother arranged through an agent (who was paid $20,000) for the applicant to obtain a passport with a visa to come to Australia.
4)In Australia a person (Mr. Malik) who is allegedly a coordinator in Australia for the PML (QA) had demanded $A10,000 from the applicant and threatened that if he did not pay he would have him returned to Pakistan.
The Tribunal's “Findings and Reasons” are set out in its decision record copied at CB 85.8 to CB 88.5. The Tribunal found:
1)In relation to the events concerning Mr. Malik in Australia, the Tribunal was not satisfied that this was indicative of any actual “persecutory interest” in the applicant by prominent figures in Pakistan, but rather reflected attempts by this person to exert pressure on the applicant to extort money. The Tribunal noted that the response by both the Pakistani (the Pakistan Government) and Australian authorities to the complaint by the applicant, was positive in terms of assisting the applicant, and that the incident concerning Mr. Malik was apparently under investigation (CB 86.2).
2)Even if the Tribunal were to accept the applicant's account of his experience in Pakistan at face value there was little to support his assertions that the Pakistan Government’s agencies had been involved in, or were hostile, towards him (CB 86.3). The Tribunal gave reasons for this, and found variously that the applicant's complaint that government people were involved was “speculation”. It was satisfied from the applicant's own evidence that he was not able to identify any specific person, or offer any specific evidence to the police in Pakistan, as to who was involved in the attack upon him. Further, that there was no “reliable inference that government people” were therefore behind the attack. The Tribunal also noted that in Australia the applicant was able to approach Pakistan consular authorities, obtain a new passport, and receive a sympathetic hearing and an undertaking to assist his by looking into the complaint that the applicant put before them. As a result the Tribunal was not satisfied that the applicant was targeted, or faced a real chance of persecution, by the Pakistan government or government authorities (CB 86.4).
3)The Tribunal noted that it encountered a number of difficulties with the applicant’s claims. In particular:
a)It did not accept that the applicant’s profile was as significant as asserted (CB 86.5).
b)The applicant was not able to provide any specific basis for his assertions in relation to the prominent figures in the opposing political party who he said were against him (CB 86.6).
c)The applicant did not provide any evidence, or persuasive detail, “to back up” his assertions that he was close to the national president of the PML (N) student wing or the national secretary-general of the PML (N) (CB 86.8).
d)Notwithstanding the applicant's assertion that by mid-2002 he was being referred to as “a rising star” within the party, it appears that throughout this period he held no position more senior than “information officer” of the student wing at the local district level (CB 87.1).
e)Notwithstanding the claim that he had a very close relationship with a prominent leader of his party (Afzal Kham) he was initially not able to correctly describe the position held by this prominent person. The Tribunal further, did not accept the explanation then offered by the applicant for “this mistake”.
4)The Tribunal also considered the applicant's claim in the context of relevant country information which it had before it, and in particular, in relation to the operation of the applicant’s party. Having regard to the available material, including the applicant's evidence, it did not accept that the applicant had any political role beyond his own local district or that he was close to national political figures. In particular, the Tribunal did not accept that the applicant was directly and individually identified or targeted and persecuted by prominent national figures of the opposition party as claimed (CB 87.5).
5)The Tribunal found that:
“The exaggerations and embellishments in this area suggested that there may also be exaggerations and embellishments in other aspects of the Applicant's claims, which the Tribunal has therefore approached with caution” (CB 87.6)
6)Although the Tribunal expressed serious reservations about the kidnapping claim in 2002, it gave the applicant the benefit of the doubt and took into consideration the reference to this event in the letter provided by the applicant in support of his claims (the letter from Afzal Khan is copied at CB 51). It stated that for the purposes of its decision it accepted that some such incident occurred. The Tribunal did not accept the claim that this was directed by senior members of the PML (Q) or its student wing and it gave reasons for this (CB 87.8).
7)In all the circumstances the Tribunal found that it was satisfied that the difficulties encountered by the applicant related to local rivalries between party student wings, and not a wider or national problem. None of this involved the applicant being targeted by the Pakistani authorities, or his opponents being protected by the authorities. It was not satisfied that the applicant was unable or unwilling to avail himself of the normally available protection of the authorities in relation to such incidents. The Tribunal noted that the applicant was able to approach the authorities in relation to these incidents, and the absence of arrest or other such action on their part appears to inevitably follow his inability to provide identification or other relevant evidence to the police (CB 88.2).
8)The Tribunal found that the applicant was not at risk, nor had he been at risk generally in Pakistan, or that he would be targeted and pursued nationally by local political opponents or others. Further, that apart from the one incident in 2003 in Rawalpindi, there was no claim that any incidents occurred, or threats were received, anywhere other than in the applicant's home district. The Tribunal was satisfied that the applicant could avoid any particular threat or harm in his own area by moving to live elsewhere in Pakistan (CB 88.4).
9)The Tribunal found on the evidence as a whole that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention and found therefore that the applicant did not satisfy the criterion set out in s.36(2) of the Migration Act 1958 (“the Act”) for a protection visa.
The applicant was represented by a firm of solicitors when he filed his application to this Court on 9 December 2004. This firm of solicitors, operating as migration agents, also appeared to have represented the applicant for at least part of the time that his application was before the Tribunal (CB 55 to CB 56), and certainly assisted the applicant with some of the material that he put before the Tribunal. Before the Court, these solicitors ceased to act for the applicant by notice filed with the Court on 21 February 2005. The grounds of the application are:
“1)The Tribunal made jurisdictional error in how it addressed the issue of relocation.
2)The Tribunal made jurisdictional error as it misunderstood the meaning of “persecution” in that it was asking for reliable evidence that government people were behind that attack whereas it should have asked was it reasonable for the applicant to fear that the government people were behind the attack.
3)The Tribunal made jurisdictional error as it was Wednesbury Unreasonable in how it drew adverse conclusion on my credit based on something that did not exist.
4)The Tribunal made jurisdictional error as without evidence it made a finding that I have exaggerated and embellished my political role or political connections (Alternatively it was Wednesbury unreasonable for the Tribunal to make such finding).
5)The Tribunal made jurisdictional error as it failed to consider the issue that because of the kidnapping, the Applicant has a genuine fear founded upon real chance that he will be persecuted.”
Each of the grounds contains particulars. I note that the applicant has not filed any further material and in particular has not filed any written legal submissions as required by orders of the Court, made by consent, at the first Court date in this matter on 22 December 2004.
The applicant was unrepresented before me. He was assisted by an interpreter in the Urdu language. Mr. Potts of Counsel represented the respondents. At the hearing before me the applicant stated that he had been kidnapped, that the Tribunal had asked him for proof to support the claims that he made and that he was asked how he could tell that the government was behind what had happened to him. Further, he claimed that it was not possible to relocate, because what had happened to him, that is the kidnapping, could happen again and in any event it had not occurred in his home area, it had happened in Rawalpindi. He also sought to rely on the grounds as set out in his application to the Court.
The applicant's first ground of complaint is that the Tribunal made a jurisdictional error in the way that it addressed the issue of relocation and provides, by way of particulars, that the Tribunal failed to ask whether the applicant could be reasonably expected to relocate. The respondent referred me to the Full Federal Court authority in NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 per Branson J., (with whom North J. concurred in applying the principles laid down by the Full Federal Court in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437) who said, at [22]:
“[T]he Tribunal was required to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate within the Fiji”
The Tribunal's consideration of the issue of relocation is set out at CB 88.3 to CB 88.5. The Tribunal had previously found that it was not satisfied that the applicant was unable or unwilling to avail himself of the normally available protection of the authorities in relation to the incidents of harm that he claimed had happened to him. Further, it noted that the applicant was able to approach the authorities in relation to these incidents. In any event the Tribunal’s examination of the relevant circumstances reveals that it did approach the issue of relocation consistent with what the Full Court said in Randhawa. In finding that it was satisfied that the applicant could avoid any particular threat or harm in his own area by moving to live elsewhere in Pakistan, the Tribunal made reference to the fact that there was no claim, apart from the incident in Rawalpindi in 2003, that any of the incidents that occurred or threats that were received, were anywhere other than in the applicant's home district. Further, it noted that Pakistan is a large country with a population of more than 140 million people with many medium-sized and large cities, that the applicant speaks, reads and writes both major languages of Pakistan and also reads and writes English, which is widely used in that country. Further, it looked at the applicant's own evidence that he had a number of friends, for example, in Islamabad where he had lived without incident in the latter half of 2003. In relation to the applicant's complaint before me, that the kidnapping incident had occurred in Rawalpindi and that this was a factor supporting his claim that it was not possible to relocate because the same thing could happen to him again, and it would put him in fear of his life, is clear that in its consideration of the issue of relocation the Tribunal was clearly aware from what it said at CB 88.3 (“apart from the incident in Rawalpindi in 2003”) that the kidnapping had occurred in Rawalpindi outside the applicant's home area, but nonetheless the Tribunal found that it could be satisfied that the applicant could avoid any particular threat or harm in his own area by moving to live elsewhere in Pakistan. It was in this context that the Tribunal noted that Pakistan was a large country with a population of 140 million with many medium-sized and large cities and made specific reference to the applicant's account that he had lived in Islamabad without incident for the latter half of 2003. The Tribunal did consider the reasonableness of relocation as an option for this particular applicant. It understood and applied the correct test as laid down in Randhawa. This ground of review cannot succeed.
The applicant's second complaint is that the Tribunal made jurisdictional error as it misunderstood the meaning of persecution, presumably as set out and derived from the Refugees Convention. The reason put forward is that it asked for reliable evidence that government people were behind the attack on the applicant, whereas it should have asked as to whether it was reasonable for the applicant to fear that government people were behind the attack. This complaint was repeated by the applicant when he appeared at the hearing before me but he was unable to add anything of substance to what was already set out in the application to the Court. His complaint appeared to be that the Tribunal ask for proof in circumstances where it was very difficult to obtain proof.
By way of particulars in support, the applicant’s application refers to the Tribunal's decision record:
1)At CB 86 .3:
“Although the Applicant speculated that his unsuccessful complaints to the police in Rawalpindi in 2002 demonstrated that government people were involved, the Tribunal is satisfied from the Applicant's own evidence that it was not able to identify any specific person or offer any specific evidence to the police as to who was involved in the attack upon him, so that there was no obvious or reasonable basis for the police to make an arrest. There is no reliable inference that government people were therefore behind the attack”.
2)At CB 80.6:
“The Applicant stated that a district student Federation demonstration was planned in September 2002 to protest against the military government and he went with four others to the police station about three weeks in advance to seek permission for the demonstration. The Applicant stated that the inspector there refused. They had therefore postponed their demonstration. The Applicant stated that the couple days later coming out of a restaurant with a friend they were attacked and beaten by four persons on of whom referred to the Applicant as “Afzal’s agent” and threatened to kill him if there was a demonstration. The attackers ran away when other people came. The Applicant stated that he went to a police station the next day but neither he nor his friend could specifically identify anyone who beat them although he had told police that he believed the local provincial assembly MP was behind it”
The first extract appears in the section of the Tribunal's decision record headed “Findings and Reasons”, and the second is from a recounting of claims made by the applicant in his review application of June 2004 under the heading of “Claims and Evidence”. The Tribunal set out its understanding of the term “persecution” as it related to the definition of a refugee in its decision record at CB 76.6 to CB 78.2. I can see no error in how the Tribunal set out in its understanding. The Tribunal clearly had before it the applicant's assertions that the attackers were from the rival political party which was part of the government in Pakistan and that he was targeted by either these opponents or the Pakistan authorities or that his political opponents were being protected by the Pakistani authorities. These were clearly the applicant's assertions. But the Tribunal found relevantly, at CB 86.2, that even if it accepted the applicant's account of his experience at face value, there was little to support his assertions that Pakistan government agencies have been involved or were hostile towards him. It noted that what the applicant had said was “speculation” and in particular, that his unsuccessful complaints to the police in Rawalpindi in 2002 demonstrated that government people were involved. In this regard, even the letter from Azfal Khan which the applicant provided in support of his claims (CB 51) states:
“…it is speculated that some of PML (Q) workers kidnapped the said person for two weeks.”
The Tribunal also looked at the applicant's other evidence, particularly that he was not able to identify any specific person or offer any specific evidence to the police as to who was involved in the attack upon him and that there was no reliable inference that government people were therefore behind the attack. The Tribunal in this regard also noted that the applicant approached Pakistani consular authorities in Australia and received a sympathetic hearing and undertakings to look into complaints that he had made. The Tribunal's findings in this regard were open to it on the material before it. In relation to the applicant's stated complaint that the Tribunal was looking for proof, it is clear that the relevant statutory regime applying to applications for a protection visa (s.65 and s.36(2) of the Act) require the decision maker to reach a requisite level of satisfaction that a person meets the criteria for a protection visa as set out in s.36(2). In the case before me the Tribunal could not reach this level of satisfaction. To the extent that it relied on the finding that it could not accept the applicant's assertions that those who were targeting him were members or agents of the government, then on what is before me it was clearly open to the Tribunal not to accept as a finding of fact the applicant's assertions that those who were targeting him were members or agents of the government. There is nothing before me to show in this regard or otherwise that the Tribunal misunderstood or misapplied the concept of “persecution” as understood in the Refugees Convention. This ground of review is not made out.
The applicant's third complaint is that the Tribunal made jurisdictional error as it was Wednesbury unreasonable to draw an adverse conclusion on the applicant's credit, based on, as the applicant puts it, something that did not exist. The applicant's example is that he did not say to the Tribunal that he was introduced to Afzal Khan (a prominent figure in the applicant's political party) soon after he joined the political party. The applicant then points (although the reference is in an abbreviated for) to the Tribunal's decision record at CB 86.8:
“Nor did the Applicant provide any evidence or persuasive detail to back up his assertions that he was close to the national president of the PML (N) student wing in the national secretary-general of the PML (N). This must have referred to a time soon after the Applicant joined the PML (N) student wing in 1998 (when he was 15 years old) as he stated that the national president of the student wing had introduced him to Afzal Khan, who (the Applicant stated at hearing) supported him financially from when he joined the student wing.”
The Tribunal's decision record reveals under the heading of “Tribunal Hearing, July 2004” at CB 82.9:
“The Applicant stated that after he left school he was not employed but stayed at home, working for his party. Afzal Khan had been providing him with financial support since he started working for the student Federation in 1998/99.”
At CB 83.3, under the same heading, the Tribunal also recorded:
“The Tribunal then asked the Applicant about the specific position held by Afzal Khan, in 2002/2003 and now. The Applicant stated that Afzal Khan was at present president of the PML (N) in Punjab and had held that position since about 1997/98: for the whole period that the Applicant had been associated with him.”
The Tribunal’s account of what occurred at the hearing it conducted with the applicant is unchallenged by any evidence to the contrary brought before this Court by the applicant. The applicant's unchallenged statements to the Tribunal were, relevantly, that Afzal Khan was the president of the PML (N) in Punjab and had held that position since about 1997/98 which was for the whole of the period for which the applicant had been associated with him. The applicant also claimed that Afzal Khan had been providing him with financial support since he started working for the student Federation in 1998/99. In these circumstances there was certainly sufficient material before the Tribunal to reason that he had been introduced to Afzal Khan sometime in 1998, given that he had claimed that Afzal Khan had been providing him with financial support since he started working with the student Federation in 1998/99, and that the applicant had been associated with him for the whole of the period that Afzal Khan was president of the PML (N) in Punjab and that he had held that position since about 1997/98. But even if the applicant had not formerly been introduced to Afzal Khan, there was evidence before the Tribunal provided by the applicant himself, which the applicant does not now dispute, that he was close to Afzal Kahn, that he was supported financially by him and that he had a profile of some significance (a “rising star”) within his party. The impact of the Tribunal’s finding was that in the circumstances the applicant should have known Afzal Khan’s title and position within the party. Even if the applicant were able to bring evidence (which he has not) to dispute the Tribunal’s account of what he stated at the hearing, then this would not detract from the Tribunal’s findings. But in any event, I note in his Statutory Declaration dated 6 September 2004, submitted to the Tribunal (copied at CB 58 to CB 63), the applicant declares at CB 59.5 (in the “flow” of his declaration this follows a paragraph where the applicant recounts that he “was very close” to two other prominent political figures including Mr. Haleem Shah) that:
“One day Haleem Shah invited me to a meeting in Jhelim at Mr Afzal’s place. In that meeting I got to know Mr Afzal well. Raja Muhammad Afzal Khan was and is the President of the PML (N) in Punjab and is an ex senator. I became very close to Mr Afzal because he told me that his father and my father were friends. We were also distant relatives by marriage.”
In these circumstances the applicant's claim to Wednesbury unreasonableness in the Tribunal’s decision is not made out.
The applicant also complained that the Tribunal made jurisdictional error as it made a finding that he had exaggerated and embellished his political role or political connections without any evidence. In the alternative the applicant argues that it was Wednesbury unreasonable for the Tribunal to make such a finding. In particular, the applicant refers to the Tribunal decision record at CB 87.4, where the Tribunal said:
“Having regard to the available material, including the Applicant's evidence, the Tribunal does not accept that the Applicant had any political role beyond his own local district nor (notwithstanding some degree of contact with or patronage by Afzal Khan) that he was close to national political figures. In particular, the Tribunal does not accept the Applicant was directly and individually identified, targeted and persecuted by prominent national figures of the opposing PML (Q), as claimed.
The exaggerations and embellishments in this area suggest that there may also be exaggerated and embellishments in other aspects of the Applicant claims, which the Tribunal has therefore approached with caution.”
There are two aspects to this claim. The first is that the Tribunal had no evidence, or was Wednesbury unreasonable, in finding that there were exaggerations and embellishments in this area of the applicant's claims. Second, that there was no evidence, or that it was Wednesbury unreasonable, that the Tribunal noted the suggestion that there may also be exaggerations and embellishments in other aspects of the applicant's claims. In relation to the first, there was certainly sufficient material before the Tribunal to support its findings, starting at about CB 86.4 and leading to the extract quoted above at CB 87.4 to CB 87.5, that there were exaggerations and embellishments was open to the Tribunal on the material before it. It found that the applicant was not able to provide any specific basis for his assertions, in relation to identified prominent figures in the opposing PML (Q), to support his claim that he had a significant profile or to support or substantiate other assertions that he was personally targeted by a local MP. Nor was he able to provide any evidence or persuasive detail to “back up” his assertions that he was “close” to the president of the PML (N) student wing and national secretary general of the PML (N). The Tribunal also compared his statement that he was “a rising star” within the party with the evidence that he held no position more senior than information officer of the student wing in the party at a local district level. It also noted that notwithstanding the claimed very close relationship with Afzal Khan, the applicant was initially not able to correctly describe the position held by Afzal Khan, and the Tribunal did not accept the explanation then offered by the applicant for this mistake. The Tribunal also considered the applicant's claims in the context of relevant country information, and in particular in relation to the “open operation” of the applicant's party and its ability to maintain public criticism of the government and of the parties which supported the government. The Tribunal's finding that, having regard to all the available material including the applicant's evidence, it did not accept that the applicant had any political role beyond his local district or that he was close to national political figures was based on reasons that the Tribunal gave, and on findings which were open to it on the material before it. In these circumstances, in comparing the applicant's claims with the actual findings made by the Tribunal, it was clearly open to the Tribunal to find that the applicant had exaggerated and embellished his claims. Nor can I see that it was unreasonable in all the circumstances in the Wednesbury context for the Tribunal to have concluded that the applicant had exaggerated and embellished his political role, his connections and his political profile. As to the application of this finding to the other claims by the applicant, it was also open to the Tribunal to note that there may also be exaggerations and embellishments in other aspects of the applicant's claims. The Tribunal did no more than note that this made it approach these other claims with “caution”. This also was clearly open to the Tribunal on the material before it and again there is no unreasonableness in the Wednesbury context as to how the Tribunal approached its consideration of the applicant’s other claims. This ground also fails.
The applicant's fifth stated ground is that the Tribunal made jurisdictional error as it failed to consider that because the applicant had been kidnapped, that he therefore had a genuine fear founded upon a real chance that he would be persecuted. By way of particulars the applicant points to the Tribunal's decision record at CB 87.8 where the Tribunal said:
“Although the Tribunal had serious reservations about the kidnapping claim, it has given the Applicant the benefit of the doubt (and taken into consideration the reference to this in Afzal Khan’s letter), and for the purposes of this decision accepts that some such incident occurred. However, the Tribunal does not accept the claim that this was known to or directed by senior members of the PML (Q) or its student wing. The Tribunal also notes that it was said to have occurred sometime after (the Tribunal is satisfied) the Applicant had ceased his specific role as district information secretary. It was said to have occurred in Rawalpindi and afterwards the Applicant lived without incident for six months or more in nearby Islamabad.”
I cannot see any failure as alleged on the part of the Tribunal. In relation to the kidnapping claim, the Tribunal clearly stated that while it had some serious reservations, it gave the applicant the benefit of the doubt and for the purposes of its decision accepted that some such incident occurred. What it did not accept was that this was known to, or directed by, senior members of the party opposed to the applicant's party or its student wing. Clearly, this was open to the Tribunal particularly as the Tribunal had earlier noted the lack of substantiation of his claims. For example, at CB 86.7 the Tribunal noted that although the applicant initially relied upon his “claimed 2003 (tele)phone conversation with the national leader of the PML (Q) student wing as the basis for knowing that that organisation was behind his kidnapping”, in fact the PML (Q) officer who was initially contacted by the applicant made no such admission, and denied any involvement by his organisation or party. The Tribunal also noted that the kidnapping was said to have occurred sometime after the applicant had ceased his specific role as district information secretary and was said to have occurred in Rawalpindi and afterwards the applicant lived without incident for six months or more in nearby Islamabad. The Tribunal quite clearly considered whether the kidnapping incident gave rise to a well founded fear of persecution within the meaning of the Refugees Convention and found that in all the circumstances it did not. This was open to the Tribunal on what was before it, and further, the Tribunal gave reasons for its finding. This ground also is not made out.
It is quite clear that the Tribunal considered all of the applicant's claims that were put before it. Its rejection of the applicant's claims was based on the evidence that the applicant himself put before Tribunal, and to some extent on independent country information. To the extent that the Tribunal found that there were exaggerations and embellishments in some of the applicant's claims, this finding as it related to the credibility of those claims was clearly based on material that was before the Tribunal and the Tribunal made the findings which were open to it on the material before it. As Mr. Potts submits, findings on credibility are the function of a primary decision maker “par excellance”: Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] per McHugh J. and the Tribunal's credibility findings were open to it and no error is demonstrated in such conclusions: Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547 at 558-559. The Tribunal's decision does not reveal any jurisdictional error. The application is dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Sybilla Waring-Lambert
Date: 7 November 2005
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