Zeb v Minister for Immigration and Multicultural Affairs
[1998] FCA 1544
•3 AUGUST 1998
FEDERAL COURT OF AUSTRALIA
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 460 of 1998 |
BETWEEN: | RANA MUHAMMAD AURANG ZEB & ANORS | |
AND: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS | |
JUDGE: | FINN J | |
DATE OF ORDER: | 3 AUGUST 1998 | |
WHERE MADE: | SYDNEY | |
THE COURT ORDERS THAT:
The application be dismissed.
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 | G 460 of 1998 |
BETWEEN: | RANA MUHAMMAD AURANG ZEB & ANORS |
AND: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS |
JUDGE: | FINN J |
DATE: | 3 AUGUST 1998 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
This application is without merit. It is for an order of review under Part 8 of the Migration Act 1958 (“the Act”) of a decision of the Refugee Review Tribunal of 15 April 1998 affirming a decision of a delegate of the respondent Minister refusing to grant protection visas to the applicants, Mr Aurang Zeb, and his wife and son. All are citizens of Pakistan who arrived in Australia on 27 September 1996. Only Mr Zeb makes a claim to being a refugee for the purposes of the Act, Mrs Zeb and their son merely relying on Mr Zeb’s claim. Mr Zeb appeared in person at the hearing.
The course of the Tribunal Hearing
On the morning of the hearing Mrs Zeb provided a statement of the Tribunal. It suggested for the first time that her husband had distributed leaflets in his local area in Pakistan naming a number of local people including the local Member of Parliament in the Assembly of Pakistan (Mr Rasool) and exposing their drug dealings.
Mr Zeb, for his part, provided the Tribunal with four documents being (i) a certificate from the Deputy Speaker of the Provincial Assembly of the Punjab stating that Mr and Mrs Zeb were “bona fide members of the Pakistan Peoples Party” (PPP); (ii) a document from the PPP stating Mr Zeb was a party member; (iii) a copy of a “detention order” stating Mr Zeb was subject to a detention order; and (iv) a letter from a hospital in Lahore stating that Mr Zeb had been admitted and treated for injuries to his back.
Put shortly Mr Zeb claims he left Pakistan because he was afraid of being persecuted by members of the rival political party, the Pakistan Muslim League and the police. He referred to several harassing police visits to his home and then his arrest where he claims he was badly beaten necessitating his going to hospital. And he asserted he exposed the drug dealings of people in his area including Mr Rasool whom he identified as his oppressor.
At the hearing the Tribunal member interviewed Mr Zeb in the absence of his wife and obtained his version of events (inter alia) which would have been known to both of them. The member then interviewed Mrs Zeb and obtained her account. There were important differences between the two. I merely note the following as illustrative.
(a)“Mr Aurang Zeb was asked whether he had ever seen a decision made by the Tribunal which related to a Pakistani who had campaigned against drug dealers. He stated that he had not seen any Tribunal decisions. He was too busy working and had no time to look at anything like that.”
(b)“Ms Zeb was asked whether she and her husband had ever seen any decisions by the Refugee Review Tribunal. She initially said that they had not. Ms Zeb was then asked whether she was sure about this. She then said that they had seen a decision. It was a decision about a Pakistani who had campaigned against drug dealers. The decision was given to them by the person the decision was about. She does not know his name.”
Mrs Zeb’s evidence was then put to Mr Zeb. This resulted in his calling into question her mental fitness to give evidence, a view he repeated on a number of occasions.
The significance of the illustration given above is revealed in the following finding of the Tribunal:
“I am of the view that Mr Aurang Zeb and Ms Zeb fabricated this aspect of their claim [ie exposure of drug dealing] in an attempt to bring themselves within the Convention. I am of the view that they believed that this would be successful because they were aware of a decision of the Tribunal in which a Pakistani applicant who claimed to have been an anti-drugs campaigner was found to be a refugee (N97/15001). I do not accept Mr Aurang Zeb’s denial that he had seen this decision, nor his explanation for his wife’s admission that they had seen the decision. Whilst I accept that Ms Zeb is under stress, I do not consider that this explains her statement that she and her husband had seen the decision, having been given a copy of it by the applicant in the case.”
The Tribunal’s Conclusions
Having regard primarily to the inconsistencies in Mr and Mrs Zeb’s accounts, the Tribunal did not accept Mr Zeb’s account of the events said to found his fear of persecution. He was found not to be a credible witness. There was ample foundation for such a finding. The apprehensions Mr Zeb advanced that he entertained (eg of being targeted by Mr Rasool or by the police) were rejected as implausible and reasons were given. Again I note the following by way of illustration.
“As noted above, I accept that Mr Aurang Zeb was involved in campaigning against Aktar Rasool in the 1993 election. However, I find it implausible that Mr Rasool would decide to target Mr Aurang Zeb in 1996 because three years previously he had campaigned against him in an election, particularly given that Mr Rasool had in fact won the election. In relation to this, on his own evidence Mr Aurang Zeb was not a high profile member of the PPP and did not hold any official position in the party. Further, at that stage in 1996 the PPP was still in government in both the Punjab and nationally. Whilst I note Mr Aurang Zeb’s claim that the police were starting to try to win favour with the PML, I find it implausible that they would suddenly target a person such as Mr Aurang Zeb who apparently had had the protection of the PPP for the past three years, particularly given that on Ms Zeb’s evidence her uncle was Deputy Speaker of the Punjab Provincial Assembly at the time. I therefore do not accept that Mr Aurang Zeb was targeted by Aktar Rasool because of his PPP membership or activities. In relation to this, I also accept the independent evidence which indicates that there is no evidence of any officially sanctioned use by the PML of the security forces against its political opponents.”
Of the four documents submitted at the beginning of the hearing, the Tribunal refused to make a finding that they were not genuine save for the detention order which Mr Zeb agreed was "not genuine" though he said such were nonetheless relied upon in Pakistan.
Having systematically rejected Mr Zeb’s accounts, the Tribunal concluded:
“On the evidence before me I am not satisfied that since the 1993 assaults Mr Aurang Zeb has suffered any harm or mistreatment amounting to persecution. I cannot be satisfied that he has in fact been the subject of any adverse interest from the police, Mr Rasool, or anyone else for a Convention reason.
In summary, I am not satisfied that there is a real chance that Mr Aurang Zeb faces treatment amounting to persecution for reasons of his political opinion or any Convention reason. Accordingly, I am not satisfied that he has a well-founded fear of persecution.”
The Application
This document was professionally drafted. Four grounds were relied upon: s 471(1)(a), the alleged procedural failure being a failure to set out findings on two material questions of fact; s 476(1)(e), the error of law being in the application of the law; s 476(1)(f), it being alleged that the Tribunal was actually biased in its decision; and s 476(1)(g), the no evidence ground.
There is simply no foundation at all in the decision to support the claims based on s 476(1)(a), (e) and (f). Assertions are made which are simply incorrect: reasons are given when it is alleged they were not (eg as to the implausibility of police targeting); facts are said to have been found when the Tribunal expressly denied so doing (eg on the authenticity of documents other than the detention order). And global claims of error of law are made that are not particularised in any meaningful way. The s 476(1)(f) claim was made in obvious disregard not only of the Tribunal’s findings but also of s 476(4) of the Act. These various claims should properly be seen as no more than a colourable attempt to divert attention from an adverse credibility finding. They do not warrant further consideration here.
At the hearing before me, I pointed out the demonstrable errors in what was pleaded. (They are fully detailed in the respondent’s written submissions.) In the light of this Mr Zeb admitted that his real complaint was that of bias and in consequence that he did not receive a fair hearing or decision.
The bases of his bias claim seem to be as follows:
(i) He alleges that the Tribunal had prejudged the matter and appears to claim that this is reflected in an opening declaration to that effect made by the Tribunal.
At the beginning of the hearing the Tribunal made the following observation that seems to constitute the only “evidence” of declared pre-judgment.
“Now I also have to be satisfied that if you do have a well founded fear of being persecuted it’s from one of the reasons that’s set out in the Refuge’s Convention. Now on the information that I have in your file from the Department of Immigration I could not be satisfied that you meet the definition of a refuge. That is the reason that I have asked you to come to the hearing today. Having the hearing gives me an opportunity to talk about your claims to get a better idea about them. Now to do this I will be asking you some questions and you will also have an opportunity to tell me anything that you consider is relevant to your claim.”
The lack of satisfaction the Tribunal referred to reflects the process of decision making in which the Tribunal was required to engage in considering whether or not the review could be dealt with on the papers as opposed to at a hearing: see the Act, s 424 and s 425. The fact that it was required for that purpose to form a “preliminary view” on the matter does not, as binding authority indicates, justify of itself a reasonable apprehension of bias: see R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 555; see also Malcolm McLachlan v Australian Securities Commission, unreported, FCA, 31 July 1998 where I recently considered this matter in some detail.
In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100, Gaudron and McHugh JJ observed that:
“When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.”
It would be anomalous to infer such a fear of closure of the mind from the Tribunal’s decision that the circumstances are only such as necessitate giving the opportunity to be heard and, if submissions and evidence are then given, of having them taken into account in relation to the matter. Mr Zeb has nowhere near satisfied the onus referred to by their Honours above.
(ii) It is claimed that the Tribunal member was rude to Mrs Zeb in sending her from the room while Mr Zeb gave his evidence. The transcript of the proceedings (pp3, 5) belies this. I will not burden these reason with quotation from the transcript. General claims of incivility have been made without further substantiation. I disregard these.
(iii) It is alleged Mrs Zeb was questioned oppressively and this caused her to change her story over the question of her knowledge of the earlier Tribunal decision concerning a person who exposed drug dealers. This suggestion borders on the preposterous. The relevant part of the transcript is as follows:
“MS ROSS: I do not have very much longer if that is okay. Since you have been in Australia have you seen any decisions made by the Refuge Review Tribunal? Have you or your husband seen any? Any decisions made by this tribunal?
MRS ZEB: No.
MS ROSS: Are you sure about this?
INTERPRETER: What sort of decision are you talking about?
MS ROSS: I am asking you whether you have seen any decisions made by the tribunal that relate to your case. Have you seen any decisions made by this tribunal that relate to Pakistani applicants?
INTERPRETER: Yes.
MS ROSS: You have seen some decisions?
INTERPRETER: I have seen one.
MS ROSS: And what was that decision? Did your husband see that decision?
MRS ZEB: Mm.
MS ROSS: Where did he get it from?
MRS ZEB: Mm?
MS ROSS: Where did you and your husband get that decision from?
INTERPRETER: The person about who the decision was, he showed it to us.”
The conclusion in my view is irresistible that the bias claim provided the only, and I emphasise untenable, avenue of attack open to Mr Zeb in the face of the adverse credibility findings made against him. He doubtless finds it particularly galling that his wife's evidence has contributed to his undoing. That the Tribunal could use her evidence as it did, he will not accept - hence his attack. It is unfair and unjustified. There is not the slightest foundation in the material before me for it. The claim must be rejected.
I will order that the application be dismissed.
| I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn |
Associate:
Dated: 3 August 1998
| Applicant appeared in person | |
| Counsel for the Respondent: | Ms F Backman |
| Solicitor for the Respondent: | Australian Government Solicitor |
| Date of Hearing: | 30 July 1998 |
| Date of Judgment: | 3 August 1998 |
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