(b) Contentions and Conclusions
19 The applicant contends that, in suggesting he had been accused under laws of general application, the Tribunal appears not to have appreciated that such laws "may impact differently on different people and, thus, operate discriminatorily": Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 at [21]. Moreover, selective enforcement of such a law may result in discrimination. Here, it is said the Tribunal focussed erroneously on the nature of the law and not on the motive for the arrest. Further the Tribunal did not consider the possible persecution the applicant could suffer if placed under arrest even if he was later released. There was a body of independent country information before the Tribunal revealing widespread violation by police of the human rights of persons in detention.
20 The respondent Minister contends in contrast that the laws were ones of general application which did not operate discriminatorily on the applicant and which were not selectively enforced against him. The Tribunal recognised that the applicant claimed the charges against him were false but noted that redress against such charges was available through the Pakistani judicial system. The Tribunal also properly noted that there was no evidence of PML members being targeted on account of their political opinion.
21 It is, in my view, clear from the documents lodged by the applicant that an integral element in the course of official action taken against the applicant after the demonstration was that he had been engaging in political and anti-government activity. It is equally clear from the country information to which the Tribunal referred, that by the time of the demonstration in May 2000 the Musharraf military government had imposed a country wide ban on all political meetings at public places and that PML(N) party activists who defied the ban were arrested although they were generally released immediately or soon after the arrest. Further, as I earlier indicated, there was a deal of country information before the Tribunal that indicated the widespread prevalence of human rights violations by police of persons in their custody.
22 None of the provisions of the Penal Code etc that were referred to in the lodged documents are in the materials provided to me. The Tribunal's reasons do not betray whether or not they were before the Tribunal. I am, for present purposes, to accept the characterisation of all of the laws in question - as the applicant apparently does - as being laws of general application, though I would infer from the character of some of the offences mentioned that some at least have a distinct political character to the extent that they seek to preserve an existing political order. I refer, for example, to sedition.
23 It is well accepted that enforcement of a criminal law of general application does not ordinarily constitute persecution for the reason that enforcement of such a law does not ordinarily constitute discrimination: Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 258; Chen Shi Hai at 301. But as the qualifying word "ordinarily" suggests, that a law is one of a general character does not for that reason negative the possibility that its enforcement or the manner of its enforcement is discriminatory. As the joint judgment in Chen Shi Hai observed (at [21]):
"… general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination."
24 When it is alleged that the enforcement or manner of enforcement of a generally applicable law is discriminatory by reference to political opinion, a complex inquiry may need to be engaged in. Where such a law is, or is said to be, one having the purpose of protecting a State or its institutions (i.e. it has a "political" purpose), the nature and reach of the law itself and the actual manner of its application will require consideration for the reason that its reach or use in suppressing political opinion may go beyond, or be inconsistent with, what is appropriate to achieve a legitimate government object according to the standards of civil societies: cf WAEZ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 341 at [32]. It is not unheard of, for example, for a State to utilise sedition-like and public security offences to silence its opponents.
25 The less such a law has an overtly political character (as where for example, its concern is with ordinary criminal acts in a society), the more attention will turn on the integrity of the enforcement process itself and on the risks to which a person might be exposed, e.g. ill-treatment or torture, in the course of that process. Is that process used selectively against critics of the State or against the advocates of particular political views? Is it fraudulently invoked for punitive purposes? Does its improper use expose a person to adverse consequences, e.g. torture in detention, even if that person is not later charged or tried with an offence?
26 It is, in my respectful view, unsurprising that in Applicant A McHugh J made the following observations (at 259) on persecution for political opinion in the context of general laws:
"In cases concerned with political opinion and the membership of particular social groups, the issue of persecution may often be difficult to resolve when the sanctions arise from the proper application of enacted laws. Punishment for expressing ordinary political opinions or being a member of a political association or trade union is prima facie persecution for a Convention reason. Nevertheless, governments cannot be expected to tolerate political opinion or conduct that calls for their violent overthrow. Punishment for expressing such opinions is unlikely to amount to persecution. Nevertheless, even in these cases, punishment of the holders of the opinions may amount to persecution. It will certainly do so when the government in question is so repressive that, by the standards of the civilised world, it has so little legitimacy that its overthrow even by violent means is justified. One who fled from the regime of Hitler or Pol Pot could not be denied the status of refugee even if his or her only claim to that status relied on a fear of persecution for advocating the violent overthrow of that regime."
27 Turning to the present matter, I am not satisfied that the Tribunal addressed the issue it was required to address given the particular claim made. In consequence there was a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389. To reiterate, the applicant's case at the hearing before the Tribunal was that:
"… he had a problem with the Musharraf government. He told the Tribunal that he was involved in a demonstration which he organised as part of his role as student activist. He claims that the police and Army came in front of the demonstration and arrested many people as a result of that demonstration. He claims that although he escaped arrest a charge was brought against him for involvement in a demonstration against the military government. He claimed that the Local Court in Swabi issued a demand for the applicant's arrest along with other people involved in the demonstration. The applicant claimed that he had to leave Pakistan because he feared arrest and feared the Army government."
28 His fear of persecution was thus related, not to his membership of the PML(N) as such, but to his having engaged in a demonstration against the military government in contravention of the law and to the government's action against him in response. I emphasise this as I consider that the Tribunal has misapprehended the nature both of the claim being made by the applicant and of the inquiry it entailed.
29 The Tribunal characterised some at least of the offences with which the applicant was charged as involving laws of general application. It did not indicate what it considered was the significance or consequence of this. If it was intending to suggest that, having that character, the charges were not for that reason Convention related, it fell into error for the reasons given above. Rather than entering upon the inquiry whether some or all of the laws in question were either discriminatory per se or were being enforced discriminatorily in the circumstances, the Tribunal indicated that if the charges made were false the applicant had redress in the judicial system.
30 In taking this course the Tribunal appears to have assumed that all of the charges laid were claimed to be false - a rather large assumption given that the applicant's own evidence of participation in an unlawful demonstration. More importantly it did not consider the possible risks of harm to which the applicant could have been exposed in the law enforcement process, notwithstanding the country information before it relating to police brutality towards those in detention: cf Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28. Rather the Tribunal contented itself with the finding that if or when the applicant's case came before the courts the applicant could then raise the falsity of the charges laid against him and have the matter resolved there. The Tribunal did not address the anterior questions (i) whether the manner in which the machinery of the State was allegedly being brought to bear against him was discriminatory; and (ii) whether it would expose him to a real risk of harm at the hands of the police (whether or not the infliction of such harm was persecutory or was merely indiscriminate). In this it revealed "a basic misunderstanding of the case brought by the applicant": Dranichnikov at [88].
31 The Tribunal did acknowledge that the ban on public demonstrations could result in the arrest and detention of those who defied it, though the Tribunal accepted country information that demonstrators were generally released after a few hours or days. The Tribunal went on to indicate that it would appear that the military government was at the time "mainly concerned to maintain street control and to suppress public demonstrations rather than to target political opponents". Whether such suppression of public demonstrations could itself be found in the circumstances to be discriminatory for reasons of political opinion was not inquired into, though that matter was central to the claim being advanced. The Tribunal's reasons suggest that it regarded its task as being to determine whether the applicant was being persecuted as a PML(N) member and supporter. Having negatived that contingency the Tribunal did not consider whether the enforcement of the banning law was itself discriminatory. That very issue was raised by the applicant's claim.
32 The Tribunal did go on to consider events in Pakistan subsequent to the applicant's departure in 2000. It concluded that it was unlikely that the current government would take any action against members and supporters of the PML(N). It found in consequence that there was not a real chance that the applicant would face persecution for reasons of political opinion should he return to Pakistan. However, because the Tribunal did not consider what if any stance would be likely to be taken by the government against a person in the applicant's position against whom charges have been laid, I do not consider that the above finding would as of course render futile the re-hearing of this matter.
33 Though I have concluded that the Tribunal has committed a jurisdictional error and that relief should not be denied for discretionary reasons, I should not be taken as making any comment on the merits of the applicant's case.