Aslam v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application by Waseem Aslam, a citizen of Pakistan, for review of a decision of a Refugee Review Tribunal to refuse him the grant of a protection visa on 3 February 2000. The application for an order of review was filed on 4 February. The application disclosed no grounds. Under the heading, "The Grounds of the Application" was the endorsement, "Details will be sent at a later date". The file does not disclose any subsequent details. 2 Directions were made on 17 February under which the applicant could file and serve any amended application and any evidence upon which he proposed to rely on or before 6 March 2000. No such amended application or evidence has been filed. A direction was also made that Mr Aslam file and serve an outline of submissions not later than five days prior to the hearing date. No such outline of submissions has been filed. This is perhaps not surprising in that Mr Aslam has endeavoured to obtain legal representation through the assistance of the relevant Legal Aid authority but that application for legal representation has been declined. 3 Mr Aslam, when he appeared before me this morning, with the aid of an interpreter, Mr Benjamin, indicated that he had been unable to identify, without the aid of legal representation, any error of law and in the event was unable to make any substantial submissions beyond the submission that he did not want to return to Pakistan. 4 The Tribunal's reasons outline Mr Aslam's evidence in some detail. Without descending to that detail, it suffices to say that Mr Aslam based his claim upon his status as a member of a Sunni Muslim family subject, on his account of it, to repeated persecution by Shia Muslims in the same suburb. He made claims of physical assault upon himself personally, an attack upon his father's poultry farm, an attack upon his father, the death of his father after he had left Pakistan, that is, after Mr Aslam had left Pakistan, and his belief that his father had been murdered by opponents, which I take to mean Shia opponents, of his family. He claimed also that his uncle who lived in a neighbouring town had looked after the family but that he too had been attacked and killed by opponents of the family in 1998. 5 Mr Aslam came to Australia, evidently on a student visa in 1997, but did not apply for a protection visa until he was apprehended and detained as an illegal immigrant. In its findings and reasons for decision, the Tribunal said that he had described a series of misfortunes, and I have referred to some of those, which he said had befallen him and his family, culminating in the deaths of his father and uncle. He had ascribed those misfortunes to the fact that his family were the only Sunni Muslim family in their suburb and that they were harassed and attacked by Shia Muslims who wanted them to convert to the Shia sect. 6 The Tribunal had considered Mr Aslam's claim in this respect to be implausible. There was nothing, it was said, in the information available to the Tribunal which would suggest that Shia Muslims in Pakistan are attempting forcibly to convert adherents of the Sunni sect to their own beliefs or vice versa. To the contrary, the Tribunal held that while there is a history of sectarian violence between extremist groups from both sects, the information available to the Tribunal suggested that the majority of Sunnis and Shiites lived peacefully with each other. Although there were outbreaks of violence at a community or local level on occasion, the government of Pakistan tries to keep such outbreaks of violence under control. The Tribunal would have expected, had Mr Aslam's family been harassed and threatened in the way that he suggests, that they would have made some attempt to move to a more hospitable neighbourhood. It pointed that the Sunni Muslims are not an oppressed minority in Pakistan indeed, that about seventy four per cent of the population of Pakistan are Sunni Muslims, while only fifteen to twenty per cent are Shia Muslims. 7 Although, as Mr Aslam claimed, he travelled to Iran in 1996 in an attempt to obtain a visa for a European country on humanitarian grounds, he did not apply for a protection visa immediately upon his arrival in Australia. At the hearing he told the Tribunal that he did not do so because he had come to Australia on a student visa and had legal status at the time. This, however, was not really the issue. The Tribunal said that, as Heerey J noted in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness or at least the depth of his claim to fear of persecution. The Tribunal said: "In the present case, as I put to the Applicant in the course of the hearing before me, the fact that he did not apply for a protection visa until after he had been detained, almost two years after his arrival in Australia, suggests that he does not in fact fear being persecuted if he returns to Pakistan." 8 The Tribunal did not accept that Mr Aslam genuinely feared being persecuted if he returned to Pakistan. It did not accept that his family had been harassed by Shia families in the neighbourhood and did not accept that the family was harassed and threatened in the way alleged; that bricks were thrown at their house; that their poultry farm was broken into; that Mr Aslam was hit and bullied in school; that he was attacked in 1996; that his brother was attacked and briefly detained for fighting with Shia people; that his father was attacked in 1997 and killed by Shia families in 1998, nor that his uncle was likewise attacked and killed by Shia families. The Tribunal regarded Mr Aslam's claim that his family were persecuted in this way as implausible. 9 It is unnecessary to canvass the balance of the Tribunal's reasons which considered the general position of Sunni and Shia groups in Pakistan and the approach of government to their relationships. There was nothing in the evidence before the Tribunal, it was said, to indicate that the government of Pakistan would not extend the same protection to Mr Aslam as it would to any other citizen of Pakistan. It was considered by the Tribunal that the government of Pakistan would provide Mr Aslam with a level of protection from the general sectarian violence in that country sufficient to remove a real chance that he would be persecuted by reason of his religion if he returned to Pakistan now or in the reasonably foreseeable future. Accordingly, the Tribunal concluded that Mr Aslam did not have a well-founded fear of being persecuted by reason of his religion or for any other reason under the Refugee Convention. 10 As can be seen from a reading of the Tribunal's reasons and the summary that I have just given of those reasons, the Tribunal's decision rejecting Mr Aslam's claim for a protection visa was based entirely upon its view of the facts of the case and its rejection of his factual account of the claimed history of persecution which was said to ground his fear of continuing persecution by reason of his membership of the Sunni sect should he return to Pakistan. The conclusion of the Tribunal, being based entirely upon those issues of fact and the correct application of the relevant principles of law arising under the Migration Act 1958 (Cth), incorporating by reference, as it does, the terms of the Refugee Convention as amended by the Refugees Protocol, there is no basis upon which this Court can review or interfere with the decision that has been made. 11 I did express in the course of argument some disquiet about the extent to which it would appear from a reading of the reasons of the Tribunal, that the Tribunal throughout Mr Aslam's testimony to it challenged and indeed appears to have cross-examined him on various aspects of that testimony. I am informed that the Minister is not in the ordinary course represented before the Tribunal. Necessarily, therefore, the proceedings would no doubt take on something of an inquisitorial flavour and, of course, there is a question of fairness arising in relation to the obligation of the Tribunal to disclose to the applicant matters which may affect the Tribunal's consideration and on which the applicant should have an opportunity to comment. That does not mean, of course, that the Tribunal is required to disclose to the applicant all of its thought processes. 12 In this case there might have been some apprehension of bias in relation to the way in which the Tribunal challenged the applicant in the course of his testimony. I say that based only what appears on the face of the reasons, not having the transcript before me. However, be that as it may, apprehension of bias is not a basis upon which this Court can review the Tribunal's decision. Actual bias is the only natural justice ground that is available under s 476 of the Migration Act. 13 Nothing on the material discloses a case of actual bias and the criteria for that ground have been set out in a number of recent decisions of this Court. I think if anything, what is disclosed is the tension between the desire of the Tribunal to ensure that the applicant has a full opportunity to comment on potentially adverse findings in relation to his case and the function of the Tribunal as an impartial decision-maker. 14 In any event, for the reasons which I have outlined, this application must be dismissed.