Chan v Minister for Immigration and Ethnic Affairs

REASONS FOR JUDGMENT Mr Irfan Yaqub ("the applicant") seeks review of a decision of the Refugee Review Tribunal ("the RRT") published on 30 July 1998, which rejected his application for refugee status. The 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention") defines "refugee" in Article 1A(2) as any person who: "… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country." The review application is brought under s 476 of the Migration Act 1998 (Cth) ("the Act"), which relevantly provides: "476. Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; … (e) that the decision involved an error of law, being an error involving an incorrect application of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; …" Two other sections are also relied on in the present case. They are ss 420 and 430, which relevantly provide: "420(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and merits of the case. 430(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material question of fact; and (d) refers to the evidence or to any material on which the findings of fact were based. …" The applicant is a Pakistani citizen, who arrived in Australia on 19 March 1997. On 30 June 1997, he lodged an application for a Protection Visa with the Department under s 36 of the Act. In order to qualify for a protection visa, the applicant must be a person to whom Australia has protection obligations under the Convention referred to above. On 24 September 1997, a delegate of the Minister refused to grant a protection visa on the basis that the applicant was not a refugee within the scope of the above definition. That decision was affirmed by the RRT and is presently under review. After setting out the terms of the Convention and a brief summary of the case law, the RRT proceeded to outline the background facts and the evidence before it. Having done that, the RRT proceeded to make findings and to furnish reasons. For the purpose of the present hearing I will not repeat the facts and evidence as recounted by the RRT in that decision, but will refer to various facts and findings of the RRT, where appropriate, in the course of considering the matters raised on appeal. Counsel for the applicant seeks to have the decision of the RRT set aside on the basis of submissions brought principally on three grounds. These are as follows: 1. That the RRT incorrectly applied the Convention definition of "refugee": s 476(1)(e); 2. That the RRT failed to observe procedures which were required by the Act to be observed: s 476(1)(a) and s 420(2)(b); 3 The RRT failed to give reasons: s 476(1)(a) and 430(1). I now turn to consider each of the grounds.

Persecution The question posed by the RRT in the present case was whether the applicant had a "well-founded fear of persecution." Counsel for the applicant submits that the decision of the RRT was based on an error of law because, contrary to the case law, the RRT approached the question on the basis that the definition required a "pattern of systematic conduct" before it could be determined that there was a well-founded fear of persecution under the Convention. It is said that on a fair and reasonable reading of the decision, an incorrect approach was taken by the RRT in this respect because it applied the test too narrowly. That part of the reasons for decision, which is relevant to a consideration of this matter, is as follows: "Even if the Tribunal is wrong and the applicant was arrested and detained for six months in 1990, there is no evidence before the Tribunal to suggest that this detention was for political reasons. The applicant claims he was never interrogated or physically mistreated (apart from sleep deprivation) which is the more common practice in Pakistan. He claims he was never told why he was being detained or when he might be released. He claims he does not know why he was eventually released, but no bribe was paid. No political gain was achieved through the detention. The Tribunal is unable to accept that this detention, if it occurred at all, was politically motivated in any way. Furthermore, even if the applicant was detained in 1990 for political reasons as he claims, it appears to have been an isolated event which was not repeated at all until the arrest the applicant claims occurred in 1997 where he was detained for one night. The Tribunal is unable to be satisfied, therefore that there is any pattern of systematic adverse conduct directed at the applicant which would lead to the conclusion that the applicant has a well-founded fear of persecution upon his return to Pakistan. Furthermore, as noted above, the applicant's claimed actions following his release from detention in 1990 suggest that he did not even have a subjective fear of persecution following his release." (Emphasis added) Later in the decision there is further reference to "systematic conduct" where the Tribunal says in relation to material furnished for the applicant: "The Tribunal has noted the news items and reports which the applicant provided to it and finds that these do not indicate any form of systematic detrimental conduct directed at PPP members by the ruling party, nor any other body." The nature and extent of conduct which can amount to "persecution" within the meaning of the Convention definition was considered by McHugh J (with whom Mason CJ generally agreed) in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. At 429-430 his Honour said: "The term 'persecuted' is not defined by the Convention or the Protocol. But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes 'being persecuted'. The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be 'persecuted' because he or she is a member of a group which is the subject of systematic harassment. … Nor is it a necessary element of 'persecution' that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is 'being persecuted' for the purposes of the Convention. The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough,. Depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution." (Emphasis added) The above statement has been adopted and applied in many subsequent decisions of the RRT and, indeed, of this Court. In a number of these instances, the Court has reached the conclusion on applications for review of RRT decisions, that the reference to "a course of systematic conduct" in the above quotation has been misunderstood. In some of these cases, this has occurred because the RRT reasons for decision have measured the persecutory conduct against a requirement that there must be demonstrated a course of organised or systematic conduct against the individual or group before there can be persecution. In the above extract from Chan, McHugh J made it clear that a single act could amount to persecution. His Honour also pointed out that the notion behind the central concept of persecution is that of selective harassment as opposed to random or ad hoc harassment, which does not involve any element of selection. There is no requirement in the wording of the section that the harassment must consist of a series of acts of harassment directed at the individual applicant or at a group of which the individual applicant is a member. If the expression "systematic course of conduct" is understood and applied in the sense of requiring the existence of a criterion on the basis of which the individual or group is selected for harassment then such an approach will not amount to an error of law. However, if the expression is understood and applied in the sense of requiring a pattern of conduct against an individual then such an approach is incorrect. In my view, the RRT adopted the latter course in the present case. At the commencement of the RRT reasons there is a standardised recital of the relevant legal principles. These include a reference to Chan's case and it must be noted that the above observations of McHugh J in relation to systematic harassment are recited. Accordingly, it cannot be said that the RRT was unaware of the correct principles when framing its reasons for decision. No doubt it is sometimes convenient to set out in reasons for decision a standardised summary of the law. However, there is a danger that in adopting such a course attention might be diverted, in particular cases, from the specific principles which are of direct relevance to the particular circumstances under consideration. There is a further danger that such a summary may be recited but not applied to the particular circumstances. In approaching a consideration of the reasons for decision given by the RRT in this matter, I bear in mind the warnings sounded by the High Court majority in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, that: "… The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed…. Any Court reviewing a decision upon a refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision." In that case, the Court determined that the use of the term "speculative" and "give more/greater weight to" in the reasons for decision under review were not indicative of an error of law in respect of the approach taken to the decision under review and that the Full Court had adopted an approach which was too restrictive in finding error in such expressions. The present case raises a more substantial error in approach. The above passage quoted from the RRT reasons, in my view, indicates that in applying the enunciated principles, the RRT fell into error. The emphasis on non-repetition of the conduct and it being an isolated event, when coupled with the reference not only to "systematic course of conduct" but to a "pattern of systematic adverse conduct," discloses that the RRT applied a threshold that was too high. A requirement that there must be a pattern of systematic adverse conduct is a substantially more stringent test than a requirement that there be selective harassment. The passage indicates that RRT approached the matter on the basis that the relevant question was whether over a six year period there was an absence of a pattern of systematic conduct. The correct question is whether there has been selective harassment of the applicant (or of a group of which he was a member) of such severity as to amount to persecution by reference to a Convention ground. That is not the question addressed by the RRT on my reading of the reasons for decision in the present case. The Minister submits that the reference in the above quotation to a pattern of systematic conduct uses the words "which would lead to the conclusion." It is said that this indicates that the reference to the pattern of systematic behaviour was only one of the considerations which led to the conclusion and was not the controlling criterion. I do not accept this submission. It is evident that the criteria against which the application was determined was whether there was a pattern of systematic conduct against the applicant. The central question in the present case was whether there was selected persecution of the applicant. The application of the wrong principle in addressing this question is not merely peripheral or insignificant. It is of central importance and is, in itself, a sufficient ground on which to set aside the decision.
Failure to act according to substantial justice - s 476(1)(e) and s 420 Two matters were relied on by the applicant under this ground of appeal. First, it is submitted that the RRT made no finding as to the genuineness of an important letter from Senator Badar of Pakistan, which it is said reinforces a submission that a finding ought to be made that there was a detention and arrest in 1990. It is also said that the RRT erred in law in deciding that the applicant was not detained in 1990 or kept in detention for a period of six months. The second submission is that the RRT made an incorrect finding that the applicant, if returned to Pakistan, could reasonably relocate so that if there was any persecution he would not be subject to such persecution. The letter from the Senator, which does not bear a date, reads as follows: "TO WHOM IT MAY CONCERN: MR. IRFAN YAQOOB S/O CH.M. YAQOOB PRESIDENT OF PAKISTAN PEOPLE'S PARTY CHAUDRY COLONY AMIN ROAD BADAMI BAGH LAHORE I being to Senator certify that Mr. Irfan Yaqoob has been our hard worker. And in 1990, under the Government of Pakistan Muslim League he was arrested for 6 months. And new(sic) when Pakistan Muslim League is in Government from 17, February they objected, Mr Irfan is a crupt(sic) person because.
He alloted the plots with cruption. (sic)
He oppointed (sic) the persons on jobs with cruption. (sic) And now if Irfan Yaqoob comes back he will be arrested immediately. So I don't recommend to Mr. Irfan Yaqoob he should come back to Pakistan. SENATOR M. JEHANGIR BADAR" (Signature) There is also in the material a letter dated 23 July 1997, which appears to be have been faxed on the letterhead of Mr Badar. The letter authorises Mr Yaqub to check the polling station on his behalf. In relation to the first letter, the RRT said: "The Tribunal also has difficulty accepting that the letter from Senator Jehangir Badar is genuine. The letter is undated but was faxed to the applicant on 23 July 1997. It refers to the applicant's detention in 1990, yet the applicant himself had not claimed this at the time that he provided the letter to the Department. The letter also claims that the applicant has been accused of corruption and for this reason he will be arrested upon his return to Pakistan. The applicant did not claim this in his submissions. The letter does not refer to the detention which the applicant claims to have suffered in 1997 which he claims led to his departure from Pakistan. The Tribunal can only conclude from these discrepancies that the person who created the letter was not fully apprised of the applicant's claims and the letter which was provided therefore does not accord with the applicant's claims." The reasoning of the RRT proceeds on the basis that it entertained serious doubts that the letter was genuine but that even if it were accepted as genuine no substantial weight should be given to it because of its inconsistency with the applicant's submissions made before the RRT. In view of this, the fact that no specific finding was made on the genuineness of the letter does not amount to an error of law. It is true that on its face the letter appears to have been written by the Senator. It appears to be on letterhead belonging to the Senator. Nevertheless, the approach taken by the RRT to the contents of the letter, in my view, was open to it. However, in concluding that it was not satisfied that the applicant was arrested and detained for six months in 1990, the RRT stated: "… there is no evidence before the Tribunal to suggest that this detention was for political reasons." In my view, it was not open to the RRT to reach this conclusion. The letter of the Senator indicates, on its face, that in 1990, whilst the government of the Pakistan Muslim League was in power, the applicant was arrested for a period of six months and that as from 17 February 1998 that body regained power. There is reference to the President of the Pakistan People's Party ("PPP") at Lahore. While it would be open to the RRT to take the view that the letter may not be given a great deal of weight, it is nevertheless incorrect to suggest that the arrest and detention was not for political reasons. This is an important consideration in view of the fact that, although doubts were expressed as to genuineness of the letter, its contents were not rejected and there was no finding made that the letter was other than genuine. In the context of the evidence presented to the RRT in respect of the claims of the applicant, the letter cannot be totally discounted as being no evidence at all. Yet, this is what the RRT decided. Because the RRT approached the evidence in respect of the arrest and detention and the reasons for it on the incorrect basis that there was no evidence to support this claim, it did not, in my view, act according to substantial justice and the merits of the case within the meaning of s 420. Accordingly, on the basis of the decision of the Full Federal Court in Eshetu v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 621 it follows that, under s 476(1)(a), the RRT in this case failed to act fairly, rationally and reasonably in relation to the application and, therefore, this appeal ground has been made out. With respect to the second matter raised; namely, the possibility of reasonable relocation in Pakistan, I am satisfied that this finding is infected with the error in approach to the overall question of persecution in determining the reasonableness of expecting a refugee to be able to relocate in another part of the country. An examination must be made of the situation as to persecution in other parts of the country. In view of the misdirection by the RRT as to the question to be asked and in requiring a pattern of systematic persecution, I consider that this question also was approached on the wrong basis and, accordingly, this affords another ground for setting aside the determination of the RRT.

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