Iqbal v Minister for Immigration & Multicultural Affairs

EX TEMPORE REASONS FOR JUDGMENT 1 The applicant, Mr Zafar Iqbal, applies to the Court for judicial review of a decision made by the Refugee Review Tribunal ("the Tribunal") affirming a decision of a delegate of the respondent Minister for Immigration and Multicultural Affairs ("the Minister") refusing him a protection visa. The issue before the Tribunal was, inter alia, whether the Tribunal was satisfied that the applicant was a person to whom Australia had protection obligations. 2 Under the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention") a person will be a person to whom Australia owes protection obligations if that person is a refugee as defined in the Convention. Relevantly the Convention defines a refugee to be a person who: "owing to 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it." 3 It was the applicant's case before the Tribunal that he had a well-founded fear of persecution by reason of his political beliefs. 4 The applicant was a national of Pakistan who arrived in Australia from South Africa on a passport which he said was provided to him by a friend. He said that he had applied while in South Africa for political asylum but had decided to leave that country and come to Australia because of an incident that happened in South Africa. The applicant attended two hearings before the Tribunal. The second hearing occurred at the application of a representative of the applicant on the ground that the translator who had assisted the applicant at the first hearing had not properly translated his evidence. 5 It is unnecessary here to set out the account which the applicant gave, either of events in Pakistan or for that matter in South Africa. It suffices here to say that the Tribunal formed a very unfavourable view of the evidence which the applicant gave. It accepted that the applicant was a national of Pakistan but virtually nothing else. The Tribunal said that it did not find the applicant an impressive witness. Indeed the Tribunal went rather further than that. The view the Tribunal formed is best demonstrated by the following quotation: "I consider that the Applicant has demonstrated that he is prepared to prevaricate, to dissemble and to tailor his evidence to what he perceives to be his advantage. I do not accept that he can be regarded as a witness of truth. ... I consider that the Applicant's account of his reasons for having fled Pakistan in 1994 is a fabrication." 6 Following that passage the Tribunal continued to indicate that it did not accept any of the various matters upon which the applicant's claim was based. For example, it was part of the applicant's case that he had been a member of the SSP which he had joined in 1990. According to the Tribunal the SSP was a militant Sunni organisation. His claim to be considered as a refugee was, in part, dependent upon his having been a member of the SSP and a claim that members of that organisation were persecuted.

"even if it were to accept the Applicant to be a member of the SSP, any fear of persecution he had, would not be well-founded." 8 In reaching this conclusion, the Tribunal based itself upon country information to which it refers in its reasons and no suggestion is made that the Tribunal's finding on this aspect of the matter was not open to it. 9 The Court's jurisdiction to review decisions of the Tribunal is very limited. The grounds of review are set out in s 476 of the Migration Act 1958 ("the Act"). The applicant was unrepresented before me although assisted by an interpreter. I appreciate that he is not legally trained, I appreciate the difficulty that any non-lawyer would have in seeking to point out a legal error in a decision of the Tribunal. It is even more difficult where the applicant is both legally untrained and unable to speak English. Translation is a poor substitute. 10 The applicant has been unable to put to me any legal error in the Tribunal's reasons. He submitted that the Tribunal had no power to consider his application. He said that he had been told by someone from the office of the respondent Minister that Pakistan was not a country where its citizens could be treated as refugees. Whatever he was told by an officer of the Immigration Department is irrelevant to the proceedings in the Tribunal. It is for the Tribunal to consider for itself on the basis of information before it whether an applicant for a protection visa satisfies the test of being a refugee. 11 As I have already indicated, the Tribunal was certainly of the view that the applicant would not be subject to persecution in Pakistan for the political beliefs he claimed he had. In forming this view, no doubt, the Tribunal was entitled to have regard to material which the United Nations published. The Tribunal would not be bound necessarily to accept that material if there were material which was contradictory before it from another source. The obligation of the Tribunal is to come to the preferable or right decision independent of both the Government and the United Nations. 12 There is nothing in the reasons of the Tribunal which suggests other than that it performed its role in a matter that was independent. As I understand it, the applicant's real complaint was that he should have been told on arrival that his application for refugee status was bound to fail. He had, so he says, a ticket with him which would have enabled him to depart Australia. As things have turned out, his application for refugee status has been unsuccessful and he has spent some ten months in detention. 13 I have some sympathy for this view and obviously for anyone who has to spend a long time in detention but this has nothing to do with the reasons of the Tribunal. In reality, but for two matters, the applicant has really no complaint about the Tribunal's reasons. The two matters which are related are first that the Tribunal did not believe him and second that the Tribunal found that only one District Commissioner had been killed and that this had taken place in 1996 and not 1994. It was part of the case of the applicant that a Commissioner and Superintendent of Police in the district of Sargodha had been murdered in June 1994 and that the murder that took place in 1996 was a different incident. 14 As I have indicated, the Tribunal did not accept that there had been a second murder. Its finding on this matter went both to credit and to the question as to the motives of the applicant leaving Pakistan. Neither of these two matters however involve any error which is within the jurisdiction of this Court to remedy. Parliament has entrusted to the Tribunal the power to both find matters of fact and to decide matters of credibility. 15 This Court is bound both to accept the Tribunal's findings of fact and its findings of credibility. In the circumstances, the applicant has been unable to make out any ground of appeal set out in s 476 of the Act. In consequence the application must be dismissed and the decision of the Tribunal affirmed. 16 The representative of the Minister asks that I make an order that the Minister's costs be paid by the applicant. It is normal that such an order is made. I order the applicant to pay the Minister's costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

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Decision date

Before

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Judgment (5 paragraphs)

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Cited By (2)