Khan v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2000-02-15|Before: Sundberg J

BACKGROUND 1 The applicant is a citizen of Pakistan who arrived in Australia on 2 April 1999. On 8 April he lodged an application for a protection visa. The applicant withdrew this application on 15 April, but lodged another application for a protection visa on 30 April. This application was refused by a delegate of the respondent on 3 June. An application for review of the delegate's decision by the Refugee Review Tribunal was dismissed on 30 July. The applicant has applied to the Court for a review of that decision.

THE APPLICANT'S CLAIMS 2 The applicant gave several accounts of the events on which he bases his claim to refugee status. No exception was taken to the Tribunal's record of these accounts, and the exposition which follows is based on that in the Tribunal's reasons for decision.

Interview with the delegate 4 The applicant indicated that his father's death was the result of a property dispute. Two years ago the applicant's father wanted to borrow money from a bank. The bank required a guarantor. The guarantor required the deed to some property as security. The applicant's father provided the security. Later he repaid the money, but the guarantor refused to return the property deeds. The applicant's father went to court and obtained judgment in his favour. He was killed on the day of the judgment. The applicant is afraid that he will also be killed, because then the guarantor will be able to keep the property as no one else will have a claim to it. 5 The applicant joined the JIP in 1996. He began to be harassed by the government six months after he joined as a result of his active involvement in the party. The police wanted to arrest him. However, the applicant's father was well known and wealthy, so he was able to bribe the police to leave his son alone. On 31 March 1999 the applicant received the letter from the JIP advising that his life was in danger. He stated that the police intensified their efforts to arrest him after he was involved in demonstrations against the nuclear tests. A demonstration was held in November 1998 when the Indian Prime Minister toured Pakistan. It was put to the applicant that this was inconsistent with his application which said he received the letter advising him to leave the day after the demonstration. The applicant responded that the demonstrations continued for some time. After November 1998 he was in hiding because the police were after him. Things then cooled down and he participated in further demonstrations including one on 29 March 1999 in Lala Musa. There were 500 to 600 people at the demonstration. The demonstration was significant to the government because the JIP was the first party to protest against the nuclear experiments. The applicant obtained his Australian visa in December 1998, but did not leave Pakistan for Australia at that time as his wife was planning to come to Pakistan in February 1999.

Evidence at the hearing 6 The applicant completed twelve years of schooling and obtained a diploma in welding. He then worked on his father's farm, mainly in a managerial capacity. The applicant was the district president of the JIP for nine months from February 1998. While he was president, he attended meetings every month. These meetings were mostly in Lahore. When he was an ordinary member of the JIP he attended meetings in his local area. The applicant arranged meetings and demonstrations for the party. When he was president he arranged demonstrations every two to three months. The government was annoyed by his activities. 7 Material regarding the pro-nuclear stance of the JIP was put to the applicant. He agreed that the JIP was pro-nuclear testing and that the demonstration he attended was not organised by the party. The applicant claimed, however, that the Amir of the JIP changed his pro-nuclear stance when Bhutto assured him of the support of her party if he did so. The applicant could not remember when this occurred. Anti-nuclear testing was the applicant's own private agenda. He organised an anti-nuclear testing protest a few weeks after the test, but it was a failure. The applicant then stated that from August to October 1998 he was completely cut off from his party. This was in spite of the fact that he was president of the party for nine months from February 1998. In November 1998 the applicant was involved in a major demonstration. He stated that this demonstration was held for two reasons - to protest the visit of the Indian Prime Minister and to protest against the nuclear testing. However, the Amir of the JIP did not say that the demonstration was an anti-nuclear protest, only that it was to protest against the Indian visit. The applicant stated that 10 per cent of the rally was about anti-nuclear issues. 8 After the November rally the applicant's name was on the police list. He knew his name was on the list because a policeman told him he was going to be arrested and he should go away. Further, the JIP stopped protecting him because he was acting against the policies of the party. After the protest the applicant went back to his farm in Dera Gazi which is eight hours from Lala Musa. The police could not enter the farm because half of it was on tribal lands and the police have no control over tribal areas. The police went to Lala Musa on several occasions. His mother and father warned the applicant that it was not safe for him there. 9 The applicant did not take part in any protest between November 1998 and 29 March 1999. Details of a demonstration which occurred on 20 February 1999 were put to the applicant. The applicant was unaware of the demonstration. He had no contact with politics from November 1998 to March 1999. The applicant took part in the March 1999 demonstration because he was getting back into political activity. The demonstration was against the agreement to trade with India and the opening of a bus service between India and Pakistan. The protest was in Lahore and thousands took part. It was put to the applicant that he had told the delegate that the protest was in Lala Musa and 500 to 600 attended. He said the protest in Lala Musa was the anti-nuclear protest just after the nuclear tests. Following the protest in Lahore, the party told him he should disappear and wrote the letter advising that his life was in danger. 10 The applicant withdrew his initial application for a protection visa because his father telephoned and said that he would help the applicant through the court system to get away from the party. However, the applicant's father was then murdered, so the applicant would no longer have his protection. The applicant would also not have the farm to hide on as this was the land that was subject to the dispute. The man who has the property is powerful and a friend of the government, so the police will not protect the applicant. 11 At the hearing the applicant was provided with a notice pursuant to s 424A of the Migration Act 1958 ("the Act") indicating that the Tribunal had information that the applicant's father was alive and that the applicant was not a member of the JIP. The applicant claimed this was information from his wife with whom he was currently having a dispute, and he provided his parents' phone number so that the Tribunal could make inquiries as to whether his father was dead. 12 On 13 July 1999 the Tribunal forwarded to the applicant a s 424A notice stating that according to the Australian High Commission in Islamabad the applicant was telephoned on 29 March 1999, prior to his departure from Pakistan, and advised that his spouse visa had been cancelled. The applicant responded that he was not contacted by the Australian High Commission, as he was not at home at the time. He did not know his visa was cancelled before he came to Australia.

TRIBUNAL'S REASONING 13 In reaching its decision the Tribunal took into account country information which was discussed with the applicant at the hearing. The Tribunal referred to a news report which detailed the strong pro-nuclear stance of the leader of the JIP, who indicated that his party would oppose any decision to sign the Comprehensive Test Ban Treaty (CTBT) and would hold huge rallies in support of nuclear testing in September and October 1998. Two further news reports described protests held by the JIP in February 1999 to protest the visit to Pakistan by the Indian Prime Minister. An article from Asiaweek indicated that the government of Pakistan is now trying to gain the support of Islamic groups such as the JIP, and is allowing the JIP greater freedom. In 1997 the government banned the JIP leader from agitating the volatile tribal areas, but now no longer enforces this ban. 14 No exception was taken to the Tribunal's exposition of the law that has developed around the definition of "refugee" in the Convention. The Tribunal accepted that the applicant was currently having a dispute with his wife, and gave no weight to the information provided by her that the applicant's father was alive and that the applicant was not a member of the JIP. The Tribunal then observed that there were several inconsistencies in the applicant's story. He claimed to be cut off from the JIP from August to the end of October 1998, and from November 1998 until March 1999. However he also claimed to be district president of the JIP during some of this time. Further, he was unaware of many prominent campaigns conducted by the JIP in the twelve months before he left Pakistan, in spite of his claim to be president of the party. The Tribunal found that the applicant could not be totally cut off from the party and unaware of major campaigns conducted by it if he was the president. The Tribunal therefore concluded that the applicant was not a prominent member of the JIP. 15 The Tribunal considered that this conclusion was supported by the applicant's claims to have organised anti-nuclear demonstrations. When interviewed by the delegate, the applicant claimed that the JIP was the first party to protest against the nuclear testing. At the hearing he agreed that the party was pro-nuclear but claimed that it became anti-nuclear after doing a deal with Bhutto. However, the country information indicates that the party was vehemently pro-nuclear and that as at March 1999 it continued to demand that Pakistan not sign the CTBT. The Tribunal concluded that the JIP was pro-nuclear, and that it would therefore be impossible for the applicant to play a prominent role in the party if he openly expressed his anti-nuclear testing views. The Tribunal further found that it would be impossible for the applicant to organise anti-nuclear demonstrations under the aegis of the JIP. 16 The Tribunal concluded that the applicant was not a high profile member of the JIP, but was at most a supporter. The Tribunal found that there was no real chance that he would be persecuted for being a JIP supporter if he returned to Pakistan. In support of this conclusion, the Tribunal referred to the Asiaweek article which indicated that the government is currently trying to obtain the support of Islamic groups such as the JIP. The Tribunal regarded the fact that the applicant had held a visa for four months before he decided to come to Australia as supporting the view that he was not being pursued by the authorities. Further, on the basis of information from the Australian High Commission, the Tribunal found that the applicant was informed of the cancellation of his visa before he left Pakistan, and that the letter from the JIP on 31 March 1999 telling him that his life was in danger was a fabrication intended to bolster his claim for refugee status. The Tribunal also considered it "implausible" that the applicant was warned by a policeman that his name was on a police list and that he was therefore in danger. 17 The Tribunal did not accept that the applicant took part in a protest in March 1999, finding that the protest he described appears to have occurred on 20 February 1999. In reaching this conclusion, the Tribunal was influenced by the serious inconsistencies in the applicant's accounts of the protest. In the statement accompanying his application and in his interview with the delegate, the applicant claimed that the protest was in Lala Musa and that 500 to 600 attended. However, at the hearing he claimed that it was in Lahore and thousands attended. The Tribunal stated that even if the applicant did organise anti-nuclear demonstrations, they were, on his own evidence, a failure, due to the overwhelming support for nuclear testing. The Tribunal therefore concluded that the applicant's anti-nuclear group would not be seen as a threat to the government. In response to this argument, the applicant claimed that the government was worried because he was connected to a powerful party and support for his view within the party may increase. However, the Tribunal found that this was not the case, as the applicant's anti-nuclear protests were not in any way supported by the JIP. Further, the Tribunal noted that the government is considering signing the CTBT in order to encourage foreign investment. The government would therefore welcome any lessening of the pro-nuclear position, and would not see the applicant as a threat. The Tribunal therefore concluded that, if the applicant were to return to Pakistan, he would not be at risk as a result of his anti-nuclear views. 18 Finally, the Tribunal dealt with the applicant's fears that he will be killed by the people that murdered his father. The Tribunal found that even if these fears were well-founded, the applicant is being targeted not for any Convention reason but for private gain by the individual concerned. The applicant claimed that the government will not protect him because the man who killed his father has connections with police and government. However, in reliance on The Minister v Ndege [1999] FCA 783, the Tribunal found that for a State to be complicit in private persecution that persecution must be for a Convention reason. Since this was not the case, the applicant did not have a well-founded fear of persecution for a Convention reason.

Failure to observe procedures: s 476(1)(a) 19 It was submitted that the Tribunal was in breach of its obligations under s 430(1) of the Act in that it failed to set out reasons for its decision and its findings on material questions of fact, and failed to refer to the evidence or any other material on which the findings were based. It was said that these deficiencies constituted a failure by the Tribunal to observe procedures in connection with the making of its decision for the purposes of s 476(1)(a). Differing views have been taken as to whether this is so. Compare, for example, The Minister v Yusuf [1999] FCA 1681 and Xu v The Minister [1999] FCA 1741. I will deal with the basic submission on the assumption, without deciding, that the relationship between s 430(1) and s 476(1)(a) is as the applicant submits. 20 The applicant submits that the Tribunal "failed properly to consider" the genuineness of the letter of 31 March 1999 referred to in pars 3 and 5. It is not clear how a submission framed in these terms falls within s 430(1). But in any event there is no substance to this submission. The Tribunal found that the letter was a fabrication. The finding was based on the reasons summarized in par 16:

· The applicant was not a high profile member of the JIP but was at most a supporter

· The government is trying to obtain the support of the Islamic groups

· Before he left Australia the applicant was aware that the visa he had obtained four months before he decided to come to Australia had been cancelled, and the JIP letter was prepared after he became aware of the cancellation.

It was for those reasons that the Tribunal concluded that the letter JIP was a fabrication intended to bolster the applicant's claim for refugee status.

21 It was then submitted that the Tribunal "failed properly to consider" whether it was probable in light of a corrupt political system in Pakistan that there could exist inconsistencies in the politics of the JIP, so that whilst anti‑nuclear, it could have pro‑nuclear factions. Again it was not explained how this complaint fell within s 430. The claim that there was a corrupt political system in Pakistan was not supported by any findings by the Tribunal or any evidence before it. Nor was it explained how the existence of a corrupt political system could lead to the conclusion that the JIP could have both pro‑nuclear and anti‑nuclear wings. There was country information that the JIP was vehemently pro‑nuclear testing, and that as at March 1999 it continued to demand that Pakistan not sign the CTBT. The Tribunal specifically found that the anti‑nuclear protests were not in any way supported by the JIP. It also found that it would not have been possible for the applicant to have played a prominent role in the party if he openly expressed his anti‑nuclear views, and that he would not have been permitted to organise anti‑nuclear demonstrations under the aegis of the JIP. The applicant plainly seeks, under the guise of a s 430 submission, to have the Court enter upon the merits of the Tribunal's finding that the JIP did not have a anti‑nuclear faction. That is not something the Court can do, and nothing was put forward which threw any doubt on the Tribunal's finding. The material on which the finding was made, and the reasons for it, were exposed. 22 It was then said that the Tribunal "failed properly to consider" why it was implausible that the applicant had been warned by a policeman that his name was on a police list and that it was unsafe for him in Pakistan. Again I note the absence of any link between this complaint and s 430. The Tribunal gave its reasons for its implausibility conclusion. First, for the reasons it gave, it found that the applicant was not a high profile member or leader of the JIP but at most a supporter. Secondly, he was not being pursued or targeted by the authorities. It based this conclusion on the fact that the applicant had waited four months after he obtained his visa before departing for Australia. Had he been pursued or targeted, he would have left Pakistan at the first opportunity, given that his wife and child were residing in Australia. This ground of complaint is entirely without merit. 23 The next submission was that the Tribunal "failed to apply a reasonable margin of appreciation" to perceived flaws in the applicant's testimony and failed to consider whether any self‑contradictory statements necessarily required a conclusion that the applicant was being untruthful in those aspects of his evidence, or that the whole of his evidence ought to be rejected. The link with s 430 was again not explained. Further, the submission mis‑states the use the Tribunal made of the "serious inconsistencies" it identified. The applicant's credit was a matter for the Tribunal. It was entitled to place such weight as it saw fit on inconsistencies in his evidence. Those inconsistencies did not lead it to conclude that the whole of his evidence should be rejected, but were referred to in support of the rejection of his claim that he took part in a protest meeting in March 1999.

Error of law: s 476(1)(e) 24 The applicant submitted that the Tribunal was obliged to evaluate whether the applicant had a "subjective and objective fear of persecution" on his return to Pakistan, and that this required it to evaluate his mental and emotional state and his objective circumstances as far as they were capable of ascertainment. As I understood the argument, it was that the Tribunal had concluded that any fear of persecution the applicant may have had was not well‑founded without deciding whether he in fact had a fear of persecution. In its summary of the law, the Tribunal noted that the requirement that a fear of persecution be well‑founded "adds an objective requirement to the requirement that an applicant in fact hold such a fear". The Tribunal found that there was no real chance of the applicant being persecuted by reason of his involvement in the JIP and that "his fear of persecution is not well‑founded". It also found that he was not at risk if he returns to Pakistan by reason of his anti‑nuclear views, "and his fear of persecution for this Convention ground is not well‑founded". 25 In my view the Tribunal found in each case that the applicant had the fear he asserted. The words I have emphasised in the preceding paragraph make that clear. If, however, the Tribunal was assuming, rather than deciding, that the applicant had the relevant fear, it was entitled to do so without expressly so deciding. See Emiantor v The Minister (1997) 48 ALD 631 at 651‑652 and Rajadurai v The Minister [1999] FCA 125. 26 It was submitted that the Tribunal made an error of law in that it had failed to speculate as to whether it might be wrong in its findings. It was accepted that a Tribunal that has no doubt as its findings is not obliged to undertake the inquiry suggested. However, it was said that this was not a case where the Tribunal had no real doubt. The relevant findings were:

· Although the applicant claimed to be the district president of the JIP for nine months from February 1998, he was unaware of many prominent campaigns by the JIP in the twelve months before he left Pakistan.

· The applicant was not a prominent or high profile member or leader of the JIP.

· The applicant could not have played a prominent role in the JIP if he openly expressed his anti‑nuclear testing views when the party was strongly supportive of nuclear testing.

· There was no real chance of persecution from being a mere supporter of the JIP.

· The applicant was not pursued or targeted by the authorities.

· The applicant was informed prior to his departure from Pakistan of the cancellation of his Australian visa.

· It was implausible that the applicant was warned by a policeman that he was on a police list and the police wanted to arrest him.

· The applicant did not take part in a protest meeting in March 1999.

· There were serious inconsistencies in the applicant's account.

· The applicant was not at risk by reason of his anti‑nuclear views.

· The applicant's fear of harm due to his father's death was not Convention related.

Each of these findings was made in a clear and emphatic manner. They were made with a degree of strength which showed that the Tribunal had no real doubt about them. It was thus unnecessary for it to consider the possibility that its findings might be inaccurate. They were not made on the basis of being only "slightly more probable than not", and the Tribunal was not required to consider that its findings might be wrong. See The Minister v Guo (1997) 191 CLR 559 at 575‑576 and The Minister v Rajalingam [1999] FCA 719, especially per Sackville J at pars 67 to 69.

No evidence: s 476(1)(g) 27 It was contended that there was no evidence or other material from which the Tribunal could have found that it was implausible that the applicant had been warned by a policeman that his name was on a police list, and that the applicant conceded that all the anti‑nuclear demonstrations were failures. What I have said in par 22 disposes of the first contention. The second mis‑states the Tribunal's findings. What it said was:

"The applicant claims that if he returns to Pakistan he will be at risk because of his anti‑nuclear activities. The applicant claims to have organised anti‑nuclear demonstrations. Even if the Tribunal accepts this, on the applicant's own evidence they were a failure, as the overwhelming support for the nuclear testing meant that he could only get a small number of supporters."

There was ample evidence for the finding. The applicant said that the protest he organised a few weeks after the nuclear testing was a failure because of the huge support for the testing. He said the whole of Pakistan is strongly in favour of the testing. While the applicant's evidence was that one of the protests was a failure, the Tribunal spoke of more than one anti‑nuclear protest being a failure. However the reason given by the applicant for one of them being a failure, namely his inability to attract significant numbers of people to anti‑nuclear rallies because of the huge support for the testing, justified the Tribunal concluding that any other anti‑nuclear rally organised by the applicant would have been a failure for the same reason.

28 I need not pursue this matter further, because the absence of evidence ground is not available to the applicant under s 476(1)(g) of the Act unless he can establish that all the anti‑nuclear demonstrations he organised were successful (ie were not failures). On the assumption that the Tribunal based its decision on the fact that all the anti‑nuclear demonstrations organised by the applicant were failures, the applicant has not discharged that onus. There was no evidence before the Tribunal that the demonstrations were successful. Such evidence as there was, was to the contrary. And there was no such evidence before the Court. See Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 223‑224.

Improper exercise of power: s 476(1)(d) 29 Under this head the applicant repeated the submissions with which I have dealt in pars 19 to 23. What I have said there disposes of the same points under s 476(1)(d).

Other grounds 30 In his amended application, which was drawn by counsel, the applicant raised other grounds of complaint that were not addressed in his written submissions, which were also prepared by counsel. Because the applicant's written submissions did not mention these additional grounds, the respondent's written submissions did not deal with them. Because the applicant was not represented, I have considered these additional grounds even though they were apparently considered by counsel not to be worth pursuing. None of them has any substance. 31 At the hearing the applicant informed the Court that his written submissions had been prepared when there was a democratic government in Pakistan. This government has since been replaced by a military regime. He said this was important because the military government would view unfavourably his involvement in anti‑nuclear protests. The Court's function on an application under s 476 does not extend to reviewing the Tribunal's decision by reference to facts that were not before it because they had not then occurred. Those facts may be relevant to an exercise of the Minister's power under s 417 to substitute for the Tribunal's decision one more favourable to the applicant if the Minister thinks it is in the public interest to do so.

CONCLUSION 32 The application must be dismissed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate: Dated: 15 February 2000 The applicant appeared in person.

Solicitor for the Respondent: Australian Government Solicitor

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