Masood v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|2001-04-11|Before: O'Loughlin J

REASONS FOR JUDGMENT 1 The applicant in these proceedings, Mr Ahmad Malik Masood, is a citizen of Pakistan. He was born on 15 May 1962 and, at the age of thirty-five, he arrived in Australia on 19 November 1997. Within a few days, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs pursuant to the provisions contained in the Migration Act 1958 (Cth) ("the Act"). On 23 December 1997, a delegate of the Minister for Immigration and Multicultural Affairs refused his application. On 19 January 1998, Mr Masood applied to the Refugee Review Tribunal ("the Tribunal") for a review of the delegate's decision. He was again unsuccessful. On 9 June 2000, the Tribunal rejected his application for a review and affirmed the earlier decision not to grant him a protection visa. Mr Masood now applies to the Federal Court for an order of review of the Tribunal's decision. 2 The basis upon which Mr Masood has sought protection was his claim that, as a member of the Pakistan People's Party ("the PPP"), he could not return to Pakistan because of the risk that he would be subjected to persecution for reasons of his political opinion. In a statement that he submitted to the Tribunal, Mr Masood wrote: "I told [the delegate] that I was a member of the Pakistan People's Party and that I could not return to Pakistan because of the persecution I had suffered, and that I believe I will suffer if I go back there." 3 In 1982, at the age of nineteen or twenty - and perhaps earlier - Mr Masood was in charge of a youth "wing" of the PPP in the town of Lalamuse which is in the Punjab area of Pakistan. At that time he had about 500 members under his command; that was also a time of martial law. Mr Masood said that he was arrested by the Army on three occasions in 1982. On the first occasion, he was warned that he should stop his activities with the PPP. He was detained in custody on this occasion for two days but he did not otherwise suggest that he was ill-treated by the authorities. On the second occasion however, some two months later, he was interrogated and forced to reveal the names of his associates; he was also, so he said, "tortured badly". In his statement to the Tribunal, Mr Masood said: "When I first refused to answer their questions they hung me upsidedown and repeated their questions. After again I did not answer then they took me down and put me on a large slab of ice and started punching and beating me all over my body. They used their truncheons etc during this. At this point I started to give them the information they wanted. I betrayed the names and whereabouts of many of my friends in the PPP. During this torture I fell unconscious. When I awoke I had bad injuries to my leg (for which I still have scars) and had sores all over my body. I was kept by the CIA for five days. When they had finished with me they threw me unconscious from one of their vehicles into a street near my house at night."

Mr Masood said that he was hospitalised for two weeks as a result of these assaults.

4 He returned to his work with the PPP but towards the end of 1982 he was arrested for the third time. Mr Masood said that the Army had arrested him because he was, at that time, a prominent member of the PPP. Mr Masood continued in his statement: "They wanted to know what the PPP activities were and where the members were who were in hiding. When I didn't answer them, they tied me in a reversed position in a chair so my back was facing out. They hit me all over my back so badly that I wasn't able to walk."

Once again, he was hospitalised for two weeks. According to Mr Masood, those who were responsible for his interrogation and torture extracted 25,000 rupees from his family for his release; they were also responsible for having his father put on suspension for five months from his work as a Special Ticket Examiner with the railways.

5 In July 1983, Mr Masood participated in a demonstration and was arrested for the fourth time. He said that the police held him for two days but then released him after a bribe of 20,000 rupees was paid. He said that he was beaten, kicked and punched by the police but not so seriously that it warranted hospitalisation. However, shortly after his release, he was issued with a First Incident Report ("an FIR") in which it was alleged that he had demonstrated against the government. It was agreed by the parties that an accurate English translation of the relevant section of that FIR, which was dated 14 August 1983, is as follows: "According to Constable Ghulam Hussain (1278), a procession was taken out on the eve of Pakistan Day. The procession later shaped out into a public meeting on GT Road Lala Musa. Many people were present. Hafizullah Saddique, Masood Ahmed Malik and Ashgar Keera criticised the Martial Law and the policies of the Government. They also illegally used a loud speaker. The people flared-up, and after the speeches, threw stones at the Government Office. They also damaged the government property. Having been advised, ASI Mohammad Nawaz, along the police party, arrived on the spot and arrested Hafizullah Saddique, Masood Ahmed Malik and Asghar Keera. The case was registered under 116 HPO, 141, 144 and Section 151, 152." 6 I will proceed upon the premise that the person named in the report as Masood Ahmed Malik is the applicant in these proceedings. 7 Following upon his arrest, Mr Masood said that he was taken before a magistrate; he said that he was released on bail in the sum of 25,000 rupees. 8 In 1983, Mr Masood left Pakistan; he took up residence and obtained work as a supervisor, and later, as a manager in a small clothing factory in Brunei. He stayed in Brunei for six years, returning to Pakistan in about October 1989. There was nothing in his papers or in his evidence that suggested that he had any difficulty with the authorities in leaving Pakistan in 1983 or in returning in 1989. He referred to the need to pay an agent 200,000 rupees so that he might leave Pakistan but he did not explain the purpose of that payment. However, so he claimed, he found out, when he returned to Pakistan, that "the Courts had passed sentence against me and I faced a five year jail term". Mr Masood asserted in his evidence before the Tribunal that this jail term would "still be enforced" against him even though in 1989 the PPP was then in power. Presumably, the jail term related back to the FIR in 1983. 9 Mr Masood claimed that he had a second problem at that time. He made the following submission: "Most of my family tribal members belonged to or supported the Muslim League. Even to vote for PPP was something that tribal members would punish. They all knew that not only would I vote PPP, but that also I was one of their main workers. So I could not get any protection or help from my tribal group."

He claimed, therefore, that he could not stay in Pakistan. In the first place, he faced the risk of imprisonment and in the second place he was unable to look to his own tribal group for protection or assistance.

10 He therefore returned to Brunei - but not until early 1991. Despite his claims of fears and threats, the fact remains that Mr Masood once again returned to Pakistan in 1995 and, once again, he was able to enter and, some three months later, to leave the country and return to Brunei without encountering any difficulties with the Pakistani authorities. 11 According to Mr Masood, his family home in Brunei was the target of an attack by unknown persons in March 1997; he believes, however, that the assailants, who wore balaclavas, were Muslim League supporters. In his statement which formed part of his review application to the Tribunal, Mr Masood went so far as to say: "The attack was one of those elements of blackmail to try and force me to return to Pakistan. The idea was to frighten me into returning for fear of what they would do to my family. The attack was in March last year - only nine months ago. This is a vicious attack that has taken place very recently. The people who did it have not been apprehended. I believe nothing real was done by the police as they will not track down Muslim League people while the Muslim League (Nawaz Sharif faction) holds power both in the Province and nationally. So there is no real protection for me or my family in Pakistan." 12 In the course of its reasons, the Tribunal referred to the "1999 Country Reports on Human Rights Practices", that had been released by the Bureau of Democracy, Human Rights and Labor-U.S. Department of State, February 25, 2000"; it dealt with Pakistan. The Tribunal quoted, at length, selected passages from the Report, all of which point to a most unsatisfactory state of affairs, save for the last sentence that appears in the passage that was set out in the Tribunal's reasons: "At page 13- 'Police may arrest individuals on the basis of a First Incident Report (FIR) filed by a complainant. The police have been known to file FIR's without supporting evidence, FIR's frequently are used to harass or intimidate individuals. Charges against an individual also may be based on a 'blind' FIR, which lists the perpetrators as 'person or persons unknown.' If the case is not solved, the FIR is placed in the inactive file. When needed, a FIR is reactivated and taken to a magistrate by the police, who then name a suspect and ask that the suspect be remanded for 14 days while they investigate further. After 14 days, the case is dropped for lack of evidence, but then another FIR is activated and brought against the accused. In this manner, rolling charges can be used to hold a suspect in continuous custody. If the police can provide material proof that detention (physical remand or police custody for the purpose of interrogation) is necessary for an investigation, a court may extend detention for a total of 14 days. However, such proof may be little more than unsubstantiated assertions by the police. In practice the authorities do not fully observe the limits on detention. Police are not required to notify anyone when an arrest is made and often hold detainees without charge until a court challenges them. The police sometimes detain individuals arbitrarily without charge or on false charges, in order to extort payment for their release. Human rights monitors report that a number of police have secret detention cells in which individuals are kept while the police bargain for a higher price for their release. There are also reports that the police move prisoners from one police station to another if they suspect a surprise visit by higher authorities. Some women continue to be detained arbitrarily and sexually abused (see Section 1.c.). Police also detain relatives of wanted criminals in order to compel suspects to surrender (see Section 1.f.). Police have been known to detain persons in connection with personal vendettas. The law stipulates that detainees must be brought to trial within 30 days of their arrest. However, in many cases, trials do not start until 6 months after the filing of charges. In 1998 the Human Rights Commission of Pakistan estimated that there were almost as many individuals awaiting trial in jails as there were prisoners. According to the chief justice of the Lahore High Court, there were over 500,000 civil and criminal cases backlogged in the province's subordinate court system as of April. In 62 Lahore city courts, 7,000 prisoners are awaiting trial in 6,000 cases. In 3,500 of these cases, the police have not even brought a 'challan,' or indictment, to the court. In 1997 the Government justified the creation of antiterrorist courts by citing the large number of murder and other cases that are clogging the regular court system (see Section 1.e.)…. At page 15- The Government sometimes uses mass arrests to quell possible civil unrest. In April approximately 600 PPP members wre arrested prior to a planned May 1 demonstration in Islamabad against former prime minister Benazir Bhutto's April conviction on corruption charges and disqualification from holding public office. Most were released on May 2. Early on July 28, police tore down antigovernment posters and arrested MQM legislators and activists to halt a peaceful hunger strike being conducted in front of the Karachi Press Club. Most of those arrested were released quickly, and the protest was resumed a few hours later. In August and September, police arrested as many as 2,500 activists from the PPP and the Muttahida Quami Movement in Karachi and other parts of Sindh province in anticipation of a September 4 opposition rally. Several hundred more, including several senior opposition leaders and parliamentarians, were arrested several days later prior to an opposition demonstration in Karachi. On September 11, police reportedly used force to end a demonstration by a coalition of opposition groups in Karachi; police publicly reported arresting 107 persons in connection with the demonstration, but other reliable estimates place the number arrested at 600 or more. Police detained hundreds of MQM and PPP activists and senior leaders prior to a banned opposition march planned for September 25, as well as in the days immediately after it was to have occurred. Among those detained was MQM Senator Nasreen Jalil, who was arrested at her home on September 24 and held incommunicado for several days (see Section 2.b.) until her release on September 29. Also in September, the Government placed Fazlur Rehman, the leader of one faction of the religious party Jamiat Ulema-I-Islami, under house arrest to prevent him from traveling to the NWFP tribal areas to attend a political rally. Rehman previously had traveled frequently to the region to attend rallies, which are prohibited in the tribal areas. Rehman was released after 3 days (see Sections 2.a., 2.b., and 2.d.). In early October, hundreds of religious extremists, including the leader of the Sipah-e-Sahaba Pakistan, Maulana Muhammad Azam Tariq, and SSP branch president Maulana Mohammad Ahmad Ludhianvi, were arrested after a wave of sectarian violence broke out in Punjab and Sindh. However, since the coup, there have been reports that arrests of political activists have decreased." 13 Additional sections from the U.S. Reports emphasised the unhappy conditions that are said to presently exist in Pakistan. It is claimed: · that police continue to commit serious abuses with impunity; · that the Musharraf regime uses arbitrary detention and holds detainees incommunicado; · that the authorities have detained without warrant and without charge, several dozen political figures, military officers, government administrators and members of the family of deposed Prime Minister Nawaz Sharif; · that an Exit Control List (ECL) is used to prevent the departure of wanted criminals and individuals who are under investigation for corruption, as defaulting debtors and for summary offences. 14 The applicant complained that the Tribunal, in its reasons, did not make any findings about any of these matters that have been extracted from the U.S. Reports. He has complained that he placed the issue of the changed circumstances in Pakistan since the coup d'etat squarely before the Tribunal by means of a letter that he had obtained from a PPP District President, by means of the letter from his migration agent and because of the contents of the U.S. Reports. According to the submissions that were made on behalf of the applicant, he had claimed persecution based on his political opinion and, so he submitted, the issue of the changed circumstances in Pakistan, since the military coup, was a material question of fact, that was central to the applicant's case. 15 Among the papers that were put before the Tribunal on behalf of the applicant was a letter dated 22 February 2000. The letter was addressed to the applicant; it was on the letterhead of the Pakistan Peoples Party and it was signed by Tahir Zaman who described himself as the Gujrat District President of the Party. Among other things the author wrote: "Even since the sudden upheaval and coup d'etat in the country and the nabbing of the members of the Peoples party by those being at the helm of the affairs my mental agony and perturbation is day by day on the increase. I deem it necessary to intimate you (sic) that the Peoples party is being excessively victimized to revenge. Nearly all the members and active workers of the Peoples party have either gone under the iron bars or they are making themselves scarce in order to seek asylum in other countries. Since you were the active member and worker of the Peoples party, the police is (sic) in particular, in search of you and is searching for you at every place."

"Remember that in case you endeavour to turn face to Pakistan, you will be immediately arrested after your arrival at Pakistan." 16 It was alleged on behalf of the applicant that the decision of the Tribunal was judicially reviewable by virtue of the provisions that are contained in par 476(1)(e) of the Migration Act 1958 (Cth) ("the Act"). That par is as follows: "(1) 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) … (b) … (c) … (d) … (e) that the decision involved an error of law, being an error involving an incorrect interpretation 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." 17 Mr Clisby, counsel for the applicant, argued that the Tribunal should have inquired whether, if the applicant returned to Pakistan, there might be a check from "the centralised computer network by authorities at the airport" and that the Tribunal erred in law in not making that inquiry. I do not consider that there was any such obligation on the Tribunal to make that type of inquiry. Paragraph 427(I)(d) of the Act is in the following terms: "(1) For the purposes of the review of a decision, the Tribunal may: … (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give the Tribunal a report of that investigation or examination."

However, it seems clear that this provision does not impose a duty on the Tribunal to make inquiries: it merely grants it the power to do so whenever it thinks that it is necessary: Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 at 18-23 per Ryan J; Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 at 27-32 per French J; and Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368 per Merkel J. In any event, one is entitled to question what results could or might be achieved from making such an inquiry? They might reveal that there might be such a "centralised computer network" and that there might be checks on persons entering the country. The inquiries would go no further however. In their application to the applicant, the inquiries about the existence and use of computer facilities would hardly be likely to point to what action (if any) the authorities in Pakistan might take against the applicant. Furthermore, the applicant had been able to leave and re-enter Pakistan on two earlier occasions although I note that when he left Pakistan in 1991 to return to Brunei, he claimed that his father "paid the officials approx (sic) 25,000 rupees to allow me on to my plane".

18 Mr Clisby, nevertheless, submitted that the question that the Tribunal should have addressed - and which it failed to address - was as follows: "If the applicant were returned to Pakistan now or in the foreseeable future would he have a well-founded fear of persecution." 19 Mr Clisby argued that the Tribunal was in error when it focused on the applicant's activities in 1991 and 1995; the Tribunal should have focused, according to his argument, on the applicant returning to Pakistan now or in the foreseeable future. I do not think, in the circumstances of this case, that this submission has any practical value. A Tribunal must always have regard to the likely circumstance of an applicant returning to his or her country of origin now or in the foreseeable future. Additionally however, where an alleged well-founded fear of persecution is said to derive from past experiences, it is incumbent on the Tribunal to set out its findings in relation to those claims because of their relevance to the ultimate question: Minister for Immigration and Multicultural Affairs v Singh (2000) 175 ALR 503 at 514 per Black CJ, Sundberg, Katz and Hely JJ. But such an inquiry into the applicant's present circumstances is part of the broader inquiry into whether there is or is not a convention reason that supports the applicant's claim for refugee status. Here, however, the Tribunal came to the conclusion that the evidence and other material that was before it was not of sufficient persuasion to satisfy the Tribunal that any convention reason existed in favour of the applicant. 20 The Tribunal recited the applicant's early history in the early 1980s, his membership of the PPP and the brutal treatment that he suffered at the hands of his political opponents and the authorities. Undoubtedly, the applicant's circumstances some fifteen to twenty years ago were materially different to his present circumstances. His earlier circumstances may, of course, be of relevance in assessing his present position but they cannot be regarded as conclusive. Primarily, the Tribunal's task is to assess an applicant's circumstances as they presently exist, having regard, where appropriate, to the particulars of an applicant's history. Thus it was that the Tribunal accepted on the one hand that the applicant had been very harshly treated many years ago but, on the other hand, the Tribunal was not prepared to accept that the applicant was presently being actively sought by the Pakistani authorities some seventeen years later. 21 The applicant also relied upon the assertion that his family home was attacked in 1997 whilst he was in Brunei. He advanced the attack as a consequence of his PPP membership. However, as the Tribunal pointed out, the most that the applicant could say about this attack was that he and his family suspected the Muslim league as being behind the attack. The Tribunal felt that there was insufficient material before it to enable it to make a finding that the applicant's home had been attacked because of the applicant's personal circumstances. Nor did the Tribunal accept as credible the applicant's testimony that powerful political people (that is members of the Muslim league) would murder him if he were to return to Pakistan; as the Tribunal pointed out there is nothing in the material before it that would make him other than "a low level PPP supporter". 22 Mr Clisby also relied on the fact that there had been a recent military coup d'etat in Pakistan. Until recently, Pakistan has been an Islamic republic with a democratic political system. However, on 12 October 1999, the elected civilian government of Prime Minister Mian Nawaz Sharif was overthrown in a bloodless coup that was led by the Army Chief of Staff, General Pervez Musharraf. There was material before the Tribunal in the form of a letter from the applicant's Migration agent to the effect that since the military coup "all the political parties are being threatened and many politicians and their supporters are being arrested". Even if that statement be accepted as literally accurate, it does not give any assistance to the applicant who, as I have noted, was treated by the Tribunal as "a low level PPP supporter". 23 Mr Clisby submitted that the Tribunal had erroneously imposed some form of onus on the applicant to establish his entitlement to a protection visa. He referred to the well known passage from the Handbook on Procedures and Criteria for Determining Refugee Status (1979) that has been published by the Office of the United Nations High Commissioner for Refugees. The Handbook in discussing the burden of proof states at paragraphs 203 and 204: (2) Benefit of the doubt 203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to "prove" every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognised. It is therefore frequently necessary to give the applicant the benefit of the doubt. 204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts." 24 The Tribunal's ultimate conclusion was that it was of the opinion that Mr Masood would not face a real chance of persecution for a convention reason - namely, his political opinions - if he were to return to Pakistan. In its findings, the Tribunal was prepared to accept the evidence that Mr Masood had given about his ill-treatment and torture in the 1980's; it accepted that he was a member of the PPP; it accepted the contents of the FIR. The Tribunal also accepted that the letter of 22 February 2000 had been written on behalf of the PPP but, as it found in its conclusions, it did not find it "persuasive as to the applicant's current position. It is full of emotive and exaggerated claims; …". The Tribunal was also prepared to accept that Mr Masood had paid bribes to leave Pakistan, but at the end of the day, the Tribunal was not prepared to accept that the authorities were seeking the applicant in 1991 and in 1995. As to this the Tribunal said: "The DFAT Cable CX41723 indicates that not all arrest warrants are entered on the exit control list and the Tribunal does not consider it plausible that the authorities would list demonstration type offences 8 and 12 years after the date of the offence." 25 The critical section of the Tribunal's findings is encompassed in the following passage: "The Tribunal does not accept as credible the applicant's evidence that the police are still seeking him for demonstration type offences charged in 1983. The Tribunal finds that the applicant does not have a current high political profile and indeed did not claim to be currently politically active." 26 In my opinion a fair reading of the whole of the Tribunal's reasons does not support Mr Clisby's submission that there has been an improper imposition or onus placed upon the applicant. The findings of fact that were made by the Tribunal were reasonably open to it on the evidence and this Court is not entitled to interfere with or reverse such factual findings: cf He v Minister for Immigration and Multicultural Affairs (1997) 72 FCR 342 at 344 per Davies J; see also Hossain v Minister for Immigration and Multicultural Affairs [2001] FCA 46 per Wilcox, Weinberg and Conti JJ. Based on those findings it was open to the Tribunal to infer that Mr Masood would not be at risk for a Convention reason if he were to return to Pakistan. I cannot fault the Tribunal's findings or reasoning. 27 It was also argued on Mr Masood's behalf that the Tribunal had failed to comply with certain of its obligations as contained in s 430(1) of the Act. That sub-section is in the following terms: "430 Refugee Review Tribunal to record its decisions etc. (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 questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 28 The decision of the Full Court in Minister for Immigration and Multicultural Affairs v Singh (supra) has made it clear that the matters in s 430(1) are procedures for the purposes of s 476(1)(a) of the Act which makes reviewable a Tribunal's decision where procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed. 29 Mr Clisby submitted on behalf of the applicant that the Tribunal had failed to address adequately the U.S. country reports that dealt with the political situation in Pakistan and the contents of the letter from Mr Masood's migration agent that addressed that subject. 30 The fact that the political position in Pakistan was advanced by Mr Masood as a material fact that warranted consideration by the Tribunal is not to the point; s 430 of the Act does not require the Tribunal to address every argument that may be advanced by or on behalf of an applicant. The Tribunal came to its decision, not because of the political situation in Pakistan, but because it formed the opinion that the applicant did not now have, despite his earlier history, a political profile. There was no obligation on the Tribunal to explain in any further detail why it did not consider that the present political climate in Pakistan was not a material fact that warranted further examination in its reasons for its decision. 31 Mr Clisby finally submitted that the Tribunal failed to address, adequately, the contents of the letter dated 22 February 2000 from the PPP. That submission is not correct; the Tribunal did consider the letter but it attached no weight to it. It is true that the contents of the letter, if accepted, were contrary to the Tribunal's decision. However, that is of no consequence if, as is the case, neither the rejection of the letter nor its contents induced the Tribunal to come it its decision: see Singh's case (supra) at par 46. 32 Having reviewed the evidence that Mr Masood placed before the Tribunal, together with all other relevant material as well as the Tribunal's reasons, I find myself unable to point to any error. In my opinion this application should be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

Counsel for the Respondent: Ms S Maharaj and Ms K Southcott

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