NAXR v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-03-04|Before: Bennett J

REASONS FOR JUDGMENT 1 The applicant is a citizen of Pakistan who entered Australia on a student visa on 20 April 1999. On 26 April 2002, he lodged an application for a protection (Class XA) visa. The applicant declined to attend an interview with the Department of Immigration and Multicultural and Indigenous Affairs and the application was decided 'on the basis of the information at hand'. On 19 September 2002, a delegate of the respondent ('the Delegate') refused to grant the protection visa and on 10 October 2002, the applicant applied for a review of the Delegate's decision by the Refugee Review Tribunal ('the Tribunal'). The applicant attended a hearing before the Tribunal on 19 September 2003 and on 28 October 2003 the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa. On 17 November 2003, the applicant applied to this Court under s 39B of the Judiciary Act 1903 (Cth) for review of the Tribunal's decision. 2 When the matter came on for hearing the applicant appeared in person assisted by an interpreter. The applicant was also attended by a friend who, in addition to the applicant, addressed the Court on his behalf. That friend was, I was informed, a person who also attended the Tribunal hearing with the applicant.

The statutory declaration 3 In the statutory declaration filed in support of his visa application, the applicant gave a history of active involvement in student politics since the beginning of his college life. He said that he joined the Muttahida Quami Movement ('MQM') Altaf Group and started his 'activity in national politics' in the North Karachi area becoming the 'Sector in charge'. He said that he became close to Altaf Hussein, the central chief of the party. 4 In 1987, on his way to attend an election campaign, he and his supporters were attacked by supporters of the Pakistan Muslim League ('PML'). Later, he and his supporters organised a protest by way of silent procession. They were again attacked by 'PML terrorists' and there were injuries on both sides. He said that the police and the PML filed a false case against him for organising a violent procession against the state. 5 The applicant explained the lack of support from government and the police on the basis of the attitude towards the MQM by the Pakistan Peoples Party ('PPP'). He also made a number of general assertions about the nature of Pakistan's society and asserted that the Pakistan Government has denied fundamental rights and failed to prevent or punish criminals. 6 The applicant also described extra judicial killings by both the army and the police. He said that his parents were also against him. The police searched him at his residence several times and he left his local area for several months but then said that he returned after three months. He said that he was interrogated and beaten by the army but his relatives managed to free him. 7 In December 1998, his mother was seriously ill and the applicant went to see her. She asked him to leave Pakistan. He came to Australia on a student visa which '[d]ue to some unavoidable circumstances' was cancelled. He fears a risk of death on return to Pakistan due to 'persecution and other political disputes'. He has visited Pakistan but stayed hidden and has not participated in political or social activities.

The 23 September 2003 letter to the Tribunal 8 At the hearing, on 19 September 2003, the Tribunal put to the applicant its difficulties with his statement as made to the Tribunal, in which his brothers involvement with MQM was central to his own claims, in view of the statutory declaration, which made no mention of that involvement or the consequences of that involvement for the applicant. The applicant stated that he wished to continue with his migration agent even though he asserted that agent had not entered his statement of claims correctly. 9 On 23 September 2003 after the Tribunal hearing, the Tribunal received a letter from the applicant explaining that there were mistakes in his statutory declaration. He said that he trusted his lawyer who mixed up his case with another. He maintained his involvement with MQM and also the involvement of his family, in particular his older brothers. He said that he was arrested and tortured and only released when money was paid. He then returned to university where he completed his degree. He explained that the provision of incorrect material was due to his 'lawyer'. 10 The applicant said that the MQM (Haqeeqi Group), the army and the police were after his brothers and himself. One of his brothers was arrested and tortured and the applicant's house was repeatedly raided. His mother's health deteriorated. He and his brothers were very active in MQM and went into hiding, staying with friends or relatives. He was also arrested during a raid on his house and falsely charged with robbery. 11 Generally, he said that he and his brothers were arrested on a number of occasions, falsely charged, tortured and generally only released with payment of money. The applicant left Pakistan and came to Australia at the urging of his mother. When she became ill, he returned to Pakistan, visiting the hospital discreetly and when she recovered he returned to Australia to pursue his studies. 12 MQM is now in power but the applicant asserts that members are killed and that they are helpless because of the anti-MQM movement and the Government alliance against the MQM (Altaf Group).

the tribunal's decision 13 In the letter of 23 September 2003 received by the Tribunal after the hearing, the applicant offered to provide documentary evidence and did provide a letter from the International Secretariat of MQM in England ('the MQM Secretariat document') confirming that the applicant has been a supporter of MQM, that supporters of that party had been killed and that the applicant would be arrested, tortured and even summarily and extra-judicially executed if he returns to Pakistan. 14 The Tribunal notified the applicant on 30 September 2003 that it would not delay its decision pending the provision of the further documents and made the decision on that date, handing it down on 28 October 2003. 15 In its decision the Tribunal set out in some detail the applicant's history as finally provided and country information about MQM. The Tribunal came to the conclusion that the applicant was not credible in respect of key aspects of his claims for protection and concluded that the applicant was not in genuine fear of persecution and that there was no real chance of persecution on his return to Pakistan. 16 The Tribunal explained the basis for that conclusion in terms of the evidence of the applicant and his explanation for the inconsistencies between his statutory declaration and subsequent statement. The Tribunal found the applicant 'often weak, unconvincing and at times evasive'. The Tribunal noted that the applicant is a well educated person, holds a degree from Karachi University, is fluent in English and had resided for three years in Australia when he had prepared his statutory declaration. In particular the Tribunal considered it implausible that the applicant would not have been aware that the statutory declaration made no reference to his brothers' activities and the effect of those activities on his own difficulties, when that formed such a substantial part of his later claims. 17 The Tribunal rejected the applicant's claim that he was involved with the MQM, that members of his family were also involved in the MQM and that as a result he suffered persecution from the authorities in Pakistan or would do so. The Tribunal also noted that the applicant claimed to fear persecution on his return to Pakistan but that he had returned there in March 2000 for one month to visit his mother on a passport issued in his own name and that he only lodged an application for a protection visa in April 2002, having arrived in Australia in April 1999. 18 The Tribunal was not satisfied that the applicant has a genuine fear of persecution for a Convention (Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967) reason nor that he faces a real chance of persecution for a Convention reason on his return to Pakistan.

the application for review 19 The grounds of the application are as follows: 'The respondent erred in law in incorrectly interpreting the applicable law, or incorrectly applying the law to the facts as found in that respondent failed to give proper consideration to the merits of the case. The respondent failed to take into consideration on the wording of the regulation without looking at the damage and hardship I will suffer. The respondent doesn't accept the difficulties and threat I would face if I have to go back.'

ground one 20 No particulars are given as to the applicable law said to have been incorrectly interpreted or as to how the law has been incorrectly applied other than an allegation that the Tribunal failed to give proper consideration to the merits of the case. When I asked the applicant what he wished to say in support of his application, his first submission was to say that the situation in his country was very bad and that he was in danger if he goes back. He said that his life was secure in Australia. He said that he gave all the details to the Tribunal. When I asked him to explain ground one further, the applicant said that he told the Tribunal that his mother was sick and that was why he travelled to Pakistan. At first he asserted that the Tribunal had failed to go through the documents that he had provided to it. When I pointed out that there was only one document, to which I will refer later, he said that the Tribunal did not consider the matters that he raised or other evidence about the situation prevailing in Pakistan.

The MQM Secretariat document 21 A supporting document was provided by the applicant to the Tribunal, namely a letter from the International Secretariat of MQM. In its decision the Tribunal referred to that document describing it as being 'a statement from the MQM in the United Kingdom in regard to the treatment of MQM members in Pakistan'. The Tribunal did not deal further in its reasons with that document and made no reference to the fact that the MQM Secretariat document referred specifically to the applicant as a supporter of MQM nor did it make reference to what the document said would happen to the applicant if he returned to Pakistan. When that matter was raised during the course of the hearing, the applicant added a further submission, that the Tribunal failed properly to consider the MQM secretariat document. 22 Counsel for the respondent made a number of submissions in relation to the treatment by the Tribunal of the MQM Secretariat document: · Any failure by the Tribunal to consider the detail of that document was at most a mistake but, if so, it was a mistake of fact, not being a mistake as to the Tribunal's function. As such, it was submitted that the mistake was not susceptible of review. · The document could be considered, at its highest, as corroborative evidence of the applicant's assertion of his involvement with MQM. As the Tribunal disbelieved the applicant because of the inconsistencies in his own stories, it was not obliged to consider the corroborative evidence. · The decision maker can reject or give no weight to corroborative evidence, especially if what is being corroborated is expressly rejected. · Implicitly, the Tribunal had rejected the contents of the MQM Secretariat document. · the Tribunal could not have been said to have failed to deal with the correct question and any failure to read the document carefully was not sufficient to found jurisdictional error. 23 It seems to me from a reading of the Tribunal's reasons that it did not correctly characterise the document and it may be said that the Tribunal failed to appreciate that the document referred specifically to the applicant. It may have overlooked the detail of the content of that document. It is apparent that, while the MQM Secretariat document was mentioned in the reasons, the Tribunal did not consider it document material to its decision. 24 While the MQM Secretariat document stated that the applicant was a supporter of MQM, it made no mention of the applicant's family. It set out matters in respect of members of MQM and that party generally but did not address the specifics of the applicant's claims. It is best characterised as corroborative of the appellant's factual assertions as to his involvement in MQM. 25 The Tribunal is only obliged to set out its findings on those questions of fact which it considered material to its decision (s 430 of the Migration Act 1958 (Cth) ('the Act')). It is not required to refer to every piece of evidentiary material before it. The fact that the document did not form the basis of the Tribunal's reasons is equally consistent with the Tribunal considering, rightly or wrongly, that it was irrelevant or unimportant or with the Tribunal simply overlooking it. Neither circumstance would amount to jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v Applicants S194 of 2002 [2003] FCAFC 273 ('Applicants S194') at [21] - [22]). 26 Further, having made the finding of fact that the applicant was not a supporter of MQM, as a matter of logic the Tribunal was not obliged to consider corroborative evidence. It would not involve an error of law for the Tribunal to reject corroborative evidence on the basis of its view of an applicant's credit (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 198 ALR 59 at [49]) or to fail to refer to it (Applicants S194). In any event, the most that can be said for that document, which the Tribunal clearly did refer to, was that it may have related to the weight to be given to the factual claims. A failure to accord weight to a particular piece of evidence does not found jurisdictional error (see NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 57 at [13]).

Time to provide further documents 27 The friend of the applicant also submitted on his behalf that the Tribunal had fallen into error by failing to allow more time for the applicant to provide documents to the Tribunal. He said that the documents related to matters that arose during the interview. The applicant had the opportunity to provide those documents prior to the hearing and to put his case before the Tribunal. The onus was on the applicant to present such matters to the Tribunal as he wished to rely upon (Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte S154/2002 (2003) 201 ALR 437). On the face of the description of the documents, none of them were of recent origin and, from the description, they seem to refer to matters that had arisen before the applicant had left Pakistan. 28 No explanation was given as to why they had not been provided, despite the express invitation by the Tribunal to the applicant to provide all documentation that he wished to rely upon. The most that could be said of the documents from the description is that they went to the same factual matters on which that the applicant's claims were based and that they may have been said to provide further corroboration for some aspects of his claims. 29 As those claims were rejected by the Tribunal based upon the applicant's own evidence and based upon findings as to the applicant's credit, in my opinion there was no denial of procedural fairness in the handing down of the decision before those documents were provided, if indeed they would have been provided. 30 If the Tribunal failed to give any real consideration to the merits of the case it might fail to perform its duty to review the Delegate's decision under s 414 of the Act. However, in the present case the Tribunal clearly did consider the merits of the case. It considered the applicant's claims and explained why it found them unconvincing. It reached conclusions on the matters which, under s 36(2) of the Act, it had to consider.

grounds two and three 31 As to ground two of the application, the applicant has not sought to identify any regulation whose wording the Tribunal failed to take into account. The true complaint in grounds two and three seems to be that the Tribunal did not accept the applicant's claims. Indeed, the applicant confirmed at the hearing that the basis of grounds two and three was that the Tribunal did not consider his story carefully. When asked about any errors of law, the applicant said he did not know about the law. It was quite clear that those grounds were based upon a complaint as to the factual findings of the Tribunal. 32 In my opinion the Tribunal made a careful examination of the applicant's factual claims and explained why, based on the versions that the applicant himself put forward, the Tribunal did not accept that he or his family were involved in the MQM. 33 In my opinion the applicant has failed to establish jurisdictional error and it follows that the application should be dismissed with costs. The order of the court is that the application is dismissed with costs.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Applicant appeared in person assisted by an interpreter

Counsel for the Respondent: G Kennett

Solicitor for the Respondent: Clayton Utz

Date of Hearing: 4 March 2004

Date of Judgment: 4 March 2004

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