Qureshi v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant, a citizen of Pakistan, is a Sunni Muslim. He entered Australia on a student visa in February 1998. His visa expired on 23 July 2000. The applicant was placed in immigration detention on 21 March 2001 as an unlawful non-citizen. He applied for a protection visa on 11 April 2001. 2 The applicant claimed that he had a well-founded fear of political persecution, if he returned to Pakistan, by reason of his association with a Sunni Muslim group known as Sipah-i-Sahaba ("SSP"). The applicant claimed that while in Pakistan he was involved with the SSP and, in particular, had a close association with one of its leaders, who was his karate instructor, Mohamed Saddiqi ("Saddiqi"). The applicant stated that, while he was in Pakistan, his family received threats concerning his involvement with the SSP but did not inform him of those threats until he was in Australia. Since his departure from Pakistan he claimed the threats continued and that Saddiqi was murdered. Those and other events which the applicant recounted were said by him to found his fear that he faced a real risk of harm by reason of his prior association with the SSP and one of its leaders, Saddiqi, if he returned to Pakistan. 3 Notwithstanding the obvious importance to the applicant's claim of his alleged involvement with the SSP, he failed to identify the SSP as the Sunni Muslim group with which he was involved until the hearing of his claim before the Refugee Review Tribunal ("the RRT"). In his application the applicant referred to his involvement "in a Sunni Muslim group". He also referred to Saddiqi whom he "followed…in becoming involved in the same movement". The applicant also stated that he would provide at a later stage: "Documentation to establish [his] connection with particular religious group." 4 On 12 April 2001 the applicant was informed that his application for a protection visa was being processed within the Department of Immigration and Multicultural Affairs ("the Department"). He was informed that if he had any more information relevant to his application he could give it, in writing, to the Department at any time before a decision was made on his application. 5 The delegate of the Minister refused the applicant's application for a protection visa. In the delegate's reasons he stated that he had a conversation with the applicant's migration agent, who stated that he would provide a further submission once he received the translation of certain documents and newspaper articles that the applicant had received from Pakistan. The delegate requested that the further submission be provided by 4 May 2001, to which the agent replied that he was not sure whether he could meet that time limit. The delegate handed down his decision on 15 May 2001 without having received a further submission from the agent. 6 The applicant applied to the RRT to review the decision of the delegate. No written submission was forwarded to the RRT in support of the application for review nor was any material sent to the RRT in advance of the hearing. During the course of the hearing the applicant identified the SSP as the name of the Sunni Muslim group to which he claimed to have belonged. The name of the SSP had not appeared in any material advanced by or on behalf of the applicant prior to the hearing before the RRT. Also, during the course of the hearing a number of documents were produced by the applicant's agent to the RRT. Those documents included newspaper articles which referred to activities of the SSP and the murder of Saddiqi. A further document was presented which was said to be the applicant's SSP identity card. 7 The RRT questioned the applicant on a number of aspects of his claim and, in particular, queried him on his failure to make any mention of the SSP in his original application or prior to the hearing before the RRT. The applicant stated that he informed his agent of the name of the SSP but had left ultimate responsibility for the preparation of his application to his agent. The agent stated to the RRT that the applicant had informed him of his involvement with the SSP in conferences with him. When asked when that occurred, the agent stated: "Well, I would have to look at my dates but in a conference when I made the first application and the subsequent conference when I took instructions for a review." 8 The RRT also questioned the applicant about his failure to produce his SSP identify card prior to the hearing. The applicant explained that he had difficulties in relation to the card and that he was only able to provide it to the RRT at the hearing. 9 The RRT was not satisfied that the applicant was a refugee and affirmed the decision of the delegate not to grant a protection visa. In substance, the RRT did not find the applicant to be a credible witness and treated his claim that he was personally associated with the SSP as lacking credibility. In providing its reasons for that finding the RRT stated, inter alia: "The Tribunal notes the applicant's evidence that his colleague was prominent in the SSP and probably a major target of religious opponents. In the initial stages of his application for a protection visa the applicant made no reference to any particular religious group. He merely claimed that he was active in an unidentified Sunni Muslim group. While accepting that he told his adviser at some stage that he was connected with the SSP there is no timely allusion to that in any of the material on file. In the initial application for protection the applicant made a lengthy statement with the assistance of his adviser. He gave instructions to his adviser who filled out the form on behalf of the applicant who then read it before signing a declaration that the information therein was, inter alia, 'complete' and 'correct'. It is apparent that the applicant is competent with English. The Tribunal does not accept that the applicant would have allowed omission of any actual reference to the SSP at that time if he had had such an association, particularly as he now bases his case on the consequences of attachment to that particular group. In reaching its conclusion that the applicant was never a member of the SSP the Tribunal has also considered a card submitted by the applicant at the hearing that is purportedly a membership card for the SSP. The card is in pristine condition despite having an issue date of 1994. The content of the card has not been translated. A photograph of the applicant has been placed over some of the content of the card. The SSP is an extremist religious faction within the Sunni Muslim majority population of Pakistan with a history of serious violence towards Shia opponents (see, for example, '2000 Annual report on international religious freedom: Pakistan', Bureau of Democracy, Human Rights, and Labor U.S. Department of State, September 5, 2000). In its Country Information Report, 436/99 of 6 October 1999, DFAT observes that: 'The SSP is an extremist Sunni political party which is known for its involvement in sectarian violence…' It appears unlikely that SSP members would be issued with cards helping to identify themselves as such, for example in the wake of inevitable official investigations of serious crimes perpetrated by some of them. In assessing all the material before it, including the applicant's initial omission of any reference to any association with the SSP, the Tribunal concludes that the SSP membership card belatedly furnished by the applicant is not a genuine document." 10 The applicant has applied to the Court to review the decision of the RRT. Although a number of grounds were raised in the application and the applicant's written contentions, the grounds pursued by counsel at the hearing were based on three contentions: · there was no evidence or material to justify the decision, which was based on the existence of a particular fact which did not exist, namely that the applicant made no reference to any particular religious group "in the initial stages of his application" (s 476(1)(g) of the Migration Act 1958 (Cth)); · the RRT erred in law by failing to consider whether, regardless of whether or not the applicant was personally associated with the SSP, he might have been imputed with a political opinion by reason of his personal association with Saddiqi (s 476(1)(e)); · the RRT was under a duty under s 427(1)(d) to make further enquiries in relation to the authenticity of the SSP identity card, including obtaining a translation of it (s 476(1)(a)). 11 I turn first to consider the "no evidence" ground. Section 476(1)(g) provides that a ground upon which the Federal Court may review a decision of the Tribunal is: "(g) that there was no evidence or other material to justify the making of the decision." Section 476(1)(g) is, relevantly, qualified by s 476(4)(b): "(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) ……………………… (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 12 In Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ("Al-Miahi") at paras [34] and [35] a Full Court stated: "The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place - Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6. Sections 476(1)(g) and 476(4) appear to have been intended to give effect to such principles. The application of s 476(1)(g) and s 476(4)(b) in any particular case requires the following steps: