Ali Sabir Malik v Minister for Immigration & Multicultural Affairs [1997] FCA 1546 (14 November 1997)

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - application for protection visa refused - whether Tribunal took sufficient steps to verify the authenticity of certain documents.

Migration Act 1958 (Cth): s 476

ALI SABIR MALIK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

SG 30 OF 1997

LOCKHART, OLNEY and VON DOUSSA JJ

ADELAIDE

14 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 30 of 1997

BETWEEN:	ALI SABIR MALIK Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGES:	LOCKHART, OLNEY and VON DOUSSA JJ
DATE OF ORDER:	14 NOVEMBER 1997
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 30 of 1997

BETWEEN:	ALI SABIR MALIK Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	LOCKHART, OLNEY and VON DOUSSA JJ
DATE:	14 NOVEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

This is an appeal from the judgment of a judge of the Court (Mansfield J) dismissing an application by the appellant for review of the decision of the Refugee Review Tribunal, ("the Tribunal") made on 4 December 1995, affirming the decision of a delegate of the Minister for Immigration and Ethnic Affairs ("the Minister") of 28 February 1995 who refused to grant a Protection Visa to the appellant.

The appellant is a citizen of the Islamic Republic of Pakistan. He was born in the Punjab province on 10 November 1946. He is married and has eight children, all of whom are in Pakistan. His parents and four siblings are also in Pakistan. He completed his schooling and university education in Pakistan where he obtained a law degree. He then worked as a self employed business man. He travelled to Saudi Arabia for employment between 1982 and 1986 and travelled on one occasion to India in December 1989.

The appellant arrived in Australia on 10 May 1990 and was granted a visitor entry permit valid for one month. At the time of the hearing before the Tribunal the appellant was the holder of a bridging visa C with work rights. He lodged an application for refugee status with the Department of Immigration, Local Government and Ethnic Affairs as it then was ("the Department") on 16 December 1991. By legislative change which came into effect on 1 September 1994 that application was deemed to be one for a protection visa, which was refused on 28 February 1995.

In considering the appellant's case the Tribunal had regard to the following material:

* the Department's file including all submissions from the appellant

* the Tribunal's file including all submissions from the appellant

* evidence given by the appellant at the hearing before the Tribunal on 18 October 1995.

* a submission from the appellant's adviser received by the Tribunal on 22 November 1995.

The hearing before the Tribunal was conducted with the assistance of an interpreter in the Urdu (Punjabi) language.

The review of the Tribunal's decision before the learned primary Judge was made pursuant to ss 475 and 476 of the Migration Act 1958 ("the Act"). The grounds of review relied on before the primary Judge were the following:

1. That the Tribunal erred in law in deciding whether or not the appellant was a refugee by reference to the facts which existed at the time of the Tribunal's determination, rather than to the facts which existed at the time of his initial application for refugee status.

2. That the Tribunal erred in law, when determining whether the appellant had a well-founded fear of persecution if he returned to Pakistan, in treating certain letters, two First Information Reports ("FIRs") and an identity card stating that the appellant was an information secretary of the Pakistan Peoples Party ("PPP") as not genuine, and in failing to have any apparent regard to two warrants for the arrest of the appellant apparently issued against him. It was submitted that this constituted a judicially reviewable error pursuant to s 476(1)(g) and (4)(a) and (b) because the Tribunal should either have accepted and acted on those documents as genuine or should have made or caused to be made inquires as to their authenticity.

3. That the Tribunal erred in a number of other respects, all asserted to be errors reviewable under s 476(1)(g) and as explained in s 476(4)(b). His Honour said that he had difficulty identifying the matters said to constitute reviewable errors on this branch of the argument because the further amended application, as his Honour put it:

"seems to have taken nearly every finding or comment that the Tribunal in those parts of its decision which deal with the applicant's reliability as a witness and with the question whether his (assumed) fear of persecution was well-founded, and then to assert that each of those findings or comments was one on which there was no evidence or other material to justify the making of a decision, thereby invoking s 476(1)(g)."

His Honour nevertheless extracted from the mix of alleged reviewable errors the following particular matters asserted by the appellant as constituting error by the Tribunal:

(i) failure of the Tribunal to categorize the conduct of the appellant, which was the subject of investigation, as "political activities" rather than "criminal conduct".

(ii) actual bias of the Tribunal "in basing its decision almost entirely on the original decision ..." of the delegate of the Minister and on a report of a Mr Peter Hobbs of the Document Examination Unit of the Minister, "without giving the Applicant the benefit of any doubt, and without reviewing the Applicant's application in a fair and just manner and making a decision according to substantial justice and the merits of the Applicant's case": s 476(1)(f) and

(iii) giving weight to general information and policy information provided by the Department of Foreign Affairs and Trade and from other sources without regard to the merits of the appellant's particular case: s 476(1)(d) and (3)(c).

His Honour emphasized that the proper approach to be adopted by the Court in reviewing a decision of the Tribunal is not to embark upon a reconsideration of the merits of the decision, for that is forbidden territory, and his Honour relied on what was said on this matter by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 and the remarks of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.

His Honour noted that the appellant presented his case to the Tribunal on the basis that there was, as asserted by him, two reasons for his application for refugee status, namely:

1. That since his arrival in Australia the political situation in the Punjab, particularly in his home district near the Pakistan-India border, had significantly altered by the build up of arms by both the Pakistani and Indian armies to the point that the area where he lived had become a major political flashpoint, with frequent minor military skirmishes, and gravely degenerated political stability and the high prospect of large scale warfare.

2 That he had engaged in a long term active association with the Pakistan Peoples Party in the area of Sman Abad in Lahore, including the attending of meetings, waving banners, shouting slogans and making public speeches. Those activities, the appellant asserted to the Tribunal, led to occasions when he was assaulted, twice wrongly arrested and beaten on 25 December 1987 and 1 April 1988 and to warrants for his arrest. The appellant says that he fears that, if forced to return to Pakistan, he would be subjected to indiscriminate assault, beatings and intimidation due to his membership of the PPP.

The primary Judge set out extensively the reasons of the Tribunal which were the subject of the principal attack by the appellant before his Honour and which it is unnecessary to recite for present purposes. They appear at pp 13 to 17 of his Honour's reasons for judgment. His Honour noted that it was plain that the Tribunal did not take a favourable view of the credibility of the appellant; but that the Tribunal nevertheless assumed, for the purpose of further considering his application, that being outside his country of nationality he has a subjective fear of persecution should he return to Pakistan. His Honour noted that the Tribunal did not accept the appellant as truthful in critical matters. In particular, the Tribunal's conclusion was expressed in these terms:

"It is evident from the manner in which the Applicant has put forward his claims that he has fabricated much of his evidence. He has not satisfactorily explained why he was unable to present all his claims at the outset, even though he was assisted by an adviser. In view of the many discrepancies in his account and the manner in which he has added to the body of documentary evidence as the determination process has advanced, I find that his account lacks credibility in major respects. I accept he may have participated in the demonstrations as claimed but I do not accept that he is wanted on criminal charges because of his involvement.

The Applicant was not a refugee when he left Pakistan. There is no evidence before me which suggests that he faces a real chance of persecution when he returns. Accordingly, I find that the does not have a well-founded fear of persecution for a Convention reason. He is not a refugee and is not entitled to refugee status."

His Honour stated that the appellant sought to tender on the hearing of the application for review before the Court two further affidavits of himself and an affidavit of Ch. Abdul Razzaq. His Honour noted that these affidavits in large measure simply repeated information or assertions already provided to the Tribunal, or contained argumentative responses to comments by the Tribunal which were capable of being put by way of submission on his behalf. His Honour rejected the proposed affidavit material in so far as it went beyond argumentative material or material merely recitative of material before the Tribunal. He said that ultimately the new material was very limited, amounting to slight differences of emphasis only from what was before the Tribunal or to matters peripheral to the appellant's situation. Also, no explanation was offered as to why that material in that form was not put before the Tribunal. His Honour said at p 19 of his reasons that:

"it really amounted to no more than the applicant's attempt to have the Court on review rehear his application on the material before the Tribunal and on additional material which, in the absence of any evidence or submission to the contrary, might also have been put before the Tribunal. In my view, that purpose clearly does not fall within the scope of review permitted by s 476".

His Honour also said that there were three documents which were sought to be tendered by the appellant through those affidavits which fall into a different category, being documents made available to the Tribunal. Counsel for the Minister did not oppose their reception provided they were relevant. The three documents were the original PPP identity card of the appellant and the Urdu versions of the two FIRs; the partly translated version of the two FIRs which were explicitly referred to by the Tribunal. His Honour formally received the documents on the basis that they could touch upon the issue in the case of the authenticity of documents, but for that purpose only.

His Honour held that, following the decision of a Full Court of this Court in Minister for Immigration and Ethnic Affairs & Anor v Singh (1997) 142 ALR 191, the relevant date to make an assessment of facts to determine whether or not a person is a refugee is the date of determination rather than the date on which the application was made. He therefore rejected the argument advanced on behalf of the appellant to the contrary.

One of the issues before his Honour was the authenticity of documents. As mentioned earlier, the documents, the authenticity of which was in question before the Tribunal, were certain letters, two FIRs and an identity card stating that the appellant was an information secretary of the PPP.

Before his Honour counsel for the appellant relied on the judgments of Branson J in Surjit Singh v Minister for Immigration & Ethnic Affairs (1996) 42 ALD 504 and Jagjit Singh v Minister for Immigration & Ethnic Affairs (1996) 42 ALD 271. Branson J had said that in circumstances in which an applicant for refugee status produced a document, such as a warrant for arrest, which purports to be an official document issued in a foreign country, in the absence of clear evidence which reveals it to be a forgery, its authenticity, if in issue, was a matter appropriate for verification by the Tribunal through official channels. However his Honour did not follow that statement of principle.

On the contrary his Honour found that the question whether the Tribunal is obliged in certain circumstances to inquire into the authenticity of documents and material presented to it is part of the wider question whether the Tribunal must, on occasions, conduct or cause to be conducted its own investigation and have regard to the information thereby procured, whether under s 420 of the Act or otherwise.

His Honour also considered the related question whether in any event any failure to carry out such a process is judicially reviewable under s 476(1)(a) or some other provision of s 476 of the Act. His Honour assumed in favour of the appellant that such an obligation may arise, and that the failure to fulfil it is judicially reviewable.

His Honour found that the Tribunal is not obliged to make the case for the applicant and relied upon Luu v Renevier (1989) 91 ALR 39, especially at 45; but said that nevertheless there may be circumstances in which a decision may be set aside for failure to make its own inquiries. His Honour applied the following passage from the judgment of Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155, at 169-70:

"The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information."

The approach taken by his Honour is in accordance with the decisions in Minister for Immigration and Ethnic Affairs v Surjit Singh (1997) 144 ALR 284, and Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 which were delivered after his Honour's judgment in the present case.

His Honour said that the Tribunal had caused some inquiries to be made as to the status of the FIRs and that the resulting report, although not conclusive, identified features of them which tended to suggest that they were not authentic; these features moved the reporter to "strongly suggest that all other measures to assess their bona fides be taken prior to their acceptance as evidence". His Honour noted that there were other factors, external to the FIRs themselves, which also led the Tribunal to conclude that they and some other documents were not genuine documents. He also noted that the appellant's adviser, following completion of the hearing, acknowledged that it was not possible to prove the validity or genuineness of the appellant's documents except by accepting him as a witness of truth, which the Tribunal was not prepared to do.

His Honour concluded that the Tribunal did not exercise its power in such a way as to lead to the decision being reviewable for the reason complained of and that it was not a procedure which involved the exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. Thus his Honour said, that assuming the law to be that most favourable to the appellant, he nevertheless failed in the application.

His Honour considered the submission on behalf of the appellant that the decision of the Tribunal should be reviewed under s 476(1)(g) of the Act in that there was no evidence or other material to justify the making of the decision. His Honour carefully examined the relevant authorities and concluded that the complaint founded on s 476(1)(g) and (4)(a) of the Act was not made out. His Honour said that it was not the function of the Court on review to rehear the application, or to reassess matters of credit, or to decide the weight of a particular piece of evidence, or to decide whether further inquires could have been made or further material adduced to enhance the weight to be given to a particular piece of evidence, or to substitute its view of the merits of a particular decision for that of the Tribunal. The Court's task is to ensure that the law which determines the limits and governs the exercise of the Tribunal's power under the Act is complied with. His Honour found that there was material upon which the Tribunal could have reached the conclusion that for the reasons it gave it would not treat the relevant documents as genuine. His Honour therefore found that the ground of attack on this basis was not made out.

His Honour then dealt with the submission that the Tribunal had erred because it had not referred to the two arrest warrants tendered in evidence and did not consider those warrants. His Honour found that, though it was correct that the arrest warrants were not explicitly referred to as distinct from the FIRs in the Tribunal's reasons, at one point in the Tribunal's reasons reference was made to arrest warrants. He said it was also clear that the arrest warrants were provided to the Tribunal and discussed during the hearing in conjunction with the FIRs; and it was raised that they may be fraudulent, both in questions directed to the appellant and in discussions with the appellant's agent concerning the date on which they had first been supplied. His Honour found he was not persuaded that the Tribunal had erred in the way asserted.

His Honour said that the problem with the appellant's case was that the Tribunal did not accept much at all of his evidence on relevant matters. It accepted that he was a formal member of the PPP from January 1988; but not that he was an office bearer of that organization. It did not accept that arrest warrants or FIRs were issued against him or that he went into hiding in September 1988 after a demonstration and remained in hiding until his arrival in Australia. The Tribunal concluded that the appellant was not persecuted for his political activities.

His Honour found that the appellant had not succeeded in overturning the findings of the Tribunal.

His Honour also rejected the ground of review alleging actual bias under s 476(1)(f) of the Act and relied upon the observations of Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs, 18 October 1996, unreported. His Honour said that the submission before him was that the Tribunal had a closed mind to the issues raised in the application for review and noted that this may constitute actual bias. His Honour said that, however, neither the Tribunal's reasons nor the conduct of the hearing before it demonstrated a case for actual bias; rather, if anything, the contrary.

His Honour also rejected the submission that the Tribunal's decision was influenced by a rule or policy rather than fairly having regard to the merits of the appellant's case.

In the result his Honour dismissed the application for review with costs.

The central issue for determination before the Tribunal was whether or not the appellant is a person to whom Australia has protection obligations under the 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 (see s 36(2) of the Act).

In terms of Article 1, A(2) of the Convention and Protocol, Australia has protection obligations to any person who:

"(i) ... 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, is unable or, owing to such fear, is unwilling to return to it."

The appellant did not claim persecution for reasons of race, religion, nationality or membership of a particular social group. His claims were based on the Convention ground of political opinion.

Counsel for the appellant submitted that the judgment of the primary Judge was in error in two respects. First, it was argued that, although his Honour assumed in favour of the appellant that the Tribunal was obliged in certain circumstances to conduct inquiries into the authenticity of documentary material presented to it and must on occasions cause or cause to be conducted its own investigation about them, the primary Judge nevertheless erred in finding that the Tribunal was entitled to take into account other factors external to the FIRs themselves, including the issue of the appellant's credibility, without verifying the authenticity of the documents through official channels and without taking other measures to assess the bona fides of the documents.

This submission centred upon the two FIRs which were before the Tribunal. The Tribunal had available to it a report from a Mr P Hobbs, Document Examiner, whose assistance had been requested by the Tribunal concerning the authenticity of the documents purporting to emanate from Pakistan. The report dated 1 March 1995 included the following statements:

"1. I have no known genuine specimen of a document of this specific type with which to make a comparison however documents similar in content and purpose from Pakistan which I have previously examined have borne little if any similarity to the documents presented for examination on this occasion. Previously examined documents of this nature have all been completed on letterheaded or quasi legal type paper and have borne fiscal stamps.

2. The preset ethnic script in both documents and the English translations have been formed by the dry toner deposition method commonly found in laser printers and photocopiers, this equipment is not widely available to the Police or Judiciary in Pakistan and other Pakistani documents of this nature I have examined have been completed on manual typewriters.

3. On the document serial number 0445533, the wet seal on the front page is actually beneath portions of the preset text indicating that the paper was sealed prior to photocopying or printing. This is not to my knowledge common practice and is of concern as one possible scenario is that pre-sealed blank paper had been obtained on which the documents were then manufactured.

4. I do not see the relevance of English text, it is obviously not a translation of the ethnic script which appears above it. The English, (grammar, spelling and choice of words) is to say the least quaint but this in itself is not uncommon.

5. Without a full translation of the documents I cannot comment on the relevance of accuracy of the charges etc.

CONCLUSION

Whilst I have no concrete evidence that these documents are false there are anomalies which require explanation and I would strongly suggest that all other measures to assess their bona fides be taken prior to their acceptance as evidence."

The primary Judge's central reasoning was as follows:

* This report, although not conclusive, identified features of the FIRs which tended to suggest that they were not authentic and led Mr Hobbs to say that he would "strongly suggest that all other measures to assess their bona fides be taken prior to their acceptance as evidence". The Tribunal concluded that these and other documents were not genuine documents and relied partly upon what Mr Hobbs said in his report and on other matters.

* The Tribunal had regard to the documents themselves and the observations of Mr Hobbs and as mentioned earlier found that the appellant was not a credible witness, in particular it did not accept his evidence about the validity or genuineness of the documents.

* Also, following the completion of the hearing in the Tribunal, the appellant's adviser acknowledged that it was not possible to prove the validity or genuineness of the appellant's documents except by accepting him as a witness of truth which the Tribunal was not prepared to do.

In the light of all these matters the primary Judge concluded that it was not established that any error had been made by the Tribunal in relation to the two FIRs. This conclusion is one that was plainly open to the primary Judge. We note also that before the Tribunal, and therefore his Honour, was a document included in the Department's files from DGA Consultants, Migration Consultants, recounting that the Australian High Commission in Pakistan stated:

"IV fraud is absolutely pervasive in our (Karachi) consular district. Any kind of civil documentation may be purchased or obtained by friends, relatives, or through other personal contacts. The unreliability of such documentation makes investigation of IV cases imperative."

Also in the same document the following statement appears:

"Under the United Nations guidelines it would be improper to go to any authority in the applicant's natural country to enquire whether the document was legitimate or not. The country involved with the applicants request, would also not be able to release information contained on a form used as a support document in order to test its validity."

In these circumstances there is no substance in the submission that the Tribunal should have made further inquiries itself about the authenticity of the documents.

The other ground pressed by counsel for the appellant on the appeal was that the primary Judge erred in finding that the Tribunal had not erred in law (a) in finding that, even if the charges were genuine, they related to criminal offences and not to political activities; and (b) in finding that in all the circumstances the charges were appropriately characterized as prosecution matters and therefore not Convention related.

The primary Judge found that the difficulty with the submission before him (which was to the same effect as the submission before us on appeal) was that the Tribunal did not accept much at all of the appellant's evidence on relevant matters concerning his alleged political involvement with the PPP, culminating in his going into hiding in September 1988 to avoid being arrested under the arrest warrants and FIRs. As mentioned earlier, the Tribunal accepted that the appellant was a formal member of the PPP from January 1988, but not that he was an office bearer of that organization. The Tribunal concluded that the appellant was not persecuted for his political activities. True, it did not specifically make a finding whether he took part in demonstrations in September or October 1988 or whether he engaged in the conduct he asserted; but his Honour found that it was clear that the Tribunal considered any role he had to play in those events did not draw him to the attention of the police in any significant way.

The primary Judge found that the appellant had not succeeded in overturning those findings of the Tribunal. Since the second ground of attack was only relevant if those findings were overturned, his Honour found it unnecessary to address the issue. His Honour has not been shown to be in error. The submission must fail.

The appeal is dismissed with costs.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Court

Associate:

Dated: 14 November 1997

Counsel for the Appellant:	Mr M Clisby
Solicitor for the Appellant:	Gilbert Santini
Counsel for the Respondent:	Ms S Maharaj Mr G Gretsas
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 November 1997
Date of Judgment:	14 November 1997