NAQU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1419 (5 December 2003)

Last Updated: 5 December 2003

FEDERAL COURT OF AUSTRALIA

NAQU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1419

WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 considered

NAQU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 620 of 2003

MOORE J

SYDNEY

5 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 620 OF 2003

BETWEEN:	NAQU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	5 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 620 OF 2003

BETWEEN:	NAQU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	5 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application under s 39B of the Judiciary Act 1903 (Cth) (apparently for constitutional writs), arising from a decision of the Refugee Review Tribunal ("the Tribunal") of 11 March 2003 (handed down on 3 April 2003) which affirmed a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs ("the Minister") refusing to grant the applicant a Protection (Class XA) visa under the Migration Act 1958 (Cth) ("the Act").

Background

2 The applicant is a citizen of Pakistan. He arrived in Australia on 19 October 2000. On 17 November 2000 he lodged an application for the visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 14 December 2000 the delegate of the Minister refused to grant the applicant the visa. On 28 December 2000 the applicant applied to the Tribunal for a review of that decision.

3 The following reflects the substance of the applicant's claims raised before the Tribunal which, mostly, it accepted. The applicant was born on 15 October 1975 in Lahore, Pakistan, where he lived since birth. The applicant is a Muslim and speaks, reads and writes English and Urdu. In 1996, while studying for a Bachelor of Arts degree from Punjab University (completed in 1998), he started working for the Pakistan Daily, the national newspaper. He worked there until his departure for Australia, except for a period of 7 months when he worked for the Daily Din. The majority of the articles he wrote were articles of a religious nature about peace and harmonious coexistence between all Pakistanis. He also wrote on the terrorist activities of the Sipah-e-Sahaba Pakistan ("SSP"), a Sunni sectarian politico-religious organisation which emerged in the 1980s to fight against the privileges of landowners (mostly Shias), alleged to be involved in terrorist violence, mainly against the minority Shia community in Pakistan. The Sunnis form the majority of the country.

4 The applicant (and his whole family) belongs to the Shia sect, a minority group of the population of Pakistan. When he was 17 he joined the Tehreek Nafaz-e-Fiqh-e-Jafariya ("TNFJ"), a Shia organisation. In 1997 he was elected general secretary of that organisation in his city. He was an active member of that organisation and was widely known by members of the SSP. His job as secretary of the TNFJ involved organising meetings, handling neighbours' complaints in relation to the use of loudspeakers at meetings, asking the youth to keep calm when there was an incident and reporting any incidents to the regional office.

5 In a statement attached to his application for a protection visa, the applicant claimed that in mid 2000, the SSP, on various occasions, threatened him and his family and that he became the subject of persecution and many attempts were made to kill him. He received threats by telephone and by other methods and feared for his life, as the SSP told him he would be killed at any time. He was forced not to write the usual articles he wrote in the newspapers about the terrorist activities of the SSP. He claimed that by reason of belonging to the TNFJ he was open to persecution by the SSP and that in his country it is very easy to kill a person on religious grounds. The authorities in Pakistan were unable to give protection to the victims of such attacks. He suffered serious threats and as his life was endangered he had no alternative but to leave his country.

6 The applicant claimed that in May 2000 when he was going home with some friends, someone from a motorbike shot at them injuring one of his friends. He also claimed that in September 2000, members of the SSP were holding a function near his home. The applicant approached the area of the venue and suddenly, 10 to 12 members of the SSP started following him. The police were present at this function and escorted him away to safety. The applicant claimed his brother told him that at his father's funeral, there had been some people who were looking for him.

7 At the hearing before the Tribunal, the applicant said he came to Australia (sent by the Pakistan Daily) to cover the Paralympics in Sydney and added that only few people at the newspaper knew about his trip.

The Tribunal's Findings

8 The Tribunal was satisfied that the applicant was a national of Pakistan and that he was a Shia Muslim. However, the Tribunal was sceptical about the applicant's claim that he was member of the TNFJ. But ultimately the Tribunal indicated, even accepting that the applicant was a member of the TNFJ, his activities were confined to his local area in Lahore and consisted of organising religious meetings and solving minor problems. The Tribunal was not satisfied that the applicant's profile could be described as anything other than insignificant in the TNFJ.

9 The Tribunal then considered the shooting incident in May 2000. The Tribunal concluded that as the applicant continued living at the same address and working at the same newspaper until his departure to Australia without experiencing any further incident or attack, the incident was a random act of sectarian violence and not a targeted one. Accordingly the Tribunal concluded that the chance of the applicant experiencing another similar attack in the near foreseeable future was too remote.

10 In relation to the incident where members of the SSP followed him after he approached the venue where they were holding a meeting, the Tribunal indicated that being followed by members of a rival sectarian group did not amount to persecution within the meaning of the Convention.

11 In relation to the applicant's claims that at his father's funeral (as relayed to the applicant by his brother), people were searching for him with the intention of harming him because he belonged to the TNFJ, the Tribunal did not accept that the applicant ever was or is of continuing interest to rival extremist groups as the applicant's own evidence regarding his activities suggested that he had an insignificant profile in the TNFJ party.

12 The Tribunal was satisfied that the applicant would not face a real risk of persecution for reason of belonging to the Shia sect of Islam in Pakistan. It also found that the Pakistani Government had taken steps to deal with the problem of sectarian violence, and it considered that measures taken by the government had proven to be effective as there had been a significant reduction of sectarian killings in the applicant's home province of Punjab. The Tribunal was satisfied the government of Pakistan would provide the applicant with adequate state protection if he needed it. The Tribunal was not satisfied that the applicant's risk of harm would be exacerbated by his profession as a journalist.

Issues in the Application

13 The applicant was unrepresented in the Court. The application identified grounds (in the accompanying affidavit) in that it asserted the Tribunal failed to take into consideration the merits of the case, failed to act on proper principles of fairness and natural justice, did not act in good faith when making the decision, that the reasoning of the Tribunal involved an improper exercise of the power conferred on it and involved an error of law being an incorrect interpretation of the applicable laws and the incorrect application of laws to the facts. None of this was particularised. The applicant's written submissions did not identify any error which might arguably be jurisdictional error. The submissions, in substance, traversed the merits of the applicant's case. The same is true of oral submissions made by the applicant at the hearing.

14 I have read the Tribunal's reasons. They do not reveal, in my opinion, any error which constitutes jurisdictional error. One matter which did attract my attention when considering the material after the hearing was the conclusion of the Tribunal that the shooting incident could be characterised as a random act of sectarian violence. Part of the applicant's case (at least as set out in the letter accompanying his application for a protection visa) was that "in mid of the year 2000" the he had received many threats and would be "dealt with iron hands". The Tribunal made no express finding dealing particularly with this allegation. That is, what appears to be an allegation that in the middle of 2000 the applicant had been receiving serious threats of harm. It made no express finding as to whether threats had been or had not been received at this time. Had a finding been made that threats of this type had been received, then the shooting incident in May 2000 might not have been viewed as a random act of sectarian violence. Indeed, if a finding had been made that the threats were received before the shooting incident, it may be that a link could be discerned between the two, leading to a conclusion other than that the shooting was a random act of sectarian violence.

15 I invited the parties to provide written submissions on this question. Counsel for the Minister submitted that the Tribunal expressly rejected this aspect of the applicant's claims (that threats had been made). However each of the three findings referred to were not, in my opinion, intended to dispose specifically with that aspect of the applicant's claims. Counsel for the Minister also relied on the following passage from a recent Full Court judgment in WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46] - [47]:

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [87]- [97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.

...

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

16 Applying these observations to the decision of the Tribunal in this matter, it is firstly to be noted that the Tribunal did set out the letter which contained the claim about threats in mid 2000. Secondly the Tribunal did say that it did not accept that the applicant ever was or is of continuing interest to rival extremist groups which, while not specifically addressing the claim of threats, involved a rejection of the suggestion that the applicant was specifically targeted by a rival extremist group. That is, it constituted a general finding which effectively subsumed and dealt with the specific claim about the threats having been made. Accordingly I do not think it is open to me to draw the inference that the Tribunal has failed to deal with an issue raised by the applicant, namely that he had been threatened, shot at and was at risk of this occurring again were he to return to Pakistan.

17 The application should be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 5 December 2003

The applicant appeared in person.
Counsel for the Respondent:	P Braham
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	21 October 2003
Date of Judgment:	5 December 2003