Khalid Mahmood v Minister for Immigration & Multicultural Affairs [1998] FCA 1629 (9 December 1998)

Last Updated: 21 December 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 317 of 1998

BETWEEN:	KHALID MAHMOOD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	9 DECEMBER 1998
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	NG 317 of 1998

BETWEEN:	KHALID MAHMOOD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	9 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(ex tempore)

INTRODUCTION

The applicant applies by an application filed on 15 April 1998 for review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 12 March 1998 by which the Tribunal affirmed a decision of a delegate of the respondent ("the Minister") not to grant the applicant a protection visa.

BACKGROUND

The applicant is a citizen of Pakistan who arrived in Australia on 19 August 1995. On 16 July 1996 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department") under the Migration Act 1958 (Cth) ("the Act"). The delegate's decision adverse to the applicant was given on 2 May 1997 and on 29 May 1997 the applicant sought review of that decision by the Tribunal.

A criterion for the grant of a protection visa is that at the time of the decision the Minister, or, on review, the Tribunal, is satisfied that the applicant for the visa is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees; see s 36 of the Act. As is well known, a "refugee" is defined in the Convention article 1A (2) as any person who;

"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 Tribunal summarised the "Claims and Evidence" relied upon by the applicant along the following general lines.

The applicant was born in Gujrat, Pakistan, where he lived until coming to Australia. His wife and three children remain in Pakistan. His siblings, two brothers and two sisters, also remain there. The applicant was a businessman in Pakistan for most of his life, having owned a cooking oil wholesale company between 1975 and when he came to Australia in 1995.

In his primary application for protection lodged on 16 July 1996, some eleven months after arriving in Australia, the applicant claimed to have left his country to escape the mistreatment he claimed to have suffered as a result of his involvement with the Muttahida Quami Movement ("MQM"). He claimed to have joined that party in 1990 and to have been instructed to distribute pamphlets and literature and to have had responsibility for motivating others to join the party. The case which he initially sought to make out was that his involvement had been disclosed to the Government of the day by an informer and that as a result he had been detained, tortured and threatened by police on several occasions. According to his original application, he had to leave Pakistan because he feared for his life. He explained that the Pakistan People's Party ("PPP") Government was determined to destroy the MQM and was doing its best to capture the members of the MQM. He claimed to have been "underground for some time" prior to leaving Pakistan, as the police were searching for him. He said that he kept in touch with his family in Gujrat by telephone and by letters and that the police frequently searched his house looking for him.

A matter which assumed some importance in the Tribunal's Reasons for Decision was that on the hearing before the Tribunal, the applicant departed from the claims which I have outlined, saying that they had been submitted by his adviser at the time, who had asked him to sign the application form in blank for the adviser to fill in later. The applicant claimed that as he does not speak, read or write English, he was not aware of the claims made on his behalf. The claims made at the hearing before the Tribunal were rather different from the original ones which I have outlined above. They were that the applicant feared for his life because prominent members of the Pakistan Muslim League (PML), members and associates of the Chaudhury family, wanted to kill him for being a political rival.

This different claim made before the Tribunal involved a degree of evidence as to the political activity of the applicant and members of his family. According to the applicant, in 1983, his cousin stood for local council elections as an independent and he (the applicant) acted as his cousin's "election agent". He said that he was twice beaten up by members of the PML associated with the Chaudhury family. He claimed that he was beaten up in order to persuade his cousin to withdraw and also in response to his own complaints of "bogus votes" on the day of the election. He claimed that his cousin was also beaten up. He claimed that over the years he publicly denounced his political opponents and was beaten, tortured and injured in a fire as a result.

The applicant claimed that his mother, father and brother were poisoned between May and August 1992 as a result of their public opposition to the Chaudhury family. According to his claim, his brother was poisoned while collecting payments from business debtors and his father was poisoned at a restaurant where a waiter associated with the Chaudhury family worked. The applicant claims that complaints made to the police against the Chaudhury family, far from resulting in protection, resulted in threats from the police to kill the complainants. As well, the applicant claimed that the doctor who attended to his family was threatened not to give the true cause of the deaths as being poisoning. In fact, the applicant provided documentary evidence of the deaths of his family members .

The applicant claimed that on 3 December 1990, prior to the deaths, his home had been set on fire and he was seriously burned requiring treatment over a period of months. In fact the Tribunal recorded that the applicant had noticeable burn marks. According to the applicant, a cousin of his saw two men running away from his house carrying a fuel can and guns. The cousin attempted to register a case against the Chaudhury family but the police threatened the cousin with detention.

The applicant claimed that he was twice abducted, once in 1994 and again at the beginning of 1995. On both occasions he was beaten up. On the first occasion he was, allegedly, taken blindfolded and locked in a room where he was beaten up for speaking against the Chaudhury family and the PML. He escaped. On the second occasion he was abducted by two people who took him to an unknown place where he was beaten and left unconscious. Again he escaped.

According to the applicant, during this time, he oversaw his business from a distance and his workers continued to run the business which was suffering because his opponents came to the shop carrying guns and told customers not to buy from him. They also pointed their guns at him ordering him not to speak against the PML.

The applicant claimed that the Chaudhury family lost at the elections and he was scared that they would kill him. In fact he claimed that he was afraid that his opponents could even send people to Australia to kill him. He alleged that he was not able to see his youngest child who was born while he was in hiding. According to him, his wife and three children have been moving from place to place out of fear. He claims that they contact him as he does not know where they are. He also says that his siblings have disowned him, and out of fear, are no longer involved in politics.

The applicant referred to his association with the MQM, explaining that a cousin from Karachi had asked him to work as an agent for the MQM when he found out that the applicant was in politics, because there were no MQM workers in Gujrat in 1989. Apparently, in a later submission he described his involvement in supporting the MQM and his having opened a branch of the party at Gujrat in about 1990.

The Tribunal explored certain aspects of the claims which the applicant had previously made. The Tribunal discussed with him what it described in its Reasons for Decision as "the extraordinary coincidence" that the claims advanced at the hearing were against the members of the current Government in Pakistan whereas the previous claims had been against the then Government of that country. The point here seems to have been that according to the applicant's claim, the earlier one was strongly opposed to the MQM whereas the later one was not.

Another matter which the Tribunal took up with the applicant is that he had extended his temporary visa twice in order to stay in Australia and had delayed in applying for a protection visa until eleven months after his arrival in this country. Explanations were offered by the applicant in relation to these matters. He also said that his problems were not caused by personal enmity with members of the Chaudhury family. There were numerous other matters taken up by the Tribunal with the applicant. It suffices to say that in the "Findings and Reasons" section of its Reasons for Decision, the Tribunal accepted certain matters but rejected key claims. It accepted that the applicant was burned in a fire in December 1990 and that his mother, father and brother died in 1992 and may have died as a result of poisoning, as suspected. However, the Tribunal was not satisfied that those incidents occurred as a result of the political opinion of the applicant and his family.

Apparently after the hearing before the Tribunal, evidence was supplied by the applicant and the interpreter confirming that the applicant's primary application had been signed by him in blank and left to be filled in by his original adviser as requested by that adviser. However, the Tribunal pointed out that the contradiction between the applicant's initial and later claims was only one of the reasons for the Tribunal to doubt the genuineness of his claims. The Tribunal said:

"Other reasons that cast doubt on his claims are the applicant's delay in applying for protection, the vagueness of the claims of on-going harassment, objective evidence regarding the plausibility of events described by the applicant and the very fact that nothing was claimed to have happened to the applicant's cousin whom the applicant was serving as an election agent."

In its reasons, the Tribunal emphasised the vagueness of the applicant's claims. It said that in particular it found the vague claims in relation to the two alleged abductions to be "simply implausible". It said:

"The Tribunal is not able to accept that the applicant would have twice been in the hands of his alleged opponents, who allegedly had no qualms in killing three of his immediate relatives, and was not disposed of. These claims struck the Tribunal as fabrications to support his application."

There were other problems in the applicant's account, which the Tribunal found to be implausible.

APPLICATION TO THIS COURT

In his application filed in this Court on 15 April 1998, the applicant specified the following grounds of review:

(a) That procedures that were required by the Act or the Migration Regulations to be observed in connection with the making of the decision were not observed;

Particulars

(i) The Tribunal was required to determine whether the applicant was a refugee as defined by Article 1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees and to that end to consider whether owing to well-founded fear of being persecuted for reasons of membership of a particular social group, was outside the country of his nationality and was unable or, owing to such fear, was unwilling to avail himself of the protection of that country, however:

a) the Tribunal failed to identify or consider family, or the applicant's family, as a relevant particular social group;

b) the Tribunal failed to determine whether the applicant might be a refugee by virtue of his membership of a particular social group namely his family;

c) the Tribunal found that three immediate members of the applicant's family namely his father, his mother and his brother died in 1992 and that they may have died as a result of poisoning as was claimed by the applicant but the Tribunal failed to make findings:

.1 whether the three said family members did die as a result of poisoning;

.2 as to who was or was not responsible for the poisoning;

.3 as to the motivation of the poisoning including whether it was Convention related

being questions that the Tribunal ought to have directed itself to consider and ought to have considered;

d) Whilst accepting that the applicant was burnt in a fire in 1992 the Tribunal failed to make findings relating to his claims in respect of that fire and failed to consider it in the context of the particular social group category;

and in so failing the Tribunal failed to act according to substantial justice and the merits of the case as required by section 420 of the Act.

(ii) The Tribunal was requested by the applicant to call a particular witness and to require production of documents in the possession of that witness if it was not satisfied as to the truthfulness of the applicant's evidence but the Tribunal:

a) failed to appreciate that it had a duty to consider that request and a power to act on it; or

b) neglected to properly entertain the request or to act on it; and

c) in spite of such neglect and/or failure proceeded to make findings which were adverse to the applicant being findings upon which the requested evidence would have had a bearing and findings which might have been different had the Tribunal complied with the applicant's request

and in so failing the Tribunal failed to act according to substantial justice and the merits of the case as required by section 420 of the Act.

(b) That the decision was not authorised by the Act or the Regulations;

(c) That the decision involved an error of law, being an error of law 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;

Particulars

(i) The Tribunal erred in logic and in law by making inconsistent findings namely:

(A) that the applicant's evidence lacked credibility because there was a contradiction between claims contained in his original written application and claims made during the review and that this was a reason to doubt the genuineness of his claims;

(B) that relevant claims contained in the original application were filled in by the applicant's original adviser without that adviser having obtained particulars from the applicant in respect of such matters and without such claims having been translated to the applicant or verified by him; and

(C) that it was extraordinary that the new claims differed from the old claims;

whereas the fact that the new claims differed from the old claims was entirely consistent with finding (B) and as such finding (C) was defective on the face of the record.

(ii) The Tribunal erred by failing to perceive that family or the family of the applicant could be or was a relevant particular social group;

(iii) The Tribunal erred by failing to consider adequately or at all the particular social group element of the definition of refugee contained in the aforesaid Article 1A(2)."

I should record that this proceeding was originally to be heard on 12 August 1998 and an application was made by the applicant's solicitor for a vacation of that hearing date. I vacated it and fixed the hearing for 7 December 1998. The reason for the vacation of the 12 August fixture was that there was pending unresolved an application by the applicant for review of a decision of the Legal Aid Commission not to provide legal aid.

On the new hearing date, 7 December, a further application was made by the applicant's solicitor for vacation of the new hearing date. I declined to vacate the hearing date a second time. The applicant's solicitor appeared for him on the hearing. The ground of the application for vacation was again that a decision was still awaited on the application for review of the refusal to grant legal aid, and that counsel's advice had been obtained as to the prospects of success, but it had not been possible for a decision to be taken by 7 December.

The great difficulty which the applicant faces is that he was not believed on the essential aspects of his case. It was submitted that the Tribunal had failed to consider the applicant's claim other than as a claim for persecution for reasons of political opinion and that the Tribunal should also have considered it as a claim of fear of persecution for reasons of membership of a particular social group. I think that it is clear that the reason why, according to the applicant's case, his family was persecuted was their political activity. In other words, the case as it was put, and as it could only be put, was that members of his family were persecuted because they were politically opposed to the Chaudhury Family. To express the matter differently, the applicant and the other members of his family were not persecuted because they were members of the family, but because they shared the same political position.

Other complaints are made such as the failure to make findings in regard to the poisoning and the fire. However, the Tribunal did accept that the applicant was burnt in a fire and did accept that his mother, father and brother may have died as a result of poisoning, but concluded:

"... the Tribunal is not satisfied that these incidents occurred as a result of the applicant and his family's political opinion."

A further complaint is made that the Tribunal neither called a witness nor documents in that witness' possession. This related to the problem of the applicant signing a partially completed application form because the applicant's then migration agent was in a hurry. What is important here, however, is that on page 8 of the Tribunal's Reasons for Decision, the Tribunal accepted the evidence provided by the interpreter who had assisted the applicant in the preparation of his primary application, that evidence being that the applicant had signed the application form and left it to be filled in by his original adviser as requested by that adviser. Given this finding, it was unnecessary for the Tribunal to pursue certain further alternative proposals which had been made by the applicant in a letter dated 2 March 1998.

Yet a further ground of review is "error in logic". However a "want of logic is not synonymous with error of law": Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 per Mason CJ. The ground provided for in s 476 (1) (e) is an error of law. In any event, the findings listed by the applicant in ground 3 (c) of his "Grounds of the Application" raise an error of logic only because one of them misrepresents the Tribunal's statements. The Tribunal did not say that it was extraordinary that the applicant's new claims differed from his original ones. What it referred to was the extraordinary coincidence that the claims advanced at the hearing, that is "the new claims", were against members of the current Government of Pakistan, whereas his previous claims were against the then Government of Pakistan. I have made the point earlier that what the Tribunal was seeking to emphasise here was that notwithstanding the difference between the two Governments in their political position vis-a-vis the MQM, the applicant had no difficulty in claiming to have been persecuted by both.

CONCLUSION

In sum, the questions of fact raised by the application are questions which were, under the régime established by the Parliament, to be dealt with not by this Court but by the Tribunal. As is well known, the grounds of review allowed to the Court by s 476 are limited. In my view, none of those grounds are shown to have been made out in the present case. For the foregoing reasons the orders of the Court are that:

1) The application be dismissed.

2) The applicant pay the respondent's costs.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:

Dated: 9 December 1998

Solicitor for the Applicant:	Mr B H Slater
Counsel for the Respondent:	Ms R M Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 December 1998
Date of Judgment:	9 December 1998