SAAJ v Minister for Immigration & Multicultural Affairs [2002] FCA 319 (11 April 2002)

Last Updated: 14 May 2002

FEDERAL COURT OF AUSTRALIA

SAAJ v Minister for Immigration & Multicultural Affairs

[2002] FCA 319

SAAJ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S.188 of 2001

MANSFIELD J

11 APRIL 2002

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.188 OF 2001

BETWEEN:	SAAJ APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	11 APRIL 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay to the respondent costs of the application.

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	S.188 OF 2001

BETWEEN:	SAAJ APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	11 APRIL 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 The applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) made on 26 September 2001. The Tribunal affirmed a decision of a delegate of the respondent made on 17 May 2001 refusing to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) on 26 February 2001. That was not the first application for a protection visa which the applicant had made. He had previously applied for a protection visa on 18 February 2001, but under a different name

2 Because the application to the Court was made after the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), the amendments to the Act effected by that amending Act apply: Schedule 1, Item 8(2)(b) to the amending Act. Consequently, the Court has jurisdiction to review the Tribunal's decision only under s 39B of the Judiciary Act 1903 (Cth), and has no jurisdiction under any other statute: see ss 475A and 477 of the Act. The respondent acknowledges that the decision of the Tribunal is not excluded from review by the Court under the Judiciary Act (see s 476 of the Act) but contends that the Tribunal's decision is a "privative clause decision" within the meaning of s 474(2) of the Act so as to bring into application s 474(1) of the Act. Section 474(1) provides that the decision of the Tribunal is final and conclusive, cannot be challenged or reviewed or called in question in any Court, and is not subject to prohibition, mandamus, injunction, declaration, or certiorari in any Court on any account. Before addressing the question of whether the literal breadth of s 474(1) precludes review by the Court in this matter, having regard inter alia to the principles derived from the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 at 616, and in R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387 at 399-400, it is in my view appropriate to identify whether any particular potential grounds of review are established which might enliven the Court's power under s 39B of the Judiciary Act. I note that Merkel J in Walton v Ruddock [2001] FCA 1839 has discussed the extent to which s 474(1) of the Act operates so as to immunise from review decisions of the Tribunal which involve breaches of, or failure to comply with, statutory requirements applicable to the making of that decision, or which may have been made in breach of the rules of natural justice or procedural fairness, or on other grounds.

THE APPLICANT'S CLAIMS

3 To be eligible to be granted the visa, the delegate of the respondent and, on review, the Tribunal had to be satisfied that he met the criteria for the grant of the visa specified in the Act and in the Migration Regulations. Relevantly, for present purposes, s 36(2) of the Act provides that a criterion for a protection visa is that the Tribunal be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention). In turn, that criterion directed attention to the question whether the applicant is a refugee as defined in Article 1A(2) of the Convention.

4 In two interviews of 27 January and 25 February 2001 and in his initial application for a protection visa first made on 18 February 2001, the applicant presented his claims under a different name. It is unnecessary to refer to those claims then made in any detail. He claimed to be a national of Afghanistan, of Hazara ethnicity and of Shi'a religion. He said he had been brought up on a small family farm and was largely illiterate. He had fled Afghanistan through Pakistan because of his fear of the Taliban. He was found to have had in his possession two sketch maps, including a "general map of Jaghuri", the district in which he claimed to have been brought up and from which he claimed to have fled, four business cards and two identity cards. The business cards related to businesses in Pakistan: a luggage dealer, a dentist, a dental clinic, and a shoe supplier. One identity card was a student identity card for a Government Degree Centre in Quetta in Pakistan, expiring in 1999. The other was a Pakistani identity card issued in 1995, showing the applicant's date of birth as 1975, and containing a photograph of the applicant at a considerably younger age and with an address in Quetta.

5 Towards the end of his interview on 25 February 2001, the applicant acknowledged that his claims to that time were false. He said he had been living in Pakistan with his family for some 15 or 16 years, having arrived there from Afghanistan about the age of nine or 10 years. He said he had held a Pakistan passport issued in Quetta in 1998, but had destroyed it en route to Australia. At one point, he told the interviewing officer that he had been born in Quetta, and then corrected himself and said that he had been born in Dahmurda in Afghanistan.

6 The applicant's protection visa application of 26 February 2001 acknowledged that those claims as to his having lived in Afghanistan all his life, and having only recently fled from Afghanistan were false. He acknowledged that a smuggler had given him the advice to make those claims, together with the maps referred to above. The application was made in his own name. He said he had been born in Dahmurda in the Jaghuri District of the Ghazni Province of Afghanistan, but had fled with his family to Pakistan in 1984, when he was very young. His family had left Afghanistan to escape mistreatment during the communist invasion. He had completed schooling in Quetta in Pakistan, and then for two years studied at the Degree College in Quetta. He had then worked as a plumber. He claimed that the Pakistan passport to which he had previously referred, obtained in 1998, and the Pakistan identity card issued in 1995, had been procured whilst he was living in Quetta but that they were procured through bribery and were not lawfully issued to him. He feared that if he were returned to Pakistan, then because of his Afghani origins he would be returned to Afghanistan where he had a well-founded fear of persecution for a Convention reason.

7 The applicant maintained those claims, and enhanced them, during his hearing before the Tribunal on 12 July 2001. He complained that it was harder for an Afghani national to get work in Pakistan, and that in other respects Afghani nationals in Pakistan were disadvantaged. He described the Pakistan identity card at one point as having been procured through bribery, and at another point as being a Shanakti pass for refugees, that is a pass issued by the Pakistan authorities to Afghani refugees in Pakistan.

8 His claims as to the reasons why he had left Pakistan were considerably enhanced. He said that he fled because he feared mistreatment by the Saheba, a body he described as a terrorist group similar to the Taliban but operating in Pakistan against persons of the Shi'a Muslim religion. He also said that he lived near the office of a group called Hezb-i-wahadat, a group formed to support Hazaras and Shi'a Muslims in Afghanistan and to fight for their rights. He also claimed that for about one and a half years before he had fled Pakistan, he had been picked on by a gang or group when visiting his local mosque, accused of being an addict, and on one occasion having become involved in a street fight in which he was beaten, knocked unconscious and had his leg broken. He also claimed that he had subsequently received threats from that street group as he visited the mosque. He told the Tribunal that he was picked on by that group because he was of Hazaran ethnicity, and because generally Pakistanis in his area were sympathetic to Saheba. He claimed further that the racial discrimination, and fighting between ethnic groups in his area and generally within Pakistan was worsening over that period of one and a half years or so, leading to his departure from Pakistan.

THE TRIBUNAL'S REASONS

9 The Tribunal elicited that the applicant had procured his passport in Pakistan in 1998. He had travelled from Pakistan to Iran on that passport in 1998 to visit a shrine seeking a spiritual cure for an illness from which he was then suffering. He nevertheless maintained that he had purchased that passport illegally, and that it was not a lawfully issued passport.

10 The Tribunal was also provided with a statement from a third person, who had recently received a protection visa under the Act. That person asserted to have known the applicant's family whilst they were in Afghanistan, and confirmed that the family including the applicant had fled from his area during the communist fighting. At the time, that person would have been about 13 years of age. The information was provided in a statement dated 12 September 2001.

11 Not surprisingly, in the "findings and reasons" section of its decision, the Tribunal observed:

"However, that the applicant had been so untruthful so many times - at the first interview, with his adviser as his first application was prepared, when he told the officer who prepared the property sheet that the documents were not his, and for most of the interview about the first application - has had some impact on my assessment of the overall credibility of the applicant's evidence and on my assessment whether the benefit of the doubt ought to be extended to aspects of his evidence."

12 The Tribunal first directed its attention to whether the applicant was a national of Afghanistan as he claimed. It was prepared to accept, on the basis of independent country information, that if he were an Afghani national he may not be entitled to return to Pakistan and to enjoy effective protection there. It reviewed the evidence on the question of the applicant's nationality. It noted that he had held a passport, apparently issued in Quetta in 1998, and had used it to travel to Iran and to return to Pakistan, and then from Pakistan to Indonesia on his route to Australia. It accepted that there is evidence indicating that such passports can fairly readily be bought in Pakistan. It also noted that there are in the order of 100,000 persons of Hazara ethnicity who are citizens of Pakistan in any event. It also noted two particular aspects about the applicant's evidence which, although it described them as "minor", assumed a significance in the context of his persistent untruthfulness. The first was that he had told the officer of the respondent at interview on 25 February 2001 that he had been born in Quetta in Pakistan. The Tribunal did not regard that as a definitive response in fixing the applicant's nationality, because the applicant shortly afterwards resiled from that answer, and because on the independent country information available to the Tribunal, the applicant's nationality would be the birthplace and nationality of his parents rather than his own birthplace. The second aspect was that the applicant at one point said that his younger brother had been born after the family's arrival in Pakistan, but at another point had said that his younger brother had been born before the family had departed Afghanistan for Pakistan.

13 The Tribunal referred to other evidence, but did not find it of particular significance in determining the applicant's nationality. The applicant's facility with a range of languages was consistent with him having lived a long time in Quetta in Pakistan, as was his Hazaran ethnicity. The identity card apparently issued in Pakistan was not regarded as evidence of his Afghani nationality, as claimed, because it contained nothing to indicate that it was a card issued by Pakistan authorities to Afghani refugees.

14 The Tribunal also considered the evidence of the independent witness, but concluded that it was fabricated. The name of that witness almost exactly corresponded with the name of the dentist on one of the business cards found in the applicant's possession, the applicant and that witness gave inconsistent evidence as to when that person had met up with the applicant again after the family had left Afghanistan many years ago; and given that that witness would have been 13 at the time of the applicant's family's departure from Afghanistan, his claimed instant recognition of the applicant seemed very unlikely. Furthermore, the Tribunal noted that that statement of that witness had been provided only after the Tribunal had written to the applicant on 8 August 2001 pursuant to s 424A of the Act drawing attention to the inconsistencies in his evidence, and the significance of them, and despite the issue as to his nationality having been a significant one at least from late February 2001 and one upon which the delegate of the respondent had made his decision adversely to the applicant on 17 May 2001. There was no apparent reason why that statement could not have been provided at an earlier point in time had it been a genuine statement. The Tribunal concluded that the witness and the applicant had made up the account of their past connection.

15 Having reminded itself of the need to be sympathetic to the claims made by a person such as the applicant in his circumstances, in the light of those considerations, the Tribunal was unable to be satisfied as to the applicant's general credibility. It considered that the evidence that the applicant is a national of Pakistan significantly outweighed that which indicated that he is an Afghan citizen. It rejected his claim that his passport was fraudulently obtained or that his parents are Afghan nationals. It positively found that he is a citizen of Pakistan, accepting also that he is of Hazara ethnicity and of the Shi'a Muslim religion. It proceeded to address the question of whether he had a well-founded fear of persecution by reason of a Convention reason if he were to return to Pakistan. In doing so, it addressed a number of alternative considerations.

16 Firstly, the Tribunal concluded that there is no real chance that the applicant simply by virtue of being a Pakistani Hazara might be subject to persecution upon his return to Pakistan. That was consistent with independent country information on that topic. It did, however, consider whether he might be identified as an arrival from Afghanistan, rather than a Pakistani national, and so might be returned to Afghanistan. In addition to reaching the view that there was no well-founded fear that he would face serious harm and mistreatment in Pakistan if he returned there, it reached the view that the chance of refoulement to Afghanistan was a remote one. Its reasons are expressed in the following passage:

"I consider that the applicant would be able to demonstrate that he was in fact among the 80,000 to 100,000 Hazaras who are Pakistani citizens: his facility with languages demonstrates that he has been there for a long time; he has his identity card and probably a new passport which he will be able to obtain to replace the one he threw into the water on his way to Australia. He could also bribe his way out of such difficulties as independent information indicates occurs."

In the light of the applicant's evidence, and independent country information about Pakistan, the Tribunal did not consider that the prospect of him having to pay a bribe to avoid harassment or adverse attention upon his return to Pakistan, in the light of his past employment history and the capacity of his family to have been able to pay bribes and to assemble funds for his passage to Australia would amount to serious punishment or penalty or significant detriment or disadvantage such as to constitute persecutory conduct within the meaning of the Convention: see also s 91R of the Act, even if that circumstance arose.

17 The Tribunal next addressed the applicant's claimed involvement with Hezb-i-wahadat. His evidence about his involvement with that group was described as "on important occasions very unconvincing". However, the Tribunal accepted that the applicant, as do many Pakistani Hazaras, maintained a strong attachment to or interest in the affairs of Hazaras in Afghanistan, and so it accepted that the applicant may have been involved in such a group. It did not consider that any such involvement gave rise to a well-founded fear of persecution in Pakistan, as there was nothing to indicate that Hazara people in Pakistan face any limitations or risks in meeting in such groups.

18 The Tribunal next turned to the applicant's account of hostility between him and a local group of young men. It accepted that he may have been teased and called an addict as he had claimed, and that on one occasion there had been a fight in which he was injured. It also accepted that that animosity may have persisted, and that it dismayed and perhaps even frightened the applicant. On the basis of the applicant's evidence, however, the Tribunal found that the assaults were isolated and that the applicant had come to no serious harm since that significant fight, that is for a year and a half before he left Pakistan. It therefore concluded that the group did not have a serious intent to harm the applicant, and that there was no real chance that they would do so if he were to return to Pakistan. In addition, the Tribunal was not satisfied that the hostility towards him was by reason of his religion or his ethnicity. Finally, it considered that that hostility was localised, and that the applicant could readily have avoided it by seeking a different route to the mosque. Consequently, those matters of which the applicant complained did not give rise to a well-founded fear of persecution for a Convention reason.

19 The Tribunal accepted that an organisation known as Sipah-e-Sahaba exists in Pakistan and that its members have acted against people of the Shi'a Muslim religion. Sectarian violence between Shi'a and Sunni followers is on the rise in Pakistan, although the Pakistani authorities have acted to suppress it. The Tribunal concluded on this aspect of the claim:

"While very disturbing and while there have no doubt also been many attacks and outbreaks of violence which have involved injury and damage to property, the scale of the violence and the fact that the applicant has not experienced harm amounting to persecution because of his religion in the past has lead me to conclude that the chance of the applicant coming to harm of a kind which might amount to persecution because of his religion is remote in the event that he returns to Pakistan."

20 Finally, the Tribunal addressed the applicant's claim that he would be unable to return safely to Pakistan because he no longer had a passport, and that he would be punished for having had an illegal passport and possibly returned to Afghanistan. In view of its finding as to the applicant's Pakistani nationality, the Tribunal was not satisfied that his passport was other than genuine. It had no information to suggest that the Pakistani authorities would not allow his return, or issue him with documents entitling him to do so. It had independent information about Pakistan confirming that conclusion. If the applicant were vulnerable to punishment for having lost or thrown away his passport, the consequences would be because of the application of laws of general application rather than for any Convention reasons.

21 As a result, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention, and as s 65(1) of the Act then required, it affirmed the decision not to grant the applicant a protection visa.

CONSIDERATION OF GROUNDS OF REVIEW

22 The application for review to the Court does not identify any matter which, if established, might entitle the Court to grant relief under s 39B of the Judiciary Act. It simply re-asserted the applicant's claims to Afghani nationality and his claims to fear persecution if he were to return to Pakistan or be refouled from Pakistan to Afghanistan. At the same time as the application was filed, the applicant filed a statement in the form of an "affidavit" in which he again repeated those general claims, adding also a fear of the Taliban. That is a claim which he had abandoned at the interview on 25 February 2001. In his oral submissions, he also did no more than repeat claims previously made to, and rejected by, the Tribunal.

23 The complaints generally amount to no more than an attempt to re-assert matters of fact which the Tribunal had rejected, and to re-open the decision of the Tribunal on the merits. It is not the Court's function to engage in that process. It is for the Tribunal to find the facts in the light of all the evidence before it. The Court also considered the reasons for judgment of the Tribunal independently of the applicant's submissions, bearing in mind that he was not represented at the hearing, to discern whether any potentially reviewable error on the part of the Tribunal was demonstrated. No such reviewable error was apparent. The Tribunal correctly identified the applicable law, and applied it to the facts as found by the Tribunal. It appears to have complied with the procedures prescribed in the Act for the making of its decision. It has not failed to take into account any relevant fact, or to have taken into account any irrelevant fact, in such a way as may impinge upon its jurisdiction to have made the decision which it did. It has not been shown to have failed to have accorded to the applicant procedural fairness.

24 In those circumstances, in my judgment, no matter has been shown to exist which might expose the Tribunal's decision to jurisdictional error of the type which might entitle the Court to exercise its power under s 39B of the Judiciary Act, even if s 474(1) of the Act did not apply. In those circumstances, it is not necessary to address the operation or application of s 474(1) of the Act. I consider that the application should be dismissed. I so order. I see no reason why the usual order as to costs should not apply. The applicant is ordered to pay to the respondent costs of the application.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 21 March 2002

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	4 February 2002
Date of Judgment:	11 April 2002