Malik, Ali Sabir v The Minister for Immigration & Ethnic Affairs [1997] FCA 200

CATCHWORDS

IMMIGRATION - review - whether new material should be accepted - whether Refugee Review Tribunal obliged to conduct inquiries into the authenticity of documents - whether grounds under ss 476(1)(g) and (4) made out - application dismissed.

Migration Act 1958 ss 420, 476(1)(d), 476(1)(e), 476(1)(f), 476(1)(g), 476(3)(c), 476(4)(a) and 476(4)(b)

Dai Xing Yao v The Minister for Immigration and Ethnic Affairs

(Full Court, Federal Court of Australia,

18 September 1996, unreported)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang

(1996) 136 ALR 481

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Mohinder Singh v Minister for Immigration and Ethnic Affairs

(Full Court, Federal Court of Australia,

24 January 1997, unreported)

Surjit Singh v Minister for Immigration and Ethnic Affairs

(Branson J, 30 May 1996, unreported)

Jagjit Singh v Minister for Immigration and Ethnic Affairs

(Branson J, 30 May 1996, unreported)

Luu v Renevier (1989) 91 ALR 39

Prasad v Minister for Immigration and Ethnic Affairs

(1985) 6 FCR 155

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Szelagowicz v Stocker (1994) 35 ALD 16

Television Capricornia Pty Ltd v Australian Broadcasting

Tribunal (1986) 13 FCR 511

Western Television Ltd v Australian Broadcasting Tribunal

(1986) 12 FCR 414

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212

Chan Yee Kin v Minister for Immigration and Ethnic Affairs

(1989) 169 CLR 379

Sarbjit Singh v Minister for Immigration and Ethnic Affairs

(Lockhart J, 18 October 1996, unreported)

Wannakuwattewa v Minister for Immigration and Ethnic Affairs

(North J, 24 June 1996, unreported)

Ignacio v Minister for Immigration and Ethnic Affairs

(Lindgren J, 9 August 1996, unreported)

No SG 110 of 1995

ALI SABIR MALIK v THE MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Mansfield J

Adelaide

4 April 1997

IN THE FEDERAL COURT OF AUSTRALIA)

)

SOUTH AUSTRALIA DISTRICT REGISTRY) No SG 110 of 1995

)

GENERAL DIVISION )

BETWEEN:

ALI SABIR MALIK

Applicant

- and -

THE MINISTER FOR

IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

MINUTES OF ORDER

CORAM: Mansfield J

PLACE: Adelaide

DATE: 4 April 1997

THE COURT ORDERS THAT:

1. The application be dismissed.

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) No SG 110 of 1995

)

GENERAL DIVISION )

BETWEEN:

ALI SABIR MALIK

Applicant

- and -

THE MINISTER FOR

IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

REASONS FOR JUDGMENT

CORAM: Mansfield J

PLACE: Adelaide

DATE: 4 April 1997

By application dated 19 December 1995 the applicant seeks review of the decision of the Refugee Review Tribunal ("the Tribunal") of 4 December 1995 affirming the decision of a delegate of the Minister for Immigration and Ethnic Affairs ("the Minister") of 28 February 1995 which refused to grant to the applicant a protection visa.

Applicable Law

The applicant arrived in Australia on 10 May 1990 and was granted a visitor entry permit. On 16 December 1991 he applied for refugee status, under the Migration Act 1958 ("the Act"). At the time of the application s47(1)(d) of the
Act permitted a permanent entry permit to be issued to the applicant if he was the holder of a valid temporary entry permit and the Minister determined that he had the status of refugee under Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, or under that Article as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). Australia by Instrument of Succession deposited 22 January 1954 became a party to the Convention.

Subsequent amendments to the Act which replaced the then s47(1)(d) created separate Divisions dealing specifically with refugees. The Migration Amendment Act (No 2) 1992, which came into effect on 30 June 1992, introduced a new Division of the Act dealing with refugees. It included s22AA which provided:

"If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee."

Section 22AD(1) made it plain that consideration of outstanding applications for refugee status should be considered in accordance with the Act as then amended. The term "refugee" was then defined in s4 of the Act as having the same meaning as it has in Article 1 of the Convention.

By reason of amendments to the Act effected by the Migration Reform Act 1992, as renumbered by the Migration Legislation Amendment Act 1994, and which came into effect so far as relevant on 1 September 1994 and again before any decision had
been made on his application, the Migration Reform Act 1992 introduced into the Act a Division dealing generally with visas for non-citizens. Thereafter, s29 of the Act empowered the Minister to grant a visa to a non-citizen including permission to remain in Australia indefinitely, to be known as a permanent visa: s30. Section 31 provided for classes of visas, including protection visas under s36, and for regulations to prescribe criteria for visas of a specified class. Section 36 provided:

"(1)There is a class of visas to be known as protection visas.

(2)A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

Upon the coming into effect of the Migration Reform Act 1992, the applicant's application for refugee status was deemed to be an application for a protection visa: s39, Migration Reform Act 1992. Section 65(1) obliges the Minister, if satisfied that the criteria for a visa are met, to grant the visa. Regulation 2.03 of the Migration Regulations then prescribes criteria for the grant of visas by reference to Schedule 2 to those regulations, the relevant part of which for the present application is that headed "Subclass 866 - Protection (Residence)". Clause 866.21 sets out criteria to be satisfied at the time of the application and clause 866.22 sets out criteria to be satisfied at the time of the decision. Included within clause 866.22 is the requirement that the Minister be satisfied that the applicant is a person to whom Australia has protection obligations under the Convention: clause 866.221.

Consequently the status of refugee as described by the Convention was and remains the determinant applicable to determination of the applicant's claim. Article 1 relevantly provides in clause A(2) that the term "refugee" applies to a 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 Minister, by his delegate, refused that application on 28 February 1995, and pursuant to Part 7 of the Act, the Refugee Review Tribunal reviewed that decision, and affirmed it, by its decision made on 4 December 1995.

That decision is the subject of review by this Court: s475(1)(b) of the Act, but only on one or more of the grounds specified in s476 of the Act. This Court has decided in Dai Xing Yao v The Minister for Immigration and Ethnic Affairs (Full Court, Federal Court of Australia, 18 September 1996, unreported) that the restricted review permitted under s476 of the Act is the only review available, even though the initial application for refugee status was made before that section came into force. That decision was, quite properly, accepted by the applicant as decisive of that matter, and the grounds of review in the application before the Court which were based upon provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") were not pursued.

Grounds of review

Although the further amended application for review is a lengthy document, and at least in a number of respects seems to complain of matters of which s476 of the Act does not admit complaint, at the hearing the applicant's submissions were expressed in three propositions which, it was submitted, fell within s476:

(1) that the Tribunal erred in law in deciding whether or not the applicant was a refugee by reference to the facts existing at the time of the determination, rather than to those existing at the time of his initial application for refugee status (called by the applicant the "critical time issue");

(2) that the Tribunal erred, when determining whether the applicant had a well-founded fear of persecution if he returned to Pakistan, in treating certain letters, two First Information Reports, and an identity card stating the applicant was an information secretary of the Pakistan People's Party as not genuine and in failing to have any apparent regard to two arrest warrants apparently issued
against the applicant; it was submitted that this constituted a judicially-reviewable error under s476(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 inquiries as to their genuineness (called by the applicant the "authenticity of documents issue"); and

(3) that the Tribunal erred in a number of other ways, all asserted to be errors reviewable under s476(1)(g) and as explained in s476(4)(b). It is difficult to identify clearly the reviewable errors asserted, as the further amended application (of 33 pages) seems to have taken nearly every finding or comment of the Tribunal in those parts of its decision which deal with the applicant's reliability as a witness and with the question of 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 the decision, thereby invoking s476(1)(g). Those grounds in some cases seem to treat "the decision" referred to in s476(1)(g) as the particular finding or comment. For reasons which appear below, I do not think that such a blanket approach is correct. Within those grounds, however, there are some from which, in the course of submissions, particular

focuses were also identified:

(i) an error in failing to categorise the conduct of the applicant, which was the subject of investigation, as 'political activities' rather than 'criminal conduct'; and

(ii) actual bias 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 respondent "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": s476(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 applicant's particular case: s476(1)(d) and (3)(c).

Those matters collectively were called by counsel for the applicant the "other issues". That line of attack makes it necessary to refer to the Tribunal's decision in some detail.

In relation to the "other issues" submissions, it is important to bear in mind the observations of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 about the proper approach to be adopted in reviewing a decision of the Tribunal. The judgment of Brennan CJ and Toohey, McHugh and Gummow JJ at 491 referred to the need, in a case such as the present, to "beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision". Their Honours referred with approval, by way of example, to the remarks of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36 as follows:

"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

See also Kirby J at 505-508. It is apparent from the nature and extent of the particularised grounds of review, that the applicant is, to some degree, urging the Court to stray into forbidden territory firstly by seeking to adduce further evidentiary material not put before the Tribunal to have this Court re-determine facts upon which the Tribunal made findings, and secondly by seeking to have the Court do no more than re-assess the adequacy of material upon which the Tribunal reached many of its findings on the path to its
ultimate conclusion. It is plain that the application for review is not a reconsideration of the decision, or of the factual findings leading to the decision, on the merits. The grounds of the application which seek to invite such a reconsideration are rejected; they were not seriously pursued in the submissions.

Background

The applicant was born in the Punjab province of Pakistan on 10 November 1946. He is a citizen of the Islamic Republic of Pakistan. He is married and has eight children, who all remain in Pakistan. His parents and four siblings also remain in Pakistan. He completed his schooling and university education in Pakistan, where he obtained a law degree. He then worked as a self-employed businessman. He travelled to Saudi Arabia for employment between 1982 and 1986, and also travelled on one occasion to India in December 1989. As mentioned above, he arrived in Australia on 10 May 1990.

There were, as presented to the Tribunal, two reasons for his application for refugee status:

(1) that since his arrival in Australia the political situation in the Punjab, but 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, and

(2) his long term active association with the Pakistan Peoples Party ("the PPP"), in the area of Sman Abad in Lahore, including the attending of meetings, waving banners, shouting slogans, and making public speeches; those activities (he asserted) 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 reflected in or referred to in two First Information Reports ("FIR's") apparently issued on 17 September 1988 and 2 October 1988, in a certificate apparently from Ch. Abdul Razzaq, Advocate, and in an undated letter from his brother (all of which were explicitly referred to by the Tribunal) and the two arrest warrants. He fears, if forced to return to Pakistan, indiscriminate assault, beatings and intimidation due to his membership of the PPP.

The Tribunal noted information provided by the applicant at interview on 10 February 1995, in a statutory declaration to the Tribunal made on 10 July 1995, and in oral evidence at the Tribunal hearing on 18 October 1995, together with various documents. As the Tribunal made findings generally on that material, it is unnecessary to recite it in any detail; the information was not all consistent from one occasion to the next.

I mention one aspect, namely the events which are said to have led to arrest warrants. On 17 September 1988, the applicant participated in a demonstration under the leadership of the PPP for the release of workers and leaders; demonstrators burnt tyres, shouted slogans against the government, created a mess and disturbed the traffic, threw bricks and stones on vehicles and government property and damaged shops. On 2 October 1988 another anti-government demonstration took place, and demonstrators threw stones and bricks at police. After both demonstrations, people were arrested. The applicant escaped and hid. Police (he asserted) are still searching for him. Thereafter (he said) he remained in hiding away from his house, running his agricultural procedure and general merchant's business with difficulty, partly through employees and a friend who was the Director of Agriculture. His friend helped him to get his visa to come to Australia. He had also renewed his passport during 1989, whilst in hiding, and in December 1989 had travelled to India. He has remained in Australia since his arrival on 10 May 1990. He relies to a substantial extent on documentary material to support his claim, particularly in respect to the more recent period, that he has a well founded fear of being persecuted for a Convention reason.

The two FIR's were first referred to only in the interview on 10 February 1995, although in 1994 a certificate from Ch. Abdul Razzaq which referred to two criminal cases having been 'registered' against him had been supplied. That certificate said it was 'per information supplied to the undersigned by [his] relatives'.

The Tribunal had available to it a report from Mr P Hobbs, Document Examiner dated 1 March 1995 concerning the two FIR's in the following terms:

"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 or 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."

I will refer further to that material when considering the 'authenticity of documents' issue.

The Tribunal's Decision

The Tribunal's reasons included the following passages which were the subject of the extensive attack both in the 'other grounds' submissions and in the 'authenticity of documents issue' submission:

"I accept that the Applicant is a citizen of the Islamic Republic of Pakistan and that this is the country against which his claims must be assessed.

The Applicant presents with credibility problems. He did not claim the criminal charges until a late stage in the determination process but when he did stated that they were the reason he went into hiding and fled the country, which he did not mention earlier either. Further, the manner and timing of the submission of the certificates, letters and FIRS suggests that they were contrived for the purpose of assisting his claims to refugee status. Their authenticity will be discussed below.

The Applicant also gave conflicting evidence about one of the dates on which he was detained. Prior to the hearing, at the Departmental interview, he stated that he had been detained on 25 December 1987 and 1 April 1988 after he had participated in demonstrations. In his primary application he stated that he was detained on two occasions in late 1987. At the hearing he stated that he was detained on 17 September and 25 December 1987. He was asked how he could remember the dates so specifically and said that they were firmly implanted in his mind because they were so distressing. He did not mention the 1 April at the hearing. At the interview he did not mention the 17 September.

His responses to requests for clarification and explanation about the discrepancies in his account were vague and appeared to be made up as he went along. Overall, I find that the Applicant was not a credible witness.

Nevertheless, I will assume that being outside his country of nationality, the Applicant has a subjective fear of persecution should he return to Pakistan. However, in order to satisfy the Convention definition of a refugee, this fear must be objectively founded in the sense that it is not just a figment of the Applicant's imagination. There must be a "real chance" of persecution occurring."

After then discussing the nature of "persecution" for the purposes of the Convention, and the political situation in Pakistan up to 1993, the Tribunal proceeded to find in relation to the applicant's personal position as follows:

"I accept that the Applicant was a member of the PPP, however, his claim (put rather late) that he became an office bearer of the Party in 1998 [sic, 1988] lacks credibility. He stated at the hearing that he did not engage in PPP activities to a great extent up to 1987 when he left his village in the Punjab, although he had claimed previously that he was the polling agent for his village in 1970 and was active after martial law was imposed in 1977. He also stated that he did not become a formal member of the PPP until January 1988. This means that he would have been involved for only a very short time, a few months at most, before he became information secretary. He claims that he was in hiding from September 1988 in which case it would have been impossible for him to carry out his duties. He has provided an identity card which states that he was information secretary, however, in view of the numerous fraudulent documents the Applicant has tendered, it is difficult to accept that this one is genuine. Accordingly, I find that the Applicant was a formal member of the PPP from January 1988. Even if the Applicant held the position of information secretary my findings on his substantive claims would be no different.

I do not accept that the Applicant went into hiding after the demonstration in September 1988. He said nothing about this in his primary application and although he subsequently claimed that arrest warrants (or FIRS) were issued against him in late 1988 and the police were searching for him, he was able to attend a further demonstration in October 1988, to visit his family on occasions, to supervise his business, to travel to India and depart Pakistan for Australia with no problems. He did not mention the existence of the FIRs until the Departmental interview. Had the Applicant really been in hiding for two years prior to his departure for Australia, it is reasonable to expect that this would have been uppermost in his mind when he applied for refugee status in 1991 and that he would have informed his first adviser.

The Applicant was not persecuted for his political activities in Pakistan. He claimed that he attended two demonstrations in 1988 at which he engaged in criminal activity. If the police were searching for him, which I do not accept, it would have been appropriate for them to do so, based on his criminal acts. I do not accept that the FIRs and letters he has tendered as evidence of charges against him are genuine. The FIRs were the subject of a report by an officer of the Documentation Examination Unit as set out above. I do not accept the FIRs as evidence that the Applicant is wanted for the reasons set out there and the fact that they were not mentioned by the Applicant until some three years after his initial application was lodged.

Even if the charges were genuine they relate to criminal offences and not to political activities. I do not accept that it was essential for the Applicant to throw stones, set fire to vehicles or to damage government property in order to effectively express his political views. Under these circumstances the charges would appropriately be characterised as prosecution and are therefore not Convention related. Given that the PPP is currently in power, there would be no reason why the Applicant would not get a fair hearing of the charges.

Further, the demonstrations in question occurred in September and October 1988 when the IJI was in power. The PPP won power again in November 1988. If the Applicant had been information secretary for the PPP at that time, it is curious that he would not have been able to use his influence in the Party to have the charges dropped. The PPP remained in power until August 1990, some months after the Applicant came to Australia.

The lettergrams from the Applicant's relatives sent in February 1995, appear to be contrived. They arrived just after the Departmental interview and refer to political opponents searching for the Applicant. The Applicant has not provided any other substantive information about his political opponents.

Similarly, in view of the presentation, timing and language used I do not accept that the letters from the Applicant's brother and son (which he allegedly received in 1994) are genuine. It is interesting to note that the Applicant stated that only one letter out of 10 or 15 he has received from his brother contains any information relevant to his claims - whereas he has claimed that he has been sought by both police and his political opponents since 1988. It is curious that his brother would choose to write about these problems only at about the time that the Applicant was going to be interviewed. The same comment can be made about the correspondence from his son - this is the only time that his son has mentioned any difficulties. I consider that if the claims were genuine the Applicant would have been told previously about the harassment of the family and the pursuit of him by the police."

It is obvious from the above extracts that, after its extensive review of the material available to it, including that presented on behalf of the applicant, the Tribunal did not take a favourable view of his credibility. However, in his favour, it assumed for the purposes of further considering his application that, being outside his country of nationality, he has a subjective fear of persecution should he return to Pakistan. Its conclusion, then, was in the following 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 he 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."

Further evidence tendered

The applicant sought to tender on the hearing of this application two further affidavits of himself and an affidavit of Ch. Abdul Razzaq. Those affidavits, it was acknowledged, to large measures simply repeated information or assertions already provided to the Tribunal, or contained argumentative responses to comments of the Tribunal which were capable of being put by way of submissions on his behalf. I noted above that the review provided by s476 is not a rehearing; it is a judicial review limited to the grounds available under that section. Often, the material relevant for such a review will be quite confined. It may involve only the reasons of the Tribunal. It will not be common that it will require extensive reference to all the material before the Tribunal. That is reflected in the practice of parties to agree on the material to be placed before the Court on a review application. It will be rare that it will permit of material not before the Tribunal being adduced on the review. There will of course be cases where it is necessary to have regard to material before the Tribunal, to properly consider a ground of review, and some cases where evidence may be admissible of events which transpired before the Tribunal or of matters which were, for some reason, not presented to the Tribunal. In any such case, it will be necessary to assess whether such material should be received having regard to the grounds of review under s476 invoked by the applicant. It is not appropriate on review to receive evidence which is simply repetitive of material put before the Tribunal; it could not go to establish any error asserted under s476. Nor, for the same reason, is it appropriate to adduce argumentative or assertive matter which was argued or asserted to the Tribunal. Nor will it be appropriate, in the normal course, to seek to adduce evidence which was not put before the Tribunal in the absence of special circumstances and then only when there is adequate explanation of why that evidence was not adduced before the Tribunal or where the processes of the Tribunal itself are the subject of a ground of review. The review is clearly not intended to give an applicant a further opportunity for a primary hearing; that opportunity has been afforded under the Act by the initial decision-making process of the delegate of the Minister and then in the decision-making process of the Tribunal.

So far as the proposed affidavit material goes beyond argumentative material or material merely recitative of material before the Tribunal, I reject it. Ultimately that new material was very limited, amounting to slight differences of emphasis only from what was before the Tribunal or to matters peripheral to the applicant's situation. No explanation was offered as to why that material in that form was not put before the Tribunal. It was not suggested that the applicant by the conduct of the Tribunal was inhibited from presenting that material, and he was accompanied by a registered migration agent during the Tribunal's hearing. 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 s476.

There are three documents which were sought to be tendered 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 to a ground of review properly invoked. Those three documents are the original PPP identity card of the applicant, and the Urdu Versions of the two FIR's, the partly translated versions of which were explicitly referred to by the Tribunal.

I formally receive those documents as they may touch upon the authenticity of documents issue, but for that purpose only.

"Critical Timing" Issue

The matter of the date at which the facts are to be assessed to determine whether or not a person is a refugee clearly raises a matter of law, reviewable under s476(1)(e) of the Act.

The Tribunal explicitly made its decision in relation to the facts existing at the time of the determination. Whether or not that is a correct approach in law has been the subject of considerable judicial consideration, but it is unnecessary to review those cases. This Court in Mohinder Singh v Minister for Immigration and Ethnic Affairs (Full Court, Federal Court of Australia, 24 January 1997, unreported) has decided that the relevant date to make such an assessment is the date of determination rather than the date on which the application is made.

Accordingly, whilst it was clearly proper for the matter to have been raised in the application to this Court, the complaint is not made out. No error of law on that score is demonstrated.

Authenticity of documents issue

The applicant, in support of this ground, placed considerable weight on remarks of Branson J in Surjit Singh v Minister for Immigration and Ethnic Affairs (30 May 1996, unreported). One issue in that case was the entitlement of the Tribunal to have reached the conclusion that certain letters and warrants for arrest were not authentic, without further investigating that issue. Her Honour's decision was based upon the 'critical time' issue, but although in the circumstances it was not necessary to examine the evidence in detail nor to decide the question, her Honour remarked:

"I note, however, that in circumstances in which an applicant for refugee status produces a document, such as a warrant of 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, is a matter appropriate for verification by the Tribunal through official channels. Serious difficulties might well stand in the way of an applicant for refugee status seeking such official verification."

Her Honour made similar observations in Jagjit Singh v Minister for Immigration and Ethnic Affairs (30 May 1996, unreported).

The question of whether the Refugee Review Tribunal is obliged, in certain circumstances, to conduct inquiries into the authenticity of documentary material presented to it is part of the wider question of whether the Refugee Review Tribunal must, on occasion, conduct or cause to be conducted its own investigation and to have regard to the information thereby procured, whether under s420 of the Act, or otherwise, and the related question of whether in any event any failure to carry out such a process is judicially reviewable under s476(1)(a) or some other provision of s476 of the Act.

For the purpose of this application, I assume in favour of the applicant that such an obligation may arise and that the failure to fulfil it is judicially reviewable. It was not suggested, even making that assumption, that the obligation could be more extensive than would arise at common law and would be subject to review under the criteria previously available through s5 of the ADJR Act. The general proposition
applicable under that previous regime is that the Refugee Review Tribunal is not obliged to make the case for the applicant: Luu v Renevier (1989) 91 ALR 39, esp at 45, but subject to certain circumstances in which a decision may be set aside for failure to make inquiries. Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 stated the rule thus:

"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."

It is not established, on the material before me, that material was readily available which was centrally relevant to the decision being made and which would have confirmed or otherwise the validity of the FIR's. In fact, the Tribunal had caused some enquiries to be made as to their status. The resulting report, although not conclusive, identified features of them which tended to suggest that they were not authentic, and the reporter to "strongly suggest that all other measures to assess their bona fides be taken prior to their acceptance as evidence." There were other factors, external to the FIR's themselves, which also led the Tribunal to conclude that they, and some other documents, were not genuine documents. It is
also noteworthy that the applicant's adviser, following completion of the hearing, acknowledged on this topic that it was not possible to prove the validity or genuineness of the applicant's documents, except by accepting him as a witness of truth. This the Tribunal was not prepared to do.

In my judgment, in proceeding as it did and on the basis of the evidence overall as referred to above and in submissions, the Tribunal did not exercise its power in such a way as to lead to the decision being reviewable for the reason complained of. It is 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, assuming the law to be that most favourable to the applicant, he nevertheless fails in the application.

I should point out that, in approaching the matter on the assumptions indicated, I have not overlooked the provisions of ss476(2)(a) and (b) and 476(3)(c). They would, of course, render the task of the applicant to succeed on this aspect of his claim that much harder. They appear to substantially limit the circumstances in which procedural flaws, even if made out, may be judicially reviewable under s476(1)(a) or otherwise under s476(1) of the Act. As the applicant has failed to clear the lower hurdle, it is unnecessary to determine whether the higher hurdle could be cleared.

The applicant further submitted that the decision of the Tribunal should be reviewed under s476(1)(g) of the Act, namely that there was no evidence or other material to justify the making of the decision. It was submitted that the failure to further investigate the authenticity of the FIR's, and to investigate at all the authenticity of two warrants of arrest, and of the certificate from the advocate, made out that ground. As to the latter document, on its face it purports to do no more than convey what a member or members of the applicant's family had told him and would itself carry little weight.

Section 476(1)(g) and its elucidating and limiting provision in s476(4) reflect the terms of s5(1)(h) and 5(3) of the ADJR Act. Under that Act, those sections were found to have a limited role, in a sense complementary to the power to review a decision under s5(1)(e) and (f) of that Act: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357 per Mason CJ; Szelagowicz v Stocker (1994) 35 ALD 16 at 22 per Davies and Einfeld JJ. Section 5(1)(e) of the ADJR Act is not now mirrored to its full extent in its semi-reflection in s476(1)(d) of the Act because ss476(2)(b) and (3)(d)-(g) remove from the ambit of an "improper exercise of the power conferred" by the Act grounds of review based upon 'unreasonableness' in the Wednesbury sense, the taking into account of an irrelevant consideration, and the failure to take into account a relevant consideration. Similarly, s5(1)(f) of the ADJR Act is not mirrored to its full extent in its semi-reflection in s476(1)(e) of the Act as that formulation appears to be directed to removing the 'no evidence' error of law from reviewable grounds. In those circumstances, it may be that the potential use of s476(1)(g) of the Act as a ground for review may emerge from the shadows to reassert a territory of operation which had previously been dormant. However, it is unnecessary to determine that question.

The applicant, in submissions, relied upon both subpars(a) and (b) of s476(4) which provide:

"The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

No particular matter to be established, required by law, was identified in the submission as being relevant to subpar(a) but it is apparent that such a matter should be identifiable because of the lesser burden which that subparagraph carries with it. In Bond (supra) at 358, Mason CJ said:

"Within the area of operation of par.(a) [s5(3)(a) of the ADJR Act] it is enough to show an absence of evidence or material from which the decision-maker could reasonably be satisfied that the particular matter was established, that being a lesser burden than that of showing an absence of evidence (or material) to support the decision."

That point reinforces the need for there to be a precondition in law to the decision before subpar(a) can come into play: Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511, or at least a clear legislative intent that the making of the decision depends upon the establishment of a specific matter: Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414. In either event, no such legislatively expressed or implied criterion emerges in respect of the Tribunal's decision. Accordingly, I do not think the complaint founded on ss476(1)(g) and (4)(a) of the Act is made out.

In Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-224 Black CJ, with whom Spender and Gummow JJ agreed, discussed in some detail s5(3)(b) of the ADJR Act in the following terms:

"If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact. In Bond's case (supra) Mason CJ said (at 357) that s 5(3)(b) was directed to "proof of the non-existence of a fact critical to the making of the decision" [my emphasis]. See also Luu v Renevier (1989) 91 ALR 39 at 47 where a Full Court of this Court (Davies, Wilcox and Pincus JJ) used the word "critical" to distinguish unsupported findings of fact that go to the validity of a decision from findings relating only to a matter of peripheral importance that may not affect the validity of a decision.

Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.

If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact. Accordingly, I agree with the conclusion of Lee J in Akers v Minister of Immigration and Ethnic Affairs (1988) 20 FCR 363 at 374 that there is no reason to read s 5(3)(b) in a way that would limit its operation to a predominant reason for the decision under review."

In the present circumstances, the Tribunal in the relevant sense based its decision on the fact that the applicant did not go into hiding as he claimed in September 1988, and in reaching that conclusion rejected as not genuine the documents tending to suggest to the contrary. Whether that non-acceptance of evidence, and the reason for it, is itself a finding of a particular fact within the scope of subpar(b) is a difficult question. To use the metaphor adopted by Black CJ, is that rejection itself a link in a chain of reasoning leading to the decision, as to which there are no parallel links to reach the more general conclusion or did that rejection/finding critically lead the Tribunal to take the path in the process of reasoning leading to its conclusion? I do not need to finally decide that question.
Were I to accept that the Tribunal's rejection of those documents as non genuine can fall within the description of 'the existence of a particular fact', I do not think that on this application it has been shown that that particular fact 'did not exist'. The Court's function on review is not to rehear the application, to re-assess matters of credit, to decide the weight of a particular piece of evidence, to decide whether further inquiries could have been made or further materials procured 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 those of the Tribunal. It is confined to ensuring that the law which determines the limits and governs the exercise of the Tribunal's power under the Act is complied with. There was material upon which the Tribunal could have reached its conclusion that, for the reasons it gave, it would not treat those documents as genuine. That material is referred to partly above, but appears generally in the Tribunal's reasons. In my judgment, therefore, the ground of attack under s476(1)(g) and (4)(b)is also not made out.

Finally it was submitted under this heading that the Tribunal had erred because it had not referred to the two arrest warrants tendered in evidence, and which apparently follow from the FIR's, and did not consider those warrants. It is correct that arrest warrants are not explicitly referred to as distinct from the FIR's in the Tribunal's reasons. At one point in the reasons reference is made to "arrest warrants (or FIR's)" and the FIR's were described as evidence of charges. It is also clear that the arrest warrants were provided to the Tribunal, and discussed during the hearing in conjunction with the FIR's including that they may be fraudulent, both in questions directed to the applicant and in discussion with the applicant's agent as to the date they had first been supplied. They were then identified generically as documents referring to the criminal charges, and described as the documents copied and certified by the applicant's agent. The two warrants meet that description.

I am not therefore persuaded that the Tribunal has erred in the way asserted. It may be that the Tribunal refers compendiously to the arrest warrants and the FIR's together, given their apparently close relationship. It is clear that the issue as to the genuineness of the documentary material adduced to establish the laying of criminal charges was considered by the Tribunal, including the warrants. If there is any infelicity in its description of the documents considered on that topic, I do not think that leads to a review of its decision.

"Other issues"

The first of these matters invoked s476(1)(e) of the Act, which is in the following terms:

"that the decision involved an error of law, being an error 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."

It was contended that, on the facts as found by the Tribunal, it then incorrectly applied the law to them, and that the correct application of the law would have led to the conclusion that the applicant's fear of persecution, which it assumed to exist, is objectively founded and is (contrary to its conclusion) for a Convention reason, namely in this case for his political opinion.

The expressed "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion" has been considered by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, and I have of course followed the observations of the Court in considering this ground of the application.

The Tribunal did not find that the applicant had a subjective fear of persecution should he return to Pakistan; it assumed that, apparently as he was outside his country of nationality, and despite it concluding that he was not a credible witness. Consequently, it is in a somewhat sterile environment that the Tribunal considered this issue. As the Tribunal did, I shall take those grounds to be the two reasons identified to me on this application and referred to under the heading 'Background'.

The applicant's submission on this application for judicial review was confined to the second of those two aspects, namely problems said to arise from his political involvement with the PPP culminating in his going into hiding in September 1988 to avoid being arrested under the arrest warrants and FIR's referred to.

The problem for the applicant is that the Tribunal did not accept much at all of the applicant's evidence on those 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 organisation. It did not accept that arrest warrants or FIR's 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. And the Tribunal concluded that the applicant was not persecuted for his political activities. 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 it is clear that it considered that any role he had to play in those events did not draw him to the attention of the police in any significant way.

The applicant has not succeeded in overturning those findings on this application. It was not submitted that, if those findings stand, the Tribunal's conclusion is wrong. What is submitted is that the Tribunal erred when, later in its reasons, in assuming contrary to its findings that charges were laid against the applicant for the reasons he asserted, it categorised those charges as having been laid in respect of criminal offences and not in respect of his political activities. As that alternative assumption, inconsistent with the Tribunal's findings, has not been made out as a matter of fact on this application, it is not necessary to further address that question.

In my view, the ground of review alleging actual bias under s476(1)(f) of the Act is not made out. Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs (18 October 1996, unreported) discussed the nature of actual bias, and its rationale. I have considered that discussion and the authorities referred to. It is ultimately a question of fact in each case to determine whether the Tribunal has been biased, so that the decision cannot stand.

The allegation here is, in effect, that the Tribunal had a closed mind to the issues raised in the application for review. That state of fact, if made out, may constitute actual bias: Wannakuwattewa v Minister for Immigration and Ethnic Affairs (North J, 24 June 1996, unreported). However, neither its reasons nor the conduct of the hearing demonstrate that; indeed, in my view, if anything the contrary is the case. I reject this ground of review.

I also reject the complaint based upon s476(1)(d) and (3)(c) of the Act. It is sufficient to say that the power of the Tribunal was not discretionary, but adjudicative by reference to the criteria for eligibility for a protection visa identified under the Act and the Migration Regulations: Ignacio v Minister for Immigration and Ethnic Affairs (Lindgren J, 9 August 1996, unreported). In addition, no rule or policy was identified as having been directive of the result, and the Tribunal in my view clearly did have regard to the merits of the applicant's case.

Conclusion

It follows that I order that this application is dismissed.

I certify that this and the preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Mansfield.

Associate:

Dated:

Counsel for the Applicant : Mr M Clisby

Solicitors for the Applicant : Paul Kirk Roberts & Co

Counsel for the Respondent : Ms S Maharaj

Solicitors for the Respondent : Australian Government

Solicitor

Hearing Date : 7 November 1996

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