FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Application for review of decision of Refugee Review Tribunal affirming decision of respondent to refuse protection visas - whether Tribunal decision involved an error of law - whether inference could be drawn from Tribunal’s rejection of evidence of applicant that it misunderstood definition of “refugee” - whether error of fact or of law - whether applicant’s claims satisfy definition of persecution for reasons of religion.

Migration Act 1958 (Cth) s 476(1)(e)

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, appl

Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300, dist

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437, refd

Waterford v Commonwealth (1987) 163 CLR 54, appl

SHAHZAD GULL AWAN v

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 1061 of 1997

DAVIES J

9 APRIL 1998

SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

            The application be dismissed with costs.

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

REASONS FOR JUDGMENT

 *** Printed on 15 April 1998 at 3:51pm ***This application brought under s 476 of the Migration Act 1958 (Cth) seeks orders of review with respect to a decision of a Refugee Review Tribunal ("the Tribunal") not to grant protection visas to Shahzad Gull Awan, his wife, Nafeesa Shahzad and their child Ismail Shahzad Awan.  The application is brought in the name of the father Shahzad Awan only; but the parties are agreed that, if orders of review are granted, they should also cover the case of Nafeesa Shahzad and the son. 

The principal issue before the Tribunal was whether the applicant and his wife were refugees within the definition of "refugee" in Article 1 of the Refugees Convention which defines a "refugee" as 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."  (emphasis added)

The Tribunal rejected the claim.

Mr Christopher Levingston, who appeared on behalf of the applicant, submitted that there were errors of law in the Tribunal's decision within the terms of s 476(1)(e) of the Migration Act which provides:

            "476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

            ...        

            (e)    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;

             ..."

            (emphasis added)

Shahzad Awan and Nafeesa Shahzad were citizens of Pakistan.  They had originally lived in a village about 30 kilometres outside Islamabad, but in the six years preceding their arrival in Australia in December 1995 they had lived in Islamabad. They had two children, one of whom is with them in Australia and the other of whom remains behind in Pakistan.

In its reason for decision, the Tribunal said that there were three forms of divorce under Islamic law which is the law applying in Pakistan.  In the middle of 1994, the applicant announced a single Talaq thereby, under Islamic law, repudiating the marital tie between himself and his wife.  However, he and his wife resumed conjugal relations before the necessary waiting period had expired and the marriage was not then terminated.  Subsequently, on 24 November 1994, the applicant pronounced the Talaq three times at a single sitting.  The Tribunal found that, under this form of divorce, the divorce was effective immediately and was irrevocable.  The Tribunal referred to a textbook by David Pearl entitled A Textbook on Muslim Personal Law, 2nd ed, where the author stated in relation to this form of divorce that, when three Talaqs have been pronounced in this manner, the husband cannot remarry his wife unless she enters into a marriage with another man which is consummated and which is itself validly dissolved.  The Tribunal said that, under the law, as the divorce was irrevocable, then marital relations must cease and any further sexual intercourse between the couple would be viewed as "zina", illicit sexual relations.  After the announcement of the Talaq three times, Nafeesa Shahzad returned to live with her parents. 

Some time after the divorce, the applicant again turned his mind to reconciliation.  He gave evidence to the Tribunal that his wife's uncles and cousins tried to stop the reconciliation.  He said they came to his office in Islamabad on 28 December 1994 and took him to a room in an hotel.  They held him there for about seven hours and forced him to sign a paper declaring that he had divorced his wife, that he would return her dower amount of 30,000 rupees by 4 January 1995 and that he would return all her ornaments and other dower Articles, valued at 30,000 rupees, by 25 March 1995.  The applicant reported this matter to the police the following day.

The applicant gave evidence that he went ahead with reconciliation and sought advice from four religious scholars.  The Tribunal made this finding:

"The Applicant regretted his action and sought advice from four religious scholars with regard to the method by which he might reconcile with his wife.  In support of his application the Applicant produced the originals and translations of his request for advice from the religious scholars and their replies.  Muhammad Bin Abdullah, Shaikh-ul-Hadith, Al-Jamia Al Salfia in Islamabad advised that he could return because the three divorces pronounced at one sitting on 24 November 1994 counted as one and therefore only two divorces had in fact been pronounced.  The Mufti Darul Uloom Taleem ul Qurum, and the Maulana Abdul Noor, Darul Fatawa, Jamiat-ul-Uloom Islamia, advised that without Hilala [sic] (under which his wife would have to marry another person and be divorced by that person, and would then be free to marry the Applicant again) he could not return to his wife.  The Mufti Darul-Uloom Al-Quran Rawalpindi stated that the Applicant could not return to his wife: he said that only Shias considered the three divorces at one sitting could be regarded as one."

The applicant and his wife resumed living together in the first week of March 1995.  On 31 March 1995, when the applicant was at a wedding, one of his wife’s uncles again attacked him and he was saved by other wedding guests. On the following day, this uncle threatened him again, brandishing a pistol and threatening to kill him.  He was saved when his brother had come along.  The applicant reported this to the police and the uncle was arrested, retained in prison for three days and then released.

The applicant gave evidence that, subsequently during 1995, he had on three occasions been attacked with stones when he had gone to his office in the company of other men in a car.  The applicant and his wife gave evidence that their life in Islamabad was very difficult.  The Tribunal said:

"At the hearing before me the Applicant and his wife said that people had laughed at them, their social life had completely stopped.  The Applicant's wife said that in eight or nine months she had hardly gone out of the house.  I asked how the neighbours had known of their situation and the Applicant said that, at the time he had divorced her he had viewed the divorce as permanent.  They had told everyone of the divorce and everyone in contact with him knew.  Indeed hundreds of people had visited him in a form of condolence. When they resumed living together people in the neighbourhood had told the imam at the local mosque who had denounced them at Friday prayers.  The people in their own neighbourhood had ceased all contact with them and the Applicant was not allowed to go to the mosque."

The applicant and his wife gave evidence that because of the problems they decided to come to Australia and that, some time after arriving in Australia, they applied for refugee status. 

While I was reading the Tribunal's exposition of the evidence given and the Tribunal's understanding of Islamic law, it seemed to me that the applicant and his wife put forward a probable and cogent story which had quite sufficient individual facts in it to be accepted as the background upon which their application for refugee status should be considered.  It seemed to me, as I read the Tribunal's decision, that the Tribunal would shortly turn to the question, an interesting one, whether the matters which the applicant and his wife feared if they were to be returned to Pakistan amounted to persecution for reasons of religion.

To my surprise, the Tribunal found that it was unable to accept the crux of the evidence of the applicant and his wife, namely their supposed divorce and reconciliation otherwise than in accordance with Islamic law.  The Tribunal said:

            "I find myself unable to accept the centrepiece of the evidence of the Applicant and his wife, namely their supposed divorce and reconciliation otherwise than in accordance with Islamic law.

            ...

            The problem for the Applicant and his wife is that, as I put it to them at the hearing, their reconciliation in these circumstances is not merely not permitted: it involves the commission of the offence of zina (illicit sexual relations) under Islamic law.  Since the Shari'a code has been given force in the domestic law of Pakistan, the offence of zina is an offence against the laws of Pakistan.  If the Applicant's account were accepted, therefore, it would not have been necessary for his wife's relatives to resort to abducting him or attacking him: they could simply have denounced him and his wife to the authorities."

It seems to me that, in coming to this view, the Tribunal rejected the evidence which had been given because of a mere possibility as to what course of action the uncle and the cousins might have taken in the circumstances described by the applicant and his wife.  It seems to me that to have regard to possibilities such as this is mere speculation which does not provide a proper ground for rejecting evidence which is otherwise cogent and likely. 

The Tribunal placed weight upon the fact that the uncles and cousins did not complain to the authorities, although the applicant and his wife had committed or may have committed, the offence of zina.  However, it does not accord with knowledge of human beings that they will necessarily report a crime to the authorities rather than display their annoyance of the offence in their own way.  There were several reasons as to why the uncle and the cousins might not have done so.  In the first place, if they had reported the matter to the police, that would have resulted, one would think, in the arrest and subsequent imprisonment of both the applicant and his wife.  The evidence does not suggest that the uncle and cousins wished Nafessa Shahzad, who was their relative, to be imprisoned.  Rather, the interest of the uncle and the cousins appears to have been to some extent at least a monetary one.  They had required the applicant to sign an agreement to repay the dower amount of 30,000 rupees and to return the ornaments and other dower Articles valued at a further 30,000 rupees.  Another relevant point is that the events of 28 December 1994, when the abduction and holding took place, occurred at a time when the applicant and his wife were not living together, when they were not in breach of any laws. 

I have in other cases emphasised that, if applicants for refugee status come before a Tribunal with stories which on their face seem cogent, those stories should not be rejected because of some matter which is based merely upon speculation. The principles upon which good decision making in this field should be based are set out in the United Nations Handbook on Procedures and Criteria for Determining Refugee Status. Two relevant paragraphs were cited in the judgment of McHugh J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 425:

            "203.  After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements .. It is therefore frequently necessary to give the applicant the benefit of the doubt.

             204.   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility.  The applicant's statements must be coherent and plausible, and must not run counter to generally known facts."

The matters set out in those paragraphs are not principles of law but rather principles of good decision-making as to facts.  In this type of case, where applicants have come from another country, and often under circumstances of stress, their claims should be judged having regard to the problems of proof which they face and, therefore, they must to a certain extent be given the benefit of the doubt. That really is to say no more than that the judgment of their claims must be made in the light of the difficulties which applicants for refugee status face in proving the matters on which they rely.

This point was emphasised by Beaumont J in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 at page 451.  His Honour cited, inter alia, the remark of Mason CJ in Chan at 392 that he regarded the Handbook:

"... more as a practical guide for the use of those who are required to determine whether or not a person is a refugee"

In my opinion the Tribunal's approach to the finding of facts was not a sound approach. Had the ground of unreasonableness been available I think I would have concluded that the decision of the Tribunal in rejecting the applicant's claims was unreasonable.  However, the ground of unreasonableness is not available and the question is whether there was an error of such a nature as falls within s 476 (1)(e) of the Migration Act, that is, an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.

Mr Levingston has submitted that, as a matter of law, an applicant for refugee status is entitled to "the benefit of the doubt" and that, as a matter of law, it is "presumed that the applicant's claims are true unless there is evidence available to the decision-maker which leads to another conclusion".  In my opinion, there is no principle of law to such effect.

The present is not a case such as Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300 where Burchett J and I were of the view that an inference could be drawn from the decision of the Refugee Review Tribunal that the Tribunal failed to give the effect to the provisions of Article 1 of the Refugee Convention which had been enunciated by the High Court of Australia in Chan.  In the present case, no inference can be drawn from the Tribunal's rejection of the evidence of Shahzad Awan and Nafeesa Shahzad that the Tribunal had a misunderstanding of the effect and operation of the definition of "refugee" in Article 1 of the Convention.

It necessarily follows, in my opinion, that no error falling within s 476(1)(e) has been established.  In my view there was an error but it was an error of fact.  It was an error of such a nature as would fall within the dictum of Brennan J in Waterford v The Commonwealth (1987) 163 CLR 54 where his Honour pointed out in clear terms that the mere making of a finding of fact is not an error of law.  Relevantly, of course, the term "error of law" is further restricted by s 476(1)(e), where the error must be an error involving an incorrect interpretation of the applicable law. 

I should not close, however, without saying that it does not appear to me that the applicant's claims, if accepted, would fall within Article 1 as being claims of fear of persecution for reasons of religion.  Of course, in a country such as Pakistan, the laws have a very close relationship with religion and religious beliefs.  However, the fundamental problem which the applicant and his wife faced was that they had publicly announced that they were divorced.  Their reconciliation had not been recognised by any appropriate religious authority and they were, so far as the community was concerned, living in sin in breach of both the law of Pakistan and fundamental community values. 

The law as to zina, that is illicit sexual relations, is a fundamental law of Pakistan and a fundamental law which plays a part in the morals of the State.  It seems to me that the punishment or disapproval of what, on its face, appears to be a breach of the rule that a man shall not live together with a woman unless married to her would not be a matter involving persecution for reasons of religion, as those words are used in Article 1 of the Convention.  In Article 1, the term "religion" is concerned at least primarily with religion in the sense of religious belief and freedom of religious belief.  The evidence does not suggest that the applicant and his wife had a religious belief in their right to live together or, for that matter, that the uncle and cousins were motivated by religious beliefs.

I should mention that the primary decision-maker whose decision was reviewed by the Tribunal concluded that the applicant's problems in fact concerned not religion but a family feud.  One can draw that conclusion from the demand which the uncle and cousins made for the payment of the rupees and the return of the dower articles, which occurred at the time when the applicant and his wife were separated. It would seem that the feud may have arisen from the disapproval by the uncles and cousins of the step which the applicant had taken of divorcing his wife and from the view that he should return the financial benefits which he had  obtained from the marriage.

Finally, I should mention the point raised by Mr Godwin, counsel for the Minister for Immigration & Multicultural Affairs, namely that the evidence does not suggest any persecution by the State of Pakistan.  The evidence shows rather that the applicant went to the police for assistance from time to time and received it. 

All these matters suggest to me that the applicant could not have succeeded in establishing a claim for refugee status even if the evidence had been accepted. 

The application will be dismissed with costs.

Associate:

Date:                9 April 1998