FEDERAL COURT OF AUSTRALIA

Ali v Minister for Immigration & Multicultural Affairs [1999] FCA 1794

AZHAR ALI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 806 OF 1999

JUDGE:                      SACKVILLE J

PLACE:                      SYDNEY

DATE:                        17 DECEMBER 1999

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      The applicant pay the respondent’s costs of the proceedings.

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

REASONS FOR JUDGMENT

The Application

1                     The applicant is a citizen of Pakistan, born on 15 April 1972.  He arrived in Australia on 16 November 1997, and applied for a protection visa with the Department of Immigration and Multicultural Affairs on 30 December 1997.  On 10 March 1998, a delegate of the respondent (the “Minister”) refused to grant the applicant a protection visa.  The applicant applied to the Refugee Review Tribunal (“RRT”) on 31 March 1998 for review of that decision.  On 5 July 1999, the RRT affirmed the delegate’s decision not to grant a protection visa.  On 18 August 1999, the applicant filed an application to this court applying for review of the RRT’s decision.

2                     The application, which is handwritten, claims that the Urdu interpreter at the RRT hearing had misunderstood some of the answers given by the applicant to questions asked by the RRT member.  The interpreter is said to have misunderstood the applicant’s qualifications; to have incorrectly stated the number of relatives he has in Pakistan; to have failed to communicate that the applicant had lost his passport in a ship in Dubai; and to have failed to mention that the applicant’s conversion from the Shia to the Sunni version of Islam was a slow and gradual process.  I should add that today the applicant has indicated that he prepared the handwritten application in English without assistance.

3                     At the first directions hearing in this matter, held on 9 September 1999, it was explained to the applicant that if he wished to rely on inadequacies in interpretation as a ground of review it would be necessary for him to produce evidence of those inadequacies.  It was for this reason that a direction was made that the Minister provide the applicant with a tape recording of the RRT hearing.  The applicant has accepted that the Minister complied with this direction and that he did receive a tape recording of the proceedings before the Tribunal.

4                     A second directions hearing was held on 25 November 1999.  The applicant did not attend that directions hearing.  He has said today that he came to the building but somehow did not make his way to the courtroom.  In any event the directions made on that day were communicated to the applicant in a letter sent by the Australian Government Solicitor to him on 25 November 1999.  That letter indicated that the time for the applicant to file and serve any affidavit in support of his application had been extended to 3 December 1999.  It also indicated that the applicant was to file and serve written submissions by 10 December 1999.

The Legislation

5                     Under s 65(1) of the Migration Act, the Minister may grant a visa only if satisfied that the criteria prescribed by the Migration Act or the regulations have been satisfied.  A criterion for the grant of a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees (“Convention”): Migration Act, s 36(2).  That criterion for a protection visa is fulfilled where, at the time of the decision, the Minister “is satisfied that the applicant is a person to whom Australia has protection obligations under the [Convention]”: Migration Regulations 1994 (Cth), reg 866.221.

6                     Article 1A(2) of the Convention 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 to, 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.”

Provision is made in s 476 of the Migration Act for review of decisions of the RRT by the Federal Court.  Subsection 476(1)(a) states:

“(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:

(a)                that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed.”

Section 425 of the Migration Act sets out one such procedure that must be followed.  It requires the RRT to invite the applicant to appear before it to give evidence arising in relation to the decision under review.

The Proceedings Before the RRT

The Applicant’s Claims

7                     The applicant’s claims were set out in written submissions to the Department.  The applicant also gave oral evidence before the RRT on 27 May 1999 through an Urdu-speaking interpreter.  The applicant was not legally represented.  I should note that the RRT stated in its reasons that the applicant obviously had a reasonable grasp of the English language.  That assessment seems to have been confirmed today, in that the applicant has indicated that he is able to understand English to a reasonable extent.

8                     In his application, the applicant claimed that he had been born a Sunni Muslim, but had become a Shia Muslim in June 1993 whilst attending technical college.  He stated that he had converted because he liked the Shia students at his college, who “helped him with books and other things” and because he “wanted to make friends with people who had money.” 

9                     The applicant claimed that his family had “turned their backs on him” when he became a Shia Muslim.  He also stated that many students among the Sunni sect became angry at his conversion.  In particular, he claimed that members of the “ISSP” (the Sipah-i-Sahaba, an organisation of Sunni Muslim students) tried to kill him several times and that he had been the victim of several attacks and had been tortured and molested.  However, in his oral evidence, the applicant gave details of only one such event, which he said occurred on 22 December 1993.  The applicant claimed (as he had in his application) to have been bashed and stabbed by five or six people in the street who wore ISSP badges.  According to the applicant, he was stabbed in the head and the leg and was hospitalised for fifteen days as a result.

10                  The applicant’s account of the police response to this assault was contradictory.  In his primary application, the applicant had claimed that, despite his reporting the incident, the police took no action because they were corrupt.  However, at the hearing, the applicant told the RRT that he reported the incident to the police, and that while the police were conducting their investigation at his college, Sunni students locked him in the bathroom and set fire to the building, and that he was blamed for the arson.  He later claimed at the hearing that students locked the police (not the applicant) in a room and set fire to it, but that he was blamed for the arson.

11                  The applicant stated that after this assault (the RRT took this to mean in late 1993 or early 1994) he ran away to a nearby village.  With the assistance of friends and by virtue of bribery he purchased air tickets and a visa in 1997, enabling him to flee to Dubai with three of his friends.  He said that he had no choice other than to free because he was wanted by the authorities and the ISSP.  While in Dubai he worked for a dry dock shipping company on a month to month basis.  He left Dubai for Australia after cousins of people from his village (Sunni Muslims) began harassing him in Dubai. 

12                  The applicant claimed that he had a well-founded fear of persecution at the hands of the ISSP if he were to return to Pakistan because of his membership of the Shia sect.  He also claimed that the Pakistani authorities would not protect him against the ISSP, first because they were corrupt and, secondly, because they wanted him in connection with the (false) charge of arson.

The RRT’s Decision

13                  The RRT accepted, on the basis of country information, that there was conflict between Shias and Sunnis in Pakistan.  But the applicant had provided no evidence to substantiate his claim that he belonged to a Shia political party, and indeed had been unable to provide the name of the organisation.  The RRT noted that the applicant had little understanding of the doctrinal differences between Shia and Sunni Muslims.  It considered that his stated reasons for conversion (that the Shias at the technical college that he attended were helpful, wealthy and generous) were unlikely considering the entrenched animosity between members of the two sects and by reason of the fact that the applicant had been brought up in a large Sunni family.  Moreover, the RRT took the view that it was unlikely that the applicant, if he were a Shia Muslim, would have sought to escape persecution by fleeing to Dubai, another Sunni-dominated country.  Accordingly, the RRT was not satisfied that the applicant was a Shia Muslim.

14                  This finding, of course, was sufficient to defeat the applicant’s claim, since its very foundation was that he had converted and had become a Shia Muslim.  Nonetheless, the RRT went on to consider the position if its conclusion were wrong and if in fact the applicant were a genuine member of the Shia sect. 

15                  On this basis, the RRT considered that there were inconsistencies and contradictions in the applicant’s claims.  The RRT accepted that the applicant had been attacked and stabbed as he described in December 1993, but observed that he had presented no evidence that he had been attacked because of his membership of the Shia organisation.  The RRT pointed out that the applicant had given inconsistent accounts as to whether the police had investigated the incident. He had also given inconsistent accounts as to what happened when the police arrived at the college in order to investigate the incident.

16                  The RRT noted that the applicant had been able to obtain a passport after the alleged incident and had left Pakistan legally at least once.  Moreover, on the applicant’s own account, although the incident had occurred in December 1993, he did not leave Pakistan for Dubai until three years later, in January 1997.  Taking account of all of the inconsistencies and “incongruities”, the RRT found that the story about the arson committed by the ISSP and the allegation that the applicant had been falsely blamed for the arson was quite implausible.

17                  The RRT also considered that the applicant had given inconsistent evidence about passports held by him and about the alleged loss of his passport in Dubai in 1997.  The RRT found that “the applicant’s answers to questions about his passport(s) were evasive, contradictory and confused, in spite of the fact that he obviously had quite a reasonable grasp of the English language and was assisted by an Urdu-speaking interpreter”.  Accordingly, the RRT was not satisfied that the applicant was being truthful either about his previous passport or other travel undertaken by him.

18                  The RRT reached the following conclusions:

“After careful examination of the evidence before me, I find that the applicant is not a credible witness.  I am not satisfied that the applicant is a member of the Shia sect; or that he suffered persecution in Pakistan at the hands of the [ISSP] because he was a Shia; or that he fled Pakistan for Dubai because of his fear of persecution at the hands of the [ISSP]; or that he has a fear of being wrongfully arrested on a charge of arson; or that he left Dubai for Australia because, as a Shia, he was afraid of Pakistani [ISSP] members in Dubai.

In summary, I find that the applicant has not suffered persecution in the past because of his religious beliefs and does not have a well-founded fear of persecution in the reasonably foreseeable future for a Convention-related reason”.

19                  As a result, the RRT affirmed the delegate’s decision not to grant the applicant a protection visa.

Reasoning

20                  The applicant today has made submissions in writing which largely reproduce what is said by him in his application for review filed in this Court.  He has added two paragraphs that address certain factual questions that were decided by the RRT.

21                  The applicant's principal claim is that the RRT's decision was affected by inadequate translation of his evidence.  Mr Smith, who appeared for the Minister, has conceded, properly, that there are circumstances in which an inadequate translation of an applicant's evidence to the Tribunal may constitute a ground for setting aside that decision pursuant to s 476(1)(a) of the Migration Act.  This is because such a failure may amount to a contravention of s 425 of the Migration Act: see Perera v MIMA [1999] FCA 507.

22                  The fundamental difficulty facing the applicant is that there is simply no evidence that his own evidence before the RRT was not adequately translated.  Directions were made at an early stage in this matter, specifically for the purpose of enabling the applicant, if he so chose, to obtain evidence of a failure adequately to translate his evidence before the Tribunal.  That evidence has not been adduced before this Court.  There is therefore no factual basis upon which I could find that the applicant's complaints have been made out.

23                  In any event, it must be said that the complaints made by the applicant do not go to the heart of the issues determined by the RRT.  The RRT found that the applicant was not a reliable witness and that it was not prepared to accept his evidence on the basic claims that he made in support of his application for a protection visa.  The issues that the applicant has identified in his application and in his written submissions, can, I think, properly be described as largely peripheral to the basic claims that he was making.

24                  The complaints also appear to be largely peripheral to the matters that the RRT regarded as significant when forming the view that the applicant's evidence was not to be accepted.  For that reason, in addition, the applicant has not succeeded that there is a ground to set aside the RRT's decision under s 476(1)(a) of the Migration Act.

25                  Finally, in his written submissions, the applicant raised certain factual matters.  As was explained in the course of argument, this Court does not have the power to set aside a decision of the RRT simply on the basis that the Court might be inclined to take a different view of the facts.  I do not say that the Court would take any different view of the facts.  The point is merely that factual complaints made by the applicant do not constitute a ground for review of the RRT's decision.  It follows that the application must be dismissed.  The applicant should pay the costs of the respondent.

Associate:

Dated:              17 December 1999