FEDERAL COURT OF AUSTRALIA

Yaqub v Minister for Immigration & Multicultural Affairs [2000] FCA 1092

MIGRATION – Refugee application – Review of decision of Refugee Review Tribunal – whether the Tribunal failed to give adequate reasons under s 430(1) of the Migration Act 1958 (Cth) – the Tribunal failed to give reasons for not accepting evidence – whether the Tribunal erred in making findings that were not open to it on the evidence before it – whether the decision of the Tribunal was induced by actual bias.

Migration Act 1958 (Cth) ss 430(1) and 476(1)

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 followed

N258/00A v Minister for Immigration and Multicultural Affairs [2000] FCA 993 followed

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 followed

Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 72 referred to

Singh v Minister for Immigration and Ethnic Affairs (Lockhart J, 18 October 1996, unreported) followed

IRFAN YAQUB v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1142 of 1999

MATHEWS J

SYDNEY

9 AUGUST 2000

THE COURT ORDERS THAT:

1.                  The application is dismissed with costs.

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant (“Mr Yaqub”) seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 September 1999 in which the Tribunal affirmed a decision of the respondent’s delegate to refuse Mr Yaqub’s application for a protection visa.

2                     In order to be eligible for a protection visa an applicant must meet the criteria set out in s 36(2) of the Migration Act 1958 (Cth) (“the Act”) and subclass 866 in Sch 2 to the Migration Regulations 1994.  Both provisions require that the applicant for a protection visa be a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).  Article 1 of the Convention defines a “refugee” as any person who

“… owing to a 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 …”.

3                     Mr Yaqub says that he has a well-founded fear of persecution for reason of his political opinion.

Background

4                     On 19 March 1997 Mr Yaqub arrived in Australia using a Pakistani passport in the name of Mohammad Gulzar.  On 30 June 1997 he applied for a protection visa.  The application was accompanied by a statutory declaration of Mr Yaqub.  In it he said he was born in Pakistan on 14 March 1968.  He feared for his safety in Pakistan due to his political activities “as an active leader within the Pakistan Peoples Party” (“PPP”).  Mr Yaqub went on to say that he first joined the PPP in 1988 after he finished his university studies.  At that stage it was the leading opposition party in Pakistan.  He joined the local branch and remained an active member until he left Pakistan in March 1997.  By that time he had reached the position of president in his ward, Chaudhry colony.

5                     Between 1993 and 1996 the PPP was the ruling party of Pakistan.  However at the election held in February 1997 the PPP was badly defeated and the Muslim League (“PML”) won power.  Immediately afterwards, Mr Yaqub said, PPP members such as himself suffered harassment from the police, the army and PML followers.  On 2 March 1997 he and three other PPP activists were taken by police van to a police station in Lahore.  He was not told why he was arrested and no charges were laid against him.  He was threatened with violence although he was not physically assaulted.  The next day his father secured his release with the payment of a bribe.  Mr Yaqub’s statutory declaration continued:

“I went home and felt absolutely terrified.  Nothing like this had ever happened to me before.  Friends and Party workers told me that I would not be safe if I stayed in Pakistan.  We all believed that this was a warning to me to escape or else to be ready for further arrests when I would almost certainly suffer physical torture.  This is how it usually happens in Pakistan.” [emphasis added]

6                     It was shortly after this that Mr Yaqub obtained another man’s passport into which he inserted his own photograph.  He left Pakistan approximately two weeks later on 18 March 1997.

7                     Various supporting documents accompanied Mr Yaqub’s application.  These included documents which confirmed his educational and employment background.  A PPP identification card, containing Mr Yaqub’s photograph with the designation of “Ward President” was included amongst the papers.  Also included were two letters written to Mr Yaqub in Australia, one from his mother and another from his friend Anwaar.  Both were written in English and both advised him not to return to Pakistan.  Anwaar warned that “if you come back to Pakistan you will be arrested immediately and policemen will torture you voilently [sic]”.  His mother warned him that “if you come back you will be arrested by police and I don’t want so”.

8                     On 29 July 1997 Mr Yaqub’s solicitors, Parish Patience, wrote to the Department enclosing faxed copies of two documents which Mr Yaqub had received from Pakistan.  These documents have assumed some significance in these proceedings and I shall described them fully.  The first document is a letter which purports to be written by “Senator M Jehangir Badar, Incharge Overseas Desk (PPP)”.  Senator Badar is also described on the letterhead as “Chairman Standing Committee for Petroleum & Natural Resources.”  The letter is under the general heading “Senate of Pakistan”.  The text of the letter is as follows:

            “TO WHOM IT MAY CONCERN:

            MR. IRFAN YAQOOB S/O CH.M. YAQOOB PRESIDENT OF PAKISTAN PEOPLE’S PARTY CHAUDRY COLONY AMIN ROAD BADAMI BAGH LAHORE.

            I being to Senator certify that Mr. Irfan Yaqoob has been our hard worker.

            And in 1990, under the Government of Pakistan Muslim League he was arrested for 6 months.  And new when Pakistan Muslim League is in Government from 17, February they objected, Mr Irfan is a crupt person because.

1.                  He alloted the plots with cruption.

2.                  He oppointed the persons on jobs with cruption.

And now if Irfan Yaqoob cames back he will be arested immediately.

So I don’t recommend to Mr. Irfan Yaqoob he should came back to Pakistan.

                                                                        SENATOR

                                                                        M. JEHANGIR BADAR”

9                     The letter is undated, but appears to have been faxed from Lahore on 23 July 1997.  I shall describe it as “the first letter”.

10                  The second document also appears to emanate from Mr Badar, this time in his capacity as an election candidate.  An image, presumably of Mr Badar, appears in the top left-hand corner, with the name “Jahangir Badar” beside it.  He is described as an “ex-Federal Minister” and PDA’s “Official Candidate NA-96”.  Under a large image of Benazir Bhutto the document reads “I authorise Mr Irfan Yaqoob to check the polling station on my behalf”.  The document is apparently signed by Mr Badar.  In any event, a signature appears above the name “Jehangir Badar” on the letter.  The document is typed, although the name “Irfan Yaqub” in the body of the document is inserted in handwriting.

11                  Later again, on 2 September 1997, Parish Patience sent to the Minister’s delegate a “certified copy” of the first of these two letters.  Also enclosed was a letter dated 4 October 1995 appointing Mr Yaqub as PPP president of the Chaudry colony ward.

12                  On 24 September 1997 the respondent’s delegate refused Mr Yaqub’s application for a protection visa.  Mr Yaqub applied to the Tribunal for review of this decision. He sent a statement to the Tribunal in refutation of various matters raised in the delegate’s decision.  The statement contained the following passage:

“I also provide the following further information to the Tribunal.  I did not mention in my earlier statement my unlawful detention for about 6 months during the previous rule of the PML (N) in 1990, because I did not want to be recognised as a criminal or a man of bad character by the Australian Department of Immigration.  However, Senator Jehangir Badar of the PPP was President of the PPP’s Punjab Province wing and knew about me and has mentioned my detention in his letter.”

13                  Also sent to the Tribunal was a considerable amount of country information as well as a letter in the Urdu language, apparently written to Mr Yaqub by his brother in Pakistan.  The English translation of this letter described Muslim League workers as persistently seeking to know Mr Yaqub’s whereabouts.  His brother quoted these members as saying “If we get Irfan, we will never spare him, as it is now our government we will get him at any rate and send him to jail”.  His brother urged Mr Yaqub not to return to Pakistan.

14                  On 30 July 1998 the Tribunal affirmed the delegate’s decision not to grant a protection visa to Mr Yaqub.  Mr Yaqub sought judicial review of this decision.  On 2 December 1998 Tamberlin J allowed this application and remitted the matter to the Tribunal for further determination.  The grounds upon which this occurred are not presently relevant.

15                  For the purpose of the remitted hearing the Tribunal sought information from its research section as to a number of matters relevant to Mr Yaqub’s application.  This included a request for information about Senator Jehangir Badar.  The response showed that Senator Badar was an extremely prominent member of the PPP.  He was a cabinet member in 1988 and 1990 and again in 1996.  For some time he was President of the PPP in the Punjab. 

16                  On 28 April 1999 Parish Patience wrote to the Tribunal enclosing a letter dated 6 April 1999 again purporting to come from Senator Badar (“the second letter”).  This was on the same letterhead as the undated letter (described in para [8] above) and was in the following terms:

“TO WHOM IT MAY CONCERN

            I personaly know Mr. Irfan Yaqoob who has been ward President of Chaudhry Colony Lahore.  Being an active leader of PPP he has always been appreciated.

            Due to his political activities it is not favourable for him to come back to Pakistan.

            As Security of Party Leaders is one of our top most proprieties, so I strongly recommend him to avoid coming back to Pakistan under any circumstances.

            Serious physical torture or even death could be one consequence he might face if he returns back.

                                                            SENATOR  M. JEHANGIR BADAR”

17                  On 7 May 1999 Mr Yaqub attended a hearing of the Tribunal and answered questions put to him by the Tribunal member.  The proceedings were tape recorded and a transcript was tendered in these proceedings.  Amongst other things, the Tribunal member sought Mr Yaqub’s explanation as to why he did not mention in his first statutory declaration that he had  been arrested and incarcerated for six months in 1990.  In particular it was put to Mr Yaqub that it was “a little strange” that he had not mentioned this detention to his own adviser.  Mr Yaqub was asked what it was about his profile which made him more at risk than other PPP members, given that the PPP remains the official opposition party in Pakistan.  He said that the reason was that he was young and outspoken and “had the courage to go and tell the people what is wrong and what is not.”  Also, his situation was unusual in that he had already been detained twice.  Mr Yaqub told the Tribunal that he had no doubt he would be detained on his return to Pakistan.  He was asked if other ward presidents had left the country.  He said not that he knew of.  Those who remained were being abused but not harassed to the extent that he had.  The Tribunal member put to Mr Yaqub that he was puzzled that Mr Yaqub should fear such mistreatment, given that, since 1990, the worst that had happened to him was his 24 hours in detention in 1997 which was not accompanied by any physical mistreatment.

18                  The Tribunal member asked Mr Yaqub about Senator Badar. He answered that Senator Badar was currently the Chairman of the Standing Committee on Food and Agriculture.  Although the PPP is in opposition, Mr Yaqub said, it has a majority in the Senate, thus enabling Senator Badar to chair a committee.  The Tribunal member told Mr Yaqub that the Tribunal was making enquiries from Senator Badar as to the authenticity of the documents said to emanate from him.  Mr Yaqub was told that he would be informed of the results of those enquiries.

19                  The Tribunal’s enquiry took the form of a faxed letter to the Senator dated 30 April 1999 which was relevantly as follows:

“Dear Senator Badar,

I refer to today’s telephone conversation in which the Refugee Review Tribunal in Australia proposed to seek your assistance concerning a case currently under consideration.

By way of background the Refugee Review Tribunal is an independent Tribunal set up by legislation to undertake merit review of applications for refugee status of persons in Australia.  One of the functions of the Country Research Unit is to obtain information to support the review function of the Tribunal.

An applicant has provided a letter to the Tribunal, under your signature, stating that the applicant was an active leader of the PPP.  The letter states that it was not favourable for the person to return to Pakistan.  The letter continued that you recommended that the applicant avoid returning to Pakistan as “[S]erious physical torture could be a consequence” of return.

On the letterhead there is a reference to a “Incharge Overseas Desk (PPP)”.

Your advice would be greatly appreciated on the following questions:

            1.         Do you and/or the PPP send such letters?

2                    In what circumstances are such letter sent?

3                    Are the letters issued to anyone who asks for such a letter?

4                    Is there some form of vetting process before issuing such a letter?”

20                  By 13 May 1999 no response had been received to this fax. A Tribunal officer accordingly telephoned Senator Badar in Pakistan.  The file note of the conversation is in the following terms:

“Senator Badar answered the telephone.  He indicated that he had received the Tribunal’s fax and that he had forwarded it to the Party for reply.  As the Tribunal had not received a reply he asked for the fax be sent to him again for his reply in 24-48 hours.”

21                  On 19 May 1999 the Tribunal received a fax, apparently from Senator Badar, in the following terms (“the third letter”):

“Answers

1.                  Yes.

2.                  Such cases where there is a threat to the security or the respect of any P.P.P. worker of His family member is involved in Pakistan but residing abroad.

3.                  No! only where families of victims or targeted belonging to P.P.P. make request on certain facts of Local Leaders of the Party forward such case.

4.                  We seek the testimony of Local Leaders for such onus.”

22                  I should interpolate here that it was assumed by the applicant, until the hearing before me, that when the Tribunal made its faxed enquiry of Senator Badar it enclosed the Senator’s first letter, with the result that the Senator’s response amounted to an authentication of that letter.  However it became clear that no letter was enclosed with the Tribunal’s faxed enquiry.  Rather, the Tribunal’s letter quoted extracts from the body of the Senator’s second letter.

23                  On 3 May 1999 the Tribunal sent to DFAT a copy of one of Senator Badar’s letters (probably the second letter) and sought advice on the following issues:

1.         “Is DFAT aware of such letters?

2.         If so, under what circumstances are they issued?

3.                  Does DFAT have any knowledge of ‘Incharge Overseas Desk (PPP)’ and its role?

4.                  Who is the Chairman of the Standing Committee for Food & Agriculture?

5.                  Has Senator Badar ever been the Chairman of the Standing Committee for Food & Agriculture?”

24                  On 20 May 2000 the following answers were received:

1          As per the faxed letter, letters of this kind are not uncommon in Pakistan.

2.                  In Pakistan there is a culture of patronage, letters such as the one faxed to us can be written for a number of reasons, for example, for a relative, a friend of a friend, to gain favour and advantage.

3.                  The PPP office in Islamabad confirmed that there is a specified position within the PPP and that a named official looked after this area.

4.                  A senior official at the MFA well known to the AHC Pakistan, confirmed that the politician is the Chairman of the specified government organisation.”

25                  On 28 June 1999 the Tribunal sent to Parish Patience copies of all enquiries it had made and of the various responses.  On 20 July 1999 Parish Patience wrote to the Tribunal submitting that these responses essentially supported Mr Yaqub’s claims. Mr Yaqub also submitted a somewhat emotional handwritten letter pointing out his excellent work history and employment prospects in Pakistan and asking, rhetorically, why he would go to the lengths of obtaining a false passport and coming to a strange country where he had few prospects unless he had genuine fears as to serious mistreatment on his return.

26                  On 9 September 1999 the Tribunal affirmed the delegate’s decision not to grant Mr Yaqub a protection visa.

The Tribunal’s decision

27                  The Tribunal in its decision set out the various claims made by Mr Yaqub and described, in general terms, the material furnished by him.  This included a great deal of country information about the situation in Pakistan.  The decision contained quite a detailed account of Mr Yaqub’s evidence before the Tribunal.  It described the enquiries made by the Tribunal and the various responses received by it.

28                  Under the heading “Findings and Reasons” the Tribunal accepted that Mr Yaqub was involved, at a local level, with the PPP and that he was appointed as ward president in the mid 1990s.  The Tribunal did not accept that Mr Yaqub was ever detained in 1990.  Its findings in this regard were as follows:

“The Tribunal notes that the applicant made no mention of the first period of detention in 1990, a time before, on his own evidence, his appointment as ward president, until after it was raised in a letter, purporting to come from the prominent PPP politician.  His explanation – that he did not know Australian law and that he did not know how officials would react – is implausible.  The applicant was then and is now represented by an experienced and prominent adviser.  The Tribunal could accept as possible the applicant being afraid of officials.  It cannot accept that the applicant would have not been advised to put forward all the facts to his adviser at the time of the primary application.  The Tribunal notes that the second letter sent to the applicant, purported to come from the politician, makes no reference to any such detention or indeed to any suggestion that he will be charged with corruption.  The Tribunal further notes the difference in facility with English in the two letters from the politician and the difference in the signatures and in the spelling of the politician’s name on the two letterheads.  The Tribunal notes that the first letter also referred to the applicant being threatened with corruption charges.  The Tribunal accepts the applicant’s evidence that he has not at any time been charged with corruption or the subject of an FIR for corruption or any other reason.  The Tribunal considers, for the reasons outlined above, the first letter purporting to be from the politician to be of such dubious provenance and so self serving, that it can attach no weight to it or to its contents.  The Tribunal finds the first letter from the politician not to be genuine.  The Tribunal found the applicant’s description of the claimed period of detention to be so vague and unconvincing as to be implausible.  It also attached weight to the statement in the applicant’s first statement that ‘nothing like [the detention in second period of stated detention] had ever happened to me before’.  In the light of the evidence before it, the Tribunal finds that the first claimed period of detention, in 1990, did not occur.”

29                  The Tribunal accepted that Mr Yaqub may have been detained for about 24 hours by the Pakistan authorities in the immediate aftermath of the 1997 general elections.  It commented that Mr Yaqub had produced no evidence to support his claim that this detention was for a Convention reason.  It cited country information to the effect that there was no evidence that the PML used the security forces against the PPP.  In the light of the evidence before it, the Tribunal was “unable to be satisfied that the detention was for a Convention related reason”. 

30                  The Tribunal then went on to consider what might happen to Mr Yaqub on his return to Pakistan.  In this regard it noted the applicant’s description of himself as being a low profile member of the PPP.  It observed that the PPP operates openly as the principal opposition party in Pakistan.  It did not accept that there was any State sponsored or State condoned violence against the PPP.  It accepted that in Pakistan there is a tradition on all sides of politics for violent clashes to take place for political reasons.  However it found that any such violence against a member of the PPP would not be persecution within the meaning of the Convention “because the violence lacks the selective or discriminatory quality inherent in the notion of persecution and because it lacks the requisite official quality in the sense that it is official, or officially tolerated, or uncontrollable by the authorities”.  The Tribunal was not satisfied that Mr Yaqub had a well-founded fear of persecution for reason of his membership of the PPP should he return to Pakistan.

31                  This conclusion was sufficient to resolve the matter against Mr Yaqub.  However the Tribunal went on to refer to Senator Badar’s second letter which Mr Yaqub and his adviser had strongly relied upon as showing that Mr Yaqub was at risk in Pakistan.  In regard to this letter the Tribunal made the following comments and findings:

“The Tribunal accepts the published evidence cited above, that the politician is a prominent PPP politician.  The Tribunal further accepts, notwithstanding the submission made by the adviser, the DFAT advice of 20 May 1999, cited above, that letters of support such as those issued to the applicant by the politician and other PPP politicians are common in Pakistan.  The Tribunal notes in this regard the comment made by the politician to a member of the Tribunal staff on 13 May 1999 that he had forwarded the Tribunal request for information to the Party to arrange a reply.  The Tribunal also notes the evidence at the haring that the applicant’s brother had approached a party official, explained the problem the applicant was having in Australia and that as a result he received a letter of support from another PPP politician.  In this regard, the Tribunal notes that the second letter purporting to be from the politician, and the other PPP letters, do not support the applicant’s case in any substantive way.  The second politician’s letter talks about the risk to senior Party leaders and says: ‘Being an active leader [the applicant] has always been appreciated.  Due to his political activities it is not favourable for him to come back to Pakistan.  As security of Party Leaders is one of our top most priorities, so I strongly recommend him to avoid coming back to Pakistan under any circumstances.’ It has been established, however, including by the applicant himself, that he does not fall into the category of party leader or an active leader of the PPP.  The letters from the PPP express appreciation for work done and one speaks about sacrifices made on behalf of the party but does not specify what those sacrifices were.

The Tribunal has also considered whether the second politician’s letter, and the other support letters claimed to have been issued by the PPP, were issued because the applicant was considered to be at risk or because the applicant, through contacts, simply wanted the letters to enhance an otherwise weak case.  In considering this point, the Tribunal also noted the advice from the Canadian Immigration Review Board, cited above, that it has received letters allegedly from the PPP from a specified position but that they have been unable to verify the authenticity of the letters, despite numerous efforts to do so.  It accepts the advice from the PPP, issued in response to the Tribunal approach to the politician, that such letters are issued following checks with local Party members.  This is of itself does not answer the question as to whether they were issued because of patronage or because the applicant was at risk or both.  When added to the concerns enumerated above:

-                     the applicant’s own admission that he had a low profile,

-                     the fact that he said originally that nothing had happened to him before the 24 hour detention,

-                     the problem with his claims to have been detained in 1990, and

-                     the lateness of his claim to have been detained for six months in 1990,

The Tribunal finds the submission of the second politician’s letter and the other PPP letters was self serving and an attempt to embellish the applicant’s case.  The Tribunal finds that the second politician’s letter and the PPP letters are genuine but that they add nothing to the applicant’s claims to have a well founded fear of persecution for a Convention reason should he return to Pakistan now or in the reasonably foreseeable future.

Application to this Court

32                  In his amended application Mr Yaqub relied upon four grounds of review.  They were:

1.                  That the Tribunal failed to observe requisite procedures in that it failed to give reasons as required by s 430(1) of the Act (s 476(1)(a));

2.                  That the decision of the Tribunal involved an error of law (s 476(1)(e));

3.                  That the decision of the Tribunal was induced or affected by actual bias (s 476(1)(f)); and

4.                  That there was no evidence or other material to justify the making of the decision, and the Tribunal based its decision on the existence of particular facts which did not exist (s 476(1)(g) and 476(4)(b)).

33                  I shall discuss each of these grounds in turn.

Ground 1- Failure to observe procedures

34                  The first ground of review is that the Tribunal failed to observe procedures that were required by the Act in that it failed to give adequate reasons under s 430(1)(b), (c) and (d) of the Act.

35                  Section 430, as relevant here, provides as follows:

“430 Refugee Review Tribunal to record its decisions etc.

(1)   Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)   sets out the decision of the Tribunal on the review; and

(b)   sets out the reasons for the decision; and

(c)    sets out the findings on any material questions of fact; and

(d)   refers to the evidence or any other material on which the findings of fact were based.”

36                  When this application came for hearing, in March of this year, there was a divergence of opinion in this Court as to whether a failure to comply with s 430 constituted a failure to observe requisite “procedures” so as to establish a ground of review under s 476(1)(a) of the Act.  There was also divergence as to the content of the obligation imposed by s 430, and particularly whether it requires the Tribunal to state its reasons for rejecting, or not attaching weight to, evidence or other material which is inconsistent with its findings.  At that stage a specially convened Court of five Judges had reserved its judgment in an appeal which raised both issues.  Accordingly, the parties agreed that I should defer handing down my judgment in this case until the Full Court had given its judgment in that matter, and each party had been given an opportunity to provide further written submissions.  I agreed to adopt that course. 

37                  On 30 June 2000 the Full Court delivered its judgment in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 (“Singh”).  The majority of the Court (Black CJ, Sundberg, Katz and Hely JJ) found that the preparation of a statement of reasons under s 430(1) of the Act constitutes a “procedure” which the Act requires to be observed, with the consequence that a failure to comply with s 430(1) will provide a ground for review under s 476(1)(a).  As to the content of the obligation under s 430(1), the majority made the following observation:

“There is no specific requirement in s 430 for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made.  That is the view endorsed by the decisions referred to in par 12 above, and in our view it is consistent with the language of the section.  The decision of the Full Court in Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 1726 provides another illustration of this approach.   There the Court held that the RRT was not obliged to analyse material submitted by the applicant, and to give reasons for not accepting any of it that might be thought to be inconsistent with the conclusions it reached. The endorsed view is subject to the important qualification that if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT’s actual reasoning process: see Durairajasingham (supra).”

38                 At first sight the distinction, referred to in this passage, between “the endorsed view” and its qualification is not an easy one to draw.  It was stated differently, and perhaps more illuminatingly, by Katz J in N258/00A v Minister for Immigration and Multicultural Affairs [2000] FCA 993 in the following passage:

“The Tribunal’s duty under par 430(1)(b) of the Act did not require the Tribunal to give reasons for acting on that part of the country assessment on which it relied rather than on the statements specifically relied on by the applicant from the State Department report, since nothing in the Tribunal’s statement of findings and reasons suggests that it was rejection by the Tribunal of the correctness of those statements which had led it to accept that part of the country assessment on which it relied: see the joint reasons for judgment of Black CJ and Sundberg, Katz and Hely JJ in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 (30 June 2000, unreported) at [46], [56] and [64].” (para 45)

39                  I take the “qualification” described by their Honours as referring to a situation where the Tribunal’s rejection of a particular piece of evidence provides such strong support for a contrary proposition as to lead to a finding in favour of that contrary proposition.  This would be a relatively rare situation, and does not appear to have any relevance to the circumstances of this case.

40                  With this background I turn to the particular respects in which the applicant submits that the Tribunal’s decision was not in accordance with s 430(1).  The particulars in the amended application are in the following terms:

(a)               “In determining that the letter from Senator Badar of 23 July 1997 was not genuine the Tribunal failed to set out its reasons and findings and refer to a facsimile from Senator Badar sent ot the tribunal on 19 May 1999.

(b)               The Tribunal failed to set out its reaons and findings and refer to the evidence in relation to a letter sent to the applicant by his friend Anwaar.

(c)                The Tribunal failed to set out its reasons and findings and refer to the evidence in relation to a letter sent ot the applicant by his mother.

(d)               The Tribunal failed to set out its reasons and findings and refer to the evidence in relation to a letter sent to the applicant by his brother.

(e)                The Tribunal failed to set out its reasons and findings and refer to the evidence in relation to a number of items of country information which corroborated and supported the applicant’s claims.”

41                  It is unnecessary for present purposes to discuss these particulars in any detail.  Each of them, according to its terms, seeks to impugn a finding of the Tribunal on the ground that the Tribunal failed to give reasons for not accepting evidence which might be thought to be inconsistent with the conclusions it reached. Particulars (b) to (e) clearly fall within this category.  Particular (a) is slightly different, in that it claims that the Tribunal failed to set out its reasons for its finding that Senator Badar’s letter of 23 July 1997 (the first letter) was not genuine.  However this ground was based on the incorrect assumption that the Tribunal had sent Senator Badar’s first letter to the Senator when it made its enquiry of him.  The applicant’s real complaint under this head was that the Tribunal failed to advert to the Senator’s faxed response when it discussed the genuineness of this letter.  This complaint lost its sting when it was realised that the first letter had not been sent to Senator Badar by the Tribunal.

42                  The judgment in Singh provides clear authority that the Tribunal is not required, when making findings of fact, to refer to items of evidence which point to a contrary conclusion.  Each of the applicant’s complaints under this ground fall within this category.  Accordingly, the ground has not been made out.

GROUND 2 – AN ERROR OF LAW

43                  Mr Yaqub says that the Tribunal’s decision involved an error of law, being an error involving an incorrect interpretation of the law and an incorrect application of the law to the facts, this being a ground of review under s 476(1)(e).  The particulars in support of this ground are as follows:

“(a) The Tribunal made a number of findings of fact that were not open to it:

(i)                 The Tribunal’s finding that the letter from Senator Badar sent on 23 July 1997 was not genuine was not open to it.

(ii)               The Tribunal’s finding that the letter from Senator Badar dated 6 April 1999 was self serving and an attempt to embellish the applicant’s case was not open to it.

(iii)             The Tribunal’s finding that the applicant had produced no evidence to support his claim that his detention in 1997 was for a Convention reason was not open to it.

(iv)             The Tribunal’s finding that the applicant had given evidence that he has a low political profile was not open to it.

(b) The Tribunal incorrectly interpreted the definition of refugee within the meaning of the Refugees Convention, in relation to its finding ‘that violence against any member of the PPP is not persecution within the meaning of the Convention because the violence lacks the selective or discriminatory quality inherent in the notion of persecution and because it lacks the requisite official quality in the sense that it is official, or officially tolerated, or uncontrollable by the authorities.’”

44                  In support of the matters raised under ground 2(a), Mr Poynder, who appeared for Mr Yaqub, submitted that the evidence in relation to each of the factual issues, (i) to (iv) was all one way, and was contrary to the Tribunal’s finding.  He submitted that this was an error of law under s 476(1)(e).  He also relied upon these matters as supporting a ground under s 476(1)(g), namely that there was no evidence or other material to support the making of the decision.

45                  I shall discuss separately each of the Tribunals findings (i) to (iv).  However I shall do so briefly, for in my opinion this ground and the ground under s 476(1) are without substance.

46                  The first finding sought to be impugned is that Senator Badar’s first letter, faxed on 23 July 1997, was not genuine.  This complaint suffers the same defect as the complaint under the first ground, namely that it was based on an incorrect assumption.  Nor could it be said that the Tribunal’s finding as to this letter was without factual foundation. There is, as the Tribunal noted in its decision, a startling difference between the facility with the English language in each of the first and second letters.  It was reasonable to conclude, as the Tribunal did, that they had different authorship.  Given Senator Badar’s background and qualifications, he was an unlikely author of the first letter.  Moreover, as the Tribunal commented, part of the contents of the first letter were inaccurate.  For example, Mr Yaqub had never been accused of corruption. 

47                  It could not be said that there was no evidence to support the Tribunal’s finding that Senator Badar’s first letter was not genuine.

48                  The second finding sought to be impugned under this ground, is that Senator Badar’s second letter was “self serving and an attempt to embellish the applicant’s case”.

49                  The Tribunal’s findings in relation to Senator Badar’s second letter are quoted above, in para [31].  At first I had difficulty understanding the Tribunal’s reasoning process in the latter part of the quoted passage.  The four dot pointed “concerns” appeared to me to have little if any relevance to Senator Badar’s letter.  However as Mr Lloyd, who appeared for the respondent, pointed out, these matters, which go to the credibility of the applicant and the genuineness of his claims, are also relevant to whether Senator Badar’s letter was procured by patronage and should thus be accorded no weight.  The Tribunal made an affirmative finding on this matter.  There was evidence capable of supporting this finding, most particularly in DFAT’s response to the Tribunal’s enquiries.  Accordingly this ground cannot be made out.

50                  The third finding sought to be impugned under this ground is that the applicant had “produced no evidence to support his claim that his detention in 1997 was for a Convention reason”.  This ground is, in my view, misconceived.  First, the Tribunal’s comment that the applicant had produced no evidence to support this claim was not a finding but rather an observation as to the state of the evidence.  Mr Poynder sought to impugn this observation by reference to the statements made by Mr Yaqub in the various statements and statutory declarations provided to the Tribunal, in which he asserted that he was arrested because he was a PPP officer.  But these statements, emanating from the applicant himself, could not be categorised as providing “evidence to support his claim” that the detention was for a Convention reason.  Rather they constituted the claim itself.  The Tribunal was simply commenting that there was no evidence, arising from the circumstances of the arrest or otherwise, which supported this claim.  The Tribunal went on to refer to country information which suggested that the PML did not use the Pakistan security forces against its political opponents.  The mere fact that there may have been other country information which suggested to the contrary is not a ground of review under s 476.

51                  The applicant’s fourth particular under ground 2(a) is: “The Tribunal’s finding that the applicant had given evidence that he has a low political profile was not open to it”.

52                  This complaint, on its face, suffers the same defect as the one just discussed.  For the Tribunal’s comments as to the applicant’s evidence about his political profile was not a finding, but rather a description of the evidence.

53                  The Tribunal referred several times to the applicant’s purported description of himself as a “low profile” member of the PPP.  The Tribunal said that it accepted this description as accurate, and went on to use this as a basis for rejecting certain aspects of the applicant’s claim.  As such, the Tribunal’s finding that Mr Yaqub had a low political profile was a material finding in its decision-making process.  If there was no evidence to support this finding then it is arguable that a ground of review has been made out.  This is not the precise manner in which the applicant stated this ground, but I propose to discuss it on this basis.

54                  I turn to consider the evidence supporting the proposition that Mr Yaqub had a “low political profile” in the PPP.

55                  The question of Mr Yaqub’s status in the PPP was raised in his first statutory declaration, dated 30 June 1997, which accompanied his initial application for a protection visa.  After describing the February 1997 election, Mr Yaqub said,

“Immediately after the election the new government started using the government agencies – the police and the army as well as their Party followers to harass and threaten active members of the PPP like myself, especially at the local level.  Unlike the national leaders of the PPP who are protected in some respect because of the international spotlight which is thrown on them, we at the street level have no such protection.   It is well known that arrests took place of PPP leaders and that the new government made allegations and false claims against them.  At my level the new government has taken all measures to threaten people like myself.”

56                  In his statement to the first Tribunal, furnished on 21 April 1998, Mr Yaqub made the following comment in relation to a newspaper article headed “Benazir Decides to Quit Power Politics”:

“In this report no doubt the party chairperson admitted that no step against her had been taken by Nawaz Sharif which could be taken as victimisation.  But as I have already mentioned in my Statutory Declaration, because the leaders at the National level are always in the sight of national and international media they are rarely the ones who are victimised by the government.  They are safe.  It is usually workers like me who are in real trouble.”

57                  When Mr Yaqub gave evidence before the Tribunal, the Tribunal member expressed puzzlement as to why a person in Mr Yaqub’s position would receive a supporting letter from a PPP Senator.  The following exchange took place.

 “TRIBUNAL MEMBER: … But it just struck me as – as well significant that you have received one of these letters when I would have to say that from my understanding of your particular position in the party it was not a massively significant position if you will excuse me saying so.  I mean it is not – a ward president as I understand it is someone who is responsible for the activities of quite a small area ---

MR YAQUB: Yes.

TRIBUNAL MEMBER: In what would have been a fairly large constitutency.

MR YAQUB: Yes, you are absolutely correct in saying so that but I think the threat of life has nothing to do with the status in the party if the party leaders know that even us – even the common member of the party is in a situation that he might face torture or even possibly death, they can issue a letter like that.  Would you like to do that if you were – even the leader of the party?  If you know that somebody is in a situation, I’m sure you would like to go for a letter straight on?”

58                  Mr Yaqub went on to say that there were ten wards in each constituency.  His own ward had twenty-five active members. 

59                  So far as I can ascertain, the phrase “low profile” was not used by Mr Yaqub himself.  It came from his representative.  Towards the end of the Tribunal hearing his representative made the following observation:

“REPRESENTATIVE: I mean I guess the only point that I would sort of emphasise is – I mean it is the same – it is a problem the Tribunal has - puzzling the Tribunal about why a low profile person would be singled out when other low profile members have not been.  I guess some people are exceptional and some people stick out and he might have been viewed as a future leader for the party by the opposition.  Someone to get rid of earlier.  I mean, who knows what motivation of certain persons are but it somebody is exceptionally noticed and he has been talking in other wards, so he has got the internal recognition of a rising star”.

60                  The Tribunal, in my view, overstated the matter when it described the applicant as having given evidence that he had a low political profile.  It would appear that no such evidence was given by Mr Yaqub.  On the other hand, as mentioned earlier, no reviewable error occurred if there was in fact evidence to support the Tribunal’s finding that Mr Yaqub had a low political profile.

61                  The level of one’s political profile is, of necessity, a matter of degree.  A country’s leaders will inevitably have a high profile.  Grass roots political workers will in most cases have a low one.  Mr Yaqub was somewhere in between.  He was president of a ward which, on his account, consisted of twenty-five active PPP members.  This would probably place him towards the lower end of the political spectrum. Given his own attempts to differentiate his position from that of the party leaders, it could not be said that the Tribunal’s finding that he had a low political profile was without foundation.

62                  Under ground 2(b) the applicant complains that the Tribunal incorrectly interpreted the definition of “refugee” when it made the finding quoted in para [30] above.

63                  I can see no error at law in the quoted passage.  In referring to a lack of selectivity, the Tribunal was commenting that the sporadic violence which sometimes occurs in Pakistan was not directed towards any particular person or group and was therefore not “for reason of” any Convention ground (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559). In referring to the fact that any such violence lacked the “requisite official quality” the Tribunal was commenting that there was no “State sponsored or State condoned violence against the PPP” and that the applicant could access the protection of the State in relation to non State violence.  It is to be noted that the passage complained of is in fact a direct quote from Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 72 (Hely J) at para [10].

64                  In my view this ground has not been made out.

Third Ground: Actual bias

65                  The third ground of review in the amended application is that the decision was induced by actual bias, this being a ground under s 476(1)(f) of the Act.  In order to establish actual bias, it is necessary for an applicant to show that the Tribunal member approached the issues in the case “otherwise than with an impartial and unprejudiced mind.” (per Mason J in Re JRL; Ex parte CJL (1986) 61 CLR 342 at 352).

66                 Actual bias is not an easy matter to establish.  As Lockhart J said in Singh v Minister for Immigration and Ethnic Affairs (Lockhart J, 18 October 1996, unreported):

“It is always difficult to explore the actual state of mind of a person said to be biased.  Evidence to establish actual bias may consist of actual statements made by the person said to be biased, and of objective facts and circumstances from which an inference of bias may properly be drawn.  Bias is not synonymous with absence of good faith; a person may in all good faith believe that he was acting impartially, but his mind may nevertheless be affected unconsciously by bias:  Gough’s Case at 659; and R v Barnsley Licensing Justices; Ex parte Barnsley and District Licenses Victuallers’ Association [1960] 2 QB 167, per Devlin LJ at 187 (a passage approved by Lords Goff of Chieveley in Gough’s Case at 659).

When the ground of actual bias is that the Tribunal has prejudged the matter before the conclusion of the hearing, the transcript of the proceeding before the Tribunal will, of course, be important especially to determine the actual statements made by the Tribunal, the nature of the exchanges between the Tribunal and the parties or their legal representatives, and the context in which the statements were made…”

67                  The principal matter relied upon in the applicant’s written submission as showing bias by the Tribunal member related to his finding that Senator Badar’s first letter was not genuine.  Notwithstanding the Tribunal member’s statement to Mr Yaqub at the hearing that much would depend upon Senator Badar’s response to the Tribunal’s enquiry (which had not at that stage been received), the Tribunal’s subsequent treatment of Senator Badar’s reply indicated, the applicant submitted, that the member had already formed a view, adverse to Mr Yaqub, which was incapable of alteration.  The applicant also relied upon the Tribunal’s dismissal of the Senator’s second letter as being procured by patronage as illustrating the Tribunal member’s bias.

68                  The applicant’s submissions were written under the misapprehension that the Tribunal’s enquiry of Senator Badar, and therefore his response, related to the first letter. In fact, as mentioned earlier, the Tribunal’s enquiry of Senator Badar and his response related to the contents of the second letter.  As to the second letter, the Tribunal accepted that it was genuine but decided that it was procured by patronage and was therefore of little or no weight.  As Mr Lloyd pointed out, at the time of the Tribunal’s hearing the Tribunal had not yet received the DFAT communication which formed the basis of its finding in relation to the patronage issue.

69                  In my view the sequence of events relating to Senator Badar’s letters is quite insufficient to establish bias on the part of the Tribunal.

70                  Mr Poynder relied on the Tribunal’s questioning of Mr Yaqub during the hearing as suggesting a lack of impartiality.  However there is nothing in the transcript of the Tribunal hearing to support such a suggestion.  Certainly the Tribunal member raised with Mr Yaqub some of the difficulties he had in accepting part of Mr Yaqub’s accounts.  But he did so in a moderate and courteous manner which invited Mr Yaqub’s explanation for these difficulties.  The hearing ended with the following exchange:

“TRIBUNAL MEMBER: Thank you very much for your help and assistance today. I appreciate you coming in and as I said, my apologies.  I am sure that you must wish this was all over and done with and you can get on with your life.  Certainly the only constraint is going to be on the time it takes to get a response from the Senator.  So if your cousin has any influence it will be helpful but I understand that we are in his hands.

MR YAQUB: I think I should let it go so that it should remain impartial, whatever.  His response is to you.

TRIBUNAL MEMBER: Definitely. Yes I would not – I mean that might be a very good idea.  But as soon as we get a response I will copy it immediately to you through Mr Dobbie and so you will have an opportunity to comment on it and as I said, if there is a need, we will reconvene the Tribunal and do it.  So I think what we might do is call this adjournment but we might not ever come back to it.  It depends on what occurs.

MR YAQUB: Okay

TRIBUNAL MEMBER: Thanks for your time today.  Now I will have to do the official thing and call somebody in and officially close the hearing.  Thank you very much again for your time.  Thank you.”

71                  In short there is nothing in the transcript of the Tribunal hearing to indicate that the Tribunal member was anything other than courteous, restrained and impartial.

72                  Finally, the applicant submitted that the Tribunal’s decision itself suggested a lack of impartiality. In particular, Mr Poynder submitted that the Tribunal made findings which it was bound to make in the applicant’s favour in a grudging manner.  It was submitted that, in using Mr Yaqub’s adviser’s description of Mr Yaqub as having a “low profile” in the PPP as a basis for making findings adverse to him, the Tribunal illustrated its lack of impartiality.

73                  It would be rare, in my experience, for bias to be able to be established on the basis only of a Tribunal’s decision.  In order for this to occur, one would expect the decision to contain extreme language or highly dubious findings.  There is nothing in the language of the Tribunal’s decision to support a suggestion that it was less than impartial.  Some of the Tribunal’s comments, such as its emphasis on Mr Yaqub’s “low profile,” suggested that the Tribunal had taken an adverse view of Mr Yaqub’s claims.  But given that it had already made credibility findings adverse to Mr Yaqub, this is hardly surprising.  It is certainly not suggestive of bias.

74                  In my view this ground has not been made out.

FOURTH GROUND: NO EVIDENCE

75                  The fourth ground of review is that there was no evidence or other material to justify the making of the decision, this being a ground of review under s 476(1)(g) of the Act.  Section 476(4)(b) is also relied upon in that it is submitted that the Tribunal based its decision on the existence of particular facts which did not exist.

76                  The three matters relied upon by the applicant under this ground have already been discussed.  The first related to the authenticity of Senator Badar’s first letter.  The second related to the Tribunal’s “finding” that the applicant had produced no evidence to support his claim that his 1997 detention was for a Convention reason.  Finally, it was submitted that there was no evidence to support the proposition that Mr Yaqub had a low political profile in the PPP.

77                  Each of these matters was raised by the applicant under the “error of law” ground and has been discussed earlier in these Reasons.  There is evidence to support the Tribunal’s findings in relation to each of these matters.  Therefore, by definition, s 476(1)(g) cannot apply.  This ground has not been made out.

78                  No ground of review having been established, the application is dismissed with costs.

Associate:

Dated:              9 August 2000