FEDERAL COURT OF AUSTRALIA

SZEJF v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 724

MIGRATION – protection visa – jurisdictional error – whether Refugee Review Tribunal properly took account of evidence before it – whether tribunal made proper use of investigative powers where tribunal did not take evidence into account yet did make finding that the evidence was not genuine or otherwise – whether appellant could modify the conduct that caused him to fear persecution – whether tribunal properly considered that relocation would protect the appellant from persecution – appeal allowed

Held:  The Refugee Review Tribunal failed to assess the appellant’s case in accordance with law, as the tribunal (i) did not give proper reasons for its decision and (ii) did not give proper, genuine and real consideration to the applicant’s claims that he had a well-founded fear of being persecuted for a Convention reason.

Migration Act 1958 (Cth), s 414, s 427

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 applied

Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 applied

Applicant NADB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 followed

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411 cited

Bushell v Repatriation Commission (1992) 175 CLR 408 cited

CDJ v VAJ (1998) 197 CLR 172 at 200 [104] cited

Chan v Minister for Immigration (1989) 169 CLR 379 cited

Craig v South Australia (1995) 184 CLR 163 cited

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 cited

Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 cited

Kioa v West (1985) 159 CLR 550 cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 cited

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 cited

Minister for Immigration v Yusuf (2001) 206 CLR 323 cited

NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 applied

Re Minister for Immigration and Multicultural and Indigenous Affairs:  Ex parte Palme (2003) 216 CLR 212 cited

Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1977] AC 1014 cited

SZGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 431 cited

The Queen v Australian Stevedoring Industry Board;  Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 followed

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 cited

Zhang v Canterbury City Council (2001) 51 NSWLR 589 referred to

SZEJF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

NSD 1710 OF 2005

RARES J

9 JUNE 2006

SYDNEY

THE COURT ORDERS THAT:

1.       The appeal be allowed.

2.       The first respondent pay the appellant’s costs, if any.

3.       The orders made by the Federal Magistrates Court on 29 August 2005 be set aside and in lieu thereof the following orders be made:

(a)     order in the nature of an order absolute in the first instance for a writ of certiorari to quash the decision of the second respondent made on 22 July 2004 and handed down on 12 August 2004 to affirm the decision of the first respondent not to grant to the applicant a protection visa.

(b)     order in the nature of a writ of mandamus directing the second respondent to hear and determine the application for review according to law.

(c)     the first respondent pay the applicant’s costs, if any.

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

REASONS FOR JUDGMENT

1                     This is an appeal from the Federal Magistrates Court (SZEJF v Minister for Immigration [2005] FMCA 1315) which dismissed the appellant’s application for prerogative relief under s 39B of the Judiciary Act 1903 (Cth) directed to the Refugee Review Tribunal, in respect of its decision to affirm the decision of the delegate of the Minister to refuse a protection visa to the appellant.

2                     The issues raised in the appeal are whether the tribunal:

(a)        failed to give reasons for its decision and instead made unsupported assertions;

(b)        failed to understand and to give proper, genuine and real consideration to the appellant’s claims that he had a well founded fear of being persecuted for reasons of religion or political opinion, having found that he was banished from the region in Pakistan in which he lived and worked because of his ‘liberal thinking’.

Background

3                     The appellant was born in Khyber Agency, Pakistan in 1972 and is a citizen of that country.  He arrived in Australia as a visitor on 24 October 2003.  On 4 December 2003 he made an application for a protection visa to the Minister.  On 4 February 2004 the Minister’s delegate refused to grant a protection visa to the appellant. 

4                     On 17 March 2004 the tribunal received an application for review of the decision of the delegate.  The appellant gave evidence to hearings of the tribunal on 24 May 2004 and 20 June 2004. 

5                     By a decision made on 22 July 2004 and handed down on 12 August 2004 the tribunal affirmed the decision not to grant the protection visa to the appellant.  He then applied to the Federal Magistrates Court which, as I have noted above, refused his application on 29 August 2005.

The appellant’s claims

6                     In his application for a protection visa, which he repeated in his application for review made to the tribunal, the appellant claimed that he had come from Khyber Agency.  He described Khyber Agency as a tribal area of the North Western Frontier Province in Pakistan.  The location of Khyber Agency is on the border with Afghanistan.  He had obtained the degree of Bachelor of Science from the University of Peshawar in Pakistan, and following completion of his degree he claimed to have joined his family business in 1997. 

7                     The appellant claimed that he became involved with two of his good friends in working together in order to better people and society, especially youth, from what he said were their involvement in illegal drug usage and illegal drugs business in Khyber Agency.  He claimed that he and his friends went from village to village to promote awareness among young people against drugs.  He then claimed that in May 1999, through a friend, he:

 ‘got a membership of [sic] an NGO (‘Shelter Now International’) working in the area for the wellbeing [sic] of the poor in the field of health, free medical camps, elimination of drugs, education, providing funds to small jobs at home and also missionary support as well.

While working with this NGO I tried to help out people of the area in the field of health and search for jobs against religious discrimination.’

He also claimed that in May 2001 he became an informant, about smugglers and producers of drugs in the area for a Pakistani Federal Government organization which was described as an anti-narcotics force.  He claimed that information he provided had led to the arrest of a number of people in connection with the drugs trade.  That information was claimed to include intelligence which led to a major operation yielding 800 kilograms of hashish and resulted in the arrest of two leading members of a smugglers gang.  The appellant produced a document entitled ‘Commendation Certification’ dated 28 May 2002 from the Anti-Narcotics Force in Rawalpindi attesting to his assistance in the latter operation.  He claimed that after that incident the smugglers turned against him with the collaboration of religious elements.  They started propagating against him that he was an agent of Western NGOs working against Islam.  The appellant said that the religious scholars made a decree against him that he was working against Islam because he was working for non-Muslims and Western missionaries and he said his life was threatened.

8                     He claimed that there were several attempts to kill him including one in which when he was returning home in the evening, people opened fire on him and he narrowly escaped.  He said that in January 2003 he moved to Peshawar which was the capital of the North Western Frontier Province where his father had a house and shops.  He claimed to have continued his social welfare activities there and to have employed a poor Christian who had been struggling to get a job because of wide-spread religious discrimination.  He said that after two months the smugglers found out where he was and they started following him with the intention of killing him.  He related an incident of being beaten badly by religious fanatics when he was coming back home from his karate club because he employed a Christian and worked for an NGO which they believed was working against the Islamic religion.  He said he reported this to the police but the police did nothing because the government of the province was headed by religious parties which believed that NGOs were against Muslims.

9                     In March 2003 he claimed to have moved to Karachi because he feared for his life at the hands of both the smugglers and religious fanatics.  In Karachi he started working in a garment factory and living with a friend, but he claimed that after two months the smugglers found out that he was living there and one night when he was coming back home from work he realized he was being followed and began to run towards his house.  The person following him fired at him with a pistol but he escaped.  After that incident he spoke to his karate club manager in Peshawar and told him his entire story following which he came to Australia on 24 October 2003.

10                  In support of his application to the delegate, the appellant produced a document purporting to be a letter from Shelter Now International, at the address, University Town, Peshawar, NWFP.  That letter was undated but asserted that the appellant had been working with that organization from 1 May 1999 as a community worker.  

The Tribunal proceedings

11                  The appellant gave evidence to the tribunal on 24 May 2004 and 4 June 2004.  At the hearing on 4 June 2004 the appellant submitted an article dated 1 June 2004 which appeared to come from The Frontier Star newspaper of that date.  It was headed ‘Tribal jirga, ulama call explanation for spreading western culture’.  The article began by giving the place, Peshawar, which appeared to be the place where the report was being made.  It was surrounded by other stories from Peshawar and New York all datelined 31 May.  The article reported that a warning had been given to the appellant ‘and his group’ to appear within 15 days to explain his position on violation of tribal custom, activities to spread Western culture and provide obscenity and vulgarity in the name of rights of women in tribal areas after which stern action would be taken against them (i.e. the appellant and his group).  The article reported that the appellant and his group had been charged by the tribal elders and ‘Ulama’ with having spread Western culture which they said was against the tribal custom and culture and also against Islam.  The article reported that:

‘The jirga was of the opinion that obscenity was being promoted in the name of rights of women in the tribal areas which, it warned, will not be tolerated at any cost.  Father of [the appellant] who was also present on the occasion told the jirga that he was not responsible for his any word or deed [sic].  The father said that his son [the appellant] had adopted company of wrong people.  The jirga expressed satisfaction over the explanation of the father of [the appellant].’  

12                  The tribunal, on 4 June 2004, gave the appellant 14 days to provide authorized translations of a number of other documents.  The appellant supplied a copy of an article which was translated as having come from ‘Daily “AAJ” [Today], Peshawar of 10 November 2002’, again bylined as having originated in Peshawar.  It reported that at a meeting of the Organization of the United Islamic Scholars, Bara Khyber Agency, was held under the chairmanship of that committee’s president which had discussed accusations against the appellant, as chairman of ‘Llaywl’, and his companions, four other named persons.  As noted in the tribunal’s reasons, ‘Llaywl’ is an acronym for ‘Let Live And You Will Live’.  The members of the committee were reported to have warned the appellant and his comrades that their activities:

‘… are unbearable in the Agency.  We cannot tolerate the western culture and civilization here, which are totally contrary to Islam and tribal values.  [The appellant] is engaged in inciting people against Islam and tribal traditions.  They are spreading immodesty and obscenity in the name of broadmindedness and liberal thinking’.

13                  The article then noted that the committee had severely criticized Llaywl.  It then reported that the committee president:

‘…in his address giving the decision of banishing [the appellant] from the area, said that elements such as [the appellant] are a hazard for the peace of the area.  The tribes cannot tolerate them under any circumstances.  These people are preparing people against Islam in the name of progress and liberal thinking, whereas they have some hidden agendas which are risky for our coming generation’.

14                  The article then noted that the combined committee had ordered the family of the appellant to appear before the Jirga (tribal council) to put their defence and that the committee had further said that if the monthly magazine ‘Leekewal’ of Peshawar would not remove the appellant as its representative, it would also take action against that magazine.

Tribunal Reasons

15                  The tribunal noted that the appellant had given oral evidence to it on 24 May 2004.  It found that the appellant’s claims had changed over time since he had first submitted his application and his oral evidence during the hearing was somewhat confused and internally contradictory.  The tribunal said that at the hearing the appellant had resiled from his key written claim to the department (scil:  the delegate) that he had been a member of Shelter Now International from 1999 onwards and for that reason and for reasons which the tribunal said had been put to him during the hearing it did not accept that the letter from that organization was genuine.  The tribunal said that it did not consider the letter plausible and did not accept that he had had any contact with that organization.

16                  The tribunal then said that it strongly doubted that if the appellant had tried to establish his own NGO group, as he had suggested during the hearing, he would have failed to refer to it at all in his submissions to the department.  The tribunal found that the appellant had made it clear that the group had only ever had a total of five members and was never officially recognized because it had insufficient membership, even if it did exist in some form.  The tribunal found that on the whole it appeared that the appellant had exaggerated its importance.  The tribunal member had earlier recorded that the appellant had told it that the group was called Llaywl, which was an acronym for ‘Let Live And You Will Live’, and that he had thought he could give all his main points in the interview.

17                  The tribunal concluded that it was satisfied that the appellant objected to the drug trafficking which the tribunal accepted occurred in Khyber Agency.  The tribunal also accepted that the appellant held more liberal views than some of the Pakistanis from tribes in the Khyber Agency area.  The tribunal recorded that the appellant claimed to have fears of being harmed respectively by religious fanatics, drug smugglers based in Khyber Agency and tribes-people working for the smugglers.

18                  The tribunal gave the appellant the benefit of the doubt and accepted that he did give some information to the police about the incident of narcotics trafficking in Khyber Agency in early 2002 leading to the 800 kilograms of hashish being seized and arrests being made.  However, the tribunal found the appellant’s explanation as to why the smugglers might assume that he was the source of information to lack cogency.  In any event, the tribunal found that the evidence which the appellant gave as to why the smugglers wanted to harm him in order to stop him from giving information to the authorities did not satisfy the requirement in s 91R(1)(a) of the Migration Act 1958 (Cth) (‘the Act’) that the ‘essential and significant reason … for the persecution’ be found in one or more of the five Convention grounds.

19                  Significantly the tribunal found that the appellant did not report to the police that he considered himself to be at risk of any harm by the drug traffickers and that he did not claim that the police might refuse to offer him protection for a Convention reason, although he had speculated during the hearing that some police might not want to protect him because, for example, they were co-operating with the smugglers or somehow wanted to further their careers.

20                  The tribunal found that it was not satisfied that the police would refuse to offer him protection for a Convention reason.  It concluded that there was no Convention reason for the harm which the appellant feared he may suffer in relation to the drug traffickers.

21                  The tribunal then considered the appellant’s fear of being harmed by Khyber Agency-based tribal or religious leaders (the Jirga).  The tribunal said: 

‘With regard to his fear of being harmed by Khyber Agency-based tribal or religious leaders (the jirga), he has claimed that it was his “liberal thinking” and that of his group (LLAYWL) which led them to ban him from the area in 2002.  I have noted that this group appears to have been small and ineffectual, and consider it somewhat implausible that the jirga members might have even been aware of its existence.  However, I have accepted that [the appellant] holds more liberal views than some tribal leaders in Khyber Agency, and that he may have attracted their disapproval in 2002.  I therefore accept that they may have imputed a political opinion to him.  However, I consider the chance remote that they might subject him to harm amounting to persecution for that reason in the reasonably foreseeable future.  There is no evidence that the jirga have located or threatened his family in Peshawar, or that they have any influence outside Khyber Agency at all.  According to his own account, they banished him from Khyber Agency in late 2002 and he complied almost immediately, and did not return there in the subsequent ten months before he left Pakistan.  He did as they asked.’

22                  The tribunal also noted that the appellant had referred to the killing of one of the members of his group in Peshawar.  However, the reasons for that killing appeared to the tribunal to have been quite independent from any political or other activity of the appellant.  The tribunal found that this was so and that the killing was unrelated to the appellant’s circumstances.

23                  The tribunal also noted the appellant had referred to the incident in which a shot was fired in Karachi noting that any harm from those associated with drug smuggling was not the subject of persecution for a Convention reason.  The tribunal went on to consider whether the incident could be related to the appellant’s fear of harm by religious leaders in Khyber Agency bearing in mind that he had claimed that they had ordered the killing of three people.  It noted that the appellant considered that someone had been shot at two weeks before and that robbers were active in the area.  It noted that the appellant had not claimed that the person who had fired the shot had said anything to him and that he was only able to speculate that the shot might have been intended for him and that it was not an ordinary criminal who was responsible.  The tribunal found that on that evidence it was totally unsatisfied that the incident occurred for any reason associated with the appellant’s political opinions or activities or indeed that he had been the target of it at all.  Even so, the tribunal appears to have accepted that this incident occurred.

24                  The tribunal then noted that the UK Home Office had reported in 2004 that unless political activists were prominent they could move to another part of Pakistan.  The tribunal found that the appellant was not a prominent political activist and had already illustrated that that was so by moving to Karachi where he had lived and worked for five months before coming to Australia.  The tribunal found that taking into account all of that evidence it was satisfied that he could return to Karachi in which city the chance was remote that he might be subjected to persecution for reasons of his political opinions by tribal or religious leaders from the remote Khyber Agency.

25                  Lastly, the tribunal accepted the appellant’s claim that he had been thrown into a canal in Peshawar by other Muslims from a local mosque and they had done that because they thought he was not a good Muslim for the reasons that he had employed a Christian in his shop and had used the term ‘jihad’ in a sense which offended some local sensibilities.  The tribunal continued:

‘However, I do not accept that it involved any serious harm to him as he was uninjured and did not need medical treatment after it, and I therefore find that it did not amount to persecution.  If he returns to Karachi, where he lived for some months before he came to Australia, there is nothing to suggest that the particular circumstances which led to the assault might recur – he will not be the employer of a Christian, and can readily use a less sensitive term than “jihad” if he again campaigns against drug trafficking.  Therefore [the appellant’s] fear of being subjected to persecution by “religious fanatics” is not well-founded.

For the above reasons I find that [the appellant] does not have a well-founded fear of Convention related persecution in Pakistan.’

Decision of the Federal Magistrates Court

26                  The Federal Magistrate rejected that the appellant’s claims that there had been any error by the tribunal in rejecting any Convention-related basis for the appellant’s fear of those involved in the narcotics trade.  His Honour noted that the appellant had been directed by a Registrar at the first court appearance on 18 October 2004 to file and serve any affidavits containing additional evidence relied on including a transcript of the tribunal hearing by 20 December 2004.  No evidence was ever filed by the appellant in compliance with that direction or otherwise.  At no point did the appellant file any document purporting to be a transcript of the hearing either in the court below or in this court.  At the hearing before me the appellant accepted that it was only necessary to refer to the tribunal’s reasons and he abandoned any reliance upon what a transcript might show.

27                  His Honour found that on his reading of the material before the tribunal, it had sufficiently addressed all claims of the appellant to be a refugee which had in fact been made by him.  His Honour rejected the ground of appeal that the tribunal’s reasoning lacked a rational or logical foundation for concluding that he was not a refugee.  His Honour could find no substance in that contention.  As will appear I have considerable difficulties with his Honour’s rejection of this ground.

28                  The appellant also contended before his Honour that there had been no proper investigation of his genuine claims.  His Honour noted, correctly, that the tribunal had assessed the claims and evidence which the appellant had put forward and was not obliged to conduct a further investigation into the matter, referring to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21-22 [43].  His Honour also correctly dismissed the contention that the appellant should have been provided with specific details of general country information.  As his Honour noted, s 424A(3)(a) of the Act does not require the tribunal to put these matters specifically to the appellant and in any event his Honour found that he was not persuaded that any relevant country information was not raised satisfactorily with the appellant during the hearing so as to afford him a fair opportunity to meet it.  I am likewise not persuaded that there is anything in this ground for the reasons his Honour gave.

29                  His Honour rejected a contention that the tribunal had acted in bad faith and that this could be established from the transcript of the hearing before the tribunal.  As his Honour noted no transcript had been provided then, nor has it been now, and I agree with his Honour that there is no basis for concluding in the material before the Court that the tribunal acted in bad faith.

30                  His Honour then dismissed the appeal.

Grounds of Appeal

31                  The appellant’s grounds of appeal are fairly broad and unspecific.  He alleges that his Honour failed to find an error of law, jurisdictional error, lack of procedural fairness or to grant relief under s 39B of the Judiciary Act 1903 (Cth).  Why his Honour is alleged to have failed was not articulated.  The notice of appeal also asserted that his Honour erred in considering the real state of affairs of his persecution in his previous country of residence and his fear of harm.  The appellant’s grounds also argued that the present government of Pakistan failed to protect the people’s lives which is a world-wide concern today.  He also complained that he would face persecution if he returned to Pakistan as there are significant levels of violation of human rights which his Honour did not consider.  The notice of appeal also refers to a number of court decisions but does not specify why any decision has particular relevance to this matter.

Arguments on this appeal

32                  The appellant asserted that his Honour erred in failing to find that he was a member of a social group of persons working against drug traffickers and producers who acted as informants of the police.  The Minister contended that this did not constitute an identifiable social group for the purposes of the Convention.  I suggested in argument to counsel for the Minister that the well known anti-drugs campaigner, Donald Mackay, had been killed in Griffith, New South Wales, for his political, anti-drugs stance and that such a public position could be taken as either an expression of political opinion or membership of a social group.  The Minister submitted that this would not be the case here.

33                  The appellant also pointed to the way in which the tribunal had addressed his claim to have been persecuted by the tribal leaders and the Jirga who had been in Khyber Agency.  He identified the two newspaper articles to which I have referred as showing that there was material before the tribunal which provided objective support for his claims.  He said that there were people of strong Islamic beliefs all over Pakistan, not just in the Khyber Agency area and that the tribunal had not given rational consideration to his claim of a well-founded fear of persecution.

34                  The appellant also argued that the finding that the tribunal had made, in dismissing the canal incident as evidence of persecution, was that it was unlikely to recur because he would not be an employer of a Christian and could readily use less sensitive language and avoid using the expression ‘jihad’ if he returned to campaign against drugs, was not a reasoning process which addressed the claim he was making. 

35                  Counsel for the Minister put that whatever had happened in the past, the appellant had not been found by the tribunal to have expressed the desire, were he returned to Pakistan, to employ Christians or to use provocative language in expressing his anti-drugs campaign and that therefore there was no basis upon which he could say that there was a well-founded fear that could have been found by the tribunal.  The Minister relied on the findings that the appellant was not a prominent activist and that he had actually lived in Karachi for five months without difficulty.

Consideration

36                  I am of opinion that the tribunal’s reasoning in relation to the banishment of the appellant by the tribal elders and the requirement that his family put on a defence to his activities, demonstrates that it made a jurisdictional error in dealing with the review.

37                  It is important to recognize that the tribunal is the body created by the Parliament to conduct the review on the merits of decisions by the Minister or his or her delegate.  The role of the court in proceedings such as this is to review whether in reaching its decision, the tribunal adhered to or departed from the procedure for the conduct of the review laid down in the Act or, to the extent that s 422B and Div 4 Pt 7 of the Act do not exclude them, the principles of common law.  Nonetheless, as Brennan J observed in Kioa v West (1985) 159 CLR 550 at 662:  ‘[t]he distinction between method and merits is sometimes elusive.’  But, where the court is not authorized by statute to substitute its view of the merits, it must confine itself to a consideration of whether the repository of the statutory power under challenge, here the tribunal, has arrived at its decision on the merits by a procedure authorized by, and in conformity with, the enactment which conferred the power:  Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411 at 415-416 [14]-[16] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.  If the repository so acted, even if the court disagrees with the merits of the decision so reached, the court must hold that the repository has exercised lawfully the jurisdiction which it had.

38                  In exercising its function of conducting a review of a decision under s 414(1) of the Act, the tribunal cannot simply act perfunctorily.  Nor can it shut its ears or eyes so as to ignore, consciously or inadvertently, the claims made by the applicant for review (cf:  Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24]-[25] per Gummow and Callinan JJ, 406-407 [86]-[87] per Kirby J, 408 [95] per Hayne J).

39                  In arriving at what it considers to be the correct or preferable decision (Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18) at the conclusion of its review under ss 414(1) and 415 of the Act, the tribunal must give ‘proper, genuine and realistic consideration to the merits of the case’ (Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J, Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration v Yusuf (2001) 206 CLR 323 at 367 [138] per   Kirby J.

40                  So, in Re Minister for Immigration and Multicultural and Indigenous Affairs:  Ex parte Palme (2003) 216 CLR 212 at 223-224 [39] Gleeson CJ, Gummow and Heydon JJ referred to the inference which is open to a court exercising the function of judicially reviewing a decision of the executive government that if the decision-maker does not give any reason for his or her decision the court may be able to infer that he or she had no good reason.

41                  As Brennan CJ, Toohey, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 the reasons of an administrative decision-maker are meant to inform and are not to be scrutinized upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

42                  The tribunal said that if the appellant had tried to establish his own NGO group he would not have failed to refer to it at all in his submissions to the department.  Had there been no independent material to the contrary before the tribunal such a finding may have been open.

43                  The tribunal said that ‘it consider[ed] it somewhat implausible that the Jirga members might even have been aware of’ the existence the appellant’s group.  The newspaper article of 10 November 2002 was evidence that the tribunal had before it which described both him and, the group, Llawyl, by name.  The tribunal made no finding that the newspaper article was not genuine or otherwise.  The tribunal was required by s 430 of the Act to express reasons as founding its decision, why it was ‘somewhat implausible’ that the Jirga was aware of the appellant’s group. Yet according to the express words of the newspaper article the Jirga, had in fact, made the very connection.  The tribunal merely asserted, without referring to any basis in the evidence before it, that it, the Tribunal, found it ‘implausible’ or unbelievable that the Jirga made the connection it was reported to have made.  This ignores the fact reported, namely that the Jirga did just that.  There was no reasoning process by the tribunal for doubting this, let alone one based on any evidence. 

44                  Whether or not the tribunal would have made the connection were it in the place of the Jirga is entirely irrelevant to its task.  The tribunal was required to consider the appellant’s claim which was supported by the newspaper reports of the Jirga having made the connection, then banishing the appellant and calling on his family to explain itself.  While the tribunal was not bound to accept such a claim, it was obliged to give reasons, not mere assertions, for rejecting it.

45                  In The Queen v Australian Stevedoring Industry Board;  Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 120 ,Dixon CJ, Williams, Webb and Fullagar JJ said:

‘The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.’

(see too Bushell v Repatriation Commission (1992) 175 CLR 408 at 421-422 per Mason CJ, Deane and McHugh JJ)

46                  In a case in which the tribunal found, without making any investigation that newspaper articles were not genuine and that parts of the applicant for review’s story were  ‘implausible’, a Full Court of this court held that the tribunal had made a jurisdictional error by failing to conduct its review in accordance with the fair procedure required by the Act (Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [44], [48], [53], [64]-[66], [89]-[92] per Lee J, [108]-[119] per Tamberlin J agreeing).

47                  What is even more extraordinary about the deficiency in the reasoning process in the case before me is that the second newspaper article appeared, while the appellant was in Australia, on 1 June 2004 during the hearing reinforcing the fact that the Jirga was actively engaged in persecuting the appellant and his family.  Again, the tribunal made no finding about the genuineness or otherwise of this article.

48                  The 1 June 2004 article repeated the public condemnation, apparently in the city of Peshawar, of the appellant and his group for the political views they had expressed.  Faced with two newspaper publications 18 months apart in two apparently different newspapers, one in Arabic and the other in English, the tribunal had evidence to support the appellant’s claim from apparently genuine and independent sources that he had been publicly identified in the media by a religious group for his expression of political opinion and religious practices.  The tribunal gave no explanation as to why it was implausible that that which appeared in the newspaper articles could have, let alone in fact did, come to the notice of the Jirga or why it was not accepted as evidence to support the claims.  And, the tribunal did this in the context of then accepting that the appellant held more liberal views than some tribal leaders in the Khyber Agency and that he may have attracted their disapproval in 2002.

49                  Having accepted also that the appellant may have a political opinion imputed to him by the Jirga members the tribunal then asserted, as an ‘ipse dixit’ that it considered that the chance was remote that the Jirga would subject him to harm amounting to persecution for that reason in the reasonably foreseeable future.  No basis was given by the tribunal for that assertion.  The Jirga had issued a statement that the appellant was to be banished from the area in which he had previously lived and worked, which had been published in a contemporary newspaper in November 2002.  The Jirga was reported on 1 June 2004, during the hearing before the tribunal, as requiring the appellant and his group to explain their religious and political behaviour.

50                  But that is not the end of the tribunal’s illogicality.  It then said ‘there is no evidence that the Jirga have located or threatened his family in Peshawar or that they have any influence outside Khyber Agency at all’.  (I have emphasized the assertion that there was ‘no evidence’ which is in the teeth of the contents of the newspaper articles.)

51                  The first article of 10 November 2002 required the appellant’s family to put up a defence for themselves of his conduct.  The second article, of 1 June 2004, noted that the appellant’s family had put up their defence, namely that the appellant ‘had adopted the company of wrong people’ and that the Jirga had expressed satisfaction over that explanation from the appellant’s father.  The second article reported that it had its source in Peshawar.  It may be that the reporter was located there, but it seems clear enough that contact was made between the Jirga members and the appellant’s family.  Both articles are bylined from Peshawar.  The tribunal gave no reasoning process as to why publication of the November 2002 article, which one might infer was in a daily newspaper in Peshawar bearing the masthead ‘The Daily AJJ Peshawar’, would not come to the attention of persons who knew the appellant’s family who were living in Peshawar and its environs.

52                  Commonsense says that that is a conclusion that must be obvious to anyone in the position of the tribunal.  The tribunal gave no reasoning as to why the appellant’s family would want to respond to the Jirga, if it were in fact remote from or had no impact, potential or real, on the lives of the appellant’s family.  To make the finding that there was ‘no evidence that the Jirga had located or threatened his family’ belies the fact that two public newspapers circulating in the home city of the family published over 18 months apart had named the family as, firstly, having a case to answer to the Jirga and, secondly, publishing its answer as given to the Jirga.

53                  In my opinion, no reasonable person could have expressed a reasoning process in the way that the tribunal did in order to deal with this evidence.  Nor did the tribunal use its investigative powers by means of s 427(1) of the Act in the way suggested by Lee J or Tamberlin J in M164/2002 v Minister [2006] FCAFC 16 at [63]-[66], [118] by asking the Secretary of the department to investigate the newspaper articles.  Moreover, the fact that the Jirga had banished the appellant from the area in which he worked and that its decree had been publicly notified in his family’s home city, indicated that there was in fact persecution for a Convention reason (political opinion) of the appellant at least in the area in which the Jirga’s influence extended.  Whether or not that went as far as Peshawar may be a matter that was legitimately within the area of fact-finding confined to the tribunal.  But the tribunal did not consider the punishment of banishment at all in assessing whether the appellant’s fear of persecution was well founded.  It merely noted that he had complied with the banishment and did not return to the Peshawar area in the subsequent ten months he had remained in Pakistan following it.

54                  The tribunal also dismissed as evidence of persecution for a Convention reason the fact that the appellant had been thrown into the canal for what ostensibly was a motivation, by reason of his religion, membership of a particular social group or political opinion, perceived by his attackers.  The tribunal reasoned that because the appellant did not suffer any serious harm and was uninjured and ‘therefore [found] that it did not amount to persecution’.  The fortuity that when one is attacked by 14 or 15 people and thrown into a watercourse one might not be injured sufficiently to require medical attention belies the fact that the experience which the appellant suffered was plainly intimidatory and potentially very dangerous.  A mob attack by persons in Peshawar, claiming that the appellant should not have employed a Christian or expressed certain opinions based on religion or politics, was capable of supporting his claim that the influence of the Jirga and those associated with it had extended to that city and that the appellant was a target.  Instead, the tribunal dismissed its findings as to this as having no effect because the appellant fortuitously, presumably, could swim and therefore did not drown, and had not been sufficiently harmed in the attack before he was thrown into the water to stop him getting out and getting away.

55                  The tribunal’s task was to consider whether the appellant had a well -ounded fear that he might be persecuted.  It ignored the fact that an attack such as this following on from his being banished for publicly exposed and publicized reasons, could have provided a well founded fear of persecution.  In my opinion no rational person could have failed to give consideration that there was a ‘real chance’ that he would suffer persecution for a Convention reason within the meaning of s 91R of the Act:  see Chan v Minister for Immigration (1989) 169 CLR 379 at 389, 398, 407, 429;  Applicant NADB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 at 38 [160]-[161] per Hayne and Heydon JJ.  The function of an administrative decision-maker is to give genuine and real consideration to the material before it.

56                  When the tribunal said that it ‘… consider[ed] it somewhat implausible that the Jirga members might have even been aware …’ that the appellant’s group existed, it was suggesting that the claim was somewhat ‘without appearance of truth or acceptability’ as Lee J explained in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [44]. The tribunal gave no explanation for discounting what appeared to be newspaper articles before it in which there could have been no doubt that, if genuine, the Jirga did know of the appellant’s group’s existence and what is more it had sought to banish him and cause his family to account to the Jirga by reason of the appellant’s and his group’s activities.

57                  The tribunal gave no reasons for asserting any form of implausibility of that material.  It did not suggest that the newspaper reports were anything other than genuine, and if it wished to have investigated that question it could have used its powers under s 427(1)(d) of the Act to require the Secretary to ‘arrange for the making of any investigation that the tribunal thinks necessary with respect to the review, and to give to the tribunal a report of that investigation …’.  (see Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [62]-[66], [90]-[92] per Lee J;  [108], [113]-[119] per Tamberlin J).  Likewise, the assertion by the tribunal that there was no evidence that the Jirga had located or threatened the applicant’s family in Peshawar or that they had any influence outside the Khyber Agency at all is flatly contradicted by the newspaper articles, especially that of 1 June 2004 and has no evidentiary support whatever.

58                  The tribunal used these findings to conclude that the applicant was not a prominent political activist and was therefore capable of relocating within Pakistan on the ground that the chance would be remote, were he to return to Karachi, that he might be subjected to persecution for reasons of his political opinions by tribal or religious leaders from the remote Khyber Agency.

59                  I am of opinion that by the way in which it dismissed the objective evidence provided in the two newspaper articles, the tribunal ignored relevant material (the newspaper articles) and relied on irrelevant material (namely its bare, unsupported assertions that the objective facts demonstrated in the newspaper articles were ‘somewhat implausible’ and gave ‘no evidence’ of the Jirga’s activities).  That was a jurisdictional error:  see Craig v South Australia (1995) 184 CLR 163 at 179;  Secretary of State for Education and Science v Thameside Metropolitan Borough Council [1977] AC 1014 at 1047D-E;  Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 at 233 [27], 241 [58], 250 [97] and SZGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 431 at [33]-[38].

60                  Here, procedural fairness required the tribunal to give proper genuine and real consideration to the appellant’s claim that he had been persecuted by the tribal leaders and the Jirga who had been in Khyber Agency.  The tribunal had noted country information on jirgas in Pakistan earlier in its decision immediately before the section headed ‘Findings and Reasons’.  It referred to a recent Pakistan press report which said that people in rural areas are forced to obey the orders of a jirga and that the Jirga is an institution in Pakistan’s informal justice system which is condoned by corrupt officials in the police force.

61                  Each of the two newspaper articles concerning the appellant showed, apparently credibly, that those tribal leaders and the Jirga were aware of the appellant, his group and his ‘liberal’ views and that that awareness had received publicity at least to readers of the newspapers and in Peshawar.  While the tribunal said it considered ‘it somewhat implausible that the Jjrga members might even have been aware of [the group’s] existence’, it accepted that the appellant may have had a political opinion imputed to him.  Accordingly, the tribunal accepted part of the claim, but it gave no reason for it being ‘somewhat implausible’ notwithstanding the apparently credible independent and only other evidence in the newspaper articles.  This deficiency in the reasoning process of the tribunal appears to be related to that which immediately followed, namely, the conclusion, despite the express terms of the articles that:

‘…[t]here is no evidence that the jirga have located or threatened his family in Peshawar, or that they have any influence outside Khyber Agency at all.’

62                  As counsel for the Minister submitted, the way in which the appellant’s father came to be present at the Jirga was not in any material before the tribunal, which had only the fact that the father was there.  But the fact of his presence and the, in effect, public disowning of the appellant’s opinions to the Jirga, on behalf of his family, is not addressed by the tribunal.  If the Jirga had not located or threatened them, then the appellant’s family had no reason to recognize it or appear, through his father, before it.  Moreover, the tribunal found that the appellant had been banished from Khyber Agency by the Jirga and that he had complied with its order almost immediately by moving away from where his family was to Karachi.  The tribunal also had accepted the appellant’s account of the attack on him in Peshawar resulting in his being thrown into a canal by Muslims from a local mosque but found that this did not amount to persecution because he was not seriously injured.

63                  In Applicant NADB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 at 38 [160]-[161] Hayne and Heydon JJ said:

‘[160] When reviewing a refusal to grant a protection visa, the question for the tribunal must always be whether the particular applicant has a well-founded fear of persecution (as persecution is now to be understood [s 91R]) for a Convention reason. If the applicant fears persecution for a Convention reason, examining whether that fear is well founded requires the tribunal to decide whether there is a real chance that the applicant would suffer persecution for a Convention reason. As pointed out [(1989) 169 CLR 379 at 389;  87 ALR 412 at 418 per Mason CJ, CLR 398;  ALR 424-5 per Dawson J, CLR 407;  ALR 431-2 per Toohey J, CLR 429;  ALR 448-9 per McHugh J.  See also Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-5;  144 ALR 567 at 576-9;  [1997] HCA 22 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.] in Chan v Minister for Immigration and Ethnic Affairs, reference to a real chance of persecution must not be substituted for, or be permitted to obscure the content of, the test prescribed in the Convention - whether an applicant holds a well-founded fear of persecution. It is sometimes convenient nonetheless to use the expression “real chance” as a shorthand reference to the nature of the factual inquiry being made.

[161] The available material bearing on whether an applicant’s subjective fear of persecution for a Convention reason is a fear that is well founded will vary from case to case. Usually, considering whether an applicant’s fear is well founded will be assisted by considering how others, in like case to the applicant, are being, or have in the past been, treated. [Guo (1997) 191 CLR 559 at 575;  144 ALR 567 at 579;  [1997] HCA 22]The difficulties of making such comparisons are obvious.’

64                  Of course, by s 91R(1) the tribunal was required to assess whether the persecution feared involved serious harm to the appellant.  But s 91R(2) gave instances such as a threat to the person’s life, significant physical harassment or ill-treatment of him.

65                  The tribunal dismissed the canal incident because that incident did not result in serious harm but it never considered whether such an attack, by many persons of one faith in company who were hostile to the appellant’s religious behaviour and political opinion and or membership of a social group, gave rise to a ‘well founded fear’.  Instead the tribunal asserted, without identifying a basis that there was nothing to suggest that there would be a risk of this behaviour being repeated in the future because, so it said, the appellant would not employ a Christian and could modify his use of language to avoid the word ‘jihad’ in campaigning against drug trafficking.  This assertion was misconceived.  As McHugh and Kirby JJ said in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at 490-491 [43]-[44]; and see too per Gummow and Hayne JJ at 501-502 [82]-[83]:

‘[43]   The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many -- perhaps the majority of -- cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

[44]    Subject to the law, each person is free to associate with any other person and to act as he or she pleases, however much other individuals or groups may disapprove of that person's associations or particular mode of life. This is the underlying assumption of the rule of law.’

66                  I am of opinion that the tribunal misconceived the question which it was required to address on the review under s 414(1) of the Act.  It dismissed the appellant’s claims of a well-founded fear by making mere assertions that, although he complied with the banishment imposed by the Jirga, the chance was remote that they might subject him or his family who remain in Peshawar to harm in the foreseeable future and that a physical assault on him by a large group in company was not persecution because he was not seriously hurt.

67                  These assertions were unreasoned and unsupported because they ignored objective facts found and did not deal with the apparently credible newspaper articles which supported the claims.  If the tribunal meant to say that because the appellant will accept his banishment he can have no fear, that involved the very mistake of which McHugh and Kirby JJ wrote (216 CLR at 490 [43].

68                  I have not overlooked that the issue of whether the appellant could relocate within Pakistan, which was also before the tribunal.  However, that issue could arise only after a determination that he had a reason to relocate.  The tribunal committed a jurisdictional error in dealing with the claims of the appellant.

69                  And, in reaching its conclusion that the appellant could relocate to Karachi where he could live safely, the tribunal, first, considered in a jurisdictionally erroneous manner only his claim relating to the tribal and religious leaders of Khyber Agency and, secondly, said it had taken into account all of the evidence.  In other words, the tribunal did not assess the claims based on the appellant being free to act in Karachi, as he would have acted without modifying his behaviour to eschew the realization of his fears.  Hence, in the penultimate paragraph of its reasons when dealing with the canal attack, the tribunal’s approach as described above, was to deal with the claim by reference to its (unfounded) anticipation that the appellant would modify his behaviour.  That approach evinced the very error exposed in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at 490-491 [43]-[44], 501-502 [82]-[83].

70                  I am satisfied, for the reasons above, that the tribunal misconceived its task in assessing whether the appellant had a well-founded fear of persecution for one or more Convention reasons and that it did not have a good reason for rejecting those claims.  That is not to say that on a rehearing the tribunal might not come to the same decision but, if it does, it must do so according to law.

Material filed after the hearing

71                  At the hearing on 19 April 2006, I gave leave to the Minister to file and serve a note indicating:

(a)        what documents in the appeal book had been given to the tribunal by the appellant and which the tribunal had obtained from other sources and when each document had been received by the tribunal;

(b)        what further authorities the Minister relied on arising out of the course of argument at the hearing.

I also gave leave to the appellant to respond to what the Minister served.  On 27 April 2006 the Minister filed a supplementary submission referring to the affidavit to be filed relating to the documents and giving case references.

72                  On 2 May 2006 the Minister filed an affidavit of that date by the district registrar of the tribunal, Mr Willoughby-Thomas, which I have admitted as fresh evidence pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) in order that the court can understand what documents in the appeal book were before the tribunal and how and when they were received by it, since this was not clear from the index and other material in the appeal book.  The appellant did not object to the affidavit or its contents.  In my opinion the evidence was important to ensure that the proceedings do not miscarry (CDJ v VAJ (1998) 197 CLR 172 at 200 [104]).

73                  On 4 May 2006, the appellant filed supplementary submissions which did not respond to or address the material filed by the Minister pursuant to my orders of 19 April 2006, but raised new matter.  The Minister objected to this material.  I have not taken account of those submissions in these reasons because they are outside the leave which I granted (NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 at 159 [191]-[192]).

Conclusion

74                  The appeal must be allowed.

Associate:

Dated:              9 June 2006