Mahmood, Khalid v Minister for Immigration & Multicultural Affairs [1998] FCA 1629

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 317 of 1998

BETWEEN: KHALID MAHMOOD

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: LINDGREN J

DATE OF ORDER: 9 december 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1) The application be dismissed. 2) The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 317 of 1998

BETWEEN: KHALID MAHMOOD

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: LINDGREN J

DATE: 9 dECEMBER 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT (ex tempore)

INTRODUCTION The applicant applies by an application filed on 15 April 1998 for review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 12 March 1998 by which the Tribunal affirmed a decision of a delegate of the respondent ("the Minister") not to grant the applicant a protection visa.

BACKGROUND The applicant is a citizen of Pakistan who arrived in Australia on 19 August 1995. On 16 July 1996 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department") under the Migration Act 1958 (Cth) ("the Act"). The delegate's decision adverse to the applicant was given on 2 May 1997 and on 29 May 1997 the applicant sought review of that decision by the Tribunal. A criterion for the grant of a protection visa is that at the time of the decision the Minister, or, on review, the Tribunal, is satisfied that the applicant for the visa is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees; see s 36 of the Act. As is well known, a "refugee" is defined in the Convention article 1A (2) as any person who; "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." The Tribunal summarised the "Claims and Evidence" relied upon by the applicant along the following general lines. The applicant was born in Gujrat, Pakistan, where he lived until coming to Australia. His wife and three children remain in Pakistan. His siblings, two brothers and two sisters, also remain there. The applicant was a businessman in Pakistan for most of his life, having owned a cooking oil wholesale company between 1975 and when he came to Australia in 1995. In his primary application for protection lodged on 16 July 1996, some eleven months after arriving in Australia, the applicant claimed to have left his country to escape the mistreatment he claimed to have suffered as a result of his involvement with the Muttahida Quami Movement ("MQM"). He claimed to have joined that party in 1990 and to have been instructed to distribute pamphlets and literature and to have had responsibility for motivating others to join the party. The case which he initially sought to make out was that his involvement had been disclosed to the Government of the day by an informer and that as a result he had been detained, tortured and threatened by police on several occasions. According to his original application, he had to leave Pakistan because he feared for his life. He explained that the Pakistan People's Party ("PPP") Government was determined to destroy the MQM and was doing its best to capture the members of the MQM. He claimed to have been "underground for some time" prior to leaving Pakistan, as the police were searching for him. He said that he kept in touch with his family in Gujrat by telephone and by letters and that the police frequently searched his house looking for him. A matter which assumed some importance in the Tribunal's Reasons for Decision was that on the hearing before the Tribunal, the applicant departed from the claims which I have outlined, saying that they had been submitted by his adviser at the time, who had asked him to sign the application form in blank for the adviser to fill in later. The applicant claimed that as he does not speak, read or write English, he was not aware of the claims made on his behalf. The claims made at the hearing before the Tribunal were rather different from the original ones which I have outlined above. They were that the applicant feared for his life because prominent members of the Pakistan Muslim League (PML), members and associates of the Chaudhury family, wanted to kill him for being a political rival. This different claim made before the Tribunal involved a degree of evidence as to the political activity of the applicant and members of his family. According to the applicant, in 1983, his cousin stood for local council elections as an independent and he (the applicant) acted as his cousin's "election agent". He said that he was twice beaten up by members of the PML associated with the Chaudhury family. He claimed that he was beaten up in order to persuade his cousin to withdraw and also in response to his own complaints of "bogus votes" on the day of the election. He claimed that his cousin was also beaten up. He claimed that over the years he publicly denounced his political opponents and was beaten, tortured and injured in a fire as a result. The applicant claimed that his mother, father and brother were poisoned between May and August 1992 as a result of their public opposition to the Chaudhury family. According to his claim, his brother was poisoned while collecting payments from business debtors and his father was poisoned at a restaurant where a waiter associated with the Chaudhury family worked. The applicant claims that complaints made to the police against the Chaudhury family, far from resulting in protection, resulted in threats from the police to kill the complainants. As well, the applicant claimed that the doctor who attended to his family was threatened not to give the true cause of the deaths as being poisoning. In fact, the applicant provided documentary evidence of the deaths of his family members . The applicant claimed that on 3 December 1990, prior to the deaths, his home had been set on fire and he was seriously burned requiring treatment over a period of months. In fact the Tribunal recorded that the applicant had noticeable burn marks. According to the applicant, a cousin of his saw two men running away from his house carrying a fuel can and guns. The cousin attempted to register a case against the Chaudhury family but the police threatened the cousin with detention.