FEDERAL COURT OF AUSTRALIA Qureshi v Minister for Immigration & Multicultural Affairs [2001] FCA 1774 MIGRATION – fear of political persecution – whether no evidence of a fact upon which the decision is based – whether error of law – whether a failure to make enquiries Migration Act 1958 (Cth) ss 427(1)(d), 476(1)(a), 476(1)(e), 476(1)(g) and 476(4)(b) Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 - applied Minister for Immigration and Multicultural Affairs v Anthonypillai 106 FCR 426 – applied SHAHID KAMRAN QURESHI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 718 of 2001 JUDGE: MERKEL J DATE: 14 DECEMBER 2001 PLACE: MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V718 OF 2001 BETWEEN: SHAHID KAMRAN QURESHI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MERKEL J DATE OF ORDER: 14 DECEMBER 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's taxed costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V718 OF 2001 BETWEEN: SHAHID KAMRAN QURESHI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MERKEL J DATE: 14 DECEMBER 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant, a citizen of Pakistan, is a Sunni Muslim. He entered Australia on a student visa in February 1998. His visa expired on 23 July 2000. The applicant was placed in immigration detention on 21 March 2001 as an unlawful non-citizen. He applied for a protection visa on 11 April 2001. 2 The applicant claimed that he had a well-founded fear of political persecution, if he returned to Pakistan, by reason of his association with a Sunni Muslim group known as Sipah-i-Sahaba ("SSP"). The applicant claimed that while in Pakistan he was involved with the SSP and, in particular, had a close association with one of its leaders, who was his karate instructor, Mohamed Saddiqi ("Saddiqi"). The applicant stated that, while he was in Pakistan, his family received threats concerning his involvement with the SSP but did not inform him of those threats until he was in Australia. Since his departure from Pakistan he claimed the threats continued and that Saddiqi was murdered. Those and other events which the applicant recounted were said by him to found his fear that he faced a real risk of harm by reason of his prior association with the SSP and one of its leaders, Saddiqi, if he returned to Pakistan. 3 Notwithstanding the obvious importance to the applicant's claim of his alleged involvement with the SSP, he failed to identify the SSP as the Sunni Muslim group with which he was involved until the hearing of his claim before the Refugee Review Tribunal ("the RRT"). In his application the applicant referred to his involvement "in a Sunni Muslim group". He also referred to Saddiqi whom he "followed…in becoming involved in the same movement". The applicant also stated that he would provide at a later stage: "Documentation to establish [his] connection with particular religious group." 4 On 12 April 2001 the applicant was informed that his application for a protection visa was being processed within the Department of Immigration and Multicultural Affairs ("the Department"). He was informed that if he had any more information relevant to his application he could give it, in writing, to the Department at any time before a decision was made on his application. 5 The delegate of the Minister refused the applicant's application for a protection visa. In the delegate's reasons he stated that he had a conversation with the applicant's migration agent, who stated that he would provide a further submission once he received the translation of certain documents and newspaper articles that the applicant had received from Pakistan. The delegate requested that the further submission be provided by 4 May 2001, to which the agent replied that he was not sure whether he could meet that time limit. The delegate handed down his decision on 15 May 2001 without having received a further submission from the agent. 6 The applicant applied to the RRT to review the decision of the delegate. No written submission was forwarded to the RRT in support of the application for review nor was any material sent to the RRT in advance of the hearing. During the course of the hearing the applicant identified the SSP as the name of the Sunni Muslim group to which he claimed to have belonged. The name of the SSP had not appeared in any material advanced by or on behalf of the applicant prior to the hearing before the RRT. Also, during the course of the hearing a number of documents were produced by the applicant's agent to the RRT. Those documents included newspaper articles which referred to activities of the SSP and the murder of Saddiqi. A further document was presented which was said to be the applicant's SSP identity card. 7 The RRT questioned the applicant on a number of aspects of his claim and, in particular, queried him on his failure to make any mention of the SSP in his original application or prior to the hearing before the RRT. The applicant stated that he informed his agent of the name of the SSP but had left ultimate responsibility for the preparation of his application to his agent. The agent stated to the RRT that the applicant had informed him of his involvement with the SSP in conferences with him. When asked when that occurred, the agent stated: "Well, I would have to look at my dates but in a conference when I made the first application and the subsequent conference when I took instructions for a review." 8 The RRT also questioned the applicant about his failure to produce his SSP identify card prior to the hearing. The applicant explained that he had difficulties in relation to the card and that he was only able to provide it to the RRT at the hearing. 9 The RRT was not satisfied that the applicant was a refugee and affirmed the decision of the delegate not to grant a protection visa. In substance, the RRT did not find the applicant to be a credible witness and treated his claim that he was personally associated with the SSP as lacking credibility. In providing its reasons for that finding the RRT stated, inter alia: "The Tribunal notes the applicant's evidence that his colleague was prominent in the SSP and probably a major target of religious opponents. In the initial stages of his application for a protection visa the applicant made no reference to any particular religious group. He merely claimed that he was active in an unidentified Sunni Muslim group. While accepting that he told his adviser at some stage that he was connected with the SSP there is no timely allusion to that in any of the material on file. In the initial application for protection the applicant made a lengthy statement with the assistance of his adviser. He gave instructions to his adviser who filled out the form on behalf of the applicant who then read it before signing a declaration that the information therein was, inter alia, 'complete' and 'correct'. It is apparent that the applicant is competent with English. The Tribunal does not accept that the applicant would have allowed omission of any actual reference to the SSP at that time if he had had such an association, particularly as he now bases his case on the consequences of attachment to that particular group. In reaching its conclusion that the applicant was never a member of the SSP the Tribunal has also considered a card submitted by the applicant at the hearing that is purportedly a membership card for the SSP. The card is in pristine condition despite having an issue date of 1994. The content of the card has not been translated. A photograph of the applicant has been placed over some of the content of the card. The SSP is an extremist religious faction within the Sunni Muslim majority population of Pakistan with a history of serious violence towards Shia opponents (see, for example, '2000 Annual report on international religious freedom: Pakistan', Bureau of Democracy, Human Rights, and Labor U.S. Department of State, September 5, 2000). In its Country Information Report, 436/99 of 6 October 1999, DFAT observes that: 'The SSP is an extremist Sunni political party which is known for its involvement in sectarian violence…' It appears unlikely that SSP members would be issued with cards helping to identify themselves as such, for example in the wake of inevitable official investigations of serious crimes perpetrated by some of them. In assessing all the material before it, including the applicant's initial omission of any reference to any association with the SSP, the Tribunal concludes that the SSP membership card belatedly furnished by the applicant is not a genuine document." 10 The applicant has applied to the Court to review the decision of the RRT. Although a number of grounds were raised in the application and the applicant's written contentions, the grounds pursued by counsel at the hearing were based on three contentions: · there was no evidence or material to justify the decision, which was based on the existence of a particular fact which did not exist, namely that the applicant made no reference to any particular religious group "in the initial stages of his application" (s 476(1)(g) of the Migration Act 1958 (Cth)); · the RRT erred in law by failing to consider whether, regardless of whether or not the applicant was personally associated with the SSP, he might have been imputed with a political opinion by reason of his personal association with Saddiqi (s 476(1)(e)); · the RRT was under a duty under s 427(1)(d) to make further enquiries in relation to the authenticity of the SSP identity card, including obtaining a translation of it (s 476(1)(a)). 11 I turn first to consider the "no evidence" ground. Section 476(1)(g) provides that a ground upon which the Federal Court may review a decision of the Tribunal is: "(g) that there was no evidence or other material to justify the making of the decision." Section 476(1)(g) is, relevantly, qualified by s 476(4)(b): "(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) ……………………… (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 12 In Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 ("Al-Miahi") at paras [34] and [35] a Full Court stated: "The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place - Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6. Sections 476(1)(g) and 476(4) appear to have been intended to give effect to such principles. The application of s 476(1)(g) and s 476(4)(b) in any particular case requires the following steps: * A relevant particular fact first must be identified. * Then it is necessary to determine whether there was any evidence before the Tribunal to justify a finding of that fact. If there was such evidence, the ground cannot be made out. * If there was no such evidence, it is next necessary to apply the second limb of (4)(b). If there is no evidence, on review, to show that the fact did not exist, the ground cannot be made out. * If there is evidence, on review, to show that the fact did not exist, it is then necessary to apply the first limb of (4)(b). That requires an analysis of the Tribunal's reasoning to determine whether its decision was based on that fact. See, for example, Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [26] to [28]" 13 In discussing whether a decision is based on a particular fact the Full Court stated at [38]: "A decision may be based upon the existence of many particular facts. It will be based upon the existence of each particular fact that is critical to the making of a decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that it is of more obvious immediate importance. If a decision is in truth based, in that sense, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed, whatever the relative importance of the fact. There is no reason to read s 476(4)(b) in a way that would limit its operation to a predominant reason for the decision under review – Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221." 14 The particular fact relied upon by the applicant in the present case is based upon the finding of the RRT that: "[in] the initial stages of [the applicant's] application for a protection visa he made no reference to any particular religious group". In order to identify the particular fact relied upon it is necessary to consider that finding in the context in which it is made. In that context the omission to which the RRT was referring was the failure of the applicant to make any reference to the SSP in the course of the processing of his application, including the lodging of the application and the decision of the delegate. In my view the RRT was referring to the stages in which the applicant was entitled to make his claims and provide material in support of those claims to the Department, and not to what the applicant may, or may not, have told his adviser in private. That matter is dealt with in the succeeding sentences of the third paragraph of the RRT's reasons, to which I have referred, when the RRT accepted that the applicant told his adviser "at some stage" that he was connected with the SSP but there was no "timely allusion to that in any of the material on file". 15 Thus, the particular fact found by the Tribunal and upon which its decision is in part based, which is said not to exist, was not really in dispute before the RRT. Plainly, the finding that the applicant made no reference to the SSP in his application, nor in the course of the processing of his application by the Department and the delegate prior to his hearing before the RRT, was clearly correct. Thus, the evidence justified the particular fact found by the RRT. There is some substance in the complaint made by counsel for the applicant that in his initial application her client had explicitly referred to a "particular" religious group with which he is connected and that that reference was in the context of him later providing documentation to establish that connection, which he did at the hearing. However, that criticism goes to the weight given by the RRT to the failure to explicitly identify the SSP prior to the hearing. The weight to be given to a particular fact is a matter for the RRT rather than the Court. 16 There is a further difficulty with the applicant's reliance on the "no evidence" ground. Even if my view of the fact found by the RRT is incorrect, and the omission referred to was intended to embrace private conversations between the applicant and his adviser in the course of preparing the applicant's application, that does not assist the applicant's case on this issue. The RRT accepted that the applicant told his adviser about his involvement with the SSP "at some stage" but discounted that as being of assistance to the applicant as there had been "no timely allusion to that in any of the material on file". The RRT also relied on the applicant's failure to refer to the SSP in his application. Thus, on a fair reading of the decision, it was not based on the fact (in the sense discussed in Al-Miahi) that the applicant had not mentioned the SSP to his adviser when the application for a protection visa was being prepared. 17 There is also a fundamental difficulty with the contention that the RRT failed to have regard to the question of any imputed association with Saddiqi. The applicant's claim in his application, as explained in the course of the hearing, was that he feared persecution because of his involvement with the SSP and, in that context, he relied upon his association with Saddiqi as a leader of the SSP. On a fair reading of the relevant material but, in particular, the evidence given by him at the hearing, the applicant did not appear to rely upon his personal association with Saddiqi as a separate or independent head of claim. Indeed, the RRT stated the applicant's claimed fear to be a fear based on "his religious activities", ie his activities with the SSP. It follows that when the RRT found that the applicant was not involved or imputed to be involved with the SSP, and it rejected each of the bases upon which it was suggested that such an involvement or imputed involvement could give rise to a well-founded fear of persecution, the applicant's claim must necessarily have failed. 18 In any event, the RRT specifically adverted to Saddiqi's murder and stated that even if it occurred because of Saddiqi's involvement with the SSP it would not follow that the applicant faced any real chance of political persecution as Saddiqi had a leadership role. The RRT clearly considered the issue of imputed association but treated the evidence as raising that issue in the context of involvement with the SSP. Further, when the RRT found that the applicant's association with Saddiqi, without more, would not give rise to a well-founded fear of persecution it must be taken to have implicitly rejected any claim (whether made or not) that there might be a well-founded fear of persecution because of Saddiqi's murder. I would add that it is not clear how a fear arising from a personal association with the Saddiqi can give rise to a fear of persecution on a Convention ground otherwise than in the context of involvement with the SSP. Accordingly, the second ground of review must fail. 19 There is also no substance in the final ground of review. There is nothing in the circumstances of the present case that would justify a finding that the RRT was under any duty to make further enquiries in respect of the SSP identity card of the applicant or to obtain a translation of that card. Section 427(1)(d) does not impose any duty on the RRT to make such inquiries (Minister for Immigration and Multicultural Affairs v Anthonypillai 106 FCR 426 at [86]). In any event, in Anthonypillai the Full Court at [87]-[91] appeared to accept that, where the RRT had serious doubts as to the authenticity of a document and sets out in its reasons why it rejected it, it could not be criticised for not making further inquiries under s 427(1)(d) concerning the document. That is the situation in the present case. The RRT rejected the authenticity of the SSP identity card and set out in its reasons why it rejected it. I doubt that anything turns on the point anyway as the RRT had an informal translation of parts of the identity card in evidence before it, as well as the applicant's explanation of the card. In those circumstances, it is not readily apparent what further information of relevance would have been obtained from a more accurate and complete translation of the card. 20 For the above reasons the application must be dismissed with costs. 21 Finally, I would like to record my appreciation of Ms Kennedy for appearing as pro bono counsel in the present matter. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 12 December 2001 Counsel for the Applicant: Ms M Kennedy Counsel for the Respondent: Mr C Fairfield Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 5 December 2001 Date of Judgment: 14 December 2001