VAF v Minister for Immigration & Multicultural Affairs [2003] FCA 18

FEDERAL COURT OF AUSTRALIA

VAF v Minister for Immigration & Multicultural Affairs [2003] FCA 18

MIGRATION – protection visa – whether evidence of applicant inconsistent – whether tribunal failed to have regard to relevant material – whether tribunal adopted incorrect meanings of "refugee" and "persecution" – whether information provided in support of visa application is information provided for an application to review Migration Act 1958 (Cth) ss 424, 424A, 424B, 441A Bristol-Myers Squibb Co v F H Faulding & Co Ltd (2002) 97 FCR 524 referred to Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 discussed Win v Minister for Immigration and Multicultural Affairs (2002) 105 FCR 212 applied "VAF" v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 1082 of 2001 FINKELSTEIN J 21 JANUARY 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY 1082 of 2001

BETWEEN: "VAF"

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent JUDGE: FINKELSTEIN J

DATE OF ORDER: 21 JANUARY 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's 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 1082 of 2001

BETWEEN: "VAF"

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: FINKELSTEIN J

DATE: 21 JANUARY 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant claims to be a Convention refugee and so entitled to a protection visa. The Minister's delegate was not satisfied that the applicant met the relevant criteria and refused to grant him a visa. The delegate's decision was affirmed by the Refugee Review Tribunal. Now the applicant seeks to review the tribunal's decision for error of law of a kind which is said not to be protected by the "no certiorari" provision in s 474 of the Migration Act 1958 (Cth). 2 It is convenient to begin with a brief summary of the case that the applicant made to the tribunal. Significantly, the applicant had put forward a number of accounts of the bases upon which he claimed to be a Convention refugee. First there was a written submission which had been prepared by the applicant's solicitor and which formed part of his original visa application. Then there was an interview with the delegate who made notes of what was said. The third account was in the evidence that the applicant gave to the tribunal at an earlier unsuccessful application to review the delegate's decision. (That decision was ultimately set aside on review.) Next the applicant's migration agent prepared a written submission in support of the application for review, the decision in which is the subject of this application. Finally there was the applicant's evidence at the final tribunal hearing. 3 The applicant is from Pakistan and has been active in the political affairs of that country. He was a member of the Nawaz Sharif faction of the Pakistan Muslim League (PML) and became the General Secretary of Ward 48, Lahore and the leader of the labour wing of the PML Zone PP118, Lahore. He was employed at the Pakistan Mint and was the Secretary General of the local union as well as the Vice President of the Pakistan Labour Federation. The Nawaz Sharif faction is opposed to the Pakistani government and the applicant was frequently involved in hunger strikes and demonstrations opposing government policy. He also took steps to expose corruption at the Mint. These activities resulted in the local union and Pakistan People's Party leaders threatening the applicant with "dire consequences" if he did not resign from the PML. He refused to resign and, on several occasions before 1996, was detained without charge and beaten by government forces. The applicant organised a demonstration on 8 February 1996 to protest against the government's repression of workers who supported the PML. Spokespersons at the meeting, including the applicant, criticised the government's wages and prices policy, institutionalised corruption and the poverty of workers. Police attended the demonstration and immediately thereafter issued a "First Information Report" (FIR) against the applicant. This report seems to be a preliminary step before charges are laid. On the following day, 9 February 1996, police came to arrest the applicant but he was not at home. The applicant was advised that he should leave Pakistan, which he did on a visa that had been obtained some time before the demonstration to enable the applicant to attend the Third International Conference on Injury Prevention Control in Melbourne. He attended the conference in February 1996 and about one month later applied for a protection visa. 4 The tribunal rejected almost all of the applicant's assertions substantially because it was of the opinion "that the applicant has progressively embellished, enhanced and altered his claims over time to meet the circumstances as they have arisen". By way of example the tribunal drew attention to the different descriptions which the applicant had given about the demonstration of 8 February and the events that followed. It said that there were "inconsistencies and contradictions" in the applicant's evidence about the demonstration and his reasons for fleeing Pakistan. It instanced the statements made in the submission which accompanied the visa application in which the applicant said that he decided to flee Pakistan after the FIR relating to his participation in the demonstration was issued against him. When, at the hearing, the tribunal pointed out that the applicant had made arrangements to leave the country well before the demonstration, the applicant explained that before the demonstration he had been on hunger strikes, and arrested by the police and mistreated and that these were the reasons why he decided to flee. The tribunal also said this explanation was inconsistent with his evidence that at the time of his application to come to Australia he had no intention of leaving the country permanently. 5 The tribunal found that the applicant had been able to leave Pakistan legally on his own passport. In this regard it should be noted that the applicant had told the delegate that he paid a bribe to leave the country, but he had not made this claim in the submission which accompanied the visa application. In its finding the tribunal rejected the applicant's claim that he paid a bribe. 6 Coming back to the FIR, it seems that the applicant provided the tribunal with two copies of the document (he did not have the original), together with a translation by a friend who is not an accredited translator. The tribunal arranged for the two copies to be translated, each by a different accredited translator. The tribunal examined the copies which the applicant had provided and made the comment that they were so poor that they were difficult to authenticate. The tribunal then considered the three translations and found that they were sufficiently different to "raise some doubt as to [the FIR's] credibility". The tribunal said that it was "unable to place any weight on these documents because they are selfserving and in part incompletely translated[,] internally flawed [and] …for the additional reason that as (sic) it is a simple matter to make substitutions and alterations". 7 A convenient but necessarily incomplete summary of the tribunal's reasons for rejecting the applicant's claim appear from the following paragraph of its reasons: "As noted above, the applicant made varied claims in relation to his visa to come to Australia. Although the applicant claimed to have had problems prior to 8 Feb 1996 and although he also claimed that he applied for the visa because he was in fear of his life, he continued to live at the same place and continued to attend the Mint where he was employed each day. He claimed that he had bribed the PLF to include him on the conference delegation in order to obtain an Australian visa one and a half months prior to the alleged demonstration on 8 February 1996. If he had been in fear of his life in December 1995 when he nominated for the delegation, the Tribunal does not accept that it is plausible that the applicant would have taken part in the several hunger strikes while remaining at his same address and workplace. If he became fearful for his safety just prior to 8 February 1996 it is not logical that he nominated for the delegation in December 1995. If as he claimed he became fearful for his life after the FIR was lodged on 8 February 1996 it does not follow that he applied for his visa some weeks earlier. The applicant claimed he would be killed if he returned to Pakistan but has not claimed that anyone attempted to kill him prior to him leaving Pakistan. He claimed that this fear has also arisen as result (sic) of being declared an absconder, which would give his political opponents leave to kill him, but the Tribunal has found that he has not been so declared. Nothing these inconsistencies, the Tribunal does not accept that the applicant is a credible witness. For all the above reasons the Tribunal does not accept that there was or is any threat to his life." 8 I now turn to the grounds upon which the tribunal's decision is challenged. The first concerns the "inconsistencies" which the tribunal found existed in the accounts given by the applicant of events in Pakistan, and, in particular, the tribunal's finding that the applicant gave inconsistent accounts of his reason for leaving the country. The applicant says that there is no such inconsistency and this demonstrates that the tribunal either had regard to irrelevant material or failed properly to have regard to relevant material, being the various statements and evidence given by the applicant in support of his application. 9 The alleged inconsistency to which the tribunal refers is the difference between what the applicant put forward as his reason for leaving Pakistan in the submission and the reason he gave in his evidence to the tribunal. It will be remembered that in the submission the applicant said that he left Pakistan because an FIR had been issued against him regarding his involvement in the demonstration. This is in contrast to his evidence in which he said that he had been on hunger strikes and had been arrested and ill treated on a number of occasions before the demonstration and it was for these reasons he was compelled to leave Pakistan. The applicant asserts that there is no inconsistency in the two accounts because he had claimed in the submission that he had been arrested and threatened because of his association with the PML and this covered the events to which he later referred. 10 In my view it is at least clear that there is a difference between the applicant's account of events in the submission and the evidence that he gave to the tribunal. The submission makes no reference to any hunger strike or to any prior arrest or mistreatment at the hands of the police. It does not follow, however, that the later evidence of hunger strikes, arrest and ill treatment can be characterised as recent invention. The applicant had made similar claims during the course of his interview with the delegate. But that is not the real issue. The issue is whether the difference between the two accounts can properly admit of the conclusion that the applicant gave inconsistent accounts. A finding of inconsistency is not a necessary conclusion, but it is a possible conclusion in my opinion. It is not a necessary conclusion because, on one view, the later account could be regarded as nothing more than the provision of additional information to that which was contained in the submission. On the other hand, it was open for the tribunal to make a finding of inconsistency for the following reasons. The principal purpose of the submission was to explain why the applicant feared that he would be persecuted for a Convention reason if he were returned to Pakistan. The tribunal was entitled to assume that the solicitor who prepared the submission made every attempt to get complete instructions on relevant matters. If the applicant had told his solicitor that he had been arrested and mistreated on account of his political activities, that should have appeared in the submission. The absence of this material from the submission enabled the tribunal to infer that the applicant had not told his solicitor of those events. Raising those matters at a later point in time may, in those circumstances, be regarded as an inconsistent account. In any event, if there is error in the tribunal's analysis, and I do not believe there is, the error is one of fact not law. 11 The second ground is based on the following statement made by the tribunal. After rejecting the applicant's allegation that he had been arrested or detained and ill treated by the police, or that he had gone on hunger strikes, the tribunal said: "Even if the Tribunal were to accept that the applicant was detained for short periods on earlier occasions, as he had previously claimed, the Tribunal finds that this would not constitute a well-founded fear of persecution for a Convention reason for any alleged past periods of detention now or in the foreseeable future, as he was never charged with any offence and was able to leave Pakistan legally." 12 If read in isolation this so called "cryptic observation" might support the applicant's assertion that the tribunal misunderstood the meaning of persecution. The applicant argues that the tribunal is contending that, because the applicant had not been charged with an offence and had been allowed to leave Pakistan legally, the mistreatment to which he had otherwise been subjected could not establish a well founded fear of persecution for a Convention reason. Of course if that were the tribunal's view of the matter it would be untenable, being inconsistent both with the text of the Convention and with many authorities. However, when read in context the tribunal's "cryptic observation" is really nothing more than an inelegant passing comment which is not intended to reflect the tribunal's understanding of the meaning of "refugee". In the first place the tribunal's explanation of that term shows that it properly understood what the applicant needed to establish to succeed on the review. In the second place the tribunal's reasons indicate that it regarded the applicant as a person with a "very modest political profile" and for that reason there was no real chance that he would attract adverse attention on the basis of any actual or imputed political opinion. The tribunal said: "It is 4 and a half years since the applicant left Pakistan. He has not been a union member for that period and he has been expelled from the PLF. The applicant gave evidence that the various union bodies of which he is a former member are still in existence, continue to hold elections of office bearers, and to attract and enrol members. For the above reasons the Tribunal finds that there is not a real chance that the applicant would attract the attention of the authorities on the basis of his past union membership." In this context one can see that the tribunal's comment should not be taken as a statement of what it meant by the word "refugee". Finally, and this is really dispositive of the criticism, the tribunal's observation is not a matter which was taken into account in deciding the case against the applicant. In reality the tribunal is simply saying, I suppose by way of emphasis, that the applicant's case is so hopeless that even if all his claims were accepted he would not satisfy the relevant criterion. 13 The third ground is that the tribunal breached a statutory obligation when it took into account as one of the factors which undermined the applicant's claim of feared persecution the fact that the applicant had not asked for help from "contacts" in Melbourne and had delayed making an application for a protection visa. This is what the tribunal said on the topic: "The applicant's attendance of the conference, and his meeting with the Trades and Labour Council provided him with contacts who could have been of assistance to him if he were fleeing Pakistan to escape persecution or death as claimed. He did not seek such assistance. The applicant arrived in Australia on a valid passport issued in his own name. Despite his claim to have fled Pakistan, he did not apply for a protection visa upon arrival in Australia, but did so only after he had attended the conference for which timely arrangements had been made, and only after his temporary business visa had expired. The Tribunal finds this behaviour of significance as it is not the behaviour of a person who fears persecution in his country of citizenship." 14 The relevant provisions are ss 424, 424A (which is the provision which is said to have been breached), 424B and 441A. Relevantly, s 424 provides that the tribunal may invite a person to give additional information on any material that the tribunal considers relevant. Moreover, according to s 424A, the tribunal must give the applicant particulars of information that would be the reason, or part of the reason, for affirming the decision under review. It must also explain its relevance and invite the applicant to comment upon it. This section does not, however, apply to information that is not specifically about the applicant, that the applicant gave for the purpose of the application or that is non-disclosable: s 424A(3). Section 424B prescribes the procedure governing the issuing of the invitation and the interview itself and s 441A sets out the methods by which the tribunal is to provide relevant documents (including an invitation) to an applicant. 15 The applicant contends that the tribunal breached s 424A by failing to invite the applicant to comment upon the significance it was going to attach to the "facts" that the applicant did not seek assistance from local contacts who could have helped him and that the applicant did not apply for a protection visa for about one month after he had arrived in Australia. In the tribunal's view each "fact" was "behaviour of significance" and damaging to the applicant's credit. 16 The first issue which I must address is whether the "facts" in question fall within s 424A. The answer depends upon the resolution of a number of matters. The first is whether the "facts" constitute "information" for the purposes of s 424A. The second matter is whether the "facts" are exempt from the requirement of the section because they constitute information which "the applicant gave for the purposes of the application". 17 The first matter is covered by authority. In Win v Minister for Immigration and Multicultural Affairs (2002) 105 FCR 212, 217 the Full Court noted that "information" is capable of having different meanings, and the definitions of "information" in the Macquarie Dictionary and the Oxford English Dictionary 2nd ed. 1998 suggest that the appropriate meaning to be given to the word in s 424A is acquired knowledge concerning a particular fact, circumstance or event. The "facts" fall within that meaning. 18 The second matter raises more interesting issues, including what is the precise ambit of the exemption in s 424A(3)(b). According to the exemption, the section does not apply to information provided by the applicant "for the purposes of the application". There is a controversy as to the meaning of the word "application" in this context. Does it refer to the application for a protection visa or the application to review made to the tribunal? In Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 both at first instance (Madgwick J, [2000] FCA 1697) and on appeal (Ryan, Merkel and Conti JJ) the obiter opinion was expressed that the latter meaning was intended. I do not propose to explain the reasoning for this conclusion. Uninstructed by the views of these judges I might have reached the opposite conclusion to avoid the annomolies which Merkel J identified. But I feel obliged to follow the considered views of the judges in Al Shamry notwithstanding some doubt as to their correctness: see Bristol-Myers Squibb Co v F H Fauldings & Co Ltd (2000) 97 FCR 524, 570-574. 19 The next matter is whether the "facts" were provided to the tribunal for the purposes of the application to review. I take the view that the application made to the tribunal is an application to review the decision of the delegate to refuse to grant the applicant a protection visa. It is an invitation to the tribunal to consider afresh (so called merits review) the visa application, including all the information set out in the application, any documents attached to the application and, in my view, further information provided to the Minister (being information which the delegate was required to consider pursuant to s 54) plus any additional material which the applicant places before the tribunal. On this view the exemption would only apply to information provided by an applicant in limited circumstance, such as occurred in Al Shamry where the information was given at a time when the applicant had not made, and perhaps was not even contemplating making, an application for a visa. If this be correct then the "facts" upon which the tribunal relied were part of the information that had been provided to it by the applicant. It therefore falls within the exemption in s 424A(3)(b). 20 The final ground concerns the FIR translations. It is alleged that the tribunal had regard to irrelevant considerations when it treated the differences in the translations as leading it to the position where it was unable to place any weight on the document. The basis of the attack is that such a view was not open because only one of the translations had been supplied by the applicant. I think that there is no basis upon which the tribunal's approach can be challenged. As I read its decision, the tribunal placed little reliance on the applicant's translation. However, when he compared the two translations which the tribunal had itself obtained, there were differences. The tribunal considered that those differences were not explicable by the fact that the translations were made by different translators. This suggests that the tribunal considered that the two copies of the FIR which had been provided to it by the applicant were not identical "copies" of one document. From this the tribunal could properly infer, as it appeared to have done, that the FIR was not a genuine document. 21 For the foregoing reasons the application should be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.