FEDERAL COURT OF AUSTRALIA NAVH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1558 NAVH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1094 of 2003 LINDGREN J 16 DECEMBER 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1094 OF 2003 BETWEEN: NAVH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE OF ORDER: 16 DECEMBER 2003 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 N 1094 OF 2003 BETWEEN: NAVH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE: 16 DECEMBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a citizen of Pakistan. He arrived in Australia on 28 July 2001 on a student visa. The student visa was to have expired on 8 March 2002, but on 22 February 2002 it was cancelled under subs 116(3) of the Migration Act 1958 (Cth) ('the Act') on the ground that the holder of the visa had not complied with a condition of the visa (that the visa holder continue to be enrolled in an approved course). 2 The applicant did not depart Australia following the cancellation. On 20 May 2002 he lodged with the Department of Immigration and Multicultural and Indigenous Affairs an application for a protection visa. The basis of that application was a claim that the applicant had a well founded fear of persecution in Pakistan for reasons of political opinion. 3 On 25 July 2002 a delegate of the respondent (respectively, 'the Delegate' and 'the Minister') refused to grant the protection visa. 4 On 8 August 2002 the applicant applied to the Refugee Review Tribunal ('the RRT') for review of the Delegate's decision. The applicant gave oral evidence to the RRT on 16 June 2003. The RRT decided on 30 June 2003 to affirm the Delegate's decision, the RRT's decision being handed down on 29 July 2003. 5 On 20 August 2003 the applicant commenced this proceeding by an application purportedly under s 475A of the Act and s 39B of the Judiciary Act 1903 (Cth). The grounds of the application were listed in an annexure to the originating application as follows (I have not corrected solecisms): ' • The Tribunal member erred in law by not placing any weight whatsoever upon the details provided by myself about his membership with Pakhtoon Khwa. · The Tribunal erred I law by not member has not put any weight whatsoever in respect of the evidence presented by the evidence in this matter. · The Tribunal member erred in law by not placing any weight whatsoever upon the Human Rights reports, which supports my claim. · The Tribunal member erred in law by not using his power to check upon the genuineness of my claim using the background submitted by myself. · The Tribunal member erred in law by not placing any weight to the details of my father who was acting against he government in Pakistan who was shot dead. · The Tribunal member erred in law by drawing inferences, which was contrary to the evidence presented before the Tribunal. · The Tribunal member erred in law by drawing inferences, which could not be reasonably drawn from the evidence before him. · The Tribunal member erred in law by coming to a decision that no reasonable member could come in light of the evidence.' 6 The applicant, who is not legally represented, did not comply with the Court's directions for the filing of submissions. He has appeared on the hearing today aided by an interpreter. 7 I asked the applicant whether he wished to address the Court as to any error made by the RRT. He replied that (a) he was intimidated in the hearing room, and (b) he was denied additional time to put material before the RRT. Neither of these grounds was identified in the application by which this proceeding was commenced. 8 There is no evidence before the Court in support of either ground. Further discussion revealed that the nature of the first complaint is that the Member who conducted the hearing was the intimidator. The form of the intimidation can be described summarily as being that the Member was sceptical, challenging and generally unsympathetic. Indeed, the Member concluded that the applicant's claims were without foundation and were a fabrication. 9 On the hearing before me the applicant supplied to the Court a copy of a letter which he appears to have written to the RRT on 26 June 2003 complaining about the hearing which had been held on 16 June 2003. The letter was in the following terms: 'I refer to my interview, held on 16 of June 2003. I would like to state that member who interviews me was not fair; she was biased, and unjust. The member did not give me that I should present my case. The member told me, that she did not believe about the credibility of my claim. And I have told her that my father has been killed. And I have told her. That I have got some prove's. Which I have given that for English translation, which I will provide in a two weeks. But she still did not give me the opportunities and that much time to explain the circumstances in which my father was has been killed. I ask the Tribunal that the new member as appointed and so that I can bring forward my claim for the consideration, before the Tribunal.' 10 In relation to the second complaint raised this afternoon, the question of the supply of further materials of a documentary nature in support of the applicant's case is referred to in the reasons for decision of the RRT. As long ago as 20 May 2002, when the original application for the protection visa was made, the applicant stated that he would supply further documents, namely; a police charge report, a newspaper report and a letter. The RRT observed that none of those documents had been provided to the Delegate or to the RRT. 11 In the application to the RRT for review of the Delegate's decision, the applicant stated that he would provide further evidence and detailed submissions to the RRT in relation to his claims. Notwithstanding this, the only further document which he produced on the hearing before the RRT was a book allegedly written by the applicant's father in the Urdu language. The Member stated that even if translated into English, the book would be unlikely to be relevant to the applicant's own claims. 12 I have treated the raising of the two matters this afternoon as an application by the applicant for leave to amend his application by introducing the two new grounds. An application to amend to that effect is opposed by Mr Markus, solicitor, who appears for the Minister. For the reasons given below, I decline to grant leave to the applicant to amend to add the two grounds. 13 It has been possible for the applicant for a very long while now to articulate and to lead evidence about the alleged 'intimidation' ground. The hearing would have to be adjourned today if that ground were allowed to be raised, because the applicant would need to put before the Court evidence in support of it. No adequate explanation is given why that ground was not mentioned in the originating application. 14 Similarly, in relation to the claimed denial of adequate time for preparation, I decline to allow the applicant the amend. He has had ample time to raise that ground. If I granted leave to amend the hearing today would have to be adjourned so that he could adduce evidence. 15 Accordingly, the application for leave to amend is refused. 16 I invited the applicant, who has not provided written submissions, to make any further oral submissions to the Court. He has, in substance, asked me to accept, contrary to the Tribunal's view, that he faces death if he is returned to Pakistan. I have explained that the question whether he does have a well-founded fear of persecution on a Convention ground is a matter for the Tribunal not for this Court. 17 This brings me now to deal with the nature of the claim which was before the RRT. According to the primary visa application, the applicant is Pashtoon by ethnicity and a Muslim. He has never married. He received 12 years education in Merdan at a government high school and lived at the same address in Merdan for some 10 years from 1988 to 1998. He then lived in the United Arab Emirates ('UAE') for three years from 1998 to 2001, where, according to his application, he gained a 'computer certificate' and worked as an 'office assistant'. Again, according to his application, he speaks, reads and writes Pashtu, Urdu and English. 18 The applicant departed legally for the UAE from Peshawar in Pakistan on a Pakistani passport issued in Peshawar on 2 June 1996 (the passport was valid for five years). Significantly, he departed from the UAE on a Pakistani passport issued in Abu Dhabi on 28 March 2001 (also valid for five years), and arrived in Australia on the student visa to which I have previously referred. The Member stated that the student visa was 'issued in Dubai on 17 July 2001 (valid until 8 March 2001 – [sic])'. 19 Accordingly, the applicant was not in Pakistan at the time when he departed for Australia, but had been living in the UAE for some time prior to his departure. 20 In his primary visa application the applicant stated that his father was 'missing', that one of his two brothers was 'in detention' in Pakistan; and that he had never been charged with any criminal offence. According to the RRT, in his primary application, the applicant further stated: ' • He left Pakistan to further his education. He first went to UAE to study computers and then came to Australia and enrolled at Griffith University. · His father has been carrying out activities against drug traffickers in the NWFT. [sic – the Tribunal is referring to the North West Frontier Provinces] · Whilst the applicant was in UAE, in July 1998, his father joined a political organisation called Pakhtoon Khwa Party, and was involved in the Social Development and Planning Division of the Party, and was involved in activities aimed at ending drug trafficking. · His father published a book called "Drug Smuggling An Act of Evil". · His father opposed the government of General Musharaf. · His father was killed by the drug smugglers because of his anti-drug activities and his opposition to the military regime in Pakistan. · Members of his father's family (such as the applicant) will be persecuted because of his father's activities. · The applicant will be arrested by the authorities in Pakistan if he returns because of his opposition to the military regime and his condemnation of General Musharaf's double standards in relation to terrorists when Pashtoons are being killed under the pretence of having links with the Taliban. · The applicant has written an article in Urdu which criticises General Musharaf for sending Pakistani terrorists to Kashmir to kill women and children and using his troops to conduct searches of Pashtoon houses in the NWFP. · He would be providing further details to support his claims, including a "police charge report", a newspaper report and a letter. (None of these documents were provided to the delegate or to the Tribunal.)' 21 In the application to the RRT for review of the Delegate's decision, the applicant stated that he was a member of the political organisation of Pakhtoon Khwa, that this organisation wanted the re-integration of the north-western frontier provinces of Pakistan with their motherland, Afghanistan; that he had written articles against the dictatorial regime of General Musharaf; and, as noted earlier, that the applicant would provide further evidence and detailed submissions to the RRT in relation to his claims. 22 In the hearing before the RRT, the Member noted that the applicant appeared to be unable to read the Pashtu language, which the applicant acknowledged, and he read the definition of a 'refugee' in the Urdu language. Nonetheless, at the applicant's request, the proceedings were interpreted for him in Pashtu. 23 There were some discrepancies which came to light as between the original application for the visa and the evidence before the RRT. For example, in the primary visa application the applicant said he went to the UAE to study computers and had gained a certificate and worked in the UAE as an 'office assistant'; but on the hearing before the RRT he said he had gone to the UAE to work as a labourer, although his employer had brought him to work in the office as he had a background in computer science. 24 The RRT explored many questions with the applicant in the course of the hearing, and, in particular, the question of his political beliefs and activities. It seems appropriate that I set out here five paragraphs of the RRT's reasons for decision: 'At the Tribunal hearing, the Applicant did not repeat the claims made in his application for review that he (as distinct from his father) is a member of the political organisation Pakhtoon Khwa Party; and he (as distinct from his father) has written articles against the dictatorial regime of general Musharaf. I therefore am satisfied that there is no basis for such claims, and that he is not and never was a member of that political party (or any other); and that he has not written any anti-government articles or publications. In the light of the Applicant's statements that his father did not officially join (or "declare" his membership of) the Pakhtoon Khwa until after the Applicant had departed from Pakistan in 1998, I do not believe that the Applicant and his father went to a meeting of this party at un undefined time before the Applicant's departure to Dubai in 1998. I therefore do not believe that the Applicant and others were shot at by hidden people after the meeting; or that the Applicant was injured (he went to Dubai as a labourer shortly thereafter); or that this was the reason he left Pakistan (with an authorised exit permit) for Dubai. Whilst I accept that the Applicant's father died in Pakistan in 1998 after the Applicant had departed from Pakistan, in spite of the Applicant's promises to both the delegate (in his primary visa application dated 20/05/02) and the Tribunal that he would provide material to prove his claims, he has not done so and I am satisfied that he had had more than adequate time to do so. At the Tribunal hearing, the only additional material he said he wished to provide to the Tribunal was a book written by the Applicant's father in Urdu. However, as I told the Applicant at the hearing, a book written by his father, even if translated into the English language, is unlikely to be relevant to the Applicant's claims. In summary, I am not satisfied that the Applicant was ever a member of the Pakhtoon Khwa Party before he left Pakistan for Dubai in 1998 (and he has not subsequently returned to Pakistan). Neither am I satisfied that the Applicant has a genuine fear of persecution in Pakistan because of his political opinions. I am satisfied that the Applicant's claims are without foundation and are a fabrication. I am also satisfied that the fact that the Applicant did not ledge a primary visa application until he had been in Australia for 14 months (having not lived in Pakistan for 4 years) is additional evidence that the Applicant's claims are not genuine. After careful examination of all the evidence before me, I am satisfied that the Applicant has never suffered persecution in Pakistan for a Convention related reason and does not have a well-founded fear of so suffering in the reasonably foreseeable future.' 25 It is clear from the above paragraphs that the RRT was simply not satisfied that the applicant was telling the truth. It is impossible to say that this view was not open to the RRT in view of the matters to which it referred. 26 I have tried to explain to the applicant this afternoon that the determination of questions of credibility, and, indeed, of refugee status in general, is a matter not for this Court but for the RRT. In substance the applicant seeks to have the Court investigate the merits of his application for a protection visa and to substitute its view for that of the RRT. This is a role not given by the legislature to this Court. 27 For the above reasons no error of law, let alone jurisdictional error, is demonstrated and the application should be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 22 December 2003 The applicant appeared in person but was assisted by an interpreter Solicitor for the respondent: Mr A Markus of the Australian Government Solicitor Date of hearing: 16 December 2003 Date of judgment: 16 December 2003