S284 of 2003 v Refugee Review Tribunal [2005] FCA 1595

FEDERAL COURT OF AUSTRALIA S284 of 2003 v Refugee Review Tribunal [2005] FCA 1595 APPLICANT S284 OF 2003 v REFUGEE REVIEW TRIBUNAL & ORS NSD 2443 OF 2003 EMMETT J 9 NOVEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2443 OF 2003

BETWEEN: APPLICANT S284 OF 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA

THIRD RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 9 NOVEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Order 51A rule 5(1) not apply to the proceeding. 2. The application for orders nisi be refused. 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 NSD 2443 OF 2003

BETWEEN: APPLICANT S284 OF 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA

THIRD RESPONDENT

JUDGE: EMMETT J

DATE: 9 NOVEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of Pakistan. On 23 December 1998, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) ('the Act'). A delegate of the Minister for Immigration and Multicultural Affairs ('the Minister') refused the application on 27 January 1999. On 23 February 1999, the applicant applied to the Refugee Review Tribunal ('the Tribunal') for review of that decision. On 28 June 2000, the Tribunal affirmed the Minister's decision not to grant the applicant a protection visa. 2 The applicant commenced a proceeding in the High Court of Australia on 12 June 2003 by filing a draft Order Nisi and an affidavit sworn on that day. The applicant thus applied for an order by the High Court that would call upon the respondents to show cause why writs of prohibition, certiorari, mandamus or an injunction should not issue to them in respect of the Tribunal's decision. 3 The applicant recounted in his affidavit that he was named as a party in the Schedule of the Statement of Claim in the matter: Muin v Refugee Review Tribunal [2002] HCA 30 ('Muin and Lie'). Saddozai Immigration Consultants represented the applicant. 4 The ground upon which relief was claimed in the draft order nisi was as follows: 'The First respondent failed to afford the applicant natural justice because the applicant had not been given an opportunity or an adequate opportunity to prepare and present favourable material at the hearing or an adequate opportunity to respond to unfavourable material.' 5 In his affidavit, the applicant recounts that in 1996 he and his brother were arrested in Karachi College on the basis of his brother's membership of the student wing of the Mohajir Qaumi Movement ('MQM'). The applicant says he was routinely subjected to police surveillance. The applicant claimed that in December 1997, the applicant was arrested and detained for three weeks, during which time he was beaten, whipped and questioned, and threatened with rape. He claimed to have been released onto the street naked and unconscious. The applicant claimed that he was harassed by the MQM for supposedly divulging sensitive information and that the police threatened him with false charges including murder and rape. 6 The applicant claimed that his lack of English skills caused confusion before the Tribunal, especially in recounting dates. The applicant asserted that the Tribunal had contradicted itself by holding, first, that the applicant was freely able to leave the country and was thus not genuinely subject to official persecution, and second, that the applicant may have been fearful of lawful punishment consequent upon his criminal activities. The applicant claims that on the latter holding, he would not have been able freely to leave the country and that it was based on the contradicting assumption by the Tribunal that the charges against the applicant were not false and the result of police corruption. 7 The applicant claimed that the Tribunal mistakenly downplayed the importance of the applicant's role in the MQM student wing and of the threats posed to him by members of that organisation. The applicant complained that the Tribunal ignored the applicant's language difficulty and his trouble remembering events that occurred when he was a minor. 8 The Tribunal noted that the delegate did not find the applicant credible. The delegate took note of the ease with which the applicant moved in and out of Pakistan. The delegate also noted the ability of MQM activists to relocate elsewhere in Pakistan. The applicant stated he would submit further evidentiary material, but did not do so. The applicant could not remember key facts that it could be thought a genuine MQM activist would remember, such as certain election results and the name of the leader of the major breakaway MQM faction. When this was put to the applicant by the Tribunal, the applicant replied that he was too young and distracted by the police. The Tribunal stated that it did not attach importance to minor inconsistencies in the applicant's original submission, but that it has carefully considered more serious inconsistencies and difficulties with the applicant's evidence. 9 The Tribunal stated that '[t]he Applicant's evidence at hearing was most unsatisfactory and unconvincing'. It went on to observe that the evidence at the hearing differed materially from what had been said previously, and that the applicant's explanations were confused and inconsistent. The Tribunal considered that the applicant was unable to remember key matters with which he ought to have been familiar as an allegedly actively involved associate of the MQM. 10 The applicant alleged that his home had been searched and fired upon after his return from Saudi Arabia in 1996, and when reminded of his earlier statement to the effect that this had happened after his return from Canada in 1998, he said it had happened on both those occasions. The applicant had originally mentioned police searches, of which he later made no mention, and when reminded of his original story, his memory of those events was restored to him. Accordingly, the Tribunal found that it had 'no doubt that the applicant's previous claims about this matter were fabricated and his belated recollection of the event was untrue'. The applicant twice promised to provide documentary evidence of his police record, and twice failed to do so. 11 The Tribunal considered that the applicant's account of being left in Canada for a short time was implausible. The applicant moved freely, legally and willingly in and out of Pakistan, suggesting an absence of real fear. He also failed to make use of a foreign visa until eight months after the alleged torture incident at the end of 1997. The Tribunal found the applicant to be an 'unsatisfactory witness whose evidence was inconsistent and unreliable and [the Tribunal is satisfied] included significant fabrications and embellishments'. Ignorance of national and provincial elections and certain other political events is inconsistent with the applicant's alleged standing as a person with real involvement in the MQM. Due to the unsatisfactory nature of the applicant's evidence, the Tribunal did not accept that he was persecuted in late 1997 to early 1998 by virtue of any MQM involvement and that his former colleagues did not persecute him for divulging sensitive political information. 12 The applicant had eighteen months to produce documentary confirmation that he is wanted by Pakistani authorities, and failed to do so, despite two assurances that he would. The Tribunal noted that the Pakistani authorities may have legitimate reasons for seeking the arrest and detention of certain MQM activists. In conclusion, the Tribunal was not satisfied that the applicant had any substantive involvement with MQM or was targeted by anyone for that reason. 13 The proceeding commenced in the High Court was subsequently remitted to the Federal Court of Australia. At the time of the remitter of the proceeding, the High Court also remitted over 1,000 other proceedings commenced by persons who had nominally been parties to the Muin and Lie class action. In those other proceedings, similar relief was claimed in respect of other decisions of the Tribunal refusing the grant of protection visas. 14 For the reasons set out in Applicant s195 of 2003 v Refugee Review Tribunal [2005] FCA 1571, it is appropriate for this matter to be dealt with on the papers and for Order 51A rule 5(1) of the Federal Court Rules to be dispensed with. 15 Accordingly, on 12 November 2004, the New South Wales District Registrar wrote to the applicant. Enclosed with the letter was a sheet containing the following message in 12 languages: 'Interpreting and translating services The Australian Government's interpreting service can supply telephone or on site interpreting. It is available 24 hours a day, 7 days a week, and is accessible from anywhere in Australia for the cost of a local call. 131450 Translating web pages and short sentences The following websites translate free short sentences of your choice and web pages into certain languages: http://www.freetranslation.com/ http://babel.altavista.com/translate.dyn http://www.google.com/language_tools?hl=en' 16 The letter relevantly stated as follows: 'As a result of an order by the High Court, your application was transferred to the Federal Court of Australia. The Federal Court must consider whether there is an arguable case for the Court to make an Order nisi. If the Court decides that there is no arguable case, your application for an Order nisi will be refused.