Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12
Outcome: cited
The appellant also contended before his Honour that there had been no proper investigation of his genuine claims. His Honour noted, correctly, that the tribunal had assessed the claims and evidence which the appellant had put forward and was not obliged to conduct a further investigation into the matter, referring to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 21-22 [43] . His Honour also correctly dismissed the contention that the appellant should have been provided with specific details of general country information. As his Honour noted, s 424A(3)(a) of the Act does not require the tribunal to put these matters specifically to the appellant and in any event his Honour found that he was not persuaded that any relevant country information was not raised satisfactorily with the appellant during the hearing so as to afford him a fair opportunity to meet it. I am likewise not persuaded that there is anything in this ground for the reasons his Honour gave. 29 His Honour rejected a contention that the tribunal had acted in bad faith and that this could be established from the transcript of the hearing before the tribunal. As his Honour noted no transcript had been provided then, nor has it been now, and I agree with his Honour that there is no basis for concluding in the material before the Court that the tribunal acted in bad faith. 30 His Honour then dismissed the appeal. 31 The appellant's grounds of appeal are fairly broad and unspecific. He alleges that his Honour failed to find an error of law, jurisdictional error, lack of procedural fairness or to grant relief under s 39B of the Judiciary Act 1903 (Cth). Why his Honour is alleged to have failed was not articulated. The notice of appeal also asserted that his Honour erred in considering the real state of affairs of his persecution in his previous country of residence and his fear of harm. The appellant's grounds also argued that the present government of Pakistan failed to protect the people's lives which is a world-wide concern today. He also complained that he would face persecution if he returned to Pakistan as there are significant levels of violation of human rights which his Honour did not consider. The notice of appeal also refers to a number of court decisions but does not specify why any decision has particular relevance to this matter. 32 The appellant asserted that his Honour erred in failing to find that he was a member of a social group of persons working against drug traffickers and producers who acted as informants of the police. The Minister contended that this did not constitute an identifiable social group for the purposes of the Convention. I suggested in argument to counsel for the Minister that the well known anti-drugs campaigner, Donald Mackay, had been killed in Griffith, New South Wales, for his political, anti-drugs stance and that such a public position could be taken as either an expression of political opinion or membership of a social group. The Minister submitted that this would not be the case here. 33 The appellant also pointed to the way in which the tribunal had addressed his claim to have been persecuted by the tribal leaders and the Jirga who had been in Khyber Agency. He identified the two newspaper articles to which I have referred as showing that there was material before the tribunal which provided objective support for his claims. He said that there were people of strong Islamic beliefs all over Pakistan, not just in the Khyber Agency area and that the tribunal had not given rational consideration to his claim of a well-founded fear of persecution. 34 The appellant also argued that the finding that the tribunal had made, in dismissing the canal incident as evidence of persecution, was that it was unlikely to recur because he would not be an employer of a Christian and could readily use less sensitive language and avoid using the expression 'jihad' if he returned to campaign against drugs, was not a reasoning process which addressed the claim he was making. 35 Counsel for the Minister put that whatever had happened in the past, the appellant had not been found by the tribunal to have expressed the desire, were he returned to Pakistan, to employ Christians or to use provocative language in expressing his anti-drugs campaign and that therefore there was no basis upon which he could say that there was a well-founded fear that could have been found by the tribunal. The Minister relied on the findings that the appellant was not a prominent activist and that he had actually lived in Karachi for five months without difficulty. 36 I am of opinion that the tribunal's reasoning in relation to the banishment of the appellant by the tribal elders and the requirement that his family put on a defence to his activities, demonstrates that it made a jurisdictional error in dealing with the review.