Case: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
Outcome: applied
In a case in which the tribunal found, without making any investigation that newspaper articles were not genuine and that parts of the applicant for review's story were 'implausible', a Full Court of this court held that the tribunal had made a jurisdictional error by failing to conduct its review in accordance with the fair procedure required by the Act ( Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [44] , [48], [53], [64]-[66], [89]-[92] per Lee J, [108]-[119] per Tamberlin J agreeing). 47 What is even more extraordinary about the deficiency in the reasoning process in the case before me is that the second newspaper article appeared, while the appellant was in Australia, on 1 June 2004 during the hearing reinforcing the fact that the Jirga was actively engaged in persecuting the appellant and his family. Again, the tribunal made no finding about the genuineness or otherwise of this article. 48 The 1 June 2004 article repeated the public condemnation, apparently in the city of Peshawar, of the appellant and his group for the political views they had expressed. Faced with two newspaper publications 18 months apart in two apparently different newspapers, one in Arabic and the other in English, the tribunal had evidence to support the appellant's claim from apparently genuine and independent sources that he had been publicly identified in the media by a religious group for his expression of political opinion and religious practices. The tribunal gave no explanation as to why it was implausible that that which appeared in the newspaper articles could have, let alone in fact did, come to the notice of the Jirga or why it was not accepted as evidence to support the claims. And, the tribunal did this in the context of then accepting that the appellant held more liberal views than some tribal leaders in the Khyber Agency and that he may have attracted their disapproval in 2002. 53 In my opinion, no reasonable person could have expressed a reasoning process in the way that the tribunal did in order to deal with this evidence. Nor did the tribunal use its investigative powers by means of s 427(1) of the Act in the way suggested by Lee J or Tamberlin J in M164/2002 v Minister [2006] FCAFC 16 at [63] - [66] , [118] by asking the Secretary of the department to investigate the newspaper articles. Moreover, the fact that the Jirga had banished the appellant from the area in which he worked and that its decree had been publicly notified in his family's home city, indicated that there was in fact persecution for a Convention reason (political opinion) of the appellant at least in the area in which the Jirga's influence extended. Whether or not that went as far as Peshawar may be a matter that was legitimately within the area of fact-finding confined to the tribunal. But the tribunal did not consider the punishment of banishment at all in assessing whether the appellant's fear of persecution was well founded. It merely noted that he had complied with the banishment and did not return to the Peshawar area in the subsequent ten months he had remained in Pakistan following it. 54 The tribunal also dismissed as evidence of persecution for a Convention reason the fact that the appellant had been thrown into the canal for what ostensibly was a motivation, by reason of his religion, membership of a particular social group or political opinion, perceived by his attackers. The tribunal reasoned that because the appellant did not suffer any serious harm and was uninjured and ' therefore [found] that it did not amount to persecution '. The fortuity that when one is attacked by 14 or 15 people and thrown into a watercourse one might not be injured sufficiently to require medical attention belies the fact that the experience which the appellant suffered was plainly intimidatory and potentially very dangerous. A mob attack by persons in Peshawar, claiming that the appellant should not have employed a Christian or expressed certain opinions based on religion or politics, was capable of supporting his claim that the influence of the Jirga and those associated with it had extended to that city and that the appellant was a target. Instead, the tribunal dismissed its findings as to this as having no effect because the appellant fortuitously, presumably, could swim and therefore did not drown, and had not been sufficiently harmed in the attack before he was thrown into the water to stop him getting out and getting away. 56 When the tribunal said that it '... consider[ed] it somewhat implausible that the Jirga members might have even been aware ...' that the appellant's group existed, it was suggesting that the claim was somewhat 'without appearance of truth or acceptability' as Lee J explained in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [44] . The tribunal gave no explanation for discounting what appeared to be newspaper articles before it in which there could have been no doubt that, if genuine, the Jirga did know of the appellant's group's existence and what is more it had sought to banish him and cause his family to account to the Jirga by reason of the appellant's and his group's activities. 57 The tribunal gave no reasons for asserting any form of implausibility of that material. It did not suggest that the newspaper reports were anything other than genuine, and if it wished to have investigated that question it could have used its powers under s 427(1)(d) of the Act to require the Secretary to 'arrange for the making of any investigation that the tribunal thinks necessary with respect to the review, and to give to the tribunal a report of that investigation ...'. (see Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [62] - [66] , [90]-[92] per Lee J; [108], [113]-[119] per Tamberlin J). Likewise, the assertion by the tribunal that there was no evidence that the Jirga had located or threatened the applicant's family in Peshawar or that they had any influence outside the Khyber Agency at all is flatly contradicted by the newspaper articles, especially that of 1 June 2004 and has no evidentiary support whatever. 58 The tribunal used these findings to conclude that the applicant was not a prominent political activist and was therefore capable of relocating within Pakistan on the ground that the chance would be remote, were he to return to Karachi, that he might be subjected to persecution for reasons of his political opinions by tribal or religious leaders from the remote Khyber Agency.