Case: Minister for Immigration and Multicultural Affairs v Rajalingam and Ors [1999] FCA 719 ; (1999) 93 FCR 220
Outcome: considered
The appellant submits that the Tribunal erred in failing to consider that elections were to be held in October 2002 in which the PML might have been successful, in which case the appellant may have faced a real chance of future persecution. The appellant submits that the word 'suggest' in Tribunal's statement that ' the Applicant did not leave Pakistan until the late 1990s, which does not suggest that he was being persecuted by reason of his involvement in the intervening period ' is indicative of a tentative finding by the Tribunal. The appellant relies upon a passage in Minister for Immigration and Multicultural Affairs v Rajalingam and Ors [1999] FCA 719 ; (1999) 93 FCR 220 at [55] - [56] in which Sackville J states: 'It can be seen from this passage that if the RRT finds that it is only slightly more probable than not that an alleged relevant event had not occurred, it must take into account the chance that it did occur when determining whether there was a well-founded fear of persecution ... If, on the other hand, it appears that the RRT had no "real doubt" that its findings were correct, it is not bound to consider whether those findings might be wrong.' [original emphasis] 33 The appellant says that since the Tribunal observed that the PML had been ousted in a coup in 1999 in determining that there was no real chance that the appellant would be persecuted if he were to return to Pakistan now or in the reasonably foreseeable future, it was obliged to consider the possible changed circumstances following the election. 35 I do not consider that the word ' suggest ', in its context, shows that the Tribunal was ambivalent in its conclusion that the appellant had been persecuted between 1997 and the time when he left Pakistan by reason of his involvement in the PPP. I am satisfied that its finding was not attended by any significant doubt. Accordingly, I reject the submission of the appellant that the Tribunal should have adopted the approach referred to in Rajalingam . 40 With respect to the second ground (the Rajalingam argument), I am not satisfied that leave should be granted. The law relating to this ground was not uncertain at the time of the hearing before the Federal Magistrates Court, and the appellant was represented at that hearing. This point should have been taken before the Federal Magistrates Court if the appellant wished to challenge the Tribunal's finding on this ground. Further, for the reasons expressed above, I do not consider there is any merit in this ground of appeal. Accordingly, I refuse leave to rely upon the second ground in the amended notice of appeal. 41 It follows from the above that the appellant succeeds on the first ground of the amended notice of appeal. Accordingly I will remit the matter to the Tribunal for reconsideration, and award costs to the appellant in these proceedings. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 21 July 2006 Counsel for the Applicant: B Zipser Counsel for the Respondent: J Mitchell Solicitor for the Respondent: Clayton Utz Date of Hearing: 10 July 2006 Date of Judgment: 21 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/927.html