Ahmed v Minister for Immigration and Multicultural Affairs

[2001] FCA 1252

FEDERAL COURT OF AUSTRALIA

Ahmed v Minister for Immigration & Multicultural Affairs [2001] FCA 1252

ARFAN AHMED v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 113 OF 2001

EMMETT J
3 AUGUST 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 113 OF 2001

BETWEEN:	ARFAN AHMED APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	3 AUGUST 2001
WHERE MADE:	PERTH

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
WESTERN AUSTRALIA DISTRICT REGISTRY	W 113 OF 2001

BETWEEN:	ARFAN AHMED APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	3 AUGUST 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan.  He arrived in Australia on 4 December 2000.  On 3 January 2001 he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”). On 11 January 2001, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), refused to grant a protection visa.  On 17 January 2001 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of that decision.  On 16 March 2001 the Tribunal affirmed the decision not to grant a protection visa.

2. On 18 April 2001, the applicant filed an application for an order for review with this Court.  The application was filed by a legal practitioner.  However, when the matter came on for hearing today, the applicant was unrepresented.  Nevertheless, he was assisted in the hearing today by an interpreter. 

3. The application for an order for review specified the following grounds:

   (1)       the decision involved errors of law;

   (2)the Tribunal failed to observe the procedures required by s 430 of the Migration Act 1958 (Cth) (“the Act”) in that it failed to set out its findings on material questions of fact or refer to the evidence on which its findings were based;

   (3)there was no evidence or other material to support the Tribunal’s findings.

   Those grounds are based on ss 476(1)(a), (e) and (g) of the Act. However, no particulars are contained in the application. The applicant was unable to advance any submissions in support of the grounds.

4. The Tribunal had before it the Department’s file.  The file included a record of interview of the applicant by an immigration inspector when the applicant arrived in Australia.  It also included the applicant’s protection visa application, written submissions in support of the application, and a record of interview with an officer of the Department.  The Tribunal also had before it written submissions in support of the application and the applicant gave oral evidence in a hearing before the Tribunal. 

5. In its findings and reasons, the Tribunal recorded that the applicant claimed that if he returns to Pakistan, he will be persecuted because he is an Ahmadi Muslim.  The Tribunal accepted that the applicant is a national of Pakistan and that his name is Arfan Ahmed.  However, the Tribunal considered that significant aspects of the applicant’s evidence were vague, confused, implausible, internally inconsistent and inconsistent with independent evidence.  The Tribunal did not accept that the applicant was a credible or reliable witness.

6. The applicant claimed that he is an Ahmadi, but the Tribunal did not accept his evidence in that regard.  A number of matters were referred to by the Tribunal to explain that conclusion.  First, the Ahmadiyya Muslim Association of Australia informed the Tribunal that Ahmadi headquarters in Pakistan had confirmed that the applicant is not an Ahmadi.  The Tribunal was of the view that that was compelling evidence that the applicant is not an Ahmadi.  The applicant advanced three reasons why he and his family would not be known by the Ahmadi community in Pakistan but the Tribunal did not find those explanations convincing. 

7. Next, the Tribunal considered that the applicant’s evidence concerning his religious instruction was vague in the extreme.  He was only able to describe in the vaguest terms what he had learned from either his parents or a person he referred to as “Asif”.  He was unable, however, to explain Asif’s position in the Ahmadi community.  The Tribunal also considered that the evidence given by the applicant concerning when he found out that his family was Ahmadi was directly inconsistent.

8. A third instance of a problem with the applicant’s evidence concerned the alleged kidnap of his brother.  The applicant claimed that he was at home at the time when his brother was kidnapped and that the kidnappers actually wanted to kidnap him.  The Tribunal considered that the applicant’s evidence concerning why the kidnappers did not kidnap him, that is that they did not know that he was at home and thought he had already left, was highly implausible. 

9. Next, the Tribunal considered that the applicant’s evidence concerning his alleged efforts to find out what happed to his brother also lacked credibility.  The Tribunal formed the view that if the applicant’s brother had been kidnapped because the kidnappers wanted to target the applicant, and if the applicant were indeed an Ahmadi, he would have made some attempt to find out what had happened to his brother through the Ahmadi community.  The Tribunal was of the view that there had been sufficient time for the applicant to contact either the Ahmadi community in Indonesia or the Ahmadi community in Australia to request their assistance. 

10. Next, the Tribunal considered that the applicant’s lack of knowledge of the Ahmadi faith was also evidence that he is not an Ahmadi as he claimed.  The Tribunal accepted that a person might be a genuine adherent of a particular faith without having an in-depth knowledge of that faith.  The Tribunal’s findings concerning the receipt of religious instruction from Asif was regarded as indicating that the applicant was not an Ahmadi as he claimed.  The Tribunal referred to the fact that the applicant claimed to have attended the “mosque” on three occasions.  The Tribunal considered that it was implausible that a person could have received religious instruction and attended an Ahmadi place of worship on three occasions without knowing that Ahmadis are not allowed to call their places of worship mosques in Pakistan but instead call them Jahmi’a.

11. The Tribunal also considered it implausible that a person who considered himself an Ahmadi and had had instruction in the Ahmadi faith would not know the names of office holders in the Ahmadi community.  The Tribunal also considered that it was implausible that the applicant would not know the names of the financial contributions that Ahmadis make to their community and would be unaware of the split between the Qadiani and Lahori Ahmadi groups.  When taken in conjunction with the other problems in the applicant’s evidence, the Tribunal was of the view that the applicant’s lack of knowledge of such issues concerning his religion was strong evidence that he is not an Ahmadi as he claimed. 

12. The applicant claimed that he had left Pakistan on a passport in an unknown name.  The Tribunal considered the applicant’s evidence in relation to that issue was implausible.  It did not accept that the applicant would have been able to leave Pakistan and enter Indonesia as he claimed without having any idea of the names or details contained in his passport.  The Tribunal considered that it was clear that the applicant could have been questioned about his personal details on leaving Pakistan or on entering Indonesia.  The Tribunal considered that being completely unaware of the name under which he was travelling would have heightened the risk of detention and that therefore the applicant must have left Pakistan using a passport in his own name.

13. The Tribunal could not accept that the applicant was an Ahmadi when he was in Pakistan.  Since it did not accept that he was an Ahmadi, it did not accept that he was attacked and beaten or that his brother was kidnapped for that reason.  The Tribunal was of the view that what knowledge the applicant had concerning the Ahmadi faith had been acquired in Indonesia, where he was coached by a friend or the people smuggler. 

14. The Tribunal considered that if the applicant had genuinely converted to the Ahmadi faith in Indonesia, he would be expected to have made some effort to contact the Ahmadi community since arriving in Australia but there was no evidence to suggest he had done so.  The Tribunal concluded that the chance that the applicant would choose to identify as an Ahmadi or practise as one if he returned to Pakistan is remote.  The Tribunal did not accept that the applicant was an Ahmadi before he left Pakistan, that he is one now, or that he would identify or practise as one if he returned to Pakistan.  The Tribunal was not satisfied that the applicant faces persecution for that reason. 

15. The Tribunal was therefore not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.  There is nothing in the Tribunal’s reasons to suggest that the Tribunal did not correctly interpret the applicable law in relation to whether or not a person meets the definition of refugee in the 1951 Convention Relating to the Status of Refugees, as amended by the 1976 Protocol Relating to the Status of Refugees.  Nor is there anything in the reasons to demonstrate that the Tribunal incorrectly applied the applicable law to the facts as found by it.

16. Having regard to the Tribunal’s findings and conclusions, the Tribunal’s ultimate conclusion was the only conclusion reasonably open to it. Reliance on s 476(1)(a) is not open for the reasons specified in the application. An alleged failure to make a finding of fact on a material question is not a failure to observe a procedure required by the Act. If it is an error, it is an error of substance. Further, it may be greatly doubted that an obligation to set out findings could be said to be a “procedure” which is to be observed in connection with the making of the decision in question. 

17. There was no breach by the Tribunal of its obligations under s 430(1)(d). It is clear that the Tribunal has recorded its decision and set out the reasons supporting that decision. The setting out of the decision and reasons assumes that the decision has already been made – see Minister for Immigration and Multicultural Affairs v Yusuf (2001) HCA 30 at paragraph [77]. Further, the Tribunal’s reasons clearly refer to the evidence and other material upon which its findings and conclusions were based.

18. Reliance on paragraph 476(1)(g) is also misplaced.  There is nothing in the Tribunal’s reasons from which the Court could be satisfied that either paragraph 476(4)(a) or (b) was satisfied. 

19. None of the grounds in the application to this Court is therefore established.  There does not appear to me to be any other ground of review available.  It follows in my opinion that the application should be dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             11 September 2001

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 August 2001
Date of Judgment:	3 August 2001