Maqsood v Minister for Immigration and Multicultural Affairs

[2001] FCA 1355

Maqsood v Minister for Immigration and Multicultural Affairs [2001] FCA 1355

Maqsood v Minister for Immigration and Multicultural Affairs [2001] FCA 1355

Migration Act 1958 (Cth)

Federal Court Rules O 20 r 2(1)(a), O 54B r 5

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67] followed

MOHAMMAD NAYYER MAQSOOD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1094 OF 2001

STONE J

SYDNEY

20 SEPTEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1094 OF 2001

BETWEEN:	MOHAMMAD NAYYER MAQSOOD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	20 SEPTEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

the application be dismissed with costs

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	N 1094 OF 2001

BETWEEN:	MOHAMMAD NAYYER MAQSOOD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	20 SEPTEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1       The applicant is a citizen of Pakistan who arrived in Australia on 18 December 2000. On 22 January 2001 he applied, under the Migration Act 1958 (Cth) ("the Act"), for a protection (class XA) visa. His application was refused by a delegate ("Delegate") of the respondent and this decision was affirmed by the Refugee Review Tribunal ("Tribunal") on 22 June 2001. On 19 July 2001, the applicant commenced proceedings in this Court seeking review of the Tribunal's decision.

TRIBUNAL'S DECISION

2       An applicant for a protection visa must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal was not satisfied that the applicant had such a fear and therefore affirmed the Delegate's decision refusing to grant a protection visa. The fundamental reason for the Tribunal's decision is that it did not believe the applicant's story; it stated that that his account was "riddled with contradictions and inconsistencies".

3       The Tribunal correctly directed itself as to the manner in which it should approach the question of the applicant's credibility in reviewing the applicant's claims. The Tribunal relied on the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status 1992 and the cases of Chen Xin He v Minister for Immigration and Ethnic Affairs (Nicholson J, 23 November 1995, unreported), Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 to make the following points:

•       if an applicant's account appears credible, the applicant generally should be given the benefit of the doubt provided the applicant's statements are coherent and plausible and are not contrary to known facts;

•       the Tribunal should not only consider inconsistencies in the applicant's evidence but should also determine what evidence it does find credible;

•       the Tribunal need not accept the applicant's claims uncritically; and

•       it is for the applicant to persuade the Tribunal that he has a well-founded fear of persecution for the reasons claimed.

4       The applicant claimed that he feared persecution by the Pakistani authorities and the Jamiat Islami party because of his political activities as a member of the Muslim Student Federation ("MSF"). The applicant claimed that he was close to Ilyas Gujjar, an MSF leader who had been killed. He claimed that members of the Jamiat Islami party had physically attacked and harassed him and his family and had also bribed the police who had attempted to capture him. The applicant made a number of inconsistent claims of his dealings with the police. He claimed that:

•       he had never been charged with any offences or arrested by the police;

•       he had been "taken" by the police once and held for two to three hours without incident;

•       he had been arrested two or three times; and

•       he had been beaten by police but no charges had been brought against him.

He also provided the Tribunal with a document that he said was a warrant for his arrest in connection with the killing of Ilyas Gujjar. That event occurred in September 2000 but the warrant was issued in August 2000. The applicant was unable to give any coherent explanation for this inconsistency.

5       Another inconsistency was between two documents tendered by the applicant certifying that he was a student at the government MAO College in Lahore and his statement to the Tribunal that he had never been a student there. This inconsistency raised doubts about the applicant's claim to be a member of the MSF because the only evidence tendered to prove his membership was a document that also stated he was a student at MAO College. The Tribunal did not accept the document concerning his enrolment at the College as genuine and therefore did not accept that the applicant was a member of the MSF.

6       Because of inconsistencies in the applicant's evidence and because he stated that, apart from his alleged association with the MSF, he was not politically active, the Tribunal was not satisfied that he had been charged with any offences or beaten by police or that the police had any interest in the applicant because of his political opinion.

APPLICATION FOR AN ORDER OF REVIEW

7       The application for an order of review filed on 19 July 2001 does not identify any grounds of review or list the orders sought. At the directions hearing on 9 August 2001, Deputy District Registrar Hedge gave the applicant leave to file and serve any amended application on or by 11 September 2001. None was filed. The applicant had agreed to participate in the Refugee Legal Advice Scheme administered by the Court and a legal practitioner was allocated to the applicant's case under the scheme.

8       At the time scheduled for the hearing today to commence (14.15 EST) the applicant had not appeared. As he is currently in immigration custody, enquiries were made of the Villawood Detention Centre and a facsimile was received timed at 14.34 EST. It stated that:

"I Maqsood Mohammad Nayyer S 7931 had an appointment for a hearing at the Federal Court at 14:15 hours and I have decided not to attend the hearing and wish to cancel it."

9       Although barely legible the signature on the facsimile appears to be that of the applicant. Counsel for the respondent, Ms Abadee, tendered a letter and a facsimile dated respectively 21 August and 10 September 2001 from the respondent's solicitors in which they reminded the applicant of the need to file and serve an amended application and provide grounds of appeal and particulars. A further facsimile dated 5 September 2001 advised the Court Officer at Villawood Detention Centre of the need for the applicant to attend the hearing. A handwritten notation on the document appears to record the response that an escort had been arranged.

10       In the circumstances the respondent has submitted that the proceedings should be dismissed pursuant to O 20 r 2(1)(a) and O 54B r 5 of the Federal Court Rules which allows the Court to dismiss a proceeding where no reasonable basis for the application is disclosed. Alternatively, the respondent submits that no reviewable error is evident in the Tribunal's decision.

11       In a case such as this where the applicant is unrepresented and where no grounds of review are specified, it is common (but by no means mandatory) for the Court to review the Tribunal's reasons for any obvious error. I have done so and can find no obvious error. It would seem that the Tribunal has correctly directed itself as to the proper approach to issues of credibility (see [3] above). In my opinion the conclusions reached by the Tribunal were clearly open to it. The Court should not lightly overturn the Tribunal's findings as to the applicant's credit; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67]. Nor should it review the Tribunal's decision on the merits.

12       In the circumstances, I am satisfied that there is no injustice to the applicant in acceding to the respondent's request. Accordingly the application is dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:        20 September 2001

#DATE 20:09:2001

Counsel for the Applicant:	No appearance
Counsel for the Respondent:	Ms N Abadee
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	20 September 2001
Date of Judgment:	20 September 2001