Mohammed v Minister for Immigration & Multicultural Affairs

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FEDERAL COURT OF AUSTRALIA

Mohammed v Minister for Immigration & Multicultural Affairs [2000] FCA 264

MIGRATION – review of  decision of the Refugee Review Tribunal – well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion and membership of a particular social group – whether failure of Tribunal to raise potential adverse findings with the applicant deprived him of the opportunity to give evidence – need for an opportunity to be genuine – whether failure to give reasons – whether Tribunal is required to identify inconsistencies at the time of the hearing – whether Tribunal made findings based on particular facts that did not exist – distinction between a particular fact, conclusions based upon a particular fact, and observations or comments by the Tribunal.

WORDS AND PHRASES – “particular fact”

Migration Act1958 (Cth) ss 424, 425(1)(a), 430(1)(b), (d), 476(1)(g), (4)(b).
Administrative Decisions (Judicial Review) Act 1977 (Cth)

Minister for Immigration and Multicultural Affairs v Cho (1999) 164 ALR 339, applied
Abebe v The Commonwealth (1999) 162 ALR 1, applied
Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681, referred to
Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741, referred to
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, applied
Arudselvan v Minister for Immigration and Multicultural Affairs [1999] FCA 622; [1999] FCA 1726, referred to
Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480, referred to
Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34, referred to
Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 962, referred to

MUNTASER IBRAHIM YOUSEF SHEIK MOHAMMED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1061 OF 1999

SUNDBERG, KATZ and HELY JJ
13 MARCH 2000
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1061 OF 1999

BETWEEN:

MUNTASER IBRAHIM YOUSEF SHEIK MOHAMMED
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGES:

SUNDBERG, KATZ and HELY JJ

DATE OF ORDER:

13 MARCH 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal.

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 1061 OF 1999

BETWEEN:

MUNTASER IBRAHIM YOUSEF SHEIK MOHAMMED
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

SUNDBERG, KATZ and HELY JJ

DATE:

13 MARCH 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT OF THE COURT

BACKGROUND

  1. A delegate of the respondent rejected the appellant’s application for a protection visa under the Migration Act1958 (Cth) (“the Act”). That decision was affirmed by the Refugee Review Tribunal (“the Tribunal”). An application for review of the Tribunal’s decision was dismissed by O’Connor J. The present appeal is from her Honour’s decision.

    THE APPELLANT’S CLAIMS

  2. The appellant is a Palestinian resident of the Occupied Territories who arrived in Australia on 18…

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Details
Case
[2000] FCA 264
Decision Date

CaseChat Overview and Summary

In the case of Mohammed v Minister for Immigration & Multicultural Affairs, the appellant challenged the decision of the Refugee Review Tribunal (the Tribunal) which had determined that he did not face a real chance of persecution in the Occupied Territories and was therefore not a refugee. The appellant argued that the Tribunal made errors in its consideration of his evidence, particularly in relation to inconsistencies and the identification of particular facts upon which the decision was based. The central legal issues for the court were whether the Tribunal correctly identified and considered the inconsistencies in the appellant's evidence and whether it properly identified the particular facts upon which it based its decision.

The court found that the Tribunal had adequately identified and considered the inconsistencies in the appellant's evidence. The Tribunal's detailed and comprehensive reasons covered twenty-nine pages, meticulously noting the inconsistencies and referring back to them when making findings and providing reasons. The court rejected the appellant's contention that the Tribunal was required to repeat its account of the inconsistencies when making findings and giving reasons. The court also clarified that a decision could be based on the existence of multiple particular facts, each of which was critical to the decision. The court noted that the appellant's submissions did not sufficiently distinguish between particular facts and conclusions based on those facts, a distinction that was important but not determinative in this case.

The court concluded that the Tribunal's decision was based on a proper consideration of the appellant's evidence, taking into account the inconsistencies and the broader context of the circumstances in the Occupied Territories. The Tribunal found that the appellant's claimed past activities and political opinions did not give rise to a real chance of persecution. The inconsistencies in the appellant's evidence led the Tribunal to doubt the reliability of his claims, and the appellant's delay in applying for protection in Australia further undermined his credibility. Consequently, the court upheld the Tribunal's decision.

The final orders of the court were to dismiss the appeal and for the appellant to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant also complained that when the Tribunal referred to inconsistencies in his evidence it did not then and there identify the inconsistencies. This complaint is baseless. The Tribunal’s careful and detailed reasons occupy twenty‑nine pages. In the course of recording the appellant’s claims and his evidence, the Tribunal noted particular inconsistencies in them. When it came to make findings and give reasons, it referred back to those inconsistencies - “The Tribunal has shown that the Applicant himself gave widely differing and wholly inconsistent accounts as to his anti‑Israel activities …”. The Tribunal was under no obligation at that stage to repeat its earlier account of the inconsistencies.No evidence: s 476(1)(g), (4) The claim here is that the Tribunal made its decision based upon particular facts that did not exist. The words “particular fact” in par 476(4)(b) do not require the identification of some single particular fact that may be said to be the foundation of the Tribunal’s decision. A decision may be based upon the existence of many particular facts. It will be based upon the existence of each particular fact that is critical to the making of the decision. Compare Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220‑221 (Black CJ, Spender and Gumow JJ), a decision on the materially identical provision in the Administrative Decisions (Judicial Review) Act1977 (Cth). And see Arudselvan v Minister for Immigration and Multicultural Affairs [1999] FCA 622 (Katz J, unreported; 9 August 1999), a decision of Katz J affirmed on appeal [1999] FCA 1726 (French, Heerey and Lindgren JJ; unreported; 12 November 1999) and Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480 (unreported; 23 April 1999), a decision of a Full Court (Lee, Whitlam and Weinberg JJ), both on par 476(4)(b). A “particular fact” is to be distinguished from a conclusion based upon a particular fact, although the particular fact upon which the conclusion is based may qualify under par 476(4)(b): Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 (Moore, Mansfield and Emmett JJ; unreported; 3 February 1999). Observations or comments by the Tribunal about perceived inconsistencies in the evidence are not “particular facts” within par 476(4)(b): Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 962 (Heerey J; unreported; 16 July 1999). The appellant’s submissions failed to pay sufficient regard to this distinction, but in view of the matters referred to in par 17 below, it is not necessary to pursue this matter further. Nor is it necessary to pursue the question whether the Tribunal’s decision was “based upon” the “particular facts” upon which the appellant relies. The particular facts that were said not to exist were identified as follows:(a)the appellant’s claim to have been on a black list prior to 1991;(b)that the appellant did not state how he came to know that his friend had informed on him;(c)the appellant’s claim to have a subjective fear of persecution throughout his entire stay in India;(d)the appellant’s claim that he was detained because the authorities knew about his membership of a particular group or knew that he had a past role channelling arms to its political wing;(e)that the appellant’s motivation to return to India in 1996 was to study.

Decision

Reasons for decision

The appellant gave instances of civil disturbances, terrorism, military crackdowns and arrests in the Occupied Territories. He has opposed the “Dead Peace Process” and claims he would be put in gaol if he were to return to the Occupied Territories.TRIBUNAL’S DECISION The Tribunal accepted that the appellant does not recognise Israel’s occupation of the Occupied Territories, and that this constitutes a political opinion that is imputed to him by Israeli officials. In coming to a conclusion on whether the appellant faced a real chance of persecution for reasons of his political opinion, the Tribunal made the following findings:·While the appellant may have been a civilian supporter of the Intifada prior to going to India in 1991, people were not arrested merely for their role in the streets during the Intifada. He returned from India in 1996 without difficulty, notwithstanding that the Israelis were still controlling the frontier. The Tribunal was not satisfied that this claimed role in the Intifada, on its own, gave rise to a real chance of persecution or even prosecution in the foreseeable future.·The persecution feared by the appellant as a result of his claimed past as a channeller of illegal arms and participation in other forms of violent and destructive protest was not persecution by reason of his opinions as such. It was the right of the police and security forces in a country or zone to keep the peace and respond appropriately to violence and terrorism.·The appellant gave widely differing and wholly inconsistent accounts as to his anti‑Israeli activities and their detection by the Israeli security apparatus. There were serious inconsistencies in his evidence as to the status or form of his “group”, as to his political activities in 1996 or lack of them, and as to the claim about his “record” or lack of one. Because of these inconsistencies the Tribunal did not accept that the appellant was ever involved in the activities he alleged to the degree he claimed, and it was not satisfied that he was ever suspected of such activities.·The appellant’s evidence supporting the claim that he might at least be a person “of interest” to the authorities, if not a suspected terrorist, was highly unreliable.·Evidence of arrests and corruption in the Occupied Territories, and the fact that the peace process was barely limping along, did not lead to the conclusion that the appellant faced a real chance of persecution by reason of his political opinion, or for any other Convention‑related reason. The circumstances that the appellant claimed would affect him were he to return already existed during his stay in the Occupied Territories in 1996, when the authorities had many chances to detain him.·The conditions motivating the appellant to apply for protection in Australia existed prior to his arrival here. He had already decided he needed a country in which to seek refugee status before he went to the Australian High Commission in New Delhi. He did not apply for protection in Australia until his three month temporary entry permit was about to expire. This delay in applying for protection was not consistent with the claimed urgency of his situation. Given that delay and the unreliability of the bulk of his evidence, the Tribunal inferred that he contrived his application at a late stage in his three‑month stay for reasons other than to seek protection from Convention‑related persecution.The Tribunal concluded that the appellant did not face a real chance of Convention‑related persecution in the Occupied Territories, and was therefore not a refugee.GROUNDS OF REVIEWSection 425

Ratio Decidendi

Legal Principle Established

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