Niyas v Minister for Immigration &Multicultural Affairs

[2000] FCA 601

FEDERAL COURT OF AUSTRALIA

Niyas v Minister for Immigration &Multicultural Affairs [2000] FCA 601

ABUL CADER MOHAMMED NIYAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N1445 of 1999

WILCOX J
SYDNEY
20 APRIL 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1445 of 1999

BETWEEN:	ABUL CADER MOHAMMED NIYAS Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	20 APRIL 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for review be dismissed.

2.The applicant, Abul Cader Mohammed Niyas, pay to the respondent, Minister for Immigration and Multicultural Affairs, his costs of the proceeding.

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	N1445 of 1999

BETWEEN:	ABUL CADER MOHAMMED NIYAS Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	20 APRIL 2000
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1. WILCOX J:  The matter before the Court is an application by Abul Cader Mohammed Niyas for a review of a decision of the Refugee Review Tribunal refusing his application for a protection visa.  Mr Niyas had claimed to be a refugee within the meaning of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

2. Article 1A(2) of that Convention contains a definition of “refugee”.  Mr Niyas put a case to the Tribunal  that he came within the definition because he had a well founded fear of being persecuted for reasons of imputed political opinion if he returned to his native Sri Lanka.  The imputed political opinion identified by Mr Niyas was support for the LTTE, the group of Tamil people seeking independence from Sri Lanka.

3. Mr Niyas told the Tribunal he was a Muslim.  He said he did not fear persecution on account of being a Muslim.  He accepted that Muslims generally stayed apart from the conflict between the Sri Lankan Government and the LTTE.  Also, Mr Niyas lived in Colombo before coming to Australia; not in the Jaffna Peninsula or the eastern region of Sri Lanka, where the civil war is at its worst.  However, he said he had befriended several young Tamil males who were resident in Colombo and had come under police notice as being possibly implicated in terrorist activities of the LTTE.

4. Mr Niyas put before the Tribunal extensive material concerning his association with these young men.  He also gave to the Tribunal  information about things he had learned from Sri Lanka, particularly from his wife, since his departure.  Mr Niyas also dealt with questions raised by the Tribunal as to events after his arrival in Australia, in particular his delay in seeking recognition as a refugee.  The decision of the Tribunal deals in detail with all these matters.

5. I pointed out to Mr Niyas at the directions hearing, and I reminded him again today, that this Court has no power to review the Tribunal’s findings of fact. It is not uncommon for persons, whose refugee applications have been refused, to feel the Tribunal has not correctly determined the facts of their case. On some occasions a member of this Court who reviews the Tribunal’s decision may himself or herself have doubts about the correctness of the Tribunal’s findings of fact. However, members of this Court must constantly remind themselves that the facts are outside their purview. Unless a case comes within the categories set out in s476 of the Migration Act 1958 the Court is powerless to intervene.  It seems to me this is such a case.

6. Mr Niyas appeared for himself at this hearing although he has had the assistance of a qualified interpreter, Ms G Rathinam.  Before the hearing, Mr Niyas filed a document setting out some submissions.  In paragraph 4 of that document, he referred to the decision of the High Court of Australia in Chan v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379. Mr Niyas correctly said the test approved by the High Court was whether or not there is a real chance that the applicant will be persecuted if returned to his or her country or nationality.

7. In paragraphs 7 and 8 of the submission, Mr Niyas again referred to Chan.  He submitted the Tribunal did not apply the test enunciated in Chan but he has not explained why he says this.  I do not think it is correct to say the Tribunal failed to apply the correct test.

8. At the commencement of its reasons for decision, the Tribunal correctly quoted the definition contained in s1A(2) of the Refugees Convention and also referred to Chan.  The concluding section of the decision, which deals with findings and reasons, is consistent with the application of this definition.

9. In his written submissions, Mr Niyas contended the Tribunal failed to take into proper consideration whether there was a real chance that he might suffer persecution because of his perceived association with the LTTE.  In paragraph 21 he submitted the Tribunal failed properly to consider both the subjective and objective elements of his fear of persecution on that ground.

10. I cannot agree that the Tribunal failed to consider these matters.  On the contrary, over many pages of the Tribunal’s decision, there is discussion about Mr Niyas’ claims and their credibility.  Mr Niyas failed in his claim because the Tribunal was unable to accept the essential elements of his factual claims.  I understand that Mr Niyas feels the Tribunal  was wrong to reject his account of the facts.  He has elaborated on those matters to me, both in the written submissions and in what he has said orally today.  I respect Mr Niyas’ view about the facts, but I repeat that they are not a matter I am entitled to determine.

11. As I expected Mr Niyas would not be legally represented, before I came into Court I carefully considered the Tribunal’s decision; asking myself whether it appeared to disclose any matter that fell within s476 of the Migration Act.  However, I could find no such matter.  I detect no error of law and there is no suggestion that the Tribunal failed to follow necessary statutory procedures.

12. In these circumstances, I have no alternative other than to dismiss the application for review.

13. I order the application be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             20 April 2000

Applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 April 2000
Date of Judgment:	20 April 2000