SZIAW v Minister for Immigration - [2006] FMCA 914

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIAW v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 914

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 414, 415, 420, 423, 424, 424A, 424B, 424C, 425, 481

Htun v Minister for Immigration (2001) 194 ALR 244
NABE v Minister for Immigration (No.2) [2004] FCAFC 263
Sellamuthu v Minister for Immigration (1999) 90 FCR 287
SZEEU v Minister for Immigration [2006] FCAFC 2

Applicant:

SZIAW

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG39 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

7 June 2006

Delivered at:

Sydney

Delivered on:

12 July 2006

REPRESENTATION

Counsel for the Applicant:

Mr A Kumar

Counsel for the Respondents:

Mr J Potts

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed on 5 January 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG39 of 2006

SZIAW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 5 January 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 23 November 2005 and handed down on 13 December 2005, affirming a decision of a delegate of the first respondent made on 14 June 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZIAW”.

Background

The Tribunal decision of Kim Rosser, reference N05/51630, provides the following background information. The applicant, who claims to be a citizen of Pakistan, arrived in Australia on 9 February 2005. On 22 March 2005, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Migration Act 1958 (Cth) (“the Act”). On 14 June 2005, the delegate of the Minister refused to grant a protection visa and on 4 July 2005, the applicant applied to the Tribunal for review of the delegate’s decision.(Court Book (“CB”) 198)
The applicant was a 36 year old Pakistani national at the time of the protection visa application. He identifies himself as being of Ahmadi ethnicity. The applicant travelled to Australia legally using a passport issued in Karachi on 27 January 2003. The applicant’s passport states that he is Muslim.(CB 200)
In summary, the applicant’s claims as take from the Tribunal decision are (CB 201):
a)He is an Ahmadi.
b)He has suffered physical, emotional and verbal abuse for this reason.
c)On 20 December [no year provided], at around 11.00am, he was physically attacked by Qazi Hussein Ahmed and his gang from Muttahid Majlio-e-Amal.
d)He reported the incident to the police, who did not take any action.
e)On 5 January 2005 at around 8.00pm Malana Fazal Rahman and his gang beat him.
f)On 13 January 2005 at around 10.00am, Yul Tee and Ahmad Raza threatened him at gunpoint and told him to leave Pakistan.
g)Fanatical mullahs have demanded that he renounce his faith or face dire consequences. They threw stones at his house and left carcasses in front of it.
h)He has been physically assaulted, insulted and threatened by religious fanatics on numerous occasions.
i)He has been detained on several occasions.
j)In January 2004 he was detained after an altercation with members of the Muslim community. He was forced to sign a statement before being released.
k)If he returns to Pakistan he will be harmed by Qazi Hussein Ahmad, Malana Fazal Rahman, Gul Tee and Ahmad Raza.

Tribunal’s findings and reasons

A convenient summary of the Tribunal’s reasons is contained in the respondents’ written submissions prepared by Mr Potts, and I adopt paragraphs 13 to 22, inclusive, for the purposes of this judgment:
13.The Tribunal accepted that the applicant was a Pakistani national, however it considered that his claim to have converted to the Ahmadi faith lacked credibility. (CB 215.9) The Tribunal found the letter from the Ahmadiyya Muslim Association of Australia Inc compelling. That letter stated that the applicant’s claim that the Amir in Haripur had to leave the area because of religious problems was not true. The Association also stated that the applicant was not Ahmadi. The Tribunal accepted that the Association’s advice in this regard was credible and reliable. (CB 215.10-216.1)
14.In addition the Tribunal found that there were problems with the applicant’s own evidence, which led it to conclude that his claims lacked credibility. For example the applicant’s evidence at the hearing strongly indicated that he was unaware of the promises that were made by a convert to the Ahmadi faith. If the applicant had been a convert to the Ahmadi faith, who had gone through the initiation process as he claimed, he would have demonstrated more awareness of the promises which were made in the Bai’at. (CB 216.2-216.3) Another problem with the applicant’s evidence was that he appeared unaware of important aspects of Ahmadi Muslim beliefs.(CB 216.4) Further the applicant was unaware of important writings or the official Ahmadiyya newspaper. The Tribunal was of the view that it was implausible that a convert of some years standing would appear to be unaware, not just of the newspapers name, but also of its existence. (CB 216.9)
15.Although the Tribunal conceded the applicant was aware of some matters relevant to the Ahmadi faith, the knowledge that he demonstrated during the hearing was easily accessible from public sources. The applicant could have anticipated being asked for this information and have learned it in preparation for the hearing. Despite this the Tribunal regarded the matters of which the applicant was unaware as being matters that the applicant should have been aware of had he converted to the Ahmadi faith some 8 years ago. (CB 216.10-217.1)
16.The Tribunal found the applicant’s explanations for his lack of knowledge as unconvincing. (CB 217.2)
17.The Tribunal found other evidence suggestive of the fact that the applicant was not an Ahmadi Muslim, including the fact that all of his passports indicated that he was a Muslim. The independent evidence before the Tribunal showed that in order for Pakistani passport to show a holder as a Muslim, he or she was required to make a declaration accepting the finality of the prophethood of Mohammed. The Tribunal reasoned that for a genuine Ahmadi Muslim, this would amount to denial of his or her faith. The independent evidence before the Tribunal was not that Ahmadi Muslims were not able to obtain passports, it did however indicate that passports issued to Ahmadis would refer to them as non-Muslims. (CB 218.1) The Tribunal concluded that the description of the applicant as a Muslim in his passport supported a conclusion that his claim to be an Ahmadi lacked credibility. (CB 217.4-217.6)
18.The Tribunal noted the documents the applicant had provided supporting his claims, however did not regard those documents as being at all persuasive. The documents could have been written by anyone, and the Tribunal was not prepared to place any weight on them.(CB 217.8-217.10) The Tribunal did not find the evidence of the applicant’s witness helpful, and placed no weight on that evidence, given that the only sources for stating the applicant had changed his religion were the applicant and members of the applicant’s family.
19.The Tribunal noted the first letter responding to the Tribunal’s section 424A letter, and the applicant’s request for a further hearing. The Tribunal explained that it did not agree to the applicant’s request for a further hearing because in its view the applicant had had ample opportunity to put all his claims before the Tribunal. With respect to the applicant’s claim that he could not put all relevant evidence before the Tribunal because the interpreter was from Pakistan, the Tribunal noted that the applicant had requested that an Urdu interpreter be present at the hearing, and he had not requested that the Tribunal engage an interpreter who was not from Pakistan. Furthermore, at the beginning of the hearing the applicant had confirmed that he did not have any objection to using the interpreter who was present. In addition, the applicant was told by the Tribunal about the interpreter’s obligation to maintain confidentiality. The applicant specifically confirmed at the hearing that he did not fear returning to Pakistan for any reason other than his claimed Ahmadi faith. The applicant did not suggest during the hearing that he had any other claims to make. Nor did he contact the Tribunal in the aftermath of the hearing to raise new claims. The Tribunal considered it significant that the applicant did not contact the Tribunal until after he had received a notice under section 424A which raised serious issues relating the applicant’s credibility. (CB 218.2-218.6)
20.The Tribunal referred to the substantive response to the section 424A notice. It noted that in this letter the applicant had made a completely new claim, asserting that he had provided information which had led to a raid on Jihadist organisations, and that such organisations had an adverse interest in him for that reason. The Tribunal rejected the applicant’s claim in this regard, noting that he had had ample opportunity to make any claims he wished to make during the hearing, and his assertion that he could not do so because the interpreter was from Pakistan was unpersuasive. The Tribunal concluded that the applicant had fabricated this claim in an attempt to enhance his overall claims to refugee status. (CB 218.8-218.9)
21.In his response to the section 424A notice, the applicant sought to explain the advice from the Ahmadiyya Muslim Association that he was not an Ahmadi Muslim. The Tribunal did not find his explanation persuasive. The Tribunal said:
“If the applicant had converted to the Ahmadi faith and had declared the bai’ at as he claimed during the hearing, then I am of the view that his status in this regard would be known to the Ahmadiyya community. It would not have been a matter of him deciding whether or not to “register” as an Ahmadi. He would have been registered as Ahmadi because he had converted to the faith. In my view, the applicant’s assertion that his conversion was only known to a village Amir who has now disappeared is unconvincing. The applicant’s explanation for his passport stating that he is a Muslim is equally unconvincing. The totality of the evidence before me – including the applicant’s oral evidence during the hearing and the advice from the Ahmadiyya Muslim Association – leads me to conclude that the applicant is not a convert to the Ahmadi faith. I do not consider that the applicant’s response to the section 424A notice adequately explains the problems with his evidence which were put to him in that notice.”
22.The Tribunal concluded that the applicant had fabricated his claims, both to be an Ahmadi Muslim, and his more recent claim to have informed on Jihadists, in an attempt to create for himself the profile of a refugee. (CB 219.5)

Application for review of the tribunal’s decision

On 5 January 2006, the applicant filed an application for review under s.39B of the Judiciary Act. On 3 April 2006, the applicant filed an amended application which contained the following grounds:
1.The applicant is a citizen of Pakistan. If the applicant is deported from Australia he will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees.
2.The Tribunal erred in law in arriving at the decision to affirm the respondent’s decision not to grant the applicant a protection visa as it failed to consider a crucial integer of the Applicant’s claim, namely that the Tribunal did not consider the persecution of the Applicant as an adherent of Ahmadi faith without formalistic registration and other aspects of the Applicant’s belief. Instead the Tribunal only considered the formalistic procedure and rejected the claim.
Particulars
The Tribunal incorrectly assumed that because details of the Applicant’s registration could not be ascertained, the Tribunal need not consider the claim from the perspective of a believer and follower of Ahmadi religious practices. The Tribunal at page 23 of the Tribunal decision (CB 219, para 1) stated as follows:
…then I am of the view that his status in his regard would be known to the Ahmadiyya community. He would have been registered as an Ahmadi because he had converted to the faith.
The applicant contends that the Tribunal failed to recognise a very fundamental issue that he was an adherent/believer of Ahmadi practices regardless of the formal situation. The Tribunal misdirected its enquiries to the registration process without considering persons who fell outside this system that the Tribunal was pursuing.
3.The Tribunal’s decision involved jurisdictional error affecting the decision which is subject to this application in that:
(a) it asked itself wrong question and applied the wrong test
Particulars
The Applicant relies on the particulars in the preceding paragraph as particulars in this paragraph.
4.The Tribunal’s decision is in breach of s 424C and s. 425 of the Migration Act. In making the decision the Applicant submits that the Tribunal failed to constructively exercise the jurisdiction and/or denied the Applicant natural justice/procedural fairness in arriving at the decision.
Particulars
The Applicant had sought an additional hearing to clarify matters going to the heart of the Applicant’s claims. The Tribunal erred in refusing the Applicant an opportunity to further clarify the matters.
5.The Tribunal’s decision/finding is unreasonable/illogical. The Tribunal in stating (at page 23 of the decision) that on the basis that a person has been able to leave the country can not be a refugee. This reasoning is flawed.
Particulars
The Applicant relies on the particulars in the paragraph 2 as particulars in this paragraph.

Reasons

Both parties were represented by counsel, who had prepared written submissions prior to the hearing, and supplemented them with oral submissions. With the assistance of Mr Potts, appearing for the respondents, the Court was taken to some of the material in the Court Book which is directly relevant to the ground of review and the submissions by both parties.
In a letter from the applicant dated 9 May 2005 addressed to the Department and received on 11 May 2005, the applicant states (CB 64):
I [SZIAW] writing this letter regarding my case, I already met with Ahmadi Community representative and they said they have to verify my details back in Pakistan and in their head office which is in London, so they said it will take up some time for them to issue me the letter. As soon as I get the letter I will post to u the very same day, sorry for the delay. (copied without alteration or correction)
Mr Potts indicates that at the preliminary stage the applicant did not put forward a claim that he was somehow an unknown, unregistered private practitioner of the Ahmadi faith. Rather he contended that having made contact with the Ahmadi community representative they would indeed confirm that he was of the Ahmadi faith.
A letter from the Department of Immigration dated 29 April 2005 and addressed to the applicant states (CB 75):
…However, you were asked to provide, as evidence of your membership of the Ahmadi Community, a letter from the following organisation:
Ahmadiyya Muslim Association Australia Inc
20 Hollinsworth Road, Marsden Park 2765
Telephone: 9627 4521
Please advise me within 14 days of the date of this letter what steps you have taken to obtain this documentation, and when it is likely to be provided to this department.
On the bottom right hand corner of the letter is a hand-written note dated 27 May 2005, which records the following:
Spoke to Ahmadi Association. Said that they are not awaiting info from overseas. Applicant was asked to provide details from Pakistan, but he did not do so.
There is a further letter addressed to the applicant from the Department of Immigration and dated 27 May 2005, which is also the same date as the handwritten note on the previous letter.(CB 74) In the second paragraph, the delegate of the Minister states:
In connection with your statement that the Ahmadiyya Muslim Association is making checks on your behalf in Pakistan and London, I have contacted that organisation to enquire when such checks may be completed. However, the organisation advises that it is not undertaking any such checks; you were requested to provide some details in relation to your background in Pakistan, but have failed to do so.
Mr Potts submits that it was never the applicant’s case that this was somehow an irrelevant enquiry. Neither was it the applicant’s case that he had claimed that he was a member of a community in a way that would not be able to be recognised by an association of that community.
The Tribunal asked for the following additional information in a letter from it to the applicant (CB 103):
The name and contact details of the Ahmadi community representative to whom you refer in you letter to the Department dated 9 May 2005. [letter appearing at CB 64 – referred to in [11] above]
Details of the steps you have taken to obtain documentation from the Ahmadiyya Muslim Association Australia Inc confirming your status as an Ahmadiyya Muslim.
There was intervening correspondence which ultimately led to a letter from the Ahmadiyya Muslim Association Australia Inc to the Tribunal dated 23 October 2005.(CB 174) That letter stated:
Thank you for your inquiry regarding [SZIAW] File NO: N05/51830.
[ZIAW] had visited our mosque a couple of times to demand a letter from us. He could not provide any evidence of his affiliation with Ahmadiyya community.
After inquiring from Pakistan, we can confirm that his claim that the Amir in Haripur has had to leave the area because of religious problems is not true. [SZIAW] has never been a member of Ahmadiyya community in Haripur.
It is evident that his claim is not true and he is not an Ahmadi.
The Tribunal forwarded a letter to the applicant in accordance with s.424A of the Act which states (CB173):
The Tribunal has received a letter from Mr Nasir Kahlon of the Ahmadiyya Muslim Association of Australia Inc (copy attached). This letter states:
- Your claim that the Amir in Haripur has had to leave the area because of religious problems is not true and
- You have never been a member of the Ahmadiyya community in Haripur.
This information is relevant because it indicates that your claims to refugee status are not credible.
You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 16 November 2005.
The applicant responded to that letter, requesting a further hearing and indicating that the applicant did not trust the Pakistani interpreter present at the hearing, who may have caused his personal information to be disclosed to someone else.(CB 177)

On 31 October 2005, the Tribunal member responded to the applicant’s letter stating that there would be no further hearing and that any comments should be put in writing in response to the s.424A letter forwarded on 24 October 2005.(CB 178) This led to a substantial response by the applicant dated 14 November 2005.(CB 181-5)
Mr Potts submits that the Tribunal, in its decision, did not deal with this matter simply on the basis that the applicant claimed to be a registered Ahmadi follower, and so confined its deliberations to the effect that the Tribunal did not accept the applicant’s claim because he was not registered as a member. That was not the context in which the claim was put, the way the claim was dealt with, or the finding was made. In the Tribunal’s decision under the heading ‘Findings and Reasons’, the member stated (CB 215-6):
I accept that the applicant is a Pakistani national. However, I consider that his claim to have converted to the Ahmadi faith lacks credibility.
In relation to this, the Ahmadiyya Muslim Association of Australia has confirmed that the applicant’s claim that the Amir in Haripur had to leave the area because of religious problems is not true. The Association has also stated that the applicant is not an Ahmadi. In my view, this evidence is compelling. I accept that the Ahmadiyya Muslim Association’s advice in regard is credible and reliable.
The Tribunal accepted that piece of evidence and continued:
In addition, there are problems with the applicant’s own evidence which lead me to conclude that his claims lack credibility. For example, the applicant claims to be have converted to the Ahmadi Muslim faith some eight years ago and he has declared the bai’at. However, the applicant’s evidence at the hearing strongly indicated that he was unaware of the promises that are made by a convert to the Ahmadi faith. According to the official Ahmadiyya website, these promises are set out in the bai’at form. In my view, if the applicant was a convert to the Ahmadi faith, who had gone through the initiation process as he claims, he would have demonstrated more awareness of the promises which are made in the bai’at.
Mr Potts submits that the Tribunal was not dealing with the applicant’s claim on a limited basis but on the basis that he was of the Ahmadi faith. Further on in the Tribunal’s ‘Findings and Reasons’ it stated (CB 216):
Another problem with the applicant’s evidence is that he appeared unaware of important aspects of Ahmadi Muslim beliefs.
The Tribunal then gave some examples and drew the following conclusion:
In my view, it is inherently implausible that an Ahmadi Muslim of eight years standing would be unaware of such a fundamental Ahmadi Muslim believe and would instead identify a standard Muslim believe as one espoused by the Ahmadiyya Muslim community.
The independent evidence further indicated that it was not impossible for an Ahmadi to obtain a passport. Therefore, passports issued to such people would refer to them as non-Muslims. After considering this evidence, the Tribunal member makes the following observation (CB 217.8):
Overall, I am of the view that the applicant’s claim to be an Ahmadi Muslim lacks credibility.
The Tribunal also rejected the evidence of the witness, because the source of that evidence was said to be the applicant himself and his family (CB 218.1):
The witness could not objectively corroborate the applicant’s claims. He agreed that his only sources for stating that the applicant had changed his religion are the applicant himself and members of the applicant’s family. I place no weight on the witness’ oral evidence.
The Tribunal then dealt with the applicant’s request for a further hearing and explained why it was denied. The Tribunal referred to the applicant’s response to the s.424A notice and what it regarded as the new claim raised in that response. It summarised the difficulties it had with the applicant’s claims and came to the following conclusion (CB 219):
Overall, I have concluded that the applicant is not credible. I am of the view that he fabricated his claims – both his claim to be an Ahmadi Muslim and his more recent claim to have reported on jihadists – in an attempt to create for himself the profile of the refugee.
Mr Kumar, counsel for the applicant, makes no oral or written submissions in respect of the first ground of the applicant’s amended application. I agree with the written submissions of Mr Potts that the first ground of review is simply a bare assertion that the applicant is at risk of suffering persecution within the meaning of the Refugees Convention. This is not a proper ground of review and does not assert any jurisdictional error in the Tribunal’s decision. I do not believe that this ground warrants any further comment.
In the second ground of review, the applicant asserts that the Tribunal failed to consider a crucial integer of his claim, that being, persecution of the applicant for being an adherent of the Ahmadi faith without formal registration and for other aspects of the applicant’s belief. Further that the Tribunal only considered the formal procedures relating to the religion and thus rejected the claim. The particulars of the second ground states:
The Tribunal incorrectly assumed that because details of the Applicant’s registration could not be ascertained, the Tribunal need not consider the claim from the perspective of a believer and follower of Ahmadi religious practices.
Mr Kumar contends that the Tribunal failed to recognise the fundamental issue – that the applicant was an adherent/believer of Ahmadi practices, regardless of formal registration. Mr Kumar submits that the Tribunal misdirected its enquiry to the Ahmadi registration process without considering persons who fell outside that system. Mr Kumar acknowledged that the Tribunal was not able to satisfy itself of the applicant’s formal registration as an Ahmadi, but in doing so, failed to address the circumstances of an individual who may fall outside of the formal registration process. Mr Kumar submits that the finding of credibility does not include proper review of the application: Sellamuthu v Minister for Immigration (1999) 90 FCR 287. Also that the Tribunal is required to consider all substantive claims, however in adopting the “formal registration process” approach, the Tribunal failed to consider adherents of the faith who were not formally registered. In support of his argument, Mr Kumar relied upon NABE v Minister for Immigration (No.2) [2004] FCAFC 263 at [57]-[59] per Black CJ, French and Selway JJ. Mr Kumar submits that the Tribunal ought to have considered the likely persecution of those that belong to the class of unregistered persons, such that they belong to a ‘particular social group’, and that this issue clearly arises from the applicant’s claim.
Mr Kumar submits that the Tribunal has used an unduly narrow interpretation of who should be included as a follower of the religion. He submits that it is not open to the Tribunal, for the purposes of the Convention, to adopt this narrow interpretation in its determination of who a follower of a particular religion is: SZEEU v Minister for Immigration [2006] FCAFC 2 at [163] per Allsop and Weinberg JJ:
…The strict view that the courts have taken in relation to breaches of the rules of natural justice can, in my view, inform the application of the expression “a part of the reason” in s 424A. The cases suggest that this expression should be read benevolently, in favour of an applicant for review. If there is any doubt as to whether information that is adverse to an applicant did form a part of the reason for decision, that doubt should generally be resolved in favour of the applicant.
Mr Kumar submits that the Tribunal pursued a pedantic approach to religion and it should have adopted the same approach as that stated by Allsop and Weinberg JJ in SZEEU v Minister for Immigration. Mr Kumar contends that the Tribunal had clearly failed to look at the possibility the applicant may adhere to the Ahmadi faith and therefore would be persecuted, even if he were not formally registered.
Mr Potts submits that the applicant’s lack of registration per se was not the reason that led the Tribunal to rejecting his claim of being of the Ahmadi faith. Also the Tribunal’s reasons make plain that there were a number of compelling reasons, including his claimed Ahmadi faith, which led it to reject the applicant as a witness of credit, and to reject his claims of feared persecution. Mr Potts submits that the Tribunal did not fail to consider the applicant’s claim to be of the Ahmadi faith nor restrict itself to consideration of his claim on the basis that he only asserted to be a registered Ahmadi follower. The Tribunal endeavoured to explore at the hearing, in some depth, the applicant’s knowledge of the Ahmadi faith, and the beliefs and practices of the religion. The Tribunal found his knowledge to be substantially lacking. That evidence, together with the evidence from the Ahmadiyya Muslim Association, was sufficient to persuade the Tribunal that he was not in fact a member of that religion.
Mr Potts argues that applicant’s second ground is at odds with the manner in which he presented his case to the delegate and the Tribunal. The applicant was encouraged to obtain from the Ahmadiyya Muslim Association confirmation of his claim to be an Ahmadi. Until the applicant’s response to the Tribunal’s letter of 24 October 2005, the applicant did not say that it would be futile to request confirmation from the Association because he had always been a private or non-registered follower of the faith. Instead, the applicant himself sought such confirmation from the Association. This is evidenced by the letter from the Association of 23 October 2005. The letter states that the applicant “visited our mosque a couple of times to demand a letter from us”. Mr Potts submits that the second ground fundamentally misconceives both the basis of the applicant’s claim as advanced, and the reason the Tribunal gave for rejecting it. The written submissions filed by Mr Kumar contained an assertion not previously raised in the amended application. It raised that the Tribunal ought to have considered the applicant as belonging to a particular social group, that being “the class of unregistered persons”. The evidence in the Court Book as set out at [9] and [10] above is that the applicant never put forward any claim, either directly or indirectly, that he was an unregistered or private follower of the Ahmadi faith.
I accept the submissions of Mr Potts in respect of the applicant’s second ground and believe that the claims advanced in that ground cannot be sustained.
In respect of the third ground of the amended application, Mr Kumar submits that the Tribunal decision involved jurisdictional error, in that it asked itself the wrong question and applied the wrong test. Mr Kumar submits that there are many circumstances in which an applicant would adhere to a particular religion, but may not be formally registered with that religion. Further that registration only goes to prove that a person belongs to a particular religion. Mr Kumar submits that the basis of the Tribunal finding that the applicant did not qualify for a visa that he had applied for was on the basis that he was not registered as of the Ahmadi faith. Mr Kumar also submits just because the applicant did not “register as an Ahmadi because he has converted to the faith” does not necessarily mean that the applicant is not an adherent of the faith. He submits that the Tribunal decision is therefore unreasonable and illogical.
Mr Potts submits that this ground seems to be no different in substance from the second ground of review and should be rejected for the same reasons.
In respect of the fourth ground of the amended application, the applicant asserts that the Tribunal committed jurisdictional error by refusing the applicant a further hearing in response to its s.424A letter, which constitutes a breach of ss.424C and 425 of the Act. Mr Kumar submits that by making the decision not to grant the applicant a further hearing, the Tribunal failed to constructively exercise its jurisdiction and denied the applicant natural justice and procedural fairness in arriving at that decision. Mr Kumar claims that the Tribunal did not review the decision pursuant to ss.414 and 415 of the Act. Also that the Tribunal must consider the claim of the applicant by considering all of the material and making its own decision: Htun v Minister for Immigration (2001) 194 ALR 244 at 259. A s.414 obligation then imports ss.423, 424 and 425 of the Act: Sellamuthu v Minister for Immigration.
Mr Kumar submits that the Tribunal exceeded its jurisdiction or constructively failed to exercise it by failing to have regard to a relevant consideration in assessing whether there was a real chance of persecution of the applicant for a Convention reason if he were to return to Pakistan. The Tribunal proceeded to make its decision based on country information and material before it from the delegate. Mr Kumar argues that the Tribunal appears to have failed to exercise its independent review function. Mr Kumar contends that s.420 also requires the Tribunal to provide a mechanism of review that is “fair, just, economical, informal and quick”. The applicant submits that the Tribunal did not conduct the review as required by ss.420 and 481 of the Act and thus fell into jurisdictional error.
Mr Potts submits that s.424C of the Act does not relate to the present situation. That section empowers the Tribunal to make a decision on review without taking further action to obtain additional information pursuant to a request under s.424A when an applicant has failed to respond within the time stipulated.
Mr Potts submits that s.425 of the Act does not mandate that an applicant, who has already had the benefit of a hearing properly convened pursuant to that section, is entitled to a further hearing whether in respect of a s.424A letter or not. Indeed, the express provisions of s.424B of the Act rely on the proposition underlying this ground of review. Subsection 424B(1) provides that where a person is entitled under s.424A to comment on information, the Tribunal is to specify the way in which the additional information or comments are to be given, being a way the Tribunal considers appropriate in the circumstances. That section expressly empowers the Tribunal to determine – within its sole discretion – the manner in which comments are put to it. The Tribunal did this in its s.424A letter.(CB 173.6) The Tribunal decided to request comments in writing, which it is entitled to do pursuant to s.424B(1) of the Act. I accept Mr Potts’ submission that no error of the kind alleged by the applicant under this ground exists.
The applicant’s fifth ground of review claims that the Tribunal decision is unreasonable and illogical and cites a finding at CB 219 to the effect that:
The Tribunal in stating that on the basis that a person has been able to leave the country can not be a refugee. This reasoning is flawed.
In support of the claim, particulars from the second ground are repeated, which state:
…then I am of the view that his status in his regard would be known to the Ahmadiyya community. He would have been registered as an Ahmadi because he had converted to the faith.
Mr Kumar made no oral or written submissions in respect of the fifth ground, and did not indicate to the Court whether this ground was still pressed.
Mr Potts’ written submissions indicate that this ground of review was difficult to understand. However, he offers a possible explanation based on the applicant’s submissions, which addressed the question of illogicality that were submitted in respect of the second ground. In those submissions, Mr Kumar seemed to suggest that the basis of the Tribunal’s finding that the applicant did not qualify for a protection visa, was that he was not registered as being of the Ahmadi faith. Mr Potts suggests that this is simply incorrect as that was not the basis for the Tribunal finding.
I believe that this argument has been fully ventilated in response to the second ground and nothing further is identified or developed in the applicant’s fifth ground as pleaded.
Mr Potts drew the Court’s attention to an assertion contained in Mr Kumar’s outline of submissions that raises an additional ground:
The Tribunal has given an unduly narrow interpretation to the religion.
I am not satisfied that the Tribunal decision turned on the concept of religion in general, or the Ahmadi religion specifically. I do not believe that the Tribunal made any such finding, be that express or inferred. The applicant has made a number of specific claims as to his adherence to the faith and the Tribunal has formed the view that the applicant’s claims do not accord with what is generally known in respect of that religion or stated by the Ahmadi organisation itself. If this is pressed as a ground of review, I believe it is misplaced.

Conclusion

Mr Kumar, appearing for the applicant, relies on an amended application supported by written and oral submissions. The amended application identifies five grounds of review which identify jurisdictional error by the Tribunal member. However, only four of the grounds were specifically pressed during the hearing and it is unclear whether the fifth ground, which in effect repeats the second, is still pursued.
However, as Mr Potts clearly demonstrates, none of the five grounds contained in the amended application or the additional ground referred to in the written submissions can be sustained. I accept Mr Potts’ submissions that each of the issues raised in the pleaded grounds has been considered and correctly handled by the Tribunal. Consequently, I believe that the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 11 July 2006