SZIAW v Minister for Immigration and Multicultural Affairs

[2006] FCA 1676

FEDERAL COURT OF AUSTRALIA

SZIAW v Minister for Immigration and Multicultural Affairs & Anor
[2006] FCA 1676

Migration Act 1958 (Cth)

Abebe v Commonwealth (1999) 197 CLR 510
WAGR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 6

SZIAW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR

NSD 1454 OF 2006

DOWNES J
21 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1454 OF 2006

BETWEEN:

SZIAW
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE OF ORDER:	21 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Appeal  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	NSD 1454 OF 2006

BETWEEN:

SZIAW
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE:	21 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

DOWNES J:

1. The appellant is Pakistani.  He entered Australia on 9 February 2005 on a temporary business visa.  On 22 March 2005 he applied for a protection visa.  He claimed to have a well-founded fear of persecution within the meaning of the Refugees Convention for reasons of his religion.  He claimed to be of the Ahmadi faith.  He claimed to have suffered physical, emotional and mental abuse on account of his religious beliefs. 

2. The Minister’s delegate refused his application on 14 June 2005.  He applied to the Refugee Review Tribunal for review of that decision.  The Tribunal affirmed the decision of the delegate on 13 December 2005.  The appellant applied to the Federal Magistrates Court for review of that decision.  Lloyd-Jones FM dismissed the application.  The appellant now appeals to this Court.  For reasons I will give, the appeal must be dismissed. 

3. The Migration Act 1958 (Cth) commits the ultimate determination of the facts in refugee cases to the Refugee Review Tribunal. That Tribunal considers the matter afresh and on its merits. It substitutes its decision for that of the Minister through her delegate. There are thus two tiers of decision-making during which an applicant for a protection visa has an opportunity to put forward a case on the facts.

4. The rights of persons claiming to be refugees in Australia do not, however, stop there.  For practical purposes there is a review of the decision of the Refugee Review Tribunal in the Federal Magistrates Court with an appeal to this court.  The appeal is, however, confined to an error of law or, more correctly, jurisdictional error. 

5. Behind every application for a protection visa lies a factual basis.  This case is no exception.  The factual basis which the appellant asserts is that he fears persecution because of his religious beliefs as an Ahmadi.  The Refugee Review Tribunal constituted by Ms Kim Rosser found that the appellant’s “claim to have converted to the Ahmadi faith lacks credibility”.  The Tribunal had two particular reasons for this.  First, the Ahmadiyya Muslim Association of Australia had written to the Tribunal saying that the appellant was not an Ahmadi, and that his claim that the Amir in Haripur had to leave the area because of religious problems was not true.  Secondly, the Tribunal found that the appellant was unaware of the promises made by converts to the Ahmadi faith and of important aspects of Ahmadi beliefs.  The Tribunal found that there were other matters which an Ahmadi might be expected to know of which the appellant was unaware.  In addition, the Tribunal noted that a number of passports of the appellant, which were before the Tribunal, including his latest passport, showed the appellant’s religion as Muslim. 

6. The Tribunal began its reasoning by noting that it should be sensitive to the difficulties faced by asylum seekers, giving them the benefit of the doubt when they are generally credible, but unable to substantiate all their claims.  Nevertheless, the Tribunal found that the appellant’s claim to be an Ahmadi Muslim lacked credibility.  It declined to place weight on documents provided by the appellant. 

7. The Tribunal rejected a late claim that the appellant feared persecution because he had provided information to the authorities which led to a raid on jihadist organisations.  It found that this claim was fabricated. 

8. The Tribunal’s ultimate conclusion was that the appellant had fabricated his claims in an attempt to create for himself the profile of a refugee. 

9. It follows that the appellant was unsuccessful in the Refugee Review Tribunal because he failed to make out the factual basis for his claim to be a refugee.  The Parliament has committed that fact-finding to the Minister, usually through a delegate, and on review to the Refugee Review Tribunal.  There is no appeal from the findings of fact. 

10. An application for review of the decision of the Refugee Review Tribunal to the Federal Magistrates Court is confined to errors of law which are jurisdictional errors, and on further appeal to the Federal Court, to errors of law on the part of the Federal Magistrates Court.  It is only if a finding of fact involves jurisdictional error that the courts can intervene. 

11. The appellant has appeared before the court in person.  He has really put no submissions in support of the appeal.  There are no written submissions.  However, there are two grounds in a notice of appeal to this court, which was drawn by a solicitor representing the appellant.  I propose primarily to address those grounds as the grounds on which the appellant relies.  As I read the notice of appeal, the substance of the two grounds is as follows:

    (1)the Tribunal incorrectly assumed that because details of the appellant’s registration as an Ahmadi could not be ascertained the Tribunal need not consider the claims from the perspective of a believer and follower of Ahmadi religious practices;

    (2)the Tribunal failed to exercise its independent function (by failing, in part, to conduct itself in accordance with ss 420 and 481 of the Act), when it failed to give relevant consideration to whether there was a real chance of the appellant facing persecution before dismissing the appellant’s claims on the basis that the claims were a “fabrication” and “an attempt to create for himself the profile of a refugee”. 

12. There is no foundation for the first ground.  The Tribunal made no assumption as suggested.  It considered the evidence before it and rejected the appellant’s claim.  It did not do so on the basis, and certainly not the sole basis, that the absence of evidence of registration was determinative.  I have summarised the Tribunal’s relevant reasons above.  The Tribunal was not concerned with registration as such, but with the appellant’s beliefs and circumstances associated with them which might lead to persecution. 

13. The second ground fails for reasons discussed in Abebe v Commonwealth (1999) 197 CLR 510 at 545, and WAGR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 6 at paragraph 12. The Tribunal need only invoke the “real chance” test where there is uncertainty. Once a Tribunal has found that an applicant is not credible, it is not required to determine whether there is a real chance that the applicant’s claim might be true.

14. Although it is not referred to in the notice of appeal, I will also deal with an additional ground that was raised before the Federal Magistrates Court.  I do this, although technically the fact that it is not raised in the notice of appeal means that the ground is not available in the appeal.  It was argued in the Federal Magistrates Court that by failing to grant a further hearing, when the appellant requested it, to deal with the letter from the Ahmadiyya Muslim Association, the appellant was denied natural justice.  There are several answers to this argument.  First, there was a hearing.  The Act does not require further hearings whenever requested.  Secondly, s 424A, pursuant to which the letter was made available to the appellant, confers upon the decision-maker the authority to determine by what means an applicant should be permitted to respond.  Thirdly, the appellant did respond with a detailed letter setting out his further submissions.  In all these circumstances I do not think there was any denial of procedural fairness.  Part of the appellant’s reason for seeking a further hearing was to enable him to put submissions confidentially.  His letter enabled him to achieve that object. 

15. I have read the reasons for decision of Lloyd-Jones FM.  I agree with them.  Further, my reading of the material in the appeal does not suggest to me that there might be any other ground of appeal.  The appeal must accordingly fail, and will be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

Associate:

Dated:        21 November 2006

The appellant appeared in person

Counsel for the Respondents:	Mr J A C Potts
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	21 November 2006
Date of Judgment:	21 November 2006