FEDERAL COURT OF AUSTRALIA Mahmood v Minister for Immigration & Multicultural Affairs [2001] FCA 1498 MIGRATION – application for protection visa – finding of fact by Tribunal fatal to applicant's case Migration Act 1958 (Cth) ss 476, 14, 189, 65, 36(2), 5, 430, 424A, 476(1)(e), 476(4)(b) Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied Abebe v The Commonwealth of Australia (1999) 197 CLR 510 applied KHALID MAHMOOD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 174 of 2001 LEE J 11 SEPTEMBER 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 174 OF 2001 BETWEEN: KHALID MAHMOOD APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LEE J DATE OF ORDER: 11 SEPTEMBER 2001 WHERE MADE: PERTH 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 WESTERN AUSTRALIA DISTRICT REGISTRY W 174 OF 2001 BETWEEN: KHALID MAHMOOD APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LEE J DATE: 11 SEPTEMBER 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") which "affirmed" the decision of a delegate of the respondent ("the Minister") that the applicant not be granted a "protection visa". 2 The applicant is a 30 year old citizen of Pakistan. He arrived in Australia in December 2000 as an "unlawful non-citizen", as defined by s 14 of the Act. Pursuant to s 189 of the Act the applicant was detained and has been held in "immigration detention" thereafter. On 3 January 2001 the applicant applied for a protection visa. Grant of the visa was refused by a delegate of the Minister on 11 January 2001. The applicant applied to the Tribunal for review of the delegate's decision on 17 January 2001. The Tribunal made the decision referred to above on 17 April 2001. 3 Under s 65 of the Act if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied, the grant of the visa is to be refused. 4 Section 36(2) of the Act provides that: "A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 5 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967". The term "protection obligations" is not defined in the Convention or the Act. 6 The Convention is a treaty pursuant to which the "Contracting States" agree to apply the provisions of the Convention to "refugees". Article 1(A) of the Convention provides: "For the purposes of the present Convention, the term 'refugee' shall apply to any person: … (2)…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country;…" 7 Exceptions to, or cessations of, the operation of the provisions of the Convention are set out in, inter alia, Article 1(C), 1(D), 1(E) and 1(F). 8 As a Contracting State, Australia, except for the obligations set out in Article 32, has undertaken the obligations imposed on Contracting States by the Convention. Numerous obligations in respect of refugees are set out in the Convention, including undertakings by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. The foregoing may come within "protection obligations" as that term is used in subs 36(2) of the Act but the specific protection obligation undertaken by Australia is that contained in Article 33, namely, not to expel or return ("refoul") a refugee in any manner whatsoever to the frontiers of territories where the life or freedom of the refugee would be threatened for any of the foregoing Convention reasons. 9 The applicant's claims were summarised by the Tribunal as follows, in the written statement provided by the Tribunal pursuant to s 430 of the Act: "The Applicant said that he had first had trouble with the non-Ahmadis at his shop in 1999. The neighbouring shopkeepers had somehow found out that he was an Ahmadi and had gone to the Lashkar-e-Taiba and had told them. The Applicant said that a group of people had come and had abused him and his brother. They had both been beaten and his brother had had to remain in bed for three or four days. After eight or ten days they had come again. This had been in June 2000. The Applicant said that he had been beaten on his back, shoulders and head and he had almost fallen unconscious. A big group had attacked him and his brother. The owner of the shop (which he had been renting) had taken them home. They had not required hospital treatment. The Applicant said that he could not go to the police because the police also called them kafirs and said that they had no right to live there. The Applicant said that a few days later the owner of the shop had come to his home early in the morning and had told him the shop had been burned…The Applicant said that after his shop had been burned the same group of people had gone to his father's shop nearby. When they could not find him and his brother they had started abusing his father and beating him up." 10 In dealing with the applicant's claims, the Tribunal questioned the applicant as to names, places of worship, the history and distinguishing features of the Ahmadi faith and the differences between the two branches of that faith. The applicant provided answers to some of the questions, but in not being able to answer others, said that he was not very well-educated, that he had not gone to many religious teachings, and that he had just followed his parents. In rejecting the applicant's evidence as to his adherence to the Lahori branch, or indeed the Ahmadi faith, the Tribunal concluded: "I indicated to the Applicant that I had great difficulty in accepting that he was an Ahmadi. He said at the hearing that he was a Lahori Ahmadi but the answers he had given when he had been interviewed by the primary decision-maker with regard to the headquarters of the organisation and the leaders of the organisation indicated that he was a Qadiani Ahmadi. He had said that headquarters were at Rabwah and the leaders whom he had named were the Qadiani Ahmadi Khalifas. He appeared to be unaware of the most significant difference between the beliefs of the Lahori and Qadiani Ahmadis, that relating to the status of Mirza Ghulam Ahmad. I put to the Applicant that I also considered it totally implausible that he would have gone to a mosque to pray when he could have gone to an Ahmadi place of worship. The Applicant said that he had thought nobody would know he was an Ahmadi and he would just go and pray. I put to the Applicant that he had said that he had done this twice. The Applicant agreed." 11 The Tribunal also questioned the applicant in relation to the involvement of the Lashkar-e-Taiba. The Tribunal had asked the applicant how he had known that the people who had attacked him were from the Lashkar-e-Taiba. The applicant had said that the owner of his shop had told him that the Lashkar-e-Taiba was responsible. The Tribunal similarly rejected the applicant's evidence that the Lashkar-e-Taiba were involved and suggested as much to the applicant: "I put to the Applicant that the Lashkar-e-Taiba was a guerilla organisation carrying out attacks on Indian forces in Kashmir (see Research Directorate, Immigration and Refugee Board of Canada, Pakistan: Sectarian Violence, July 1999, Glossary and Section 5.4, Jihadi Groups; O N Mehrotra, 'Madrasa in Pakistan: The chief provider of Islamic militancy and terrorism', The Institute for Defence Studies and Analysis, New Delhi, February 2000, CX40383; 'Pakistan: Kashmir jihad a must for all Moslems – scholars', Reuters News Service, 27 April 2000, CX41624; 'Six guerillas killed in Indian Kashmir', Reuters News Service, 6 October 2000, CX45176). The Applicant said that they fired on mosques in Pakistan as well. I put to the Applicant that there were many extremist groups active in Pakistan but the Lashkar-e-Taiba was not one of them (see generally, Research Directorate, Immigration and Refugee Board of Canada, Pakistan: Sectarian Violence, July 1999). The Applicant reiterated that the Lashkar-e-Taiba was active in Pakistan although it might not be well-known. I put to the Applicant that the Lashkar-e-Taiba was well-known, but for what it was doing in Kashmir (see Research Directorate, Immigration and Refugee Board of Canada, Pakistan: Sectarian Violence, July 1999, Glossary and Section 5.4, Jihad Groups; O N Mehrotra, 'Madrasa in Pakistan: The chief provider of Islamic militancy and terrorism', The Institute for Defence Studies and Analysis, New Delhi, February 2000, CX40383; 'Pakistan: Kashmir jihad a must for all Moslems – scholars', Reuters News Service, 27 April 2000, CX41624; 'Six guerillas killed in Indian Kashmir', Reuters News Service, 6 October 2000, CX45176). The Applicant repeated that they also attacked in Pakistan." 12 Subsequent to the Tribunal hearing, the Tribunal obtained information, with the applicant's consent, from the Lahore Ahmadiyya Movement as to whether the applicant and/or his father were known to the Movement as adherents of the Lahori branch. The Tribunal did so on the understanding that both the Lahori and the Qadiani branches of the Ahmadi faith maintain records of their members. The General Secretary of the Movement stated that neither the applicant nor his father were members. Pursuant to s 424A of the Act, the Tribunal provided the information to the applicant for comment. 13 Having rejected the applicant's evidence as to the applicant being a follower of the Lahori branch of the Ahmadi faith, and the involvement of the Lashkar-e-Taiba in the beatings at the applicant's shop, the Tribunal proceeded to dismiss the applicant's claims of the beatings having occurred and the shop being burnt by reason of his religion. The Tribunal likewise concluded the applicant's claims as to the involvement of the Lashkar-e-Taiba to be implausible. 14 The substantive reasons of the Tribunal were expressed as follows: "In light of the problems with the Applicant's own evidence referred to above and the advice which the Tribunal has received from the General Secretary of the Ahmadiyya Anjuman Lahore, I do not accept that the Applicant is, as he claims, an adherent of the Lahori branch of the Ahmadi sect of Islam. I do not accept, therefore, that the Applicant was attacked and that his shop was burned by reason of his religion. For reasons given above, I consider the Applicant's account of the way in which the neighbouring shopkeepers discovered he was an Ahmadi (because he went to a mosque to pray) and his claim that he was attacked by the Lashkar-e-Taiba to be implausible. I do not accept that the Applicant has a well-founded fear (in the sense set out in the authorities referred to above) that, if he returns to Pakistan now or in the reasonably foreseeable future, he will be attacked or otherwise persecuted by reason of his religion. I consider that the Applicant's claims are a fabrication intended to provide a basis for his application for a protection visa." 15 The applicant, assisted by 'pro bono' counsel appointed by the Court pursuant to O 80 of the Federal Court Rules, seeks review of the Tribunal's decision. 16 In the case presented by Counsel, two grounds for review under s 476 of the Act were relied upon. First, it was submitted that the Tribunal erred in law by failing to ask the relevant question when it made its decision to refuse the grant of a visa (s 476(1)(e). The error was said to have been manifested in the failure of the Tribunal to consider, and determine, whether the applicant was a follower of the Ahmadi faith or alternatively, was perceived to be such an adherent by persons opposed to that sect. The Tribunal, it was said, had restricted its enquiry to whether the applicant was able to expound the tenets of that faith and the extent to which he was conversant with doctrinal issues. Second, it was said the Tribunal determined, in the absence of evidence to support the ground on which it relied for that conclusion, that members of the Lashkar-e-Taiba group, an organisation hostile to followers of the Ahmadi faith, had not attacked the applicant as understood by him. It was submitted that in finding that members of this group could not have attacked the applicant because the group was a guerilla organisation that operated in Kashmir only, the Tribunal had no evidence to show that was so, nor evidence to exclude the possibility that the group had engaged in sectarian violence within Pakistan. 17 Dealing with the first ground, the Tribunal's approach to testing the applicant's claim of religious beliefs may well have been, as counsel for the applicant submitted, narrow and prescriptive of the onset of logical error if that had been the only basis on which the Tribunal determined the applicant's claims in that regard. However, the Tribunal did not restrict itself to the responses it received from the applicant when determining whether the applicant was to be believed as to his claimed adherence to an Islamic sect. 18 Cardinal to the reasoning of the Tribunal was information received from Pakistan in response to inquiries made by the Tribunal with the permission of the applicant. That information was to the effect that the applicant had no connection with the relevant sect. That material may still have permitted a conclusion that the applicant was nonetheless a follower of the sect and that a real risk that he may face persecution for the reason of that religious belief may not have been excluded, but as the authorities make clear, if a finding of fact is made by the Tribunal in terms which mandate the further conclusion by the Tribunal that no real risk exists, then no error of law can be shown, unless, of course, the finding of fact itself is shown to be one amenable to review on a ground provided by s 476 of the Act. (See: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 576; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 per Gleeson CJ and McHugh J at [84]-[85].) 19 Insofar as it was further contended that implied in the applicant's case before the Tribunal was a contention that he was perceived to be an adherent of the Ahmadi sect and treated accordingly, it was inherent in the Tribunal's conclusion that the applicant was not to be believed as to his account as to any relevant event, that it was satisfied that no perception of such adherence could have arisen. That was a necessary conclusion from the determination of the Tribunal that all of the events claimed by the applicant simply had not occurred. Therefore, the first ground of the application for review has not been established. 20 In respect of the second ground relied upon, that ground was bound to fail once, in effect, it was conceded by counsel that the requirement set out in s 476(4)(b) had not been met, namely, that it be proved that the fact found and relied upon by the Tribunal did not exist. It was acknowledged that there was no material before the Court from which the Court could conclude that the fact found by the Tribunal did not exist. In short, what had to be proved to this Court was that the Lashkar-e-Taiba group carried out attacks or assaults, or exerted force against perceived enemies, within Pakistan. That task was not undertaken. It follows, therefore, that this ground cannot succeed. 21 The application for review must be dismissed with costs. I certify that the preceding four (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 11 September 2001 Pro bono Counsel for the Applicant: P W Johnston Counsel for the Respondent: P R Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11 September 2001 Date of Judgment: 11 September 2001