FEDERAL COURT OF AUSTRALIA Adrees v Minister for Immigration & Multicultural Affairs [2001] FCA 1499 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 MOHAMMAD ADREES v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 175 of 2001 LEE J 11 SEPTEMBER 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 175 OF 2001 BETWEEN: MOHAMMAD ADREES APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LEE J DATE OF ORDER: 11 SEPTMEBER 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 175 OF 2001 BETWEEN: MOHAMMAD ADREES APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LEE J DATE: 11 SEPTMEBER 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 31 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 left Pakistan because his brother had had a clothes shop and he had been doing quite well. There had been other shops in the neighbourhood and they had been jealous that his brother was doing quite well. Slowly they had found out that his family were Ahmadis and they had contacted Ahl-e-Hadith and Lashkar-e-Taiba who had sent a group of people who had come to the shop and had shouted at him and his brother, saying that they were not Muslims and they should leave the country. The Applicant said that they had beaten him and his brother. He said that he had been thrown on the floor and he had been bleeding from the mouth. The owner of the shop had been there and had taken them back to their home. The Applicant said that he had not needed to see a doctor. He said that he had left Pakistan in August 2000, after they had burned his brother's shop. He said that after his brother's shop had been burned they had started looking for him and his brother and they had gone to his father's shop. They had pulled his beard and had beaten him up. The Applicant said that his father had been at home when he had left Pakistan and he never used to go out." 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 his father had taught him about the religion when they prayed at home and that all he knew about the religion was what he had learned from his father. In rejecting the applicant's evidence as to his adherence to the Lahori branch, or indeed the Ahmadi faith, the Tribunal wrote: "I asked the Applicant what the Lahori Ahmadis believed about Jesus of Nazareth. The Applicant said that he did not know what Nazareth was. I explained that I was talking about Jesus Christ, who Muslims believed was a prophet and who Christians believed was the Son of God. The Applicant said that the Lahori Ahmadis believed Jesus Christ was a prophet, that the person who had been crucified had not been Jesus Christ and that he had been able to escape and had died in Kashmir. I asked the Applicant why he had not said this when he had been asked about Jesus by the primary decision-maker. The Applicant said that when he had been interviewed by the primary decision-maker he had not been able to understand the question. I asked the Applicant why I should not conclude that he had been studying the Ahmadi faith since he had been interviewed by the primary decision-maker. The Applicant said that he could not study in the detention centre. I put to the Applicant that he appeared to have acquired a great deal of knowledge between the interview with the primary decision-maker and the hearing before me. The Applicant repeated that he had not understood the questions at the Departmental interview. … The Applicant said that at the Departmental interview he had not understood a lot of the questions and the interpreter had not been able to explain them to him. I noted that it appeared to me that he had been able to understand the interpreter perfectly well. He had been able to explain the basic principles of Islam, for example, without difficulty. The Applicant said that he had given proper answers to those questions he had understood but that he had not been able to understand other questions properly. … I did not form a favourable impression of the Applicant's credibility, based on the evidence he gave at the hearing before me. I consider that it is clear that the Applicant gained considerable knowledge with regard to the beliefs of the Ahmadi sect between the time when he was interviewed by the primary decision-maker and the hearing before me. By way of example, when the primary decision-maker asked the Applicant what the Ahmadi religion said about Jesus the Applicant said that he did not know about this whereas at the hearing before me he was able to tell me what the Lahori Ahmadis believed about Jesus. When I put this to the Applicant he said that when he had been interviewed by the primary decision-maker he had not understood the question. However the interpreter at the interview made it clear that the primary decision-maker was asking about Jesus Christ. Moreover the Applicant sought to excuse his lack of knowledge of Ahmadi beliefs at the interview by saying that he did not know much about his religion. He said that all he knew about his relgion was what he had learned from his father, 'that we should be good to others and that we should have peace and everyone is equal and we should follow the religion in a nice way'." 11 The Tribunal also questioned the applicant in relation to the involvement of the Lashkar-e-Taiba. The Tribunal had asked the applicant who it had been who had attacked them. The applicant had said that he and his brother had not known them personally but their landlord had told them they belonged to the Lashkar-e-Taiba, and that the Laskar-e-Taiba belonged to the Ahl-e-Hadith who were Wahabis and the Lashkar-e-Taiba was their force, their bodyguard when they were fighting with the Shi'ites. 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 these people had declared that whenever a jihad was needed they would participate. I put to the Applicant that there were plenty of 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 said that the Lashkar-e-Taiba joined together with other extremist groups like the Sipah-i-Sahaba. I put to the Applicant that, having regard to the fact that the Lashkar-e-Taiba was a guerilla organisation carrying out attacks on the Indian forces in Kashmir, I considered it implausible that he would have been attacked by the Lashkar-e-Taiba in Gujranwala. The Applicant said that the headquarters of the Lashkar-e-Taiba were in Gujranwala. I put to the Applicant that this was not my information. (The Lashkar-e-Taiba is the armed wing of the Markaz-e-Daw-wal Irshad (Centre for Islamic Invitation and Guidance), a religious organisation based in the town of Muridke, north of Lahore: see Research Directorate, Immigration and Refugee Board of Canada, Pakistan: Sectarian Violence, July 1999, Glossary; 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). The Applicant repeated that their landlord had told them the attackers were from the Lashkar-e-Taiba. He said that one could tell because their beards differed from those of other Muslims sects." 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 brother'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. As to the Tribunal's finding that the involvement of the Lashar-e-Taiba was implausible, the Tribunal concluded as follows: "The Applicant asserted that the headquarters of the Lashkar-e-Taiba were in Gujranwala but, as I put to him, the information available to me is that the Lashkar-e-Taiba is the armed wing of the Markaz-e-Dawa-wal Irshad (Centre for Islamic Invitation and Guidance), a religious organisation based in the town of Muridke, north of Lahore (see Research Directorate, Immigration and Refugee Board of Canada, Pakistan: Sectarian Violence, July 1999, Glossary; 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). I prefer the independent evidence available to me to the Applicant's evidence to the extent of any inconsistency and I do not consider it plausible that the Applicant and his brother would have been attacked by the Lashkar-e-Taiba in Gujranwala." 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 and his brother were attacked and that his brother's shop was burned by reason of their being Ahmadis. For reasons given above, I consider the Applicant's account of the way in which people in Gujranwala discovered he was an Ahmadi (because his brother 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 neighbouring shopkeepers threatened to kill the Applicant and his brother because their shop had a Muslim name. 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