W258 v Minister for Immigration & Multicultural Affairs [2001] FCA 1622

FEDERAL COURT OF AUSTRALIA

W258 v Minister for Immigration & Multicultural Affairs [2001] FCA 1622 MIGRATION - refugee - Refugee Review Tribunal - "no evidence" ground - logical error - not critical to outcome - procedural requirements give notice under s 424A - whether notice sufficient - notice was sufficient - any inadequacy cured at hearing - application dismissed Migration Act 1958 (Cth) Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 W258 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W258 OF 2001 FRENCH J 5 NOVEMBER 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W258 OF 2001

BETWEEN: W258

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 5 NOVEMBER 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

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 W258 OF 2001

BETWEEN: W258

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 5 NOVEMBER 2001

PLACE: PERTH

REASONS FOR JUDGMENT Introduction 1 The applicant is a Pakistani national who arrived in Australia without any lawful authority on 4 November 2000. He was initially interviewed by an officer of the Department of Immigration and Multicultural Affairs ("DIMA") on 7 December and on 3 January 2001 applied for a protection visa. A delegate of the Minister for Immigration and Multicultural Affairs refused his application on 11 January. The applicant sought review of that decision by the Refugee Review Tribunal ("the Tribunal") on 17 January 2001. Following hearings on 16 March and 27 April the Tribunal, on 4 June 2001, affirmed the delegate's decision not to grant a protection visa. On 26 June 2001, the applicant lodged an application in this Court for review of the Tribunal's decision. The Essentials of the Applicant's Claims 2 The essentials of the applicant's claims are set out in the statement provided to the Tribunal by his migration adviser on 23 January and in that statement it was said: "1.1 The applicant claims he is an Ahmadi Muslim. [The applicant] has suffered persecution from other Muslim Sects, such as Shia's and Sunni's because of his religion, being Ahmadi. As an Ahmadi he is considered to be an outcast by other Muslim sects. 1.2 The applicant claims in 1991/1992 Nawaz Sharif became the Prime Minister of Pakistan his party men began kidnapping young Ahmadi children and killing them. Two of the applicants children,… were kidnapped. The applicant had to pay large bribes to have them released. 1.3 The same group forced the applicant's wife and daughter,… forcibly work for them but never paid them anything. 1.4 In 1995, following all the incidents the applicant began fearing for his life so he sold all his properties and stock. The applicant feared that he would be killed by other Muslim sects as he was the head of the family and he feared that they would be able to intimidate and rape his children if he were dead. The applicant moved from place to place around Pakistan to hide his family. 1.5 The applicant took his wife and family to Malakwal where other Ahmadi Muslims reside and he thinks they will be safer there although the area is not 100% safe. 1.6 The applicant left Pakistan through Lahore airport with the assistance of a smuggler. The applicant did not see his travel documents and the smuggler travelled with him to Indonesia. 1.7 The applicant is unable to seek protection from the authorities as they do not protect them. He fears if returned to Pakistan he will be killed." The Tribunal Process 3 The hearing before the Tribunal was initially scheduled for 16 March. On 7 March, the Tribunal wrote to the applicant's advisers in the following terms: "As you are aware, a hearing for the above Applicant has been scheduled for 16 March 2001. The Member deciding your client's application requests that, before that date and as soon as possible, you seek the permission of your client for the Tribunal to contact the Ahmadyya Muslim Association of Australia to check your client's status with that Association." The applicant's adviser wrote back to the Tribunal on 9 March in the following terms: "Please find attached a letter from our client confirming that he is happy for you to contact the Ahmadiyya Muslim Association. Our client has also confirmed in the attached letter that the paperwork he attaches confirms his membership. I look forward to hearing from you regarding the further processing of this case." The attached letter, signed by the applicant, said: "I am happy for the tribunal to contact the Ahmadiyya Muslim Association and please find attached paperwork which confirms my membership." The "paperwork" comprised three documents which were described by the Tribunal in its reasons thus: "Document 1 purports to be a "Character Certificate" written in English and issued in Malakwal by the Inspector of Police which states, inter alia, that the named Applicant, a bona fide resident of the address as stated, is of good moral character. At the end of the third paragraph is a sentence typed below the line of the other typewritten text which has obviously been typed on a different typewriter. This sentence states: "He belong (sic) with Ahmadi religion"." I interpolate that in fact what appears typed in a strikingly different typeface is, "He belong with Ahamdi religion" (sic). "Document 2 is headed "To Whom It may Concern" and also purports to have been issued in Malakwal by the Inspector of Police. It states, inter alia, that the Applicant "is belonging with true and pious Ahmadis. Now a days he is in feren country. We always pray for his success. (sic)." "Document 3 is addressed and dated in the English language, but the main text is an untranslated document in the Urdu language." 4 On 15 March, the Tribunal wrote to the Association in terms which I will refer to as they are material to the grounds raised: "Dear Amir Mahmood Ahmad Thank you so much for the assistance your organisation has provided to the Tribunal over recent months. As you are aware, the Refugee Review Tribunal is an independent Tribunal set up by legislation to undertake merit review of applications for refugee status of persons in Australia. One of the functions of the Country Research Unit is to obtain information to support the review function of the Tribunal. The Tribunal's website is at http://www.rrt.gov.au As with earlier requests a Member of the Tribunal is urgently requesting information on the bona fides of an applicant claiming to be an Ahmadi. The applicant is in detention in Australia and he has agreed to the Tribunal contacting your organisation. Could the Association please conduct appropriate checks with your Headquarters in Pakistan to confirm if the following applicant is known to them, and if he is a practicing Ahmadi. [The name, date of birth, place of birth and address of the applicant in Pakistan are set out.] Please note that this information is applicant specific and it is provided on an in-confidence basis. The Tribunal would appreciate it if this confidence is respected. Please be aware that any information provided may form part of the information used by the Tribunal to review applications for refugee status. The information and your organisation's identity may be disclosed to the applicants, their advisers, the Department of Immigration and Multicultural Affairs, or otherwise become publicly available. If you have any further queries regarding this request please do not hesitate to contact me. We look forward to your advice and thank you very much for your assistance." The letter was signed by Leona Simmons, Team Leader/Senior Researcher in Country Research. 5 The hearing proceeded on 16 March before any response had been received from the Association. In its reasons for decisions, at pp 121 and 122, the Tribunal referred to evidence given by the applicant at that hearing. It is not necessary for present purposes to set out that summary here. After the hearing before the Tribunal had been adjourned, a letter was received from the Association dated 2 April which was in the following terms: "Dear Ms Simmons Subject: An applicant claiming to be an Ahmadi - PAK 14583 I received your fax dated 15th March 2001 regarding an applicant who claims to be an Ahmadi. According to the information at our Headquarters [applicant's name and date of birth] is not an Ahmadi. Yours sincerely, Mahmood Ahmad Ameer & Missionary Incharge" 6 On 4 April, pursuant to s 424A of the Migration Act 1958 (Cth) the Tribunal sent a letter to the applicant in the following terms: "I wish to advise that in reply to the Tribunal's inquiry dated 15/01/01 [should read 15 March 2001] to the Ahmadiyya Muslim Association of Australia Inc., the Tribunal has received advice dated 02/04/01 from Mr Mahmood Ahmad, Ameer & Missionary Incharge, that according to his organisation's information, [applicant's name, date of birth and address] is NOT an Ahmadi. As foreshadowed in the Tribunal's letter of 27/03/01, a second hearing has now been scheduled. The new hearing date is [date, time and place of hearing set out]. Please tell the Tribunal whether or not you want to come to the hearing by completing the enclosed "Response to Hearing Invitation" form and returning it to the Tribunal by 18 April 2001. This will help the Tribunal plan for your hearing and give us time to book an interpreter if required. If you want the Tribunal to take oral evidence from another person or persons, you must complete the "witness" details on the enclosed form and return it by 18 April 2001. The Tribunal will consider your wishes but it does not have to take evidence from any witness you name. If you have any new documents or written arguments that you would like the Tribunal to consider, you should send them to the Tribunal with the completed form. Any documents you send are to be in English, or translated into English by an accredited translator. Please read the attached brochure for information about what will happen on the day of the hearing…." 7 The second hearing was convened on 27 April and the Tribunal has outlined in its reasons what evidence was then given to it by the applicant. At the second hearing the Tribunal referred its letter and the Association's reply to the applicant and asked for his response. According to the Tribunal, the applicant said that in Pakistan nobody listened to him and that they didn't listen to him in Australia either. He said maybe it was the person who stole money from him who wrongly told personnel at the Ahmadia headquarters in Pakistan that he was not an Ahmadi. The applicant went on to say that he did not believe the Ahmadia Association had contacted his family in Pakistan to make inquiries as most of his family were not living in Pakistan but were in America. The Tribunal told the applicant that it was unlikely that the Ahmadia Association would contact his family to determine whether or not he was a registered Ahmadi as the records held in Pakistan would show this. The applicant then said that perhaps his agent had pretended to be his son and in this capacity had told the Ahmadia Association that the family were not Ahmadi. 8 The Tribunal referred the applicant to Document 1 and drew his attention to the additional line reading, "He belong with Ahamdi religion" (sic). The Tribunal asked him whether he agreed this line had been added. The applicant told the Tribunal that this document had been provided to him by his agent in Indonesia who took all his money and who wanted to destroy his case. The Tribunal put to the applicant that it did not believe him to be an Ahmadi. The applicant again said it was his agent in Indonesia who bore the responsibility for his problems and he was the one who stated that the applicant was an Ahmadi. The Tribunal reported that the applicant became extremely distressed and quite incoherent when telling it about the role of the people smuggler in Indonesia. 9 It was pointed out to the applicant that he, and not his agent in Indonesia, had claimed he was an Ahmadi and that this was his claim for refugee status, not his agent's. When asked by the Tribunal whether he was telling the Tribunal that he was not an Ahmadi he again became distressed and there was a break taken while the migration agent conferred with the applicant. The Tribunal told the applicant it was not his agent in Indonesia who had cast doubt upon his claim to be an Ahmadi, rather the critical evidence was the letter from the Association and Document 1. 10 The applicant was then said to have given the Tribunal the name, address and telephone number of a person in Pakistan who was an Ahmadi who would tell the Tribunal that the applicant was an Ahmadi. The applicant said he was not sure whether or not this named person was still in Pakistan. 11 The Tribunal referred to country information relating to discrimination against members of the Ahmadi group in Pakistan. It also referred to two additional documents which had been sent to it on 29 May from Curtin Detention Centre by the applicant. One was a letter to the Department. The other was a single page on which were photocopied four small documents in the Urdu language each appearing to show the receipt of various amounts of money. The explanatory letter from the applicant alleged that the documents were proof of his membership of the Ahmadi Group and that the untranslated documents had been received by the applicant from the Jamait-I-Ahmadiya. The applicant said he had not produced those documents earlier because he did not need to do so. The Tribunal's Findings 12 Having reviewed the independent country information, the Tribunal then turned to its findings and reasons. It found that the applicant had made several contradictory and inconsistent statements in support of his application. First, in his statement attached to his primary application he had said that when living in Pakistan in 1995, he became so frightened that he sold all his properties and stock, including buffalo, goats, cows and two houses, and from 1995 until 2000 he was so frightened he would be killed that he moved from place to place around Pakistan to hide his family. However, in his interview with the Tribunal on 27 April, he said he had lived in Malakwal from 1995 until his arrival in Australia. He told the Tribunal that although he had sold all his properties in 1995, he had then leased the property on which he grew rockmelons and watermelons. Having regard to what it viewed as his contradictory evidence relating to his whereabouts in Pakistan and his farming activities for the five years immediately preceding his departure from Pakistan, the Tribunal was not satisfied that he had moved around Pakistan for five years, hiding his family out of fear that he would be killed because he was an Ahmadi. 13 Secondly, when asked by the Tribunal when he had decided to leave Pakistan, the applicant said that this had occurred in 1995 after he had been warned by the authorities that he must either change his religion or leave the country. As the applicant did not leave Pakistan until the end of 2000, five years after the alleged warning, the Tribunal was not satisfied that he was ever told by anybody to change his religion or leave the country. 14 Thirdly, during his entry interview the applicant had stated that in 1982 two of his children were kidnapped and his wife and daughter attacked and that he had had to pay by way of bags of rice and wheat to get his children back. This, he said, had happened because he was an Ahmadi and the people responsible for these crimes were from Nawaz Sharif's government. However, at the first Tribunal hearing held on 16 March, he had told the Tribunal that his wife was tortured and his children kidnapped in 1992. Moreover, towards the end of the second Tribunal hearing he told the Tribunal that his daughters had been taken from their mother and forced into labour and were having a very hard time. The Tribunal was not satisfied of the truth of any of these statements. 15 Fourthly, the Tribunal referred to the five documents produced to it. It said: "I attach no evidentiary weight to any of these photocopied documents as: (a) none of the documents are "originals" (b) none were produced by the Applicant before he had been notified that the Tribunal was, with his permission, about to undertake a check of his status with the Ahmaddyia Muslim Association of Australia (c) none of the documents had been sent to the Tribunal through his agent (d) Document 1 has been clumsily tampered with and (e) Documents 3 and 5 are not translated into the English language by an accredited translator." The Tribunal went on: "On the other hand, I attach great weight to the letter to the Tribunal dated 02/04/01 from the Ameer and Missionary-In-Charge of the Ahmadiyya Muslim Association of Australia in which he advised the Tribunal that a check with the Association's headquarters in Pakistan revealed that the Applicant was not an Ahmadi." 16 The Tribunal's acceptance of the substance of the Association's advice was reinforced in its view by the applicant's contradictory, incoherent and irrational statements to the Tribunal at the second hearing on 27 April when the Tribunal put to the Applicant that he was not an Ahmadi. 17 In light of all the above, the Tribunal was not satisfied that the applicant was an Ahmadi and found his claim to be an Ahmadi to be a complete fabrication. On the other hand, it did accept the truth of his statements made in his entry interview when he had said there was no point in staying in Pakistan as his business had collapsed and his properties were sold and he thought he could do business in Indonesia. The Tribunal was satisfied that these were the real reasons for his departure from Pakistan. It also accepted that once he left Pakistan and went to Indonesia to explore these promised business opportunities, he became the unfortunate victim of robbers and people smugglers. Accordingly, the Tribunal refused his application. The Application for an Order of Review 18 The application for an order of review originally filed has been substituted by an application which has been prepared by Ms Lee, who appeared as counsel on a pro bono basis for the applicant. The Court expresses its appreciation of her careful assistance in that regard. The No Evidence Ground 19 The first ground of the application sets out the substance of the argument which was put in support of it: "1. There was no evidence to justify the making of the decision, in that the person who made the decision based the decision on the existence of a particular fact and that fact did not exist, contrary to section 476(1)(g) of the Migration Act. (a) the fact in question is the 'fact' that if a person is not registered with the Ahmadiyya Muslim Association ('the Association') or is not known to the Association as a practising Ahmadi then that person is not an Ahmadi; (b) the Association was asked if the Applicant was known to them and if he is a practising Ahmadi (page 107 of the Application Book), to which the Association replied that 'according to the information at our Headquarters' the Applicant 'is not an Ahmadi' (page 108), which must be read in the light of the questions asked; (c) whilst knowledge of the Association of a person as a practising Ahmadi may be evidence that the person is an Ahmadi, the converse is not true. Yet the Tribunal with respect appears to have implicitly accepted as fact that all Ahmadis from Pakistan are currently known to the Association in Pakistan and therefore if the Association does not know of the Applicant, he is not an Ahmadi (page 3 of transcript of hearing on 27 April 2001 and pages 122-123 of the Application Book); (d) the Tribunal based its decision on the letter from the Association and implicitly this 'fact' (page 123 of the Application Book ('critical evidence') and page 128 ('great weight... reinforced' by other evidence)); and (e) there was no evidence before the Tribunal to establish or reason to believe that this 'fact' existed." 20 The relevant parts of s 476 of the Migration Act provide: "476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: … (g) that there was no evidence or other material to justify the making of the decision. … (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 21 It is the second limb of subsection (4) upon which the applicant relies. It is important to note that the non-existence of the relevant fact is a necessary condition for the operation of the ground in s 476(1)(g) but not sufficient to make it out. The relevant fact must be a fact which is of critical significance to the outcome of the decision; that is to say a link in the chain of reasoning which leads the Tribunal to the conclusion which it has reached. 22 Counsel for the applicant has pointed to the Tribunal's reference to the critical significance of the finding based upon the letter from the Association and the great weight which it attributed to that letter. In substance, it was submitted that the Tribunal's inference from the letter sent by the Association contained a logical error as it necessarily excluded the possibility that the applicant was an Ahmadi Muslim when it could be taken to establish no more than that the applicant did not appear in the Association's records or the records of the Ahmadi Muslim group in Pakistan as a member. That is to say the fact, the non-existence of which was said to be relevant for the application of the ground in this case, was that the records were exhaustive of the membership of the Ahmadi Muslim group in Pakistan. 23 On the face of it, the letter from the Association contained no such qualification but, assuming it to be a strongly arguable point, as I think it probably is, that Association records or records of Ahmadi membership may not be exhaustive, in this case that finding, while of importance, was plainly not the only basis upon which the Tribunal rejected the applicant's claims to be an Ahmadi Muslim. The applicant's credibility was comprehensively rejected by the Tribunal on a number of bases which I have set out by reference to the four paragraphs in the Tribunal's reasoning when it referred to several contradictory and inconsistent statements made in support of his application. On that basis alone I would not be satisfied that the Tribunal's finding in relation to the membership of the Ahmadi Muslim group, if demonstrably wrong in logic, established that there was no evidence or other material to justify the making of the decision within the meaning of s 476(1)(g), having regard to the established principles for the construction of that section to which I have referred. 24 In any event, for the existence or non-existence of a fact to be established that must appear from the materials before the Court in a way that is uncontested or by way of admissible evidence in the Court. There is no material from which the Court could infer that the statement in the letter from the Association was incorrect. I was referred to material contained in the delegate's decision at first instance and, in particular, a reference to a country information document, CX3810. This appears at pp 59 to 61 of the Court book, It describes the large number of Ahmadi Muslims all over the world and the size of the so-called core community in Pakistan, estimates of which vary, it is said, from half a million to 5 million people out of a total population of over 96 million, with 3 million to 4 million being the most commonly accepted figure. That reference, however, does not for present purposes constitute evidence of the non-existence of the fact which is in contention in this case. 25 It might be said that the Tribunal, having rejected the credibility of the applicant on a number of bases, put too intense a focus on its earlier findings based on the letter from the Association. However, it is to be remembered that the Tribunal is not a judicial body. Its reasons are not to be scrutinised with an eye keenly attuned to error - Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. I am satisfied that on the material before the Tribunal, while the letter from the Association did play a part, it has not been demonstrated that the relevant fact which is asserted did not exist nor has it been demonstrated that the finding was critical to the outcome. Sufficiency of the Tribunal's Notice under Section 424A 26 The second ground of the application was as follows: "2. The procedures required to be followed were not observed contrary to section 476(1)(a) of the Migration Act: (a) the notice given under section 424A did not invite the Applicant to comment on the information provided, contrary to section 424A(1)(c) (page 109 of the Application Book); (b) whilst the notice summarised the Association's letter, the letter from the Tribunal which preceded it was not provided (see pages 106-107 of the Application Book) until it was read out at the hearing on 27 April 2001 (see page 2 of the transcript). The Applicant was then invited to comment on the Association's letter; (c) the Tribunal therefore with respect failed to ensure the Applicant understood why the letter was relevant to the review, contrary to section 424A(1)(b) of the Migration Act; (d) further or alternatively, the Tribunal failed to give to the Applicant any particulars of the 'fact' that if a person is not registered with the Association or is not know to the Association as a practising Ahmadi then that person is not an Ahmadi, contrary to section 424(1) of the Migration Act, which formed part of the reasons of the Tribunal as above." 27 Section 424A, in the relevant parts, provides: "424(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it." The other subsections are not relevant for present purposes. 28 Section 476, in the relevant part, provides: "476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed." 29 The substance of the contention advanced on behalf of the applicant in this respect was that the notice under s 424A sent to the applicant on 4 April was defective in that it did not provide to the applicant the context in which it was said by the Association that he was not an Ahmadi. That context was the context provided by the letter or the terms of the letter written by the Tribunal to the Association which had asked the Association to confirm if the applicant were known to them. 30 In my opinion, there was no doubt about the nature of the information which was provided to the applicant. The applicant would have understood the point which was being made and the applicant, of course, at this stage, was still the subject of advice by a migration adviser. On the face of it, I do not consider that the letter of 4 April failed to comply with s 424A. In any event, the text of the Tribunal letter and the letter from the Association were put to the applicant at the subsequent hearing on 27 April. In my opinion, there is nothing in this ground. Conclusion 31 For the preceding reasons neither of the grounds is made out and the application will be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French .