Applicant S1834 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 610

FEDERAL COURT OF AUSTRALIA Applicant S1834 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 610 Federal Court of Australia Act 1976 (Cth) s 25(1A) Judiciary Act 1903 (Cth) s 39B Minister for Immigration & Multicultural & Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 APPLICANT S1834 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 169 OF 2005 HELY J 22 APRIL 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 169 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: APPLICANT S1834 OF 2003

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 22 APRIL 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal 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

NEW SOUTH WALES DISTRICT REGISTRY NSD 169 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: APPLICANT S1834 OF 2003

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 22 APRIL 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Federal Magistrate Scarlett given on 24 January 2005 refusing an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Refugee Review Tribunal ('the RRT') made on 31 August 1999. That decision affirmed an earlier decision of the Minister's delegate not to grant the appellant a protection visa. By direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) this appeal is to be heard and determined by a single judge. 2 The appellant is a citizen of Pakistan who claimed to have a well-founded fear of persecution by reason of his religion. The appellant claims to be an adherent of the Shia sect of Islam. The appellant claimed that a local leader of a Sunni religious organisation known as either the ASS or SSP was killed in his area and that the Shia organisation known as TNFJ or TJP was held responsible by the Sunnis for the murder. The appellant claimed to be a member of the TJP and that his friends were attacked and hospitalised for nine days. He said that when they reported this attack to the police they were detained by the police and forcibly charged with the murder of the Sunni leader. 3 A 'First Investigation Report' dated 12 July 1997 was produced by the appellant in support of his claim that a false charge of murder had been laid against him. At the hearing before the RRT the appellant changed his story. He told the member that he did in fact murder the Sunni leader as is alleged in the First Investigation Report which he produced and that the allegations made in that report were true. The RRT found that the appellant's evidence was confused and inconsistent and that he was not an impressive witness. The RRT referred to the change in the appellant's story about whether he did or did not murder the Sunni leader in this respect. The RRT did not accept the appellant as a witness of truth. The RRT made the following findings: (i) the appellant had never been a member of the TJP as he could not answer questions about the history or leadership of the party;