Ahmad-Zai v Minister for Immigration & Multicultural Affairs [2000] FCA 81 (7 February 2000)

Last Updated: 17 February 2000

FEDERAL COURT OF AUSTRALIA

Ahmad-Zai v Minister for Immigration & Multicultural Affairs [2000] FCA 81

IMMIGRATION - application for review - decision of Refugee Review Tribunal affirming delegate's decision of refusal of protection visa - whether Tribunal in error of law - whether error in incorrect application of the law to the facts as formed by the Tribunal - whether jurisdiction to find error in that Tribunal made findings of fact not rationally supported by probative evidence

Migration Act 1958 s 476

Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 referred to

KHAN MOHAMMAD AHMAD-ZAI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 143 of 1999

R D NICHOLSON J

7 FEBRUARY 2000

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 143 OF 1999

BETWEEN:	KHAN MOHAMMAD AHMAD-ZAI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	R D NICHOLSON J
DATE OF ORDER:	7 FEBRUARY 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's 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 143 OF 1999

BETWEEN:	KHAN MOHAMMAD AHMAD-ZAI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	R D NICHOLSON J
DATE:	7 FEBRUARY 2000
PLACE:	PERTH

EX TEMPORE REASONS FOR JUDGMENT

1 This is an application for an order for review brought pursuant to s 476 of the Migration Act 1958 ("the Act"). The applicant seeks review of a decision of the Refugee Review Tribunal given on 17 November 1999 whereby the Tribunal affirmed a decision made by a delegate of the respondent on 25 August 1999 refusing an application by the applicant for a protection visa.

2 The applicant is a citizen of Afghanistan. He arrived in Australia in June 1999. He applied for a protection visa on 23 June 1999.

3 His evidence as initially available to the Tribunal was described by it in the following terms and provides a satisfactory canvass of his life to date:

"He belongs to the Pashtun ethnic group and is a Sunni Muslim. When the Taliban had taken control of his home area in 1996 they had searched every house in his village for weapons. He said that about 15 days before he had left Afghanistan the Taliban had conscripted his brother. Three days before he had left Afghanistan the Taliban had come again and had captured him at his home. When he was interviewed by the primary decision-maker he said that they had conscripted a lot of others from his village at the same time."

4 The applicant said that they had taken him to a military base near Jalalabad. He said that the commander who had captured him had been from the same village as him and he had paid the commander 100 lakhs (10,000,000 Afghani), which he said was equivalent to $US250, to let him go. He said that his father had subsequently paid a smuggler $US10,000 to arrange for him to be smuggled to Australia. The applicant said that if he returned to Afghanistan he would either be killed or taken to the front line where he would be forced to kill other Afghans or be killed himself. He also said that he believed that the Taliban would harm or mistreat him because he did not share their political views. He said that they would know that he was opposed to their political views because he had fled from fighting for them. When the primary decision-maker asked the applicant what he had done to oppose the Taliban's political views the applicant said that he had not been able to do anything. He said, however, that he and his family had been against the Taliban.

5 As the reasons of the Tribunal subsequently set out, at the hearing the applicant claimed that he and his family had been associated with the Islami Hesb. He said that he had not mentioned that before because the interpreter had told him to not go into details and that he had not been asked what party he belonged to. That additional evidence, not volunteered at the initial interview, subsequently proved crucial to a credibility finding made by the Tribunal.

6 It is not necessary to canvass in detail all the matters dealt with in the reasons of the Tribunal. It is sufficient to set out that the Tribunal made the following findings which I list and I take in (i) to (xii) as set out in the respondent's outline of submissions:

"(i) the Applicant invented his claims regarding his party membership and activities following the rejection of his application by the primary-decision maker;

(ii) the party membership cards he produced were fabricated;

(iii) it did not accept the claims made in the letter from the Applicant's father regarding the persecution of his family in Afghanistan;

(iv) it accepted that the Applicant may have been conscripted by the Taliban and that he may have paid US$250 to buy exemption from conscription;

(v) such practice [to buy exemption from conscription] appears to be an accepted practice in Afghanistan and the amount the Applicant claimed to have paid appeared to be in accordance with the quoted figure of US$250 to US$300 (Danish Immigration Service);

(vi) it did not accept that the Applicant would be penalised if he returned to Afghanistan because he bought his exemption from conscription;

(vii) it did not accept that the Applicant would be imputed with a politcal opinion opposed to the Taliban because he had bought his exemption from conscription;

(viii) the conscription of the Applicant's brother did not give rise to a well-founded fear of persecution on the part of the Applicant;

(ix) there was nothing in the evidence before the Tribunal to suggest that the Applicant or his brother were singled out for conscription by the Taliban for a Convention reason;

(x) it did not see anything sinister in the fact that the Taliban searched all the houses in the Applicant's village for weapons after the Taliban took control of the area in 1996;

(xi) there was nothing in the information available to the Tribunal which suggested that Sunni Muslims in Afghanistan were being persecuted by reason of their religion or that Pashtuns were being persecuted by reason of there ethnicity;

(xii) it did not consider that the Applicant would become actively involved in opposing the Taliban if he returned to Afghanistan now or in the reasonably foreseeable future;"

7 During the course of the hearing in support of the application for review by this Court, the applicant presented to the Court comment by way of a written statement on the reasons of the Tribunal. He addressed 10 issues. He presented that statement through an interpreter. The issues addressed were:-

(1) why was it not accepted by the Tribunal that he was a member of the Islami Hesb Party;

(2) why did the Tribunal say that he had not done anything against the Taliban;

(3) what were the circumstances of his capture;

(4) whether the documents forwarded before the Tribunal were originals;

(5) what were the circumstances of payment of money for his release from military service;

(6) what are the circumstances of Sunni Pashtuns in Afghanistan;

(7) why he had had no problems with the Taliban during a certain period;

(8) what position he might face on his return to Afghanistan;

(9) what reasons he had for opposing the Taliban;

(10) why the Tribunal would not accept the family letter placed before it.

The applicant made submissions in support of each of these matters, to the details of which it is not now necessary to advert.

8 The grounds of review relied upon by the applicant are in common form. They were signed by the applicant on 17 November 1999. They appear to be in a form used in relation to applications for review under the Act for people in the Port Hedland detention centre.

9 The applicant did not appear before the Court with the benefit of legal representation. Before the Tribunal, my understanding is that he had had the benefit of such representation. Without the benefit of legal representation he is unlikely as a layperson to be able to accurately comprehend the distinction between an error of law, which gives this Court jurisdiction to review, and an error of fact. There is, therefore, a particular responsibility cast upon the Court assisted by Counsel for the respondent in that circumstance to examine the materials closely with a view to detecting any relevant error of law.

10 The relevant errors of law which will enable this Court to review a decision of the Tribunal are those which are provided for in s 476(1) of the Act. The principal ground relied upon for the applicant is that which appears in s 476(1)(e) to which I will return.

11 Reliance is also placed on a ground that the decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence, and it failed to rationally consider the probative evidence that was before it. That is not a ground falling within s 476(1). Furthermore, in my view, it is a ground which wholly or substantially falls within s 476(2)(b) and is, therefore, by provision in that subsection not a ground on which the Court can review the decision.

12 I accept that the Court does not have jurisdiction to review decisions other than the jurisdiction provided by s 476 of the Act; see s 485 of the Act and Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1.

13 Returning to the application of s 476(1)(e), the first limb of that paragraph is that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law. In its reasons the Tribunal set out under the heading of "Legislative Framework" the applicable law as it understood it. It referred to Article 1A(2) of the Convention as amended by the protocol and the definition of refugee. It identified four key elements in relation to the application of that definition, and it cited the highest Australian authority in relation to those elements. The third such element was that the applicant must fear persecution "for reasons of race, religion, nationality, membership of a particular social group or political opinion."

14 The applicant's case, as he would seek to make it, is that because of his political opinions or because of his membership of Islami Hesb party, he fears persecution. In identifying these elements and the applicable law, I do not consider that the Tribunal has engaged in any incorrect interpretation of that law. The first limb of s 476(1)(e) cannot therefore sustain a successful review.

15 The second limb is that the decision of the Tribunal involved an error of law because of an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.

16 It is not surprising that the applicant himself as a lay person has not been able to identify any such error of law. The 10 questions which he addressed and which flowed naturally from his obedience to the prior directions of the Court elicited from him matters relevant to the merits that were considered by the Tribunal. It is not within the jurisdiction of this Court to rework the findings of fact engaged in by the Tribunal. That means that findings of credibility can assume very great importance. It raises the danger that findings of credibility can be used to shelter wrong findings of fact. Here the central finding by the Tribunal that the applicant invented his claims regarding his party membership and activities following the rejection of his application by the primary decision-maker was crucial to the remainder of findings made by the Tribunal. They were, however, findings to which the Tribunal was entitled.

17 The Tribunal having found the matters (i) to (xii) listed above, the only reasonable conclusion open to it was that it could not be satisfied the applicant had a well-founded fear of being persecuted for a convention reason if he returned to Afghanistan.

18 It follows that no case is made out for the application of the second limb of par 476(1)(e) of the Act as evidencing the Tribunal's decision involving an error of law.

19 It is important for the applicant to understand that this Court is limited in what it can do by the provisions of s 476(1) of the Act as amended by the Australian Parliament. The matters which are raised by him and which clearly deeply concern him are not matters in relation to which this Court can engage in fresh findings of fact. As was said to him during the course of the hearing, it is possible under the system of law to which I have referred that the Tribunal could be in error of fact but not in error of law as permitted for review by s 476(1).

20 It follows from what I have said that the applicant has not made out a case at law for review of the decision of the Tribunal. Accordingly the application must be dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson J.

Associate:

Dated: 7 February 2000

Mr Ahmad-Zai appeared on his own behalf

Counsel for the Respondent:	Mr P. R. Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 February 2000
Date of Judgment:	7 February 2000