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NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

WAAT v Minister for Immigration & Multicultural Affairs(includes corrigendu

WAAT v Minister for Immigration & Multicultural Affairs(includes corrigendum dated 15 October 2002) [2002] FCAFC 42 (15 February 2002); [2002] FCA 207
Last Updated: 16 October 2002


WAAT v Minister for Immigration & Multicultural Affairs [2002] FCAFC 42
WAAT v Minister for Immigration & Multicultural Affairs [2002] FCA 207



NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
WAAT v Minister for Immigration & Multicultural Affairs [2002] FCA 207


WAAT v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 480 OF 2001

WAAO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 475 OF 2001

DRUMMOND, MANSFIELD & EMMETT JJ

15 FEBRUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY





ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

W 480 OF 2001

BETWEEN:
WAAT

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT



W 475 OF 2001

BETWEEN:
WAAO

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
DRUMMOND, MANSFIELD & EMMETT JJ


DATE:
15 FEBRUARY 2002


PLACE:
PERTH





CORRIGENDUM TO THE REASONS FOR JUDGMENT
Each reference to "WAAT" should read "WAAO" and each reference to "WAAO" should read "WAAT&qu;
ot;.

I certify that the above is a true corrigendum to the Reasons for Judgment herein of the Honourable Justice Drummond, the Honourable Justice Mansfield and the Honourable Justice Emmett.




Associate:

Dated: 15 October 2002


FEDERAL COURT OF AUSTRALIA
WAAT v Minister for Immigration & Multicultural Affairs [2002] FCA 207


WAAT v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 480 OF 2001

WAAO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 475 OF 2001

DRUMMOND, MANSFIELD & EMMETT JJ

15 FEBRUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY





ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

W 480 OF 2001

BETWEEN:
WAAT

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT




JUDGES:
DRUMMOND, MANSFIELD & EMMETT JJ


DATE:
15 FEBRUARY 2002


PLACE:
PERTH




THE COURT ORDERS THAT:

1. the appeal be dismissed;

2. the appellant pay the respondent's costs of the appeal including the costs of the notice of motion filed on 4 December 2001.

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 475 OF 2001




ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
WAAO

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT




JUDGES:
DRUMMOND, MANSFIELD & EMMETT JJ


DATE:
15 FEBRUARY 2002


PLACE:
PERTH




THE COURT ORDERS THAT:

1. the appeal be dismissed;

2. the appellant pay the respondent's costs of the appeal including the cost of the notice of motion filed on 4 December 2001.

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





ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

W 480 OF 2001

BETWEEN:
WAAT

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT



W 475 OF 2001

BETWEEN:
WAAO

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
DRUMMOND, MANSFIELD & EMMETT JJ


DATE:
15 FEBRUARY 2002


PLACE:
PERTH





REASONS FOR JUDGMENT
DRUMMOND J

1 His Honour, Emmett J, will deliver his reasons first.

EMMETT J

2 These two appeals have been heard together since they raise identical issues. The appellants are brothers. They are both citizens of Pakistan who arrived in Australia in December 2000. On 3 January 2001, each of the appellants made an application to the Department for Immigration and Multicultural Affairs ("the Department") for a protection visa pursuant to the Migration Act 1958 (Cth) ("the Act"). On 4 January 2001, each of the appellants was interviewed by a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), and on 11 January 2001, the delegate made decisions refusing to grant protection visas to the appellants.

3 On 17 January 2001, each of the appellants made an application to the Refugee Review Tribunal ("the Tribunal") for review of the respective decisions of the delegate. On 17 April 2001, the Tribunal affirmed each of the decisions. Each of the appellants then filed an application for an order of review by the Federal Court of the decision of the Tribunal relating to him. The applications were heard on the same day by a judge of the court who dismissed each of the applications on 11 September 2001. Each appellant now appeals to the Full Court from the orders made by the primary judge in respect of him.

4 Both of the appellants claimed to be an adherent of the Ahmadi sect of Islam and that they had left Pakistan because Ahmadis were not treated as Muslims. They asserted that Ahmadis faced discrimination in Pakistan. The appellant in matter W480 of 2001 ("WAAT"), said that he was self-employed in a clothing business in the bazaar in his home town. The appellant in matter W475 of 2001 ("WAAO") worked as a shop assistant in WAAT's business. WAAO claimed that the neighbouring shopkeepers threatened to kill him because the shop had a Muslim name and said that if they did not change the name of the shop it would be burned down. Both WAAT and WAAO asserted that the shop had subsequently been set on fire.

5 The Tribunal considered WAAT to be an unimpressive witness. When interviewed by the Minister's delegate, he said that the headquarters of the Ahmadi religion were at Rabwah. At the hearing before the Tribunal, WAAT said that he belonged to the Lahori branch of the Ahmadi sect, the headquarters of which are in Lahore. However, he acknowledged that the leaders of the sect whom he named in answer to questioning from the Tribunal were not recognised by the Lahori branch of the Ahmadi sect. The Tribunal considered that WAAT's evidence when he was interviewed by the delegate cast doubt on his claim that he is a member of the Lahori branch of the Ahmadi sect. At the hearing before the Tribunal, WAAT appeared to the Tribunal to be unaware of what the Tribunal considered was the most significant difference between the beliefs of the Lahori Ahmadis and the Qadiani Ahmadis, namely, the status of Mirza Ghulam Ahmad. The Tribunal considered that that also cast a doubt on WAAT's claim to be a member of the Lahori branch of the Ahmadi sect. The Tribunal also considered that other aspects of WAAT's evidence were implausible.

6 The Tribunal did not form a favourable impression of WAAO's credibility. The Tribunal considered that WAAO had gained considerable knowledge with regard to the beliefs of the Ahmadi sect between the time he was interviewed by the Minister's delegate and the hearing before the Tribunal. For example, when the delegate asked WAAO what the Ahmadi religion said about Jesus, WAAO said that he did not know. However, at the hearing before the Tribunal, he was able to tell the Tribunal what the Lahori Ahmadis believed about Jesus. The Tribunal did not accept WAAO's explanation that when he had been interviewed by the delegate he had not understood the question. WAAO 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 religion was what he had learned from his father.

7 Both appellants claimed to have been attacked by the Lashkar-e-Taiba in WAAT's shop in his home town. The Tribunal did not consider that it was plausible that the appellants would have been attacked by the Lashkar-e-Taiba in their home town. The Tribunal said that Lashkar-e-Taiba is a guerilla organisation carrying out attacks on Indian forces in Kashmir.

8 After the hearing the Tribunal contacted the Ahmadiyya Movement in Lahore to seek confirmation that the appellants and their father were known to that organisation as adherents of the Lahori branch of the Ahmadi sect of Islam. The General Secretary of the Ahmadiyya Anjuman Lahore informed the Tribunal on 31 March 2001 that neither of the appellants nor their father were members of the Ahmadiyya Anjuman Lahore and that their claims to that effect were false. According to the Tribunal's reasons that information was provided to the appellants for comment, but there was no response from either of them.

9 In light of the problems with the appellants' evidence and with the advice that the Tribunal had received from the General Secretary of Ahmadiyya Anjuman Lahore, the Tribunal did not accept that either of the appellants was an adherent of the Lahori branch of the Ahmadi sect of Islam as claimed. The Tribunal, therefore, did not accept that the appellants were attacked or that WAAT's shop was burned by reason of their being Ahmadis. The Tribunal considered that the account given by the appellants of the way in which neighbouring shopkeepers discovered they were Ahmadis and their claim that they were attacked was implausible. The Tribunal did not accept that neighbouring shopkeepers threatened to kill the appellants because their shop had a Muslim name.

10 Accordingly, the Tribunal did not accept that either of the appellants had a well-founded fear that, if he returned to Pakistan now or in the reasonably foreseeable future, he would be attacked or otherwise persecuted by reason of his religion. The Tribunal considered that the claims of each of the appellants were a fabrication intended to provide a basis for the grant of a protection visa.

11 The primary judge summarised the findings of the Tribunal in relation to each appellant and referred to the advice received from the General Secretary of the Lahore Ahmadiyya Movement. His Honour concluded that there was no reviewable error in the reasoning of the Tribunal in the case of either appellant.

12 In the case presented to the primary judge by counsel for the appellants, two grounds for review under s 476 of the Act were relied on. 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. The error was said to have been manifested by the failure of the Tribunal to consider, and to determine, whether each of the appellants 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 appellants were able to expound the tenets of that faith and the extent to which each of them was conversant with doctrinal issues.

13 Secondly, it was submitted that 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 appellants. It was submitted that, in finding that members of that group could not have attacked the appellants 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.

14 In dealing with the first ground, his Honour observed that the Tribunal did not restrict itself to the responses it received from the appellants when determining whether the appellants were to be believed as to their claimed adherence to the Ahmadi sect. As his Honour observed, cardinal to the reasoning of the Tribunal was the information received from Pakistan in response to enquiries made by the Tribunal. That information was to the effect that the appellants had no connection with the Lahore branch of the sect. His Honour referred to authorities to the effect that, if a finding of fact is made by the Tribunal in terms that mandate the further conclusion by the Tribunal that no real risk exists, no error of law can be shown, unless the finding of fact itself is shown to be one amenable to review on a ground provided by s 476 of the Act.

15 Further, his Honour considered that it was implicit in the Tribunal's conclusion that the appellants were not to be believed as to their respective accounts as to any relevant event, that the Tribunal was satisfied that no perception of adherence to the Ahmadi sect could have arisen. His Honour considered that that was a necessary conclusion from the determination of the Tribunal that all of the events claimed by the appellants simply had not occurred. Accordingly, his Honour concluded that the first ground of the application for review had not been established.

16 His Honour considered that the second ground relied upon was bound to fail once it was conceded by counsel for the appellants that the requirements set out in s 476(4)(b) had not been met. That is to say, it had not been 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. No effort was made to prove to the primary judge that the Lashkar-e-Taiba group carried out attacks or assaults or exerted force against perceived enemies within Pakistan. His Honour concluded, therefore, that the second ground could not succeed.

17 The notices of appeal are in the same terms. The only ground stated in the notice of appeal is as follows:

"Objection to answer of Federal Court which is dismissed."
18 That is not a ground of appeal. No written submissions were made on behalf of the appellants. The appellants appeared in person without legal representation. WAAT addressed the Court on behalf of both appellants. WAAT said that when the matter went to the RRT, the Tribunal only checked their names. He asserted that the Tribunal had never tried to find out from the appellants why their names were not on the list. I understand that submission to be a reference to the inquiry made of the General Secretary of Ahmadiyya Anjuman in Lahore.

19 WAAT's contention is at odds with the statements contained in the reasons of the Tribunal to which I have already referred; that is to say, the appellants were invited to comment on the response received from the General Secretary but failed to do so. WAAT also asserted that the appellants are Ahmadis and that they have not caused any harm since they have been in Australia. He said that they did not understand why they were restrained in the way in which they were restrained when brought to Court.

20 Whatever sympathy the Court might feel for the appellants in their present circumstances, none of those matters, unfortunately, is a ground upon which this Court can interfere. None of the submissions made by WAAT demonstrate any error on the part of the reasoning of the primary judge. It follows that each of the appeals, if competent, must be dismissed.

21 However, the Minister has raised the competency of the appeals under Order 52 rule 15(1) of the Federal Court Rules. Notices of Appeal from the orders of the primary judge were required to be filed and served within twenty-one days after the date when the orders were pronounced. Accordingly, Notices of Appeal should have been filed and served by 2 October 2001. The Notices of Appeal were, in fact, filed on 9 October 2001 and, therefore, each appeal is out of time unless leave is given pursuant to Order 52 rule 15(2) for the notices of appeal to be filed more than twenty-one days after the orders of the primary judge. The only matter advanced by WAAT on behalf of the appellants as constituting the special reasons required by rule 15(2) for granting an extension of time, is that they received notification from the Federal Court late, and had difficulty reading English.

22 If there were any substance in the appeals, having regard to the relatively short time that the appeals were filed late, one might be disposed to consider granting an extension. However, in deciding whether or not to exercise the discretion to grant an extension of time, the Court must consider whether the appeal has sufficient prospects of success to make it just to allow the prospective appellant to proceed with it.

23 As I have indicated, no ground of appeal is disclosed in the notice of appeal. Further, for the reasons already given, there was no error on the part of the primary judge in disposing of the applications before him. It follows that no extension of time should be granted and that the appeals should be dismissed as incompetent.

DRUMMOND J

24 I agree with the reasons of Emmett J that the appeals should be dismissed as incompetent.

MANSFIELD J

25 I agree that each appeal should be dismissed for the reasons given by Emmett J.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond, the Honourable Justice Mansfield and the Honourable Justice Emmett.




Associate:

Dated: 7 March 2002

Counsel for the Appellants:
The appellants appeared in person with the assistance of an interpreter






Counsel for the Respondent:
Mr MacLiver






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
15 February 2002






Date of Judgment:
15 February 2002


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