FEDERAL COURT OF AUSTRALIA

Gowfkir v Minister for Immigration & Multicultural Affairs [2001] FCA 988

Migration Act 1958 (Cth)

Abdulaziz Gowfkir v Minister for Immigration & Multicultural Affairs

S 53 OF 2001

von DOUSSA J

31 JULY 2001

ADELAIDE

THE COURT ORDERS THAT:

1.                  Application for an order for review dismissed.

2.                  Applicant to 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.

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Morocco born on 15 June 1980.  He seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) given on 11 April 2001.  The Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.  The applicant arrived without authority on a vessel in Australia on 4 April 2000.  He was first interviewed by officers of the respondent at Woomera on 8 April 2000.  On 9 October 2000 he lodged an application for a protection visa on the basis that he was a refugee to whom Australia owed protection obligations.  That application was supported by a signed statement dated 9 October 2000.  On 31 October 2000 a delegate of the respondent refused a grant of a protection visa. 

2                     The application for review and supporting affidavits have been drawn without the benefit of legal advice, and without any understanding of the restrictions placed by s 476(1) of the Migration Act 1958 (Cth) (the Act) on the powers of this court.  Under that section, this court can only set aside a decision of the Tribunal where legal error of the kinds specified has occurred.  The court has no power to review the merits of a case.  The court is not empowered to set aside findings of fact unless an error of law of the prescribed kind is demonstrated.

3                     In the present case the grounds upon which the applicant seeks review do not identify any legal error which would attract one of the grounds under s 476(1) of the Act.  The two grounds identified by the applicant are first that:

“I don’t believe that my solicitor worked hard enough on my behalf, as I was expecting him to do something during the RRT hearing, namely by speaking which he never did.”

And paragraph two:

“There are mistakes existing in the RRT decision.”

The applicant presented his case in person with the aid of an interpreter.  He was invited to indicate what mistakes exist in the Tribunal’s decision.  He said that the decision is unjust because he is a refugee who has been wrongly held in detention for sixteen months.  He complained that his case had been moved from tribunal to tribunal, and that he was treated badly.  He said he was a refugee because he was persecuted in his country because he had converted from being a Muslim Sunni to Muslim Shia.  This alleged persecution was the ground upon which the applicant had sought protection, namely that he was at risk of persecution for reason of his religion if he were to be returned to Morocco. 

4                     The Tribunal found against the applicant primarily for the reason that it did not believe his claims, and considered that he had fabricated them for the sole purpose of bringing his matter within the ambit of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (the Convention). 

5                     To understand the basis of the Tribunal’s finding, it is necessary to refer to the factual material that was before the Tribunal. 

6                     The first interview between the applicant and an officer from the Department of Immigration and Multicultural Affairs conducted on 8 April 2000 had been tape recorded.  In a preamble to the interview, the applicant was advised that this was his opportunity to provide any reason why he should not be removed from Australia.  He was told that he was expected to give true and correct answers and that he should understand that if the information given at any future interview is different, this could raise doubts about the reliability of what he said.  The applicant then gave his personal details, said that he had begun thinking about leaving Morocco in 1998 or 1999.  When asked why he left Morocco said that there was no work in Morocco and there were no human rights.  He said that everything depended on bribery and this was true for everyone, not just his case.  He said people were picked up and beaten by the police arbitrarily.  He said that his family had been harassed by the police and the police are controlled by the King.  He said that nothing had happened to him but he had a cousin who had been stopped on the way home from work and beaten for no reason.  He said that he had left Morocco to help his family financially.  He wouldn’t have left if he had had the opportunity to work in Morocco.  He said that he had come to Australia as he had heard that there was lots of work.  He needed work to support his parents, and he again said that he would have been happy to remain in Morocco had there been work available there.

7                     The applicant was asked if he had any reason for not wishing to return to his country of nationality.  He again said there were no human rights in Morocco, but he was unable to be specific or say how this related to him.  He gave no examples of suffering any human rights abuses.  He said that he had never personally suffered any negative experiences at the hands of the Moroccan authorities.  When asked about his religion, he said that it was Islam (Maliki), the religion of everyone. 

8                     The statement given by the applicant in support of his visa application in October 2000 differed in significant respects.  He then said that he had left Morocco because he faced persecution even though he was a Moroccan.  He then said that three or four years ago he converted from Muslim Sunni to Muslim Shia.  He had done this because of his uncle, to whom he was close.  His uncle had similarly converted whilst he was working in Iraq.  The applicant said that on 8 February 2000 in the middle of the night, the police came to his house and arrested his uncle.  They searched his house and found banned prohibited Shia books.  His uncle was now in prison because of his religion.

9                     The applicant said that he was not in the house that night, and was warned from returning by family members as the police had been to his home looking for him.  He said the police obviously knew he was a Shia.  This led to him leaving Morocco. 

10                  The applicant said that in Morocco Shias are considered as terrorists because the Shias believe in the leadership of Iman Ali and that is why all Shia books have been banned.

11                  On 17 January 2001 the applicant was sent a letter by the Tribunal pursuant to s 424A of the Act informing him that inconsistencies between his initially recorded interview, and his October 2000 statement could lead the Tribunal to consider that his claims were not genuine, and he was invited to comment.  In response, a letter from a migration agent acting on the applicant’s behalf offered four reasons for the apparent inconsistencies.  They were, first, that when the applicant saw a tape recorder at the initial interview he was scared that information that he would give could find its way to the Moroccan government which would get his family into trouble;  secondly, that he was concerned that disclosure by him of his claim could find its way back to Morocco through other Moroccans in the Woomera Detention Centre;  thirdly, that he had expected a lawyer to represent him but this did not occur on the first interview, whereas at the second interview he was represented and understood that the information given would be kept secret;  and fourthly, that he was in a bad physical state at the time of the first interview. 

12                  The Tribunal rejected these explanations.  The Tribunal noted the warning which had been given to the applicant at the commencement of the first interview, and said that it found it difficult to reconcile the applicant’s claims on that occasion with those made subsequently.  The Tribunal found it difficult to reconcile the claim that he was fearful of information finding its way back to Morocco with the fact that his statements nevertheless were critical of Moroccan officials up to the King and included claims that his family had been harassed and his cousin beaten.  The Tribunal did not accept that he would make claims of this nature if he held the fear alleged about the interview.  The Tribunal considered it was significant that the applicant stated at the initial interview that his religion was Islam, which is followed by about ninety-nine percent of the Moroccan population, because he was concerned that the Moroccan authorities should not know that he was claiming to be a Shia, yet in his second statement he said that he left because the Moroccan authorities had discovered that he was a Shia convert.

13                  The Tribunal rejected the applicant’s explanation for changing his claims and found that he had done so solely because the claims he made initially could not bring his case within the ambit of the Convention.  The Tribunal found that his claim to be at risk of persecution for reasons of his claimed religious conversion were false and that the applicant had not experienced any serious problems for any Convention reason whilst he was living in Morocco.  Those findings are findings of fact which were open on the material before the Tribunal.  The Tribunal had given notice of the possibility that the Tribunal would rely on the inconsistencies between his initial interview and his subsequent statement as a ground for affirming the decision under review as required by s 424A.  There was no procedural error leading to the finding which would bring the applicant’s case within s 476(1)(a) of the Act.  I am unable to detect any error of law or want of jurisdiction of the kind which could bring the applicant’s case within one or other of the grounds specified in s 476(1)(b)(c) or (e) of the Act.

14                  The challenge to the primary ground upon which the Tribunal reached its decision must therefore fail.

15                  The Tribunal also decided the matter against the applicant on a second ground.  The applicant said at the hearing before the Tribunal that he attended the Shia Mosque in the Woomera Detention Centre on a regular basis.  The Tribunal considered that if that were the case, it was done to provide a basis for his claimed conversion, but went on to hold, in the alternative, that even if the applicant does attend as a genuine convert to the Shia religion, any fear he held of persecution if he were to return to his country of nationality would not be a well founded fear.  A fear of persecution for a Convention reason must be well founded to meet the definition of a refugee contained in the Convention.  Upon country information that was before the Tribunal, it held that a convert to the Shia faith would not presently suffer any persecutory consequences because of that fact.

16                  In presenting his case before this court, the applicant questioned the accuracy of information from Amnesty International and the US State Department Country Reports on Human Rights Practices 1999 upon which the Tribunal had acted.  However, that challenge is again one that seeks to set aside findings of fact which were justified on the material before the Tribunal.

17                  The application insofar as it seeks to rely on mistakes in the Tribunal’s decision therefore fails. 

18                  I turn to the other ground advanced by the applicant, namely that his “solicitor” did not work hard enough on his behalf.  In making his application to the Tribunal, and at the Tribunal hearing, the applicant was represented by a migration agent, not a solicitor.  In advance of the hearing, the applicant’s representative lodged a detailed written submission eight pages in length.  That submission canvassed the factual basis of the applicant’s claim for protection on the ground of persecution because of his religious beliefs.  It also canvassed the earlier decision of the delegate under review, and gave the applicant’s response to that decision.  Extensive country information was referred to.  The submission concluded by contending that the applicant faced a real chance of persecution because of his religious conversion.

19                  Section 427(6) of the Act provides:

“A person appearing before the Tribunal to give evidence is not entitled;

(a)               to be represented before the Tribunal by any other person;  or

(b)               to examine or cross-examine any other person appearing before the Tribunal to give evidence.”

The effect of that subsection is that before the Tribunal an applicant for review who is invited to attend to present evidence has no right to be represented.

20                  Notwithstanding this statutory provision, the applicant’s representative was invited to be present at the hearing by telephone, and this occurred.  After the applicant had given his evidence, it appears that discussion occurred between the applicant’s representative and the Tribunal.  The representative acknowledged that on the country information it would be difficult for the Tribunal to determine that the consequences of conversion from Muslim Sunni to Muslim Shia would lead to persecution.  However, the applicant’s representative said that he would like to ask the applicant what it was that he was afraid might happen to him.  The representative was then allowed to direct questions to the applicant on that topic and, after doing so, made submissions in relation to the US State Department Report and the approach which the Tribunal should adopt, referring to the UNHCR Handbook on Procedures for Refugee Determination. 

21                  It is therefore not correct, as the applicant’s statement of this ground of complaint says, that his representative did not speak during the hearing.  On the contrary, the representative was permitted to speak, notwithstanding the restriction on the role of the representative imposed by s 427(6) of the Act, and was also allowed to make submissions.

22                  Before this court, the applicant complained that his representative had not put forward more information about the country, and had no knowledge of the applicant’s situation.  The detailed written submission to the Tribunal made by the representative suggests to the contrary.  However, whatever the position might be, this ground of challenge by the applicant again seeks to review findings of fact which this court has no power to do.  The matters raised by the applicant regarding his representation, even if correct, would not provide a ground upon which this court could review and set aside the Tribunal’s decision under s 476(1) of the Act. 

23                  For these reasons, the application for review must be dismissed, and in accordance with the normal practice there will be an order that the applicant pay the respondent’s costs of the application.

I certify that the preceding twenty-three

numbered paragraphs are a true copy of the

Reasons for Judgment herein of the

Honourable Justice von Doussa.

Associate:

Dated:

Counsel for the Applicant:                     The applicant appeared in person

assisted by an interpreter

Counsel for the Respondent:                 Mr M Roder with Ms K Southcott

Solicitors for the Respondent:                Sparke Helmore

Date of Hearing:                                   13 July 2001

Date of Judgment:                                 31 July 2001