W281 v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT Introduction 1 The applicant, who is a citizen of Pakistan, was born in Punjab on 1 February 1975. He received both primary and secondary school education, completing a matriculation examination in 1990. His parents and siblings, three brothers and a sister, still live in Punjab. He arrived in Australian waters in November 2000 without lawful authority. On 3 January 2001, he submitted an application for a protection visa which was refused on 11 January 2001 by a delegate of the Minister for Immigration and Multicultural Affairs. On 17 January 2001, he applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 26 March 2001, the Tribunal affirmed the decision not to grant a protection visa. On 6 July 2001, an application was filed in the Western Australian District Registry of this Court seeking an order for review of the decision of the Tribunal. Objection has been taken to the competency of the application on the basis that it was filed out of time. Evidence and Claims 2 Central to the applicant's claim is his contention that as a member of the Ahmadi religion he was subject to persecution in Pakistan. In his interview upon arrival in Australia, conducted on 7 December 2000, he was recorded as saying that he and others like him were treated as animals by local people. He said he was beaten several times before his departure from Pakistan. His mother and sister were abused. They were considered as traitors because they are Ahmadis. On many occasions while walking down the street things were thrown at him. People said bad things about the head of the Ahmadi religion. The applicant said he became aware of a plot to kill him. The people concerned were people from Muslim areas of his town. His family borrowed money from relatives to help him so that he could save his own life. He only escaped from Pakistan with difficulty. 3 In a typed statement in support of his application for a protection visa, prepared with the assistance of a migration agent, the applicant said that when at school he was discriminated against because of his religion. After completing his education he discovered that because of his religion he would not be employed and if he were employed and his employer discovered his religion he would be sacked. He passed his time by working in various clothing stores. He would be employed and as soon as it was discovered he was Ahmadi he would lose his job. He could only get employment for short periods of time. In 1998 however he secured a job which lasted for a couple of years, but as soon as his employers found out he was Ahmadi he was sacked. 4 The applicant said that the priests of other Muslim groups, Sunni, Shi'as and Khatme Nabout, had decreed that if an Ahmadi were killed the killer would go to heaven. He said this is known throughout Pakistan. He said Ahmadis are frightened to discuss their religion because even though they are Muslim they are declared to be different to other Muslims. Other Muslims, he said, respect Jews and other religions, but not the Muslim Ahmadi. He said he had experienced beatings and harassment for many years. About eighteen months to two years ago he tried to go and pray in one of the Muslim mosques. When he entered other Muslims took him out and he was severely beaten and bashed. They said he had degraded their mosque. 5 He went to police on a couple of occasions to complain about being harassed and beaten and was told that it was good that this was happening to him and that he should leave the country. Realising that complaining made no difference, he stopped going to the police. He said it is common practice in Pakistan for priests to declare over the speakers each week that the Muslim Ahmadis are Kafirs or traitors and have no right to live in the country and should be "finished". He said there is a law in Pakistan that if an Ahmadi greets a common person he or she can be put in prison for three years without bail. He referred to discriminatory laws passed in Pakistan in 1974 and 1984. One day when he was walking to the local market a group called "Islami Jamaat" began shouting and swearing slogans about the founder of the Ahmadi religion, Mirza Ghulam Ahmed. When the applicant approached them to question why they were abusing the founder of his religion they beat him to the point of unconsciousness. He managed to get home but when his assailants found out he was still alive they started loitering around the house and shouting that they would kill him. He didn't leave the house for two or three days as he was scared because of the people gathered outside. 6 The applicant's father financed his escape from Pakistan, getting money together and borrowing from other relatives. The actual departure was organised by a smuggler. The applicant said he didn't see any passports or travel documents, the smuggler had organised these and he travelled with him all the way of Indonesia. They departed through Lahore airport. He said he was in Indonesia for about five months and after that the smuggler put him on a boat and he came to Australia. He said he could not return to Pakistan because if he returned he would be killed by other Muslim sects who are opposed to his religion. 7 A submission was made on behalf of the applicant to the Tribunal in a letter dated 23 January 2001 from his migration agents. It focussed on statements and findings made by the delegate. This approach seems to be misconceived as the Tribunal is not concerned to deal with appeals from the delegates but rather to deal with the matter de novo. In addition to argumentative responses to the delegate's findings, there was extensive reference to country information about the position of Ahmadis in Pakistan. 8 Prior to the hearing the Tribunal made inquiries of the Ahmadiyya Association in Australia to confirm with Ahmadi authorities in Pakistan whether or not the applicant was a practising Ahmadi and a known member of the Ahmadi community in Pakistan. On 8 March 2001, the Ameer and Missionary Incharge of the Ahmadiyya Muslim Association in Australia replied to the Tribunal saying that according to Ahmadi headquarters in Pakistan the applicant was not an Ahmadi. 9 In its reasons for decision the Tribunal referred to the applicant's accounts of what had happened to him in Pakistan. On the day prior to the hearing the Tribunal received a facsimile from the applicant's adviser attaching "documents from Curtin" regarding their client. There were five of these documents. Two were not in English. They were dated 19 March. One of the documents was apparently addressed to the applicant's adviser and although it purported to be signed by the local Ahmadi Amir it was written as though by the applicant's father. It bore a sub-heading "From the home mates". It began: "The Jamaat-e-Islami and Khattam-e-Mabuat have attacked on our house and thereby they also started firing, for which our house has sustained much damage." A second letter also addressed to the applicant's adviser and purportedly signed by the local Ahmadi Amir asserted personal knowledge of the applicant and of his father. A third letter, again purportedly signed by the same person, repeated personal knowledge of the applicant and stated that he was the brother of eight sisters. In fact, as already mentioned, the applicant has three older brothers and a sister. The Tribunal's reasons for decision referred to questions which it put to the applicant about specific incidents which he claimed to have experienced over the last two years in Pakistan and which formed the basis for his claim. The incidents mentioned were: