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MIGRATION - Visa - protection visa - Refugee Review Tribunal - review of Refugee Review Tribunal decision - application for a protection visa - applicant from Bangladesh

SZCYH v Minister for Immigration [2004] FMCA 816 (8 November 2004)

SZCYH v Minister for Immigration [2004] FMCA 816 (8 November 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCYH v MINISTER FOR IMMIGRATION
[2004] FMCA 816




MIGRATION - Visa - protection visa - Refugee Review Tribunal - review of Refugee Review Tribunal decision - application for a protection visa - applicant from Bangladesh




Migration Act 1958 (Cth), s.430

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Dranichnkov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389.

SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265

Minister for Immigration and Multicultural Affairs v Yusef (2001) 206, CLR 323.

Paul v Minister for Immigration and Multicultural Affairs (2001) FCA 1196.

Applicant
SZCYH




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG660 of 2004




Delivered on:


8 November 2004




Delivered at:


Sydney




Hearing date:


8 November 2004




Judgment of:


Scarlett FM




REPRESENTATION

Counsel for the Applicant:


Mr Gormly




Solicitors for the Applicant:


Ray Balding Solicitors




Counsel for the Respondent:


Mr Mantziairis




Solicitors for the Respondent:


Blake Waldron Dawson




ORDERS

(1) The Application is dismissed.

(2) The Applicant is to pay the respondent's costs in the sum of $4250.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG660 of 2004

SZCYH



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS







REASONS FOR JUDGMENT

1. The application before the court is an application to review a decision made by the Refugee Review Tribunal made on 16 March 2000. The Tribunal affirmed the decision of a delegate of the respondent Minister not to grant a protection visa to the applicant. The applicant seeks to have that decision reviewed. The delay in the proceedings coming before this court arises from the fact that on 17 September 2000 the applicant became a member of a class action in the High Court of Australia. Those proceedings were determined on 18 June 2003. This application was commenced on 11 March 2004.

2. A brief history of the matter is that the applicant arrived in Australia on 8 September 1998. He is a citizen of Bangladesh. He had left Bangladesh to work in Saudi Arabia and later returned to Bangladesh where he remained for a period of about three to four months. He then travelled to Australia where he arrived on a visitor's visa. He applied for a protection visa on 21 October 1998. A delegate of the Minister refused to grant that visa on 26 November and the applicant then sought a review by the Refugee Review Tribunal. That review was heard on 31 January 2000 and, as I said, the decision made on 16 March 2000 affirmed the decision not to grant a protection visa to the applicant.

3. The basis for the applicant's claim for protection as a refugee under the Refugee's Convention arises from his religious belief. He is a member of the Ahmadia, religious belief which is regarded as, at least by its adherence, as a branch of the Muslim faith. He converted from being a Sunni Muslim to the Ahmadia belief in 1995, and he said in a statement, that once he became converted he organised regular meetings, handed out leaflets and tried to motivate the Sunni and Shiam Muslim communities to join the Ahmadia religious group. He said that he became a prominent speaker and organiser who urged the people to accept the philosophy of the Ahmadia beliefs.

4. The Ahmadia group also known as the Quadianis, are a minority in Bangladesh numbering about 100,000. The balance of the population, on the applicant's figures about 96 per cent, follow the Sunni or the Sheiha faith. The Sunni and Shiiha Muslims regard the Ahmadias or Quadianis in a very negative way based on the belief that the Ahmadias are, in fact, blasphemers. The reason for this belief is that the Ahmadias, even though they regard themselves as Muslim, accept the teachings of the Koran regard one Mirza Goolam Ahmed who lived in the 19th century as a prophet of Allah and this challenges the doctrine of mainstream Islam that Mohammed was the last prophet.

5. The applicant has produced evidence of discrimination, vilification and violence directed towards himself and towards members of the Ahmadia or Quadiani faith generally. In his statement he said that he fled to Saudi Arabia in May 1997 with an employment visa and worked in Saudi Arabia until June 1998. He said, however, that his employer in Saudi Arabia on finding out about his membership of the Ahmadia faith required him to leave not only work but Saudi Arabia and as a result he had an application for a visa to the Australian Embassy in Dubai. He did obtain a three month visa.

6. The applicant says that he departed from Saudi Arabia and arrived in Bangladesh on 8 August 1998 and remained hidden for some period of time. He said that Sunni community members had assaulted members of his family and forced them to declare him an isolated person by declaring him to be an evil person in front of the mosque. He travelled to Australia on 8 September 1998. He has been held in an immigration detention centre since 6 July 1004, he is currently an inmate of the detention centre at Villawood.

7. The applicant sought leave to file an amended application on 2 November, that application was not accepted at the registry without leave but the applicant's solicitor, Mr Balding, forwarded a copy of the further amended application to the respondent's solicitors, Blake Dawson Waldron. A copy was also faxed to the registrar of the court. I have regard to the written outline of submissions from Mr Gormly of counsel who appears for the applicant and I have also had regard to the written outline of submissions from Mr Mantziaris, of counsel for the respondent.

8. On the morning of the hearing the applicant sought leave to file the further amended application in court, that leave was not opposed by counsel for the respondent and accordingly the document was filed in court and has proceeded accordingly. The further amended application sets out the grounds for review. The applicant says that the decision of the Refugee Review Tribunal was affected by jurisdictional error, first, in that the Tribunal's finding that exceptions to low level discrimination against Ahmadias in Bangladesh are isolated episodes and that finding was made without having regard to relevant material and without evidence.

9. Further, that the decision was affected by jurisdictional error in the Tribunal's failure to carry out its review function, its failure to exercise its jurisdiction in not making any conclusive findings or alternatively accepting any of the applicant's claims to be an Ahmadia and in not taking into account certain relevant considerations or integers central to the applicant's claims for religious persecution. The first ground more particularly refers to the applicant's claim of an going anti-Ahmadia campaign in Bangladesh. The campaign has been supported by those who wish to have the Ahmadias declared as non-Muslim. The applicant provided evidence from a newspaper report showing a statement made by the President of a conference in Dhaka that:

Until the Quadiani are declared as non-Muslims this revolution will not stop.

10. The applicant says that the Tribunal did consider the claim of a bombing of a mosque at Kulna, in October 1999 as evidence of the existence of an anti-Ahmadia campaign. But the Tribunal ultimately found that this was an isolated episode from and exceptional low level discrimination against Ahmadias in Bangladesh. The applicant submits there is no evidentiary basis for the finding of the episodes were isolated and exceptional and that the finding is not reasonably open on the evidence. The authority for this proposition is Australian Broadcasting Tribunal v Bond (1990) 170 Commonwealth Law Reports, page 321.

11. The applicant in part 1 of his second ground says that the sentence:

He, (meaning the applicant), left the Tribunal with the conclusion that he was probably not even an Ahmadia after all...

appears to be a statement of suspicion rather than a determination on the central claim of the applicant to be an Ahmadia. The applicant submitted that the use of the word conclusion in conjunction with the word probably meant that the Tribunal was discontinuing its review of the applicant's claim to be an Ahmadia without making a determination.

12. The applicant says that there was a failure by the Tribunal to make a clear determination which meant that it had not conducted a review of the applicant's claims which it was required to undertake, that therefore there was a constructive failure to exercise jurisdiction. I'm referred to Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR, page 389. The next part of the second ground relates to the applicant's claim that he was a convert to the Ahmadia faith and not only was it relevant that Ahmadias were not regarded by the Sunni majority as true Muslims but also that the perceived apostasy of the applicant from Islam was seen as particularly heinous by Sunni Muslims.

13. The applicant says that the Tribunal constructively failed to exercise its jurisdiction in not considering the applicant's position as a perceived apostate from Islam. The claim was raised on the material available from the Tribunal and I am referred to the decision of SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199, ALR, page 265. The applicant also says that, and I accept that there's a typing error in the submission, that the Tribunal failed to consider the applicant's claims of persecution in the context of perceived apostasy or at all.

14. For the respondent it is submitted that first of all it was relevant that the applicant travelled from Bangladesh to Saudi Arabia lawfully notwithstanding the fact, as the Tribunal pointed out, that Saudi Arabia is largely populated by Sunni Muslims. When the applicant left Saudi Arabia to seek protection he went first of all to Bangladesh and stayed there for some period of time before he travelled to Australia arriving lawfully on a visitors visa. It is significant that the Tribunal found the applicant to be:

...an unimpressive and unreliable witness.

15. Page 89 of the court book.

It is also significant...

16. Says the respondent.

...that whilst the applicant claimed to have been an active Ahmadia preacher in Bangladesh he did not appear to be a coherent or articulate speaker on the teachings and tenets of the Ahmadia faith and its difference from other Muslim beliefs.

17. The respondent also notes that the Tribunal took notice of the applicant's apparent lack of interest in Ahmadia religious affairs once he arrived in Australia and appeared to be, to the Tribunal, to be more interested in his employment status. Indeed, the Tribunal had reached the conclusion that the applicant is:

...probably not even an Ahmadia at all and definitely was not a refugee.

18. The Tribunal commented unfavourably on the applicant's lack of knowledge of the contents of the documents that were submitted with his application by his adviser and whilst the applicant had claimed that false charges had been laid against him there was no evidence to support these claims. The respondent has also submitted that even if the Tribunal's primary conclusion was wrong the Tribunal had correctly applied the "what if I am wrong" test and found that with the exception of isolated episodes there was low level discrimination against Ahmadias in Bangladesh.

19. In oral submissions, which I should mention at this point, Mr Mantziaris of counsel who appeared for the respondent, commenced by reminding the court that there is no duty on the Tribunal to give a line by line refutation of the points raised in the applicant's case and said that there was no obligation under section 430 of the Migration Act to do so. He referred to the decision of Minister for Immigration and Multicultural Affairs v Yusef, reported in (2001) 206, Commonwealth Law Reports, page 323.

20. It was also submitted that the Tribunal was under no duty to make its own independent inquiry relating to the applicant's claims for refugee status and further, as a principle that the respondent only has to show some basis for drawing an inference. I was reminded that the Tribunal failed to accept the applicant as a credible witness. Going through the ground of the failure to consider relevant material and the written submission in reply to the applicant's claim that there was a failure expressly to mention or grapple with part of the competing body of evidence, referring to Australian Broadcasting Tribunal v Bond. The respondent submitted that the applicant had not established that fact.

21. The Tribunal did consider evidence contained in its country information about the bombing in October 1999 of the Ahmadia mosque in Kulna and the reports of finding another bomb in the Ahmadia mosque in Dhaka. There was a specific reference to reports from Reuters about those incidents which appear, in fact, at page 105 of the court book with the headline, "Bangladesh tighten security amid bomb scare", and the reports by the police that the police were treating the matter very seriously. The Tribunal did acknowledge that there were isolated episodes of violence against Ahmadias.

22. It was submitted that it was open for the Tribunal to find that with the exception of those isolated episodes of low level discrimination that the official or organised campaign against the Ahmadias came from a minority political party not from the Government and there was country information which made no reference to persecution of the Ahmadias. Mr Gormly of counsel submitted, and in my view correctly, the fact that there was no reference to persecution could not be taken as a fact that there is or was no persecution. The respondent has also alleged that failures to return, as I said, to refer to certain material does not establish a ground for no evidence.

23. The respondent says that the Tribunal's finding or expressed in the words:

...left the Tribunal with the conclusion that he, i.e., the applicant, is probably not even an Ahmadia at all.

24. Whilst not couched in the most felicitous of language is nothing more than the Tribunal stating a conclusion that the applicant was not a member of the Ahmadia group in the language of the civil standard of proof namely on the balance of probabilities. The respondent also referred to the fact that the Tribunal did apply the "what if I am wrong" test by finding that it was still not satisfied that even if the applicant was a member of the Ahmadia group that he had a well founded fear of persecution.

25. Dealing with the ground relating to the failure to consider the integers of the claim the respondent submitted that there was not a failure expressly to mention or grapple with the part of the competing body of evidence before the Tribunal relevant to a finding made in circumstances where the elements are integers of the claim for asylum are addressed. The reference there is Paul v Minister for Immigration and Multicultural Affairs (2001) FCA 1196. There was some evidence in the transcript which was submitted by Mr Gormly of counsel that the Tribunal had considered the fact that the applicant did not come from a family of adherence to the Ahmadia faith and that no one in his family except himself was a follower.

26. The matter did not go any further than that. The applicant did say that he had death threats from Sunni and Sheiha believers and the Tribunal did consider that and, in short, Mr Mantziaris submitted that no error has been established and there was no jurisdictional error, irrationality, illegality or unreasonableness on the part of the Tribunal, that therefore the court should refuse the relief that is sought.

27. In an interesting oral submission from Mr Gormly of counsel I was pointed to the fact that there, in counsel's view, no evidence to show that violence or discrimination against Ahmadias was isolated and exceptional and that I was asked to look at the belief by the Tribunal that these incidents therefore were not going to be repeated and that if the evidence, the isolated and exceptional nature of the discrimination and violence was removed what was left appeared to be a finding that there was violence and discrimination towards members of the Ahmadia faith.

28. There was an amplification of the submission of the fact that the bombing of the mosque took place in 1999 and that one of the country reports referred to page 92 of the court book and been made in 1998 so therefore there was no, that country report could not have reported the bombing of the mosque. I am of the view, however, that there is evidence about the bombing of the mosque having been considered by the Tribunal. I'm not of the view that the Tribunal has just simply missed the evidence as was submitted. Mr Gormly also raised the question of the finding, "he is probably not even an Ahmadia at all", as not being a finding of fact to the standard of evidence required.

29. Mr Mantziaris for counsel was certain of the view that that was a finding of fact, it was set out in his written submission and reaffirmed orally before me today. On looking at the decision I am satisfied that the words used which appear on page 89 of the court book, he, meaning the applicant, "left the Tribunal with the conclusion that he is probably not even an Ahmadia at all" is a finding by the Tribunal. I am certainly of the view that this is a bold and perhaps bald assertion by the Tribunal and to my mind is couched in somewhat unfortunate language.

30. I look at the transcript which was submitted and page 7 of the transcript there appears a series of questions and answers where the Tribunal member was attempting to illicit from the applicant what teachings of the Ahmadia faith were so abhorrent to the Sunnies. Question, and I quote:

Question: Yes, what particular teaching from your prophet is distasteful to the Sunnis or is opposed by the Sunnis?

31. Answer:

He has said that I am the last prophet, Allah has sent me down.

32. The Member then said:

That's not a teaching, that's a boast, that's, you know, ...

33. The applicant went on to say:

He said many things, I am the prophet, have faith in me.

34. The applicant went on to say:

He has written many books saying, I am the prophet, have faith in me.

35. And then it is also said that who will not accept him will go to hell. People who will not accept this, who will not have faith in him they will accept will be death. The Member then asked:

The thing is this, no prophet asks people to accept just him, there has to be some thesis or some theory or philosophy that he is teaching that is different from others that either causes people to have faith in him or not. What is that specific thesis called? What unique and new formulations did he present to the world?

36. The applicant said:

Because they don't follow him don't pray with those Sunnis and don't follow them, don't follow their way to Allah and don't have any marriages with them and don't have any friendship with them.

37. The Member then said:

It is one thing to say that but if they are teaching the same thing as Sunnies, what's the problem?

38. The applicant said:

The main thing is that the Sunnies don't accept us at all.

39. The Member then said:

You don't know why, you can't tell me why they don't accept you.

40. The applicant says:

They are saying that whatever you are doing is not Muslim, is out of the Muslimism, is not in Muslimism.

41. The Member appeared to rely on that exchange to form the conclusion that the applicant had very little knowledge of the Ahmadia faith and that the Tribunal had the view that the applicant was probably not even an Ahmadia at all. In any event, the Tribunal then went on to consider the "what if I am wrong" test. In my view it was prudent for the Member to consider that test because I have serious doubts that the finding being the conclusion that the applicant is probably not even an Ahmadia at all is, in fact, justified by the evidence.

42. It is regrettable, and the passage from the transcript which I've previously quoted, that the Tribunal member seemed to be arguing with the applicant and the statement by the Member that the applicant did not know why the Sunnies would not accept the Ahmadias, it's just not borne out by the answers that the applicant was giving to the Member. The applicant clearly set out the reasons why he said the Sunnies did not accept the Ahmadias. Nevertheless, the Member just refused to accept the evidence and said that the applicant did not know. In my view, the evidence does not support that.

43. I would not go so far as to say that this particular paragraph shows a perception of bias and indeed, Mr Gormly of counsel quite properly submitted that no argument was being made at the denial of procedural fairness. True it is that the Tribunal Member took exception to the fact that the applicant produced documents that were not translated but the Tribunal Member went to some trouble to ensure that that material still got in. On page 3 at about point 9 the Member says:

The Tribunal is not obliged to consider evidence that is not translated so I thought what I would do to be fair to you was to give you a chance to read and highlight from these pages and when you read them the interpreter will translate them, okay?

44. The Tribunal Member also, right at the end of the hearing, took the applicant to task about the documentation. The applicant said:

I would just like to say this is my adviser's mistake about the papers, not mine.

45. The Member, quite properly, replies:

Yes, I read that, that's why I thought I should give you a chance to read them. Believe me, the adviser's mistake does not prejudice the outcome of the matter but I think it is fair to bring it to an applicant's attention when part of the hearing has been devoted to overcoming the deficiencies on the part of the advisers.

46. Now quite clearly, the Tribunal Member has gone to some trouble to see that the applicant had a chance to read onto the record a translation of the documents that he had brought along to support his case which had not been translated. In my view, this is an indication of procedural fairness. What the Tribunal did do, notwithstanding my reservations about the conclusion of the applicant was probably not even an Ahmadia at all was to consider the "what if I am wrong" test. The decision says:

The Tribunal nevertheless considered what it would conclude were it wrong about this.

47. The Tribunal Member then proceeded to do just that. It made a finding that with the exception of isolated episodes there is low level discrimination against Ahmadias in Bangladesh and it would still not be satisfied that this climate were indicative of future persecution of the applicant.

48. It is significant that in two places, on pages 89 and 90 of the court book, that the Tribunal said:

The Tribunal finds the applicant an unimpressive and unreliable witness in the present matter.

49. I put this to counsel for the applicant on the basis that this was perhaps the 64 dollar question, to use the vernacular. It is not the function of this court to embark on a merits hearing of the evidence. The question of credibility of an applicant's evidence is a matter for the Tribunal. As long as there is evidence for the Tribunal to be able to make a finding and as long as that finding is not perverse. In my view, there is evidence upon which the Tribunal was able to make a finding, that violence or discrimination with the exception of isolated episodes was low level discrimination against Ahmadias and that the Tribunal was not satisfied that this would lead to future persecution of the applicant.

50. The Tribunal was not satisfied otherwise as to the applicant's credibility as a witness and that is a finding that is totally within the bounds, within the jurisdiction of the Tribunal. Accordingly, I find there is no reviewable error, the application will be dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 15 November 2004
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