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MIGRATION - Review of Refugee Review Tribunal decision - affirming a delegate's refusal for a protection visa - no reviewable error found.

SZATD v Minister for Immigration [2004] FMCA 586 (17 September 2004)

SZATD v Minister for Immigration [2004] FMCA 586 (17 September 2004)
Last Updated: 12 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZATD v MINISTER FOR IMMIGRATION
[2004] FMCA 586




MIGRATION - Review of Refugee Review Tribunal decision - affirming a delegate's refusal for a protection visa - no reviewable error found.




Migration Act 1958 (Cth), s.474

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Kioa v West (1985) 159 CLR 550

Applicant:
SZATD




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ1049 of 2003




Delivered on:


17 September 2004




Delivered at:


Sydney




Hearing date:


12 August 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

Applicant appeared in person with the assistance of a Bengali interpreter.

Counsel for the Respondent:


Mr R Bromwich




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) The application is dismissed.

(2) The applicant pay the respondent's costs set in the amount of $4,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ1049 of 2003

SZATD



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal ("the Tribunal") handed down on 2 May 2003 affirming the decision of a delegate of the respondent made on 30 July 2002 to refuse to grant the applicant a protection visa.

2. The applicant, who is a citizen of Bangladesh, arrived in Australia on 2 June 2002. On 27 June 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth) ("the Act").

3. On 30 July 2002 a delegate of the Minister refused to grant a protection visa and on 19 August 2002 the applicant applied for review of that decision by the Tribunal. On 27 May 2003 the Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa.

The history

4. The applicant is a Muslim and claims that in January 2001 he converted from a Sunni faith to the Ahmadiyya ("Ahmadi") faith. The Ahmadi sect differs from other Muslims in believing the prophet Mohamed was not the last prophet. They believe that Mirza Ghulam Ahmed born in Quadian (1835-1912) was the last prophet of Islam.

5. The applicant was married in 1992 and has two daughters. The applicant and his family lived with his parents in Dhaka until he was forced to leave the family home as a consequence of his conversion to the Ahmadi sect.

6. The applicant claimed to fear persecution for reasons of his religion in Bangladesh. As a result of his conversion to Ahmadi Muslim in 2001, he claims to have been ostracised by his family and friends and to have been injured in February 2001 when a crowd attacked an Ahmadi mosque in Dhaka. At the Tribunal hearing, the applicant claimed that he had also been attacked on 7 March 2002 when his passport had been stolen.

The Tribunal's decision and reasoning

7. The Tribunal had before it the Department's files, which included the protection visa application and the delegate's decision record, together with other material available to it from a range of sources. The applicant appeared before the Tribunal and gave oral evidence on 29 April 2003. While giving evidence to the Tribunal, the applicant was asked if he had been in contact with the Ahmadi organisation and mosque in Sydney, to which he responded that he had been in frequent contact.

8. The applicant was further questioned as to whether he had sought help from that organisation with his refugee's application. He indicated that the members of the Sydney Ahmadi organisation said he should contact members of the sect in Bangladesh and obtain a certificate indicating his membership. He claimed, however, in his evidence that he did not know anyone in Bangladesh who could provide him with that certification.

9. When questioned about the details of the attacks that he had suffered and the circumstances regarding the loss of his passport during one of these attacks, he indicated that he had obtained a replacement passport and a new visa from the Australian High Commission. This was evidenced by photocopies the applicant had of the passport and visa and a letter addressed to the Australian High Commission detailing the circumstances of the attack when the passport was stolen.

10. The Tribunal held that it was highly unlikely for the applicant to have been robbed of his possessions including the passport and visa, but to have photocopies available to him to enable a replacement passport and visa to be obtained. The Tribunal also put to the applicant that the claims he had made in his application were very similar to other applications that had been lodged by his migration adviser.

11. In the findings and reasons section of the Tribunal's hearing, the Tribunal indicated that it was not satisfied with the credibility of the applicant's claim of being a member of the Ahmadi faith given that, although the applicant claimed to be wedded to the faith and had been forced to flee the country because of that belief, he was unable to obtain any endorsement from the organisation in Bangladesh or Sydney of his membership. From information contained within the Department of Foreign Affairs and Trade ("DFAT") material, members of the Ahmadi organisation were obliged to carry a certificate from their mission to prevent imposters posing as sect members in foreign countries.

12. The Tribunal further held that, even if it was accepted that the applicant was a member of the Ahmadi sect, the Tribunal was not convinced that the applicant had a well-founded fear of persecution. The country information before the Tribunal indicated that, although there was some discrimination towards the sect members, they were allowed to freely practise their faith and have the protection of the authorities in the event of harassment or attack.

13. The independent advice available to the Tribunal did not support the applicant's claim that he was at constant risk of being killed because of his allegiance to the faith and it was unlikely that he was at real risk of harm and certainly not a target of systematic harm.

14. An examination by the Tribunal of the circumstances surrounding the alleged attack resulting in his injuries, also raised suspicion due to the lack of material available in the published country information of attacks occurring at the time alleged by the applicant.

15. The general statement as to the circumstances, relating to the ostracisation by his family as a consequence of him joining the sect and leading to the banishment from his family home, lacks credibility in that he is an adult male who has travelled overseas and survived successfully in a foreign country without family support.

16. The Tribunal then sets out the conclusions it drew from this material and the responses received in relation to questions that arose from that material. In the Tribunal's decision and reasonings, under the heading Findings and Reasonings, the Tribunal made the following findings:

a) According to DFAT information, the Ahmadi organisation in Bangladesh had informed all adherents to that faith who travelled abroad are obliged to carry a certificate from a mission in their country of origin and that any Ahmadi refugee applicant who did not have such a certificate would be treated as an imposter.

b) The Ahmadi Muslim association in Australia had stated its readiness to provide a letter of introduction to genuine Ahmadis applying for refugee status within Australia.

c) That Ahmadis freely and publicly espouse views that are or might be controversial to other Muslims and these views are given publicity in the mainstream Bangladeshi press.

d) It was accepted that Ahmadis were present at certain locations where harm has been threatened or experienced by them and there is a justifiable claim that some are at real risk of harm at times.

e) Given that Ahmadis constitute a minority Muslim sect, who in effect reduce the importance of the prophet Mohamed by believing the existence of later prophets, it is fair to assume that they are regarded askance by mainstream Muslims and this causes them to experience some degree of societal discrimination.

f) For some Ahmadis, the discrimination might be systematic however, the Tribunal also found:

i) The Tribunal was not satisfied as to the credibility of the applicant's claim that he is so wedded to the faith that he had to flee his country but was unable to produce any endorsement of his claim.

ii) The Tribunal was not satisfied that the applicant had a well-founded fear of persecution and although the applicant had been subject to isolated attack and some degree of suspicion there is evidence he was suffering from discrimination amounting to persecution.

iii) The Tribunal was not satisfied as to the credibility of the applicant's claim that he was not able to practise his religion freely and was forced into hiding for preaching the value of his faith.

iv) The Tribunal was not satisfied that the applicant was under constant risk of being killed over his claimed faith, given that independent advice does not support that claim.

v) The Tribunal was not satisfied that the applicant's possible attendance on one occasion when there was violence led him to a well-founded fear of persecution over his claimed faith.

vi) The Tribunal was not satisfied from independent advice that any indiscrimination experienced by Ahmadis is significant enough to amount to persecution. There is a lack of independent evidence that converts to the Ahmadi faith being persecuted.

vii) The Tribunal was not satisfied as to the credibility of the applicant's claim regarding being injured in an attack at the Bakshi Bazaar.

viii) The Tribunal was not satisfied that the claimed attack in which his passport was allegedly stolen had been linked with his faith.

ix) The Tribunal was not satisfied as to the credibility of the applicant's claim that he was thrown out of the family home over his faith. It was inconsistent that the applicant had then travelled to Australia and could fend for himself.

x) The Tribunal was not satisfied as to the credibility of the applicant's claim at the hearing that he had been sought out and attacked by his family. The Tribunal held the view that if the family had disowned him, then more probably the family would try to cut any public links with him to avoid any further public attention.

17. The Tribunal, in considering the evidence as a whole, was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Conventions and therefore does not satisfy the criteria set out in s.36(2) of the Act for a protection visa.

The application for review of the Tribunal's decision

18. As a result of the decision of the Tribunal, the applicant made an application to the Federal Magistrates Court on 12 June 2003 for review of that decision. The applicant listed ten grounds:

a) The Tribunal member rejected my claims as a refugee without verification, but with all those claims and persecution found surrounding my religion, I whole-heartedly believe that I am a genuine refugee according to the United Nations Refugees Convention definition.

b) The Tribunal member did not rely on those statements and documents that are forwarded as creditable and genuine without sound verification. The member simply could not accept those statements and documents and decided my application in a conventional way.

c) I have been facing serious persecution in Bangladesh for changing my religion, which is a serious issue in Bangladesh, but the Tribunal member could not find enough persecution against me to grant a protection visa in Australia. Besides, the member referred so many reports whereas there are ample instances that Ahmadis in Bangladesh are facing extreme persecution of practicing the religion of their choice. So many independent reports also reveal that there is systematic discrimination and persecution of minority Ahmadis in Bangladesh.

d) The Tribunal member did not accept that I have been targeted even in my family and friends. Probably the Tribunal member was waiting to see me getting killed to prove to the Department that I am persecuted in Bangladesh on religious grounds. The Tribunal member did not consider that my life is in risk in Bangladesh.

e) The methodology adopted by the Tribunal for the hearing did not help my willingness to explain my views of the issues of persecution.

f) The Tribunal failed to bring into consideration that changing religion or sect in Bangladesh is a very serious matter and if anyone does so the remaining family members and relatives would even hesitate to kill for bringing the curse or bad name in a family by change of religion. But the Tribunal just failed to assess my level of persecution before deciding my application.

g) The hearing of the Tribunal was only a mere formality. The set up for hearing in the Tribunal is more bureaucratic than judicial.

h) I am extremely fearful to return to Bangladesh where I can see religious and democratic rights of the citizen are very limited.

i) The Tribunal failed to demonstrate procedural fairness in my case.

j) The Tribunal member's decision was unfair, unjustified and based on unreliable sources.

19. The applicant was ordered to file and serve any amended application and affidavit on which he was going to rely at the hearing but no documents of this nature have been filed.

20. The applicant did not comply with the directions of the Court to file and serve an outline of submissions prior to the hearing but tendered a letter containing written arguments and submissions. The document makes little reference to the specifics of the applicant's case other than to restate the factual background to his original visa application. Nevertheless, I have considered such grounds as are raised in the material before me.

The law

21. The present application is affected by the privative clause contained in s.474 of the Act. The High Court held that Plaintiff S157/2002 v Commonwealth of Australia; Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S134/2002, in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith; S157/2002 at [76] and Applicant S134/2002 at [15].

22. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal's power; Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

23. To a large extent, the grounds raised in the application and the written submissions take issue with the merits of the Tribunal's decision and are a restatement of the facts. To the extent that the applicant seeks a merits review, a merits review is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

24. The applicant claimed that procedures required to be observed under the Act were not observed. Again, this ground is without particularisation. There is no evidence as to the manner in which the hearing was conducted other than what is detailed in the Tribunal's reasoning for decision, which reveals that the Tribunal considered the various material provided to it, asked the applicant a number of questions and put to him the critical issues in relation to his claim and evidence.

25. There is nothing to suggest that the Tribunal's concerns and relevant information were not put to the applicant.

26. The applicant appeared in person in this Court and indicated he was not satisfied with the decision, together with an argument that his failure not to be in possession of a certificate from the Ahmadi sect indicating his membership of that organisation was no significant.

27. The applicant complained that the methodology adopted by the Tribunal did not help him demonstrate his willingness to express his view on the issue of his persecution, that the hearing was a mere formality, the set up being more bureaucratic than jurisdictional and that the Tribunal failed to accept his documentation.

28. The evidence before the Court in relation to the conduct of the hearing is contained in the Tribunal's reasons. There is nothing in the material before the Court to suggest that the Tribunal did not provide the applicant with the opportunity to fully present his case and address the relevant issues critical to his case. Kioa v West (1985) 159 CLR 550.

29. The Tribunal has an inquisitorial not a judicial role and must put its concerns to the applicant and invite his comment.

30. In the absence of any oral or written submission as to the nature of the methodology, it may have been the inquisitorial approach of the Tribunal to which this ground is directed. In the absence of any particularisation of the methodology, of which the applicant claims, this is not open to further examination.

31. Where the applicant is self-represented, the Court must independently consider whether an arguable case based on the material could be made out. In the absence of any evidence or specific particularisation, I do not find that there is an arguable issue.

32. In my view, the respondent's argument is clearly correct. As there is no jurisdictional error in the Tribunal's decision, it follows that it is a privative clause decision within s.474 of the Act.

33. Accordingly it is ordered that the application is dismissed.

34. The applicant should pay the respondent's costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: Menna McMullan

Date: 17 September 2004
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