Applicant S202/2003 v Minister for Immigration and Citizenship

[2007] FCA 272

FEDERAL COURT OF AUSTRALIA

Applicant S202/2003 v Minister for Immigration & Citizenship [2007] FCA 272

APPLICANT S202/2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2512  OF 2006

MARSHALL J
5 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2512  OF 2006

BETWEEN:

APPLICANT S202/2003
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP  
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	5 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.

2.The name of the second respondent is amended to ‘Refugee Review Tribunal’.

3.The application for leave to appeal is dismissed.

4.The applicant pay the first respondent’s costs of the application for leave to appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2512  OF 2006

BETWEEN:

APPLICANT S202/2003
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP  
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	5 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of Branson J published on 4 December 2006.  The application before her Honour sought an order nisi requiring the Refugee Review Tribunal and the then Minister for Immigration and Multicultural Affairs to show cause why relief by way of constitutional writs and injunctions should not be granted following a decision of the Refugee Review Tribunal to refuse to grant a protection visa to the applicant. 

2. The applicant is a citizen of Bangladesh who arrived in Australia on 7 March 1997. On 15 April 1997, the applicant lodged an application for a protection visa with what is now known as the Department of Immigration and Citizenship.  On 25 September 1997, a delegate of the first respondent refused the application for a protection visa.  On 27 October 1997, the applicant applied to the Tribunal for a review of that decision.  On 23 June 1999, the Tribunal wrote to the applicant advising him that it was unable to make a decision on the information before it and inviting the applicant to a hearing due to be held on 18 August 1999.  On the day of the hearing, the applicant asked for an adjournment because he was suffering influenza.  The Tribunal decided to proceed with the hearing unless it became evident the applicant was significantly disadvantaged by his illness.  The Tribunal noted that the applicant had been questioned gently and compensation was made for his illness when he was answering questions.

3. Before the Tribunal, the applicant claimed to fear persecution because of his Ahmadi faith.  He said that he has been beaten for his beliefs by Sunni Muslims.  The applicant claimed he had been disinherited by his family for his conversion to Ahmadi. The applicant claimed police had raided his home during an Ahmadi meeting because his neighbours had told the police the meeting’s participants were engaging in adultery.  He claimed the police left when they found the accusation had no basis.  The applicant claimed Sunni Muslims threw a grenade at his house during an Ahmadi meeting. The applicant asserted that while he was away on business he contacted his family who informed him that police had raided his house to search for him and had a warrant for his arrest on a false charge of smuggling.  The applicant claims he was too frightened to return so he left the country, and travelled to Australia, via India.

   THE DECISION OF THE TRIBUNAL

4. In its decision of 13 October 1999, the Tribunal did not accept the claim that Ahmadis are subject to persecution in Bangladesh because that claim is unsupported by independent evidence.  Independent evidence showed isolated incidences of violence in the early 1990s.  The Tribunal asserted Ahmadis are free to practise their religion openly and find it no bar to achieving high status in life.  The Tribunal did not accept the claim the applicant is subject to persecution for being an Ahmadi or even for marrying into an Ahmadi family.

5. The Tribunal accepted that the applicant was disinherited by his father but this ‘harm’ was because of his personal relationship to his father rather than for a Convention ground.  The applicant was not, according to the Tribunal, adversely affected by this, because he earned his living from his own business and was supported by his in-laws.

6. The Tribunal found the particular claims of the applicant regarding grenades, beatings and smuggling charges were not credible.  It said that the applicant was prepared to invent scenarios to suit his interests.  The Tribunal further said that the applicant had deceived Indian and Australian authorities by coming to Australia on an Indian passport and had lied to the Bangladeshi High Commission to obtain a Bangladeshi passport.  The Tribunal found that his claims that Ahmadis are persecuted, despite independent evidence to the contrary, is sufficient reason to doubt the claims of the applicant.

7. The Tribunal did not accept claims that there is an arrest warrant outstanding for him as the Bangladeshi authorities would have known about it when the applicant applied for the renewal of his ‘lost’ passport at the Bangladeshi High Commission.  The Tribunal noted the willingness of the authorities to extend the applicant’s passport despite there being an Australian bridging visa in it.  To the Tribunal, this indicated that Bangladeshis who could be believed to have applied for an extended stay or protection visa in a foreign country are not treated adversely by the authorities.

8. The Tribunal found the evidence regarding the grenade attack to be unconvincing.  The Tribunal was not satisfied it was credible because of the applicant’s vagueness about dates. Similarly, it considered the claim that the attack was perpetrated by Sunnis to lack credibility, as the applicant claimed not to have seen the alleged attackers.  It said that in such a situation, even if the beatings and the grenade attacks had occurred, the failure of police investigation to yield results would have been due to the inability of the applicant to give information and not because the authorities were unwilling to protect him.  Moreover, the Tribunal found the police leaving when they found the adultery accusation had no basis did not support a claim of lack of protection, discrimination or persecution.

   DETAILS OF PREVIOUS PROCEEDINGS

9. The applicant was involved in the Lie v Refugee Review Tribunal (2000) 190 ALR 601 class action. On 21 May 2003, the application for an order nisi filed by the applicant in the High Court was remitted to the Federal Court.

10. The applicant applied for an order nisi requiring the Tribunal and the Minister to show cause why relief by way of constitutional writs and injunctions should not be granted following the decision of the Tribunal to refuse to grant a protection visa to the applicant.

    JUDGMENT OF JUSTICE BRANSON

11. Justice Branson found there was no arguable case for the issue of an order nisi (see Applicant S202/2003 v Refugee Review Tribunal [2006] FCA 1714). Her Honour found that there was no evidence to support the applicant’s claim that the Tribunal failed to consider all material relating to his application for a protection visa. Her Honour also found that the applicant’s assertion that he was denied procedural fairness, because as a consequence of the hearing invitation letter he was misled into thinking the Tribunal had the material to consider in relation to his claim and he therefore did not provide other documents, was unfounded. Justice Branson observed that the applicant failed to identify material which he would have brought to the attention of the Tribunal had he not received the hearing invitation. Similarly, her Honour noted that the applicant did not suggest that the substantive content of independent country information the Tribunal used in reaching its decision was not drawn to his attention during the hearing.

12. At the hearing before her Honour, the applicant presented material about Ahmadis in Bangladesh which post-dated the decision of the Tribunal.  Her Honour found the material presented did not support the claim that procedural fairness was denied.  Justice Branson also said the applicant had sufficient time to gather together material to support his application.

13. Her Honour did not accept that the matter should be reheard by the Tribunal because the applicant was feeling unwell at hearing: that issue was not referred to in the material he put before the Court.  There was no error with the Tribunal proceeding with the hearing when it did, according to her Honour.

    APPLICATION FOR LEAVE TO APPEAL

14. In support of the application for leave to appeal, the applicant filed an affidavit and a draft notice of appeal in which he made the following claims:

    ·    The Tribunal constructively failed to exercise its jurisdiction under the Migration Act 1958 (Cth) (‘Act’). In particular, the Tribunal failed to accord natural justice by not postponing the hearing after the applicant requested a postponement;

    ·    The Tribunal wrongly assumed that Ahmadis in Bangladesh are not subject to persecution and in particular the Tribunal ignored the independent evidence which demonstrated the Ahmadis in Bangladesh face harm from Sunni Muslims and the government; and

    ·    The Tribunal made a wrong assumption about the applicant’s conversion from Sunni to Ahmadi and its role in his disinheritance by finding that ‘…there is no independent evidence to support a claim that converts to the Ahmadi faith face harm…I consider that this act of “harm” was prompted by conditions individual to the applicant, i.e. his personal relationship to his father, rather than by a Convention ground’.

15. At the hearing before me, the applicant relied on his grounds of appeal. He submitted further that the Court should exercise its discretion to grant him leave to appeal because he was feeling unwell when he appeared before the Tribunal. The applicant also sought to re-agitate matters of fact dealt with by the Tribunal. Orally, and with no notice to the first respondent, the applicant sought to rely on s 424A of the Act by reference to material which fell squarely within s 424A(3)(a). That reliance is rejected and leave to raise the argument is refused.

16. It is well settled that leave to appeal will only be granted where the judgment appealed from is attended with sufficient doubt and substantial injustice would arise if leave to appeal was refused (see, for example, SZIMB v Minister for Immigration & Multicultural Affairs [2006] FCA 1405 at [10]).

17. Here, the judgment of Branson J is not attended with any doubt.  Her Honour correctly dismissed the application.  No substantial injustice arose because there was no jurisdictional error in the Tribunal’s decision.

18. The Court will order as follows:

    1.The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.

    2.The name of the second respondent is amended to ‘Refugee Review Tribunal’.

    3.The application for leave to appeal is dismissed.

    4.The applicant pay the first respondent’s costs of the application for leave to appeal.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        5 March 2007

The Applicant represented himself.
Counsel for the Respondents:	S Hanstein
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	5 March 2007
Date of Judgment:	5 March 2007