MZYKV v Minister for Immigration
[2012] FMCA 326
•24 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYKV v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 326 |
| MIGRATION – Review of Refugee Review Tribunal– refusal of a protection visa – no matter of principle – application dismissed. |
| Migration Act 1958 (Cth), s 429A(b) |
| SZOQA v Minister for Immigration [2011] FMCA 213 |
| Applicant: | MZYKV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1221 of 2011 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 1 March 2012 |
| Date of Last Submission: | 1 March 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 24 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appearing in person |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Ms Latif of Counsel |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The amended application filed on 30 January 2012 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1221 of 2011
| MZYKV |
Applicant
And
| MINISTER FOR IMMGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 28 July 2011. In that decision, the Tribunal affirmed a decision of the First Respondent by his delegate not to grant a protection visa to the Applicant.
The Applicant is a citizen of Bangladesh. He arrived in Australia on a business visa in February 2010. A month later, he sought a protection visa. He was interviewed in July 2010, following which the delegate refused to grant a visa in September. A month later the Applicant applied to the Refugee Review Tribunal to review the delegate’s decision. On 20 December 2010, the Tribunal affirmed the decision of the delegate. The initial decision of the Tribunal was set aside by consent on 2 March 2011. It is the second decision of the Tribunal, dated 28 July 2011, that is the subject of this application.
The Applicant’s claim
The basis of the Applicant’s claim is that he alleges he has a well-founded fear of persecution by reason of his religion being a Muslim who follows Ahmadiyya faith. He said that he was discriminated against because of his religion, feared persecution from Islamic fundamentalists and that the government could not protect him. He claimed that Sunni Muslims attending the mosque next door to his garment business tortured him, threatened to kill him and ultimately shut down his business.
He says that at one point, after having to pay bribes, his son was kidnapped and that he to pay the ransom. He says that ultimately his family was sent to his native village, where he says local members of Jamaat-e-Islami isolated his family within the village. He said following these events he and his family relocated to another part of Dhaka, and that, however, he was recognised on the streets and continued to receive threats.
The Applicant says that business suppliers to whom he owes money have now lodged cases against him with the police and that he is at risk of being imprisoned if he returns. In an interview with the delegate, he said that he had attended the Ahmadiyya mosque around 20 times but that he had never formally joined the Ahmadi community. He also said that he had not attended the Ahmadiyya Mosque in Australia as he did not know any of the mosques in Sydney (where he was then living) and always depended upon the good favour of Bangladeshi men with whom he lived.
The Refugee Review Tribunal’s decision
The Tribunal were concerned about the lack of the involvement of the Applicant with the Ahmadi community in Australia and the inconsistencies in his version of events. Inquiries of the President of the Ahmadiyya Muslim Association in Victoria showed that the Applicant had visited the President once seeking financial assistance and help in finding work, but the President said that the Applicant had never told him that he was an Ahmadi. The Applicant said that he had contacted the community in Melbourne and had received financial assistance, but claimed that the community told him that he could not become a registered member until his immigration status was finalised. Not surprisingly, the Tribunal had real difficulties in accepting the Applicant’s version of events in this respect.
Ultimately, the Tribunal did not accept that the Applicant was a truthful, credible or reliable witness (see paragraph [125] of the decision), saying that the Applicant’s evidence contained significant inconsistencies. For example, the Tribunal pointed to inconsistencies with respect to the times which the Applicant says he and his family moved (see paragraphs [127] to [128]). Inconsistencies around when Sunni Muslims and employees became aware that he was attending the Ahmadiyya mosque are outlined in paragraph [129]. The Tribunal also noted the failure or inability of the Applicant to engage with the Ahmadiyya community in Australia in paragraph [131], and that for 11 months when he was in Sydney, he made no effort to visit or contact the Ahmadiyya community (see paragraph [132]). The evidence of the Applicant and the President of the Ahmadiyya Muslim Association of Victoria were analysed in paragraph [136].
The Tribunal ultimately concluded:
[138] For all the above reasons, the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The totality of his evidence shows a propensity to shift and tailor evidence in a manner which achieves his own purpose. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. In analysing the various inconsistencies in the applicant’s evidence throughout the process, the Tribunal has considered the disadvantage to the appellant of having to repeat a detailed account of past experiences. The Tribunal accepts that while some aspects of the applicant’s evidence may have been affected, the inconsistencies and the fundamental shifts in the applicant’s claims, as outlined in the Tribunal’s reasons above, were such that cannot be explained by reference to delay and repletion of claims over a period of time.
[139] The applicant displayed some basic knowledge of the Ahmadiyya faith at the interview and the first hearing and the Tribunal accepts that he may have accessed information about the faith. However, his knowledge was confined to generalities, easily available publicly. The Tribunal is of the view that the knowledge of the Ahmadiyya faith displayed by the applicant does not overcome the Tribunal’s concerns and finding as to his credibility.
As a result, the Tribunal did not accept that the Applicant was ever involved in the Ahmadiyya mosque or community in Bangladesh, and therefore rejected his evidence about any claim to persecution. With respect to the money owed to suppliers, the Tribunal said:
[141] The Tribunal has considered the applicant’s claims in relation to the money he owes to his suppliers. The Tribunal has also rejected the applicant’s claims that any business related failure or financial misfortune he may have experienced in Bangladesh was for the reason of his religion and any other Convention reason. The applicant’s evidence clearly indicates that action, including legal action, taken by his suppliers is motivated by their desire to recover money owed to them by the applicant, his partners and their company. Indeed the applicant stated at the third hearing that the alleged sentence handed down against him would be enforced if he and his partners failed to repay money owed by their company. There was no evidence before the Tribunal, and the Tribunal is not satisfied, that the suppliers’ conduct in relation to the applicant is for the reason of his race, religion, nationality, political opinion or membership of any particular social group apparent on the face of the evidence.
The Applicant’s grounds of review are long and detailed, although his outline of argument brief.
Ground 1
The Applicant’s first ground in his amended application is as follows:
A. The Refugee Review Tribunal failed to establish the nexus between the applicant’s fear of Court proceeding lodged against him by his suppliers if he was to return [to] Bangladesh and his religious practice and opinion as Ahmadiyya. Further the Tribunal made the following comment
i) There was no evidence before the Tribunal, and the Tribunal is not satisfied, that the suppliers’ conduct in relation to the applicant is for the reason of his race, religion, nationality, political opinion or membership of any particular social group apparent on the face of the evidence.
This was expanded upon in his written submission as follows (see page 2):
I submit that the Tribunal misunderstood the conflict between the supplier and me. Our main conflict was based on religion. However, the Tribunal failed to establish the nexus between my fear and the Court proceeding lodged against me by the supplier.
Accordingly, I submit that the Tribunal failed to focus the reality of chances of my persecution on my return to Bangladesh. The failure of the Tribunal to address this issue prevented it from having the rational basis to determine the chance of persecution of me in the future and resulted in the Tribunal not considering an essential substantial matter to my claims w396/01 v MIMA (2000) 68 ALD 69 at [33]
In substance, this appears to be a complaint about the finding of the Tribunal that they did not accept that the Applicant was credible. It is not open to the Applicant to seek review on the merits before this court. The findings of the Tribunal as to credibility were clearly open on the material as outlined in the reasons given by the Tribunal.
In the circumstances, this ground cannot succeed.
Ground 2
The Applicant’s second ground in his amended application is as follows:
A. The Tribunal showed its negative attitude towards me and did not put adequate attention of my activities as an Ahmadiyya and subsequent fear in Bangladesh. The following comments indicated [the] Tribunal’s negative attitude that:
i) Any contact the applicant may have had with the Ahmadiyya community in Victoria was solely for the purpose of strengthening his claim to be a refugee.
ii) If he was to return to Bangladesh now or in the reasonably foreseeable future, there is a real chance that he will be harmed for the reason of religion, race, imputed political opinion, membership of a particular social group or any Convention reason.
In addition to the details contained within ground 2, the Applicant said in his outline:
Under the above comments it is clear that the Tribunal was bias (sic) and made up its mind beforehand and was unable of being persuaded differently for one or other reason (sic).
Again, this appears to be a complaint with respect to the fact-finding of the Tribunal. There is no evidence before me of any conduct of the Tribunal which could be construed as suggesting any actual or apprehended bias. The Applicant complained he was not asked anything significant by the Tribunal and complained with respect to difficulties in arrangements for interviews. However, it is clear that the Tribunal inquired of him as to his involvement with the Ahmadiyya communities. There is no section of the transcript that is pointed to as showing any actual or apprehended bias. In the circumstances, I am not persuaded that this ground can succeed.
Ground 3
Ground 3 was framed as follows:
A. The Tribunal failed to follow the procedural fairness to assess my application that:
i) My hearing with the Tribunal held by video conference. However the sound system was not clear and sometimes the picture was [sic] disappear those cause the hearing disrupted. I requested the Tribunal’s Member to postpone the hearing on the basis of those disruptions, but the hearing was continuing with ignoring my request.
In addition, the Applicant set out in his written submissions:
I submit that the Tribunal failed to deal my religious activities in Australian [sic] as an Ahmadiyya. The Tribunal failed to ask me any material question that how I would have been adversely affected by the religious activities in Australia if I return to country in Bangladesh.
As an Ahmaidyya [sic] practitioner, I received threats and suffered harassment by the Sunni Muslims in Bangladesh that forced me to leave my home country. I am attending the Ahmadiyya activities in Australia.
However the Tribunal failed to deal my religious activities in Australia. The Tribunal failed to consider the fact that there is a strong possibility to be persecuted if I return to Bangladesh on the basis of my religious activities in Australia.
In support of ground 3, in the hearing before me, the Applicant produced a bundle of small books which were said to be religious texts and sought to tender them. As this was new material not before the Tribunal, I did not grant leave. In any event, it is difficult to see how this would assist the Applicant in his case.
The Tribunal clearly addressed the extent of the Applicant’s involvement in the Ahmadiyya faith and discussed it in detail in its decision. Ultimately, the Tribunal’s findings are findings of fact that were open to them.
Possible additional ground
To the extent that ground 3 relies specifically upon the use by the Tribunal of video conferencing facilities, this arose as a result of the Applicant’s circumstances. The review application was brought in Sydney. The hearing before the first Tribunal was conducted in Sydney. The Applicant then moved to Melbourne. As a result, the Applicant was invited to attend a hearing before the Tribunal, by way of video link, in a letter that specifically referred to the possibility that if the Applicant had a preference to attend in person in Sydney, he should contact the Tribunal.
Whilst the hearing commenced as scheduled, it was adjourned to allow the Bengali interpreter and the Applicant time to perform the noon prayers. The resumed hearing was to be held on another date and a further letter was posted, again asking the Applicant to contact the Tribunal if he had a preference for attending in person.
There is no affidavit material nor recordings of the interview to show there was anything untoward between the Applicant and the translator. Initially, issues were raised (page 2 of transcript of 22 July) about whether the Applicant could hear properly, although it appears on the transcript that these difficulties were overcome. Whilst video conferencing is never as easy as an ‘in person’ conference, discussions as to adjusting the volume to the most appropriate level occur on pages 2 to 3 of that transcript. On pages 4, 5 and 7 of the transcript, the interpreter asks for questions to be repeated. However, it appears that the translator understood what was being said, and the general flow of questions and answers continued through the transcript.
There is no doubt that the Tribunal is able to hold hearings by video link (see section 429A(b) of the Migration Act and SZOQA v Minister for Immigration [2011] FMCA 213 at paragraph [54]:
[54] As the first respondent contended, the applicants’ contention that s.425 of the Act requires that both the applicant and Tribunal are physically present in the one place cannot be maintained in the face of s.429A of the Act, which expressly empowers the Tribunal to conduct a hearing by videoconference (that is by “closed-circuit television”). This contention was made on the basis of general principle, the language of the sections and fact that ss.425 and 429A are both in Division 4 of Part 7 of the Act. I accept such submissions, which I note are in accordance with a number of decisions of the Federal Court taking that approach. While not cited, I refer in passing to SZOAR v Minister for Immigration and Citizenship [2010] FCA 777 where a similar issue arose. The Tribunal’s hearing invitation was in the same terms, relevantly including the option to appear in person in Sydney, as was the case in this instance. There are a number of other authorities to the effect that s.429A expressly allows for appearances before the Tribunal to be conducted by way of “closed-circuit television”.
Even if the video link was less than perfect, that of itself is not a ground for judicial review unless it interferes with a person’s right to a proper hearing. In this case, there is nothing to indicate that there were errors as a result of a lack of ability to hear or see what was going on, nor information omitted.
In the circumstances, I am not persuaded that this ground can succeed.
Conclusion
Having considered the matters raised by the Applicant, I have no option but to refuse the Applicant’s application.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 23 April 2012
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