NARZ v Minister for Immigration
[2004] FMCA 499
•2 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NARZ v MINISTER FOR IMMIGRATION | [2004] FMCA 499 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – whether incorrect interpretation of applicable law – whether lack of procedural fairness – whether no evidence – application dismissed. |
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
| Applicant: | NARZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1733 of 2003 |
| Delivered on: | 2 August 2004 |
| Delivered at: | Sydney |
| Hearing date: | 2 August 2004 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr A McInerny |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the application is dismissed.
That the applicant pay the respondent's costs set in the amount of $3,250
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1733 of 2003
| NARZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 16 April 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, who is a citizen of Bangladesh, claimed to fear persecution because of his religion as an Ahmadi of the Qadiyani sect. He claimed that he was born of conservative Sunni Muslim parents and converted in 1993, that when his conversion became known he was criticised by the community of Sunni Muslims and that this culminated in him being targeted by the local Jamaat e Islami.
The applicant left Bangladesh in 1994 for Malaysia. He returned to Bangladesh briefly in 1997/98 for a three month visit. He claimed that while he was not physically harmed himself in Bangladesh, other Ahmadi practitioners were. He claimed that his home was attacked and ransacked in 1994 after he had left the country and again in 1999 after he departed Bangladesh. He had returned to Malaysia and then travelled to Papua/New Guinea in 2000 before coming to Australia. These incidents were said to have been reported to the police. He believed that because he was an Ahmadi and particularly a Sunni convert, he would be persecuted and that his persecution would be more severe because he had abandoned his Sunni faith.
After his initial protection visa application was refused the applicant sought review by the Tribunal. He attended a Tribunal hearing on
11 March 2003.
The Tribunal found that the applicant's claim failed on its facts. It was not satisfied that the applicant is or was an Ahmadi of the Qadiyani sect. It had regard, in particular, to his poor knowledge of that faith, the fact that he had made no attempt to practice the faith in Malaysia between 1994 and 1999 and that despite having been in Australia since 2001, he had made no formal effort to practice the religion or to contact the sect in Australia.
The Tribunal went on to find that even if that finding of fact was wrong, the applicant’s practice of his religion had lapsed or was at such a low level as not to expose him to adverse notice in Bangladesh. The Tribunal had regard to the fact that the applicant had given evidence that he had converted in 1993 and the presence of some documentary support for a conversion then or in 1997. Accepting that evidence at face value, the Tribunal found that the difficulties the applicant described as resulting from his conversion were of relatively low order.
He had never been physically threatened or harassed and there was no evidence that he was personally discriminated against. There was no assurance that the claimed incidents of attacks on his family home while he was outside the country were motivated by religious persecution reasons.
The Tribunal found the applicant's written claim that he had been sentenced to death by stoning by the Mullahs not credible for three reasons; first the fact that it was not referred to in his oral evidence despite being an item of such importance, second, that the applicant did not know what a ‘fatwa’ was and third that there was independent information accepted by the Tribunal that such fatwas are illegal in Bangladesh.
As to the attacks on other Ahmadi, the Tribunal accepted independent evidence that there was no systematic persecution of the sect in Bangladesh, that the authorities do not tolerate religious harassment and do provide protection when required. It found that the degree of state protection for the applicant as a member of the Ahmadi faith would be adequate. The Tribunal was satisfied that there was no real chance of the applicant being persecuted on grounds of religion or for any other Convention reason.
The Tribunal considered the particular claim of the applicant that his persecution would be more severe because he had abandoned his Sunni religion. It cited the absence of any credible evidence that the applicant had been personally threatened, harmed or harassed either before he went to Malaysia or during his return visit to Bangladesh as a result of his conversion. Given that he had not practiced the faith since he left for Malaysia in 1994, the Tribunal was not satisfied that he would be persecuted if he returned to Bangladesh. If there was a threat of persecution, the Tribunal was satisfied that the protection of the state would be available to him either where he formerly resided or somewhere else in the country and whether he was born as an Ahmadi or was a convert to that faith from Islam. The Tribunal was satisfied that the applicant did not have a well founded fear of persecution should he return to Bangladesh.
In his application for judicial review the applicant raised eight grounds, none of which are particularised. He did not file written submissions. In oral submissions he took issue with the merits of the Tribunal decision referring to the current situation in Bangladesh. However, merits review is not available in this court, MIEA v Wu Shan Liang (1996) 185 CLR 259.
The first ground relied upon is that the decision involved a jurisdictional error being an error of law involving an incorrect interpretation of the applicable law to the facts of the case. No particulars are provided and no such error is apparent. The Tribunal properly considered and applied the applicable law. The applicant failed on the facts. In particular, he did not satisfy the requirement that he have a relevant fear, let alone that any fear was well founded.
The applicant claimed that the Tribunal ignored the merits of the claim and the Tribunal gave the decision without considering valid documents submitted by the applicant, without proper reasons. However the Tribunal had regard to the elements of the applicant's claims as set out in his protection visa application, in submissions put to the Tribunal and as raised in the Tribunal hearing. It also had regard to the to the documents submitted through his migration adviser. The applicant had submitted a certificate from the Word Commissioner of Dhaka City Council as proof of his change of faith. That document is referred to in the Tribunal reasons for decision in connection with its acknowledgment that there was some documentary support for the applicant’s claimed conversion. The Tribunal had, as is apparent from its reasons for decision, raised its concerns about that letter with the applicant in the course of the hearing (in particular that it certified his change of faith in 1997 whereas his oral evidence was that he had converted in 1993). The applicant is recorded as having responded that 1997 was not the correct date. This discrepancy is acknowledged in the Tribunal reasoning in its reference to some documentary support for conversion in 1993 or in 1997 and the acceptance of his evidence, for the purpose of the decision, that he did join in 1993. No transcript of the hearing is before the Court. There is no evidence to establish that the Tribunal account of what occurred in the hearing is inaccurate.
The applicant also submitted a certified copy of his passport. There was some discussion of that document in the Tribunal reasons for decision in relation to the applicant's correct name as well as his travel details. It was taken into account. Also submitted was a letter from the Ahmadia Muslim Youth Association in Dhaka certifying that the applicant had changed his faith from Sunni Jamat to Ahmadia (Kadiani) and stating that he was an active member in the youth organisation. Again, the Tribunal reasons for decision indicate that this letter and concerns that the Tribunal had in relation to it were raised with the applicant during the hearing. The Tribunal raised with the applicant the fact that the letter was dated May 2001, but that as he had left his country in 1994 it was difficult to see how he could have been active in 2001. The applicant is recorded as having said that the letter meant that he was active while he was in Bangladesh. The Tribunal had regard to the letter in its consideration of his claims.
It is clear from the Tribunal reasons for decision that the Tribunal had regard to the material and claims submitted by the applicant and also to the supporting documentation and gave reasons for its decision in relation to his claims. In particular, while not satisfied that the applicant was of the faith claimed, it went on to consider his claims of the basis that he was an Ahmadi of the Qadiyani sect as claimed and as verified in the supporting documentation.
The applicant made generalised claims that the decision was unjust, that it did not take into account the full gravity of his circumstances and that it was an improper exercise of power. None of these general claims are established or establish any jurisdictional error. Insofar as the claims overlap with the claim that the Tribunal failed to accord the applicant procedural fairness, that is not established or apparent on the material before the court. The applicant claimed specifically that he was not provided with an opportunity to respond to information on which the Tribunal relied. The factual basis for such a claim is not established. The only evidence of the conduct of the Tribunal hearing is the Tribunal reasons for decision and those reasons indicate that critical issues and relevant material were raised with the applicant and that he was given an opportunity to comment. There is nothing before the Court to establish that the substance of relevant aspects of the independent country information was not drawn to the attention of the applicant.
The unparticularised claim that there was no evidence or other material to justify the making of the decision is not established. The Tribunal made findings of fact that were open to it on the material before it. The other claims made by the applicant repeat his claims to be a refugee and take issue with the Tribunal's assessment of the current situation in Bangladesh. As indicated above, merits review is not available. No jurisdictional error is established on the grounds set out in the application or apparent on any other basis. Accordingly the application should be dismissed.
RECORDED : NOT TRANSCRIBED
The respondent seeks that the applicant, having been unsuccessful, pay costs in the sum of $3,250. The applicant raises his impecuniosity. This is not a reason for not awarding costs although it may be a matter taken into account by the respondent in determining whether and how to seek to recover the costs. It is proper that the applicant, having been unsuccessful, meet the respondent's costs. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 16 August 2004
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