SZAKK v Minister for Immigration - [2004] FMCA 176

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAKK v MINISTER FOR IMMIGRATION

[2004] FMCA 176

MIGRATION – Review of decision of RRT – where applicant having claimed a subjective fear of persecution sought to have the matter referred to another Tribunal to establish an objective fear.

SGBB v Minister for Immigration [2003] FCA 709
SCAL v Minister for Immigration [2003] FCA 458

Applicant:

SZAKK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 618 of 2003

Delivered on:

11 March 2004

Delivered at:

Sydney

Hearing date:

11 March 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 618 of 2003

SZAKK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh. He arrived in Australia on 29 September 1998. On 27 September 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 13 November 2001 a delegate of the Minister refused to grant a protection visa and on 21 December 2001 the applicant applied for a review of that decision. The Tribunal received representations from the applicant and he attended for an interview on 6 March 2003. On 13 March 2003 the Tribunal determined to affirm the decision of the delegate not to grant the applicant a protection visa.
The applicant claimed to have a well founded fear of persecution for the convention reason of religion. Although he was born a Sunni Muslim in Bangladesh he told the delegate and then the Tribunal that in the mid 1990s he became interested in and then joined the Ahmadiyya religious group. This religious group has as its basis the fact that it denies that Mohammed was the last Prophet and suggests that Mirza Ghulan Achmed, who was born in 1835 in India and who died in 1912, was the last Prophet. The sect is very much a minority in Bangladesh. The country information quoted by the Tribunal at [CB 67] indicates that there are between 15 and 20,000 Ahmadis in Bangladesh.
The applicant claimed that as a result of his conversion to this sect he suffered physical harm and ostracism both from his family and generally in his native country. He had been involved, he said, in preaching in the streets of Dhaka when a group of thugs had attacked him and he had spent 2 weeks in hospital. He then had to go into hiding, at which time he realised that there was no way he could remain in Bangladesh safely while practising his religion. He knew that he would have to leave because people would pursue him everywhere in that country in order to harm him.
Although his father was upset at his son's decision to become a follower of the Ahmadiyya sect, he apparently indulged him to the extent of funding him to travel to Spain on a Spanish-Schengen visa in July 1998. This is a visa that entitles a person such as the applicant to study in certain countries of the European community. The applicant was not happy in Spain, he did not speak the language and so in September 1998 he obtained a student visa for Australia from the Australian Embassy in Madrid. He arrived in this country on 29 September 1998.
The applicant remained as a student until 11 October 2000 when the department cancelled his visa because he had breached its provisions. He managed to obtain a reinstatement of that visa, and whilst engaged in the appeals which resulted in that reinstatement applied for a protection visa in September 2001.
The Tribunal put to the applicant its scepticism about his claim. Firstly, the Tribunal was sceptical because the country information which it had before it did not indicate that there was wholesale persecution of members of the Ahmadiyya sect and in fact it appeared to indicate that where any incidents had occurred the Government of Bangladesh had come down quite hard upon those responsible for it. The Tribunal also queried with the applicant why he had not made an application for protection whilst he was in Europe and further, why he had not made an earlier application for protection than he had done in Australia.
The Tribunal also asked the applicant certain questions concerning the Ahmadiyya faith and the applicant's practise of it. The answers given were to the Tribunal's view unsatisfactory. At [CB 69] the Tribunal says:
“ The applicant's claims are lacking in credibility.
I'm not satisfied that the applicant is an Ahmadiyya since he shows no interest in practising that faith in Australia, has not made any meaningful contact with the Ahmadiyya Muslim Association of Australia in its local place of worship and bears no credentials from the movement either from its Bangladesh or Australian branches .....
I am not satisfied that the applicant left Bangladesh to escape persecution as he made no attempt to apply for asylum in Spain or any of the European countries to which he had visa-free access at the time under the terms of the Schengen Treaty to which Spain belonged .....
Further, after coming to Australia, the applicant made no attempt to apply for protection from persecution here until he faced cancellation of his student visa, three years after his entry to this country.”
The Tribunal summed up its views about the applicant in the following paragraph [CB 71]:
“ I'm not satisfied as to the credibility of the applicant's claim of being an Ahmadi, and I'm not satisfied that he left Bangladesh to escape persecution. Further, the country information detailed above shows that Ahmadis in Bangladesh, while being subject to isolated attacks and some degree of suspicion/discrimination do not suffer discrimination amounting to persecution, are allowed to freely practise their faith and have the protection of the authorities in the event of harassment or attack; the totality of the country information does not show that Ahmadis have a well-founded fear of persecution in Bangladesh.”
The applicant sought review of the Tribunal's decision from this Court by way of an application dated 23 April 2003 stating:
“(1) The Tribunal member failed to consider my fear and persecution if I have to return back to Bangladesh;
(2) The Tribunal Member allegedly failed to consider me as a refugee due to my religion or faith that placed me in a position where I believe that I am a genuine refugee according to the UN definition of refugees;
(3) The Tribunal Member also did not bring into account the gravity of fear for changing my religion from Sunni to Ahmadi that inflicted so much family and social problems and persecution against me .....;
(4)The Tribunal Member was asking me too many narrow and personal questions rather than asking about my persecutions .....;
(5) The Tribunal Member's decision was unfair, unjustified and was too personal based on unreliable sources.”
To the extent that the details of claim that I have set out above indicate that the Tribunal failed to take into account relevant material or took into account irrelevant material, I cannot see that that case is made out. The applicant's statements to the Tribunal were short and are contained in the court book. He says very little about personal persecution, although he does say much about what could be described as ostracism from his family and neighbours. Insofar as the allegation by the applicant is that the Tribunal somehow failed to give him procedural fairness by asking narrow and personal questions, the applicant has not provided me with either the tape or a transcript in order that those allegations could be made out. Certainly, the reasons for decision do not seem to indicate that that was what occurred.
When the matter came before me the applicant told me that he believed that the Tribunal did not investigate the situation in Bangladesh, and that because he feared for his life the Tribunal should have taken more steps to investigate the position. I rather gather from the applicant's submissions that he was talking mostly about his own personal position. But insofar as the general position relating to Ahmadiyya is concerned, the Tribunal did have the benefit of country information which it cited.
In SGBB v Minister for Immigration [2003] FCA 709 the Court said at [17]:
“As Kirby J noted in Dranichnikov the function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances.”
And see also von Doussa J in SCAL v Minister for Immigration [2003] FCA 458 at [16]. Neither the delegate nor the Tribunal is obliged to consider claims that have not been made.
The applicant's claims and submissions made at the hearing were essentially that because he had claimed a subjective fear of persecution, he believed that I should refer the matter back to the Tribunal so that he could have another chance to convince it that those subjective views were objective. This of course is not within the power of the court. The applicant has had the opportunity to appear before the Tribunal and convince it of his claims. He was unable to do so. There is nothing in the decision that I have read or which has fallen from the applicant that would lead me to a view that the Tribunal fell into jurisdictional error in the manner in which it came to this decision.

I am therefore unable to grant review.
I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: