SZAOT v Minister for Immigration
[2004] FMCA 217
•1 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAOT v MINISTER FOR IMMIGRATION | [2004] FMCA 217 |
| MIGRATION – Review of RRT decision – whether Tribunal complied with s.424A requirements – whether Tribunal was obliged to explain legal authorities referred to in its decision – whether Tribunal erred in citing only parts of material relied upon. |
NAAV v MIMIA [2003] FCAFC 102
MIMA v Singh (2000) 98 FCR 569
Applicant S70 of 2003 v MIMIA [2004] FCA 84
| Applicant: | SZAOT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ805 of 2003 |
| Delivered on: | 1 April 2004 |
| Delivered at: | Sydney |
| Hearing date: | 1 April 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms R Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
The applicant to pay the respondent's costs assessed 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 |
SZ805 of 2003
| SZAOT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a national of Bangladesh. He arrived in Australia on 17 November 2001. On 12 December 2001 he lodge an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 12 April 2002, a delegate of the Minister refused to grant the protection visa and on 8 May 2002 the applicant applied for review of that decision.
On 29 January 2003 the Tribunal wrote to the applicant informing him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. He was invited to a meeting which took place on 17 March 2003. The applicant was represented there by a migration agent. On
1 April 2003 the Tribunal determined to uphold the decision of the delegate and handed that decision down on 23 April.
The applicant claimed to have a well-founded fear of persecution for the Convention reason of religion. He claimed that he was a member of the Ahmadi Sect. Ahmadi's consider themselves to be Muslims but differ from mainstream Muslim belief in that they consider there is a prophet after the prophet Mohammed. The applicant told the Tribunal that he had become an Ahmadi in 1998.
The applicant claimed that Ahmadis were not accepted in Bangladesh, that they could not practice their religion freely and had to work in secret. The applicant claimed that once when he was delivering a speech in the Bakshi Bazaar a group of Suni believers attacked his congregation and he received injuries from a beating that required him to be taken to the nearby hospital and remain for two weeks. He stated that after this incident it became clear to everyone that he had become an Ahmadi believer and started receiving "hate, negligence and isolation and life threatening".
He was ostracised by his friends and relations and suffered mental torture. The applicant claimed that he was harassed, along with his wife, by Suni Muslims and was warned that he was going to be killed because he was spreading the Ahmadi religion. He became desperate to leave the country and when he was able to obtain a visa for Australia, flew here to seek refuge.
The Tribunal questioned the applicant about his allegiance to the Ahmadi sect and in particular whether he had associated with Ahmadis in Sydney and whether he carried with him any evidence of his association with that sect whilst he had been in Bangladesh. The Tribunal also discussed with the applicant certain country information which indicated that whilst attacks had been made on Ahmadis in 1993 and 1999, the situation had improved and the Government of Bangladesh had made it clear that it would not countenance this type of sectarian attack again.
Indeed, the Tribunal referred to a very recent and large conference of Ahmadi believers which had taken place in February 2003 and had been attended by thousands of Ahmadis from over 100 branches in Bangladesh, as well as scholars from the United States, Britain, Australia, Canada, India and Pakistan. The Tribunal concluded, from the responses given by the applicant about his association with the Ahmadi sect and his failure to provide corroborative material of his membership, that he was not an Ahmadi but at[CB128] said:
“Even if I were to accept that the applicant is Ahmadi, I am not satisfied that he has a well-founded fear of persecution. 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 practice their faith, and have the protection of the authorities in the event of harassment or attack. They freely and publicly espouse views which are or might be controversial to other Muslims (eg urging all Muslims to unite under an Ahmadi banner and criticising acts of violence carried out in the name of Islam) and these views are given publicity in the mainstream Bangladesh press.
Given the above, I am not satisfied as of the credibility of the applicant's claims that Ahmadis are not able to practice their religion freely and can only worship in secret.
Neither am I satisfied that he has been constantly at risk of being killed over his claimed Ahmadi faith given that independent evidence does not support a claim that Ahmadis in Bangladesh are at real risk of systematic harm.”
At [CB 129] the Tribunal considered the claim put forward by the applicant that Ahmadis in Bangladesh faced systematic discrimination. The Tribunal stated:
“ Given that Ahmadis constitute a minority Muslim sect who in effect reduce the importance of prophet Mohammed by believing in the existence of later prophets, it is fair to assume they are regarded askance by mainstream Muslims and that this causes them to experience some degree of societal discrimination. For some Ahmadis, the discrimination might be systematic. However, I am not satisfied from the independent evidence before me that any discrimination experienced by Ahmadis is significant enough to amount to persecution.”
I believe that the references in this quotation and in previous quotations to "systematic discrimination" is probably a reference to systemic discrimination.
The applicant filed on 15 March 2004 an amended application and at the same time provided the court with an outline of submissions. The amended application states that the applicant seeks review for the following reasons.
“ 1. The Tribunal did not comply with the mandatory obligations contained in s. 424A of the Migration Act.”
The application then lists a number of cases which appear to be cases quoted by the Tribunal in its decision. The respondent argues that there is no obligation upon the Tribunal to explain legal authorities to an applicant. The placing of legal authorities in its decision the respondent says, is no more than a provision to the world of the background of the reasoning of the Tribunal.
Whilst I can see that if a person's case did depend on some narrow legal interpretation it would be appropriate under s.424A for an applicant to be advised of the authority which was being considered, this is not the case here. I am satisfied that there was no obligation in regard to these authorities. The application goes on to argue that the Tribunal did not give the applicant notice:
“Of the particulars of the information or references in the manner required by s.424A(1)(a) and s.424A(2)(a) of the Migration Act.”
To the extent that the applicant is referring here to the cases there would be no necessity to provide him with any information concerning those in view of my earlier ruling but to the extent he may have been referring to country information, I am satisfied that all relevant country information was discussed with the applicant and he was given an opportunity, together with his migration adviser, to respond to it.
NAAV v MIMIA [2003] FCAFC 102 at [23] is clear authority that any breach of s.424A(2) with respect to the manner in which information is provided in the circumstances of this particular case, would not constitute a jurisdictional error and therefore would fall to be determined under the privative clause provisions of s.474(1).
The applicant further complains that the Tribunal cited only a part of a report and references instead of the whole report. Certainly the Tribunal only cited part of reports in its decision but it did say that it had read all the material provided.
The Tribunal's decision in this case was essentially made upon the finding of credibility and then certain findings of fact in which the Tribunal accepted independent country information that had been discussed with the applicant. The Tribunal weighed up that information against the criteria in the Migration Act and, in particular, the criteria of serious persecution found in s.91R. It concluded that the complaints made by the applicant, event if they were true, would not amount to persecution and, therefore, it was unable to be satisfied that the applicant was a person to whom this country owed protection obligations.
Those findings are the very essence of the Tribunal's duty. The Tribunal is not obliged to refer to or address all the material before it; MIMA v Singh (2000) 98 FCR 569; Applicant S70 of 2003 v MIMIA [2004] FCA 84 per Hely J at [45]. The Tribunal's reasons may be short but they are clear and they bear direct relevance to the matters before it.
In all the circumstances, I am unable to see any grounds upon which the Tribunal could be said to have fallen into jurisdictional error in the manner in which it came to its decision in this case. The application shall be dismissed and the applicant shall be ordered to 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 seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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