SZAPC v Minister for Immigration - [2004] FMCA 288

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAPC & ORS v MINISTER FOR IMMIGRATION

[2004] FMCA 288

MIGRATION – Review of RRT decision – where applicants claim to have a well-founded fear of persecution for the Convention reason of religion – where tribunal made adverse findings of credibility – whether there was sufficient evidence before the Tribunal to make the findings it did – whether Tribunal breached s.424A Migration Act – whether applicants essentially seeking merits review.

Migration Act 1958 (Cth), s.424A

VHAP of 2002 v MIMIA [2004]FCAFC 82
Applicant NAHV of 2002 v MIMIA [2003] FCAFC 102
VCAT v MIMIA [2003] FCAFC 141
Kamal v MIMA [2002] FCA 818
MIMA; Ex parte Durairajasingham [2000] 168 ALR 407
NAZZ v MIMIA [2004] FCA 278

First Applicant:

SZAPC

Second Applicant:

SZAPM

Third Applicant:

SZAPN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 817 of 2003

Delivered on:

21 April 2004

Delivered at:

Sydney

Hearing date:

21 April 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.
First applicant to pay the respondent's costs assessed in the sum of $4,750.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 817 of 2003

SZAPC

First Applicant

SZAPM

Second Applicant

SZAPN

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicants in this matter are a mother and her two children. The applicant's husband has made a separate application for a protection visa and is not the subject of proceedings before the court today.
The present applicants arrived in Australia on 6 May 1996. They accompanied the applicant mother's husband (who I understand was worked for a Diplomatic Mission). On 28 December 2001 they lodged an application for protection (class XA) visa through the Department of Immigration & Multicultural & Indigenous Affairs. On 30 September 2002 the delegate of the Minister refused to grant a protection visa and on 19 October 2002 the applicants applied for review of that decision. To the extent that one of the children is a minor I appoint the mother as the minor applicant's litigation guardian pursuant to Division 11, Rule 11.11 of the Federal Magistrate Court Rules.
The claim of the two children is bound up with the claim of the mother insofar as they are alleged to be dependent upon her and do not appear to have before the Tribunal or the delegate any separate claims of their own. I will therefore refer to the mother as "the applicant".
The applicant was invited to a hearing before the Tribunal and attended. There she put before the Tribunal a quantity of information concerning her case. On 1 April 2003 the Tribunal affirmed the decision not to grant protection visas and it handed down that decision on 23 April 2003.
The applicant's claim to have a well-founded fear of persecution for the Convention reason of religion arises out of her being a member by birth of the Ahmadiyah sect. This sect is a branch of Islam but does not accept that the Prophet Mohammed was the only prophet and believes that Iman Mahdi was also a prophet. It is notorious that this sect is considered to be heretical by mainstream Suni Muslims who form the majority in Bangladesh.
The applicant claimed that she was an active adherent to the Ahmadiyah faith and that she regularly attended religious meetings and spoke. She claims that in December 1992 when returning from a religious gathering she was attacked by some local fanatics. She tried to contact the police but they did not help.
She claimed in her initial application that from 1992 to 1996 she stayed underground and did not organise any religious meetings or attend other Ahmadiyah gatherings elsewhere but she was still the subject of death threats and considered herself at risk of attack. She says that her home was attacked by Suni fanatics in 1995 who threatened her relatives and declared her a non-believer. She referred the Tribunal to the fatwa issued in 1999 against Ahmadiyah supporters. She referred to riots and other attacks on members of her community.
At the hearing before the Tribunal the applicant gave further evidence of her situation. She confirmed that she was married to a person working in a Mission and that she had spent seven years with him in Qatar although during some of that time she had returned to Bangladesh. Her husband is a Muslim. The Tribunal questioned the applicant about her claims, in particular her claim to have had 200 followers and being an active priest. It noted at [CB 254] that:
“ In reply the applicant claimed that she didn't have a formal position in the Ahmadiyahs but used to make speeches every month or two and told people about her Ahmadiyah belief and they called her "Big Sister"...the applicant claimed that in 1999 it was reported in the media that a leading Bangladesh iman declared Muslims could kill Ahmadiyahs. The Tribunal replied that independent country information indicates that the situation has improved.”
In response to questions from the Tribunal the applicant advised that she did not believe she would be safe if she returned to Bangladesh, she had nowhere to stay and she had no parents to provide her with shelter and her husband did not have a job. She claimed that there was no safety or security in Bangladesh and that her children wanted to stay in Australia. Her children do not wish her to be killed in Bangladesh and they wish her to remain in Australia as well.
Finally, the applicant referred to three anonymous telephone calls she had received whilst in Australia. She confirmed that she had not reported these calls to the police and that her husband had told her that they might be wrong numbers. She advised the Tribunal that neither she nor her husband changed their telephone number as a result.
In its decision the Tribunal referred to a considerable quantity of independent country information which it had discussed with the applicant. This information confirmed that there was certainly some feeling against Ahmadiyah people in Bangladesh and that the fatwa which I have previously referred to had been issued. It noted that there were serious restrictions on some Ahmadiyah people being able to worship at their mosques particularly in Kushtia.
In its findings and reasons the Tribunal accepted the applicant's assertion that she was Ahmadiyah and that she had been called "big sister" but found that she did not occupy any official or influential position within the sect. The Tribunal noted evidence from the applicant that in the time in which she had returned to Bangladesh whilst her husband was in Qatar she had lived with her brother and stated:
"The Tribunal finds that this draws into question the applicant's claims of not having access to shelter if she returned to Bangladesh and raises questions about her credibility".
The Tribunal also noted that her brother, who she stated practised his religion every two weeks and attended big ceremonies every six months, did not have any difficulties in continuing with his worship within the Ahmadiyah sect. At [CB 361] the Tribunal says:
"While claiming that she had been told by friends not to return as she will not be safe and she is better off where she is and there is no safety or security for her at Bangladesh, the applicant did not elaborate on these claims and the Tribunal has not been able to satisfy itself that the essential and significant reason for any difficulties the applicant may encounter in Bangladesh are convention related. Accordingly, based on the claims made by the applicant and in view of the independent country information, the Tribunal is not able to satisfy itself that on this basis either she has in the past experienced serious harm or, more importantly, that she had a well founded fear of serious harm amounting to persecution for convention reasons if she returns to Bangladesh, either now or in the foreseeable future.
The applicant claims that her husband does not have a job and there is no safety or security in Bangladesh. However, from the claims made by the applicant the Tribunal has not been able to satisfy itself that the essential and significant reason for any difficulties the applicant or her husband may have in finding a job (if any) or safety and security after they return to Bangladesh would be because of a convention reason and that, on this basis, she has a well founded fear of serious harm amounting to persecution.”
The applicant filed an application to this court on 13 May 2003, in that application she stated that she was a genuine refugee and that the Tribunal did not consider her protection visa claim. She said that the Tribunal did not inquire into her claim and that the decision was affected by error of law and lack of procedural fairness as well as a denial of justice. She said there was no evidence or other materials to justify the making of the decision. When she came before me today the applicant had provided the court with some submissions in writing. In those submissions she stated that the Tribunal affirmed the delegate's decision without giving her an opportunity to make comment upon adverse materials that were before the Tribunal. I asked her whether she could expand on this claim but when she attempted to do so it seemed that what she was saying was that the Tribunal had not taken into sufficient account the material available to it on the situation of Ahmadiyah in Bangladesh.
The second matter raised in the written submissions was that she had not been granted procedural fairness as required under s.424A(1) of the Migration Act. This seems to be a reference to her not being provided with copies of certain country information which the Tribunal used in making its decision. It may well be that these documents were not provided directly to her. But, firstly, they appear to be matters which would fall within the exception to that rule contained in s.424A(3)(a): VHAP of 2002 v MIMIA [2004] FCAFC 82 at [14] and [21]. It is also information that was certainly discussed with the applicant at the hearing. It is now well settled that the court will not grant relief under its discretionary powers for a mere technical breach of section 424A(2)(a): Applicant NAHV of 2002 v MIMIA [2003] FCAFC 102; VCAT v MIMIA [2003] FCAFC 141.
There are other matters raised in the submissions. In paragraph 5 she refers to the fact that she was invited to give oral evidence but states that she was not believed, this would appear to be an attack upon the Tribunal's findings in relation to credibility which, in cases such as Kamal v MIMA [2002] FCA 818 and MIMA; Ex parte Durairajasingham [2000] 168 ALR 407, have been found to be matters within the remit of the Tribunal. In her oral submissions to me the applicant referred to a number of matters which appeared to be both a rehearsal of the claims made before the Tribunal and a plea that the Tribunal had wrongly failed to believe her in respect of those claims.
I have explained to the applicant that it is not within the power of this court to conduct a re-hearing of the application before the Tribunal. As the Federal Court said in NAZZ v MIMIA [2004] FCA 278 at [18]:
"The fact that the applicant emphatically disagrees with the RRTs findings it is not a basis for concluding that the decision was affected by jurisdictional error, see S20/2002 [2003] 198 ALR 59 at [5] per Gleeson CJ.”
This applicant does emphatically disagree with the Tribunal’s findings but those findings were based upon evidence that was available to it and upon considerations of fact, which even if they were wrong, and I see no reason why they were, would not be available to ground review.
I dismiss the application. I order that the first applicant pay the respondent's costs which I assess in the sum of $4,750.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 6 May 2004