SZATC v Minister for Immigration

[2004] FMCA 521

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZATC v MINISTER FOR IMMIGRATION [2004] FMCA 521

MIGRATION – Application to review decision of Refugee Review Tribunal – whether jurisdictional error.

MIMA, Re; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZATC

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1048 of 2003

Delivered on: 11 August 2004

Delivered at: Sydney

Hearing date: 11 August 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application is dismissed.

2. That the applicant pay the respondent's costs fixed in the amount of $3,500

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1048 of 2003

SZATC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 21 May 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, arrived in Australia on 16 March 2002 and applied for the visa on 12 April 2002.  The delegate refused the visa on 22 August 2002 and the applicant sought review by the Tribunal on 9 September 2002.  The Tribunal held a hearing on 29 April 2003 which the applicant attended. 

2. The applicant claimed to fear persecution in Bangladesh by reason of his religion.  He claimed to have converted from being a Sunni Muslim to an Ahmadi Muslim in 2001 and that as a result he had been ostracised by family and friends and that he was injured in December 2001 when a crowd attacked an Ahmadi mosque in Dacca.  He also claimed that he had participated in Ahmadi seminars and that after the events of December 2001 people had realised he was Ahmadi and he had become widely hated and began receiving threats from people including his family. 

3. The Tribunal found that it was not satisfied as to the credibility of the applicant's claim to be of the Ahmadiyya faith.  It had regard to the fact that, although claiming to be so wedded to the faith that he had to flee his country, he had no endorsement of his claims of persecution from the Ahmadiyya organisation in Bangladesh or in Sydney.  It considered that if the applicant was an Ahmadi at genuine risk of harm there would have been such an endorsement and meaningful support from the organisation in Sydney.  Such finding was consistent with the Tribunal account of what had occurred in the hearing.  It is recorded in the reasons for decision that the applicant was asked about help he may have received from the Ahmadiyya organisation in Bangladesh or Sydney. 

4. Nonetheless the Tribunal went on to consider the situation if it were to accept that the applicant was Ahmadi.  On that basis it was not satisfied that he had a well founded fear of persecution.  In reaching this conclusion it had regard to independent country information which was contrary to the applicant's claims that the Ahmadis were not able to practise their religion freely in Bangladesh and also contrary to his claims that he had been constantly threatened with death over his claimed faith. 

5. The Tribunal accepted that Ahmadis present at certain locations when harm had been experienced by Ahmadis, such as when a bomb went off at the Khulna Mosque in 1999, could justifiably claim to have been at real risk of harm at the time, and that if the applicant was there he could have been at real risk.  However, the Tribunal found that such attacks were random and isolated and that Ahmadis had been offered protection by the authorities.  The Tribunal was not satisfied that the applicant's possible presence at one such occasion would give him a well founded fear of persecution over his claimed faith.  It found that the totality of country information did not show that Ahmadis have a well founded fear of persecution in Bangladesh.  It also considered claims in relation to discrimination facing Ahmadis but was not satisfied on the independent information before it that any discrimination experienced by them was significant enough to amount to persecution.

6. The Tribunal concluded that the applicant had fabricated his claims of danger facing him in Bangladesh.  The Tribunal was not satisfied as to the credibility of the applicant's claims of being injured in an attack on Ahmadis at Bakshi Bazaal in 2001 in the absence of independent information about such an incident.  Even if it had occurred, the Tribunal was not satisfied, given its isolated nature, that it pointed to a real chance of harm in the future. 

7. The Tribunal was not satisfied as to the credibility of the applicant's claims at the hearing that he had been sought out and attacked by his family.  In any event was not satisfied that such action amounted to persecution.  It considered that the applicant could have gained the protection of the authorities in relation to any criminal acts of violence threatened by his family or others, based on independent evidence that the Ahmadiyya organisation in Bangladesh had stated that it had the protection of the Bangladeshi authorities.  The Tribunal was not satisfied that the applicant had a well founded fear of persecution under the Refugees Convention. 

8. In the application filed on 12 June 2003 in this court, the applicant raises ten grounds. To a large extent these grounds take issue with the factual findings of the Tribunal and the merits of the decision. 

9. It is claimed, without particularisation, that the Tribunal member ‘did not rely on those statements and documents (sic) as credible and genuine without proper verification’ and that the member ‘simply rejected the applicant's review application on a hypothetical basis’.  No particular statements or documents were identified by the applicant.  The Tribunal did rely on country information but it appears from the Tribunal reasons for decision, which is the only evidence before the court of what occurred in the hearing, that independent evidence on the situation of Amadis in Bangladesh was put to the applicant for comment, as was the similarity between the applicant's claims and those of other applicants represented by the same adviser.  The applicant was also asked about any help he had received from the Ahmadiyya organisation in Bangladesh and in Sydney.  The claim about rejection of the application on a ‘hypothetical’ basis does not establish error.  The Tribunal considered the  specific claims of the applicant. 

10. Several of the grounds in the application take issue with the merits of the Tribunal's decision.  The applicant repeats his claims and takes issue with the factual findings of the Tribunal.  Merits review is not available.  Procedural fairness is raised generally in relation to the Tribunal conduct of the hearing, in claims about the unhelpfulness of the methodology adopted at the hearing, that the hearing was a mere formality, that the Tribunal failed to demonstrate procedural fairness and that the decision was unfair, unjustified and based on unreliable sources.  The factual basis for such claims is not established.  There is no transcript of the Tribunal hearing and the Tribunal reasons for decision do not support or establish that there was any lack of procedural fairness.  Nor does the material before the court support the claim that the Tribunal gave a decision that was preset in the back of its mind in such a way as to constitute actual or apprehended bias. 

11. The applicant's disagreement with the Tribunal's view of independent country information in relation to the situation in Bangladesh does not establish that the Tribunal decision was affected by bad faith as contended.  It is for the applicant to establish his case.  There is nothing in the material before the court to suggest that the Tribunal erred in the manner contended in relation to the independent country information.  The applicant takes issue generally with the reliability of the sources of independent information relied on by the Tribunal. However the weight to be given to particular items of evidence is a matter for the Tribunal.  The applicant would have been aware from the delegate's decision of relevant issues, he had the opportunity at the hearing and in written submissions from his adviser to put material before the Tribunal and address critical issues.  No error is apparent in the Tribunal treatment of the country information.

12. It is apparent from the Tribunal reasons for decision that the applicant was unsuccessful because of the view the Tribunal took of the facts, in particular its findings that the applicant was not credible and that his claims were fabricated. Such findings are matters of fact for the tribunal par excellence: MIMA, Re; Ex parte Durairajasingham (2000) 168 ALR 407 [67]. The Tribunal findings were open to it on the material before it for the reason that it gave and no error is demonstrated in such conclusions. The court cannot review the merits of the Tribunal's decision. Since no jurisdictional error has been established the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The respondent seeks that the applicant pay costs. Having been unsuccessful it is appropriate that the applicant meet the respondent’s costs.  He claims to be unemployed and unable to meet an order for costs. While this is a matter that might be taken into account by the respondent in determining whether and how to recover costs, impecuniosity is not a reason for not ordering that the unsuccessful applicant pay costs. 

2. Bearing in mind the nature of this and other similar matters I consider that an appropriate amount is $3500 and that costs should be set in that amount under the Federal Magistrates Court Rules.

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

Associate: 

Date:  27 August 2004