SZBCE v Minister for Immigration - [2004] FMCA 1017

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCE v MINISTER FOR IMMIGRATION

[2004] FMCA 1017

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Bangladesh – claims rejected on credibility grounds – no reviewable error found – application dismissed.

Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Minister for Immigration v Rajalingam (1999) 93 FCR 220
NAOX v Minister for Immigration [2004] FMCA 55
NAOX v Minister for Immigration [2004] FCA 776
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
W148/00A v Minister for Immigration (2001) 185 ALR 703

Applicant:

SZBCE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1509 of 2003

Delivered on:

10 December 2004

Delivered at:

Sydney

Hearing date:

10 December 2004

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr I Archibald

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1509 of 2003

SZBCE

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 11 June 2003 and handed down on 8 July 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and has made claims of religious persecution. Relevant background information is contained in paragraphs 2-5 of written submissions prepared on behalf of the Minister by Mr Reilly. I adopt those paragraphs for the purposes of this judgment by way of background:
The applicant applied for the visa on 13 December 2001: court book, pages 1-30. The delegate’s decision refusing the visa was made on 12 April 2002: court book, pages 37-45. The applicant applied to the RRT for review on 30 April 2002: court book, pages 46-49. The RRT held a hearing on 3 March 2003: court book, page 66.
The applicant claimed to fear persecution for reason of his religion in Bangladesh. He claimed to be an Ahmadi, and to have been attacked for this reason on a number of occasions. See generally court book, pages 25-30, 56-65.
The RRT found that the applicant was not a credible witness, and that documentation he had submitted in support of his claim to be an Ahmadi was fabricated. The RRT noted that the applicant did not have Ahmadiyya certification either from Bangladesh or from the local Ahmadiyya organisation in Sydney, and that both had in fact advised the RRT that he was not Ahmadi. Accordingly the RRT did not accept that the applicant was an Ahmadi. Further the RRT, relying on independent country information, found that even if the applicant was an Ahmadi, he would not have a well founded fear of persecution in Bangladesh for this reason. See generally court book, pages 119-121.
It is apparent that the applicant was unsuccessful because of the view the RRT took of the facts, in particular its strong finding that the Applicant was not credible and his claims fabricated. Such findings are matters of fact for the RRT par excellence: Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the RRT’s credibility findings were open to it, no error is demonstrated in such conclusions: Kopalapillai vMinister for Immigration (1998) 86 FCR 547 (FC) at 558-559; W148/00A vMinister for Immigration (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and R D Nicholson JJ. The RRT’s findings were open for the reasons it gives.
The applicant relies upon an amended application filed on 23 November 2004. That application contains two grounds; the first is a particularised assertion of jurisdictional error by reason of a breach of the rules of procedural fairness. It is asserted that the RRT failed to observe an obligation to disclose properly to the applicant adverse information relied by the RRT concerning the treatment of members of the Ahmadi sect in Bangladesh.
The second ground relates to the finding by the RRT that the applicant is not an Ahmadi. The second grounds asserts that the RRT fell into jurisdictional error in that it failed to consider the possibility that its failure to achieve the requisite degree of satisfaction as to the applicant being an Ahmadi was wrong before reaching the affirmative conclusion that the applicant did not have a well-founded fear of persecution if he were returned to Bangladesh.
In relation to the first ground I am satisfied that there was no want of procedural fairness. Relevant country information relating to the circumstances of members of the Ahmadi sect in Bangladesh had been drawn to the applicant's attention at the time his protection visa claim was considered by the Minister's Department. The delegate in his reasons at page 42 of the court book refers to notification given to the applicant of the relevant country information. The notice itself relevantly appears on pages 34 and 35 of the court book. That was, in my view, adequate disclosure. However, it is apparent from the transcript of the proceedings that was tendered in evidence (exhibit A1) that the presiding member took the trouble to raise with the applicant what the presiding member saw as the relevant country information. I have regard in particular to the transcript at pages 11 to 14.
Mr Archibald, for the applicant, submitted that the manner in which the presiding member raised the issue with the applicant on pages 28 to 31 of the transcript was problematic because of the discursive manner in which the presiding member addressed the issue. While there may be some substance in that submission that was the only occasion on which the issues were raised. The fact that the issues had been adequately raised earlier both by the presiding member and by the Minister's Department means that there was no want of procedural fairness.
Even if there had been a want of procedural fairness in the disclosure of the relevant country information, there would still have been no jurisdictional error. That is because the applicant's claims failed for reasons of credibility quite independently of the country information. The presiding member deals with this fundamental issue in her reasons for decision commencing on page 115 of the court book. The presiding members refers to what occurred at the hearing and then continues:
The Tribunal allowed the applicant a month from the date of the hearing to obtain Ahmadi certification attesting to his claim of being a persecuted Ahmadi from Bangladesh.
On 2 April 2003 the applicant submitted the following documents in support of his claims:
1.A purported letter from “Nizami, Ameer of Chittagong, Ahmadiyya Muslim Jama’at, Chittagong”, dated 19 February 2003, stating that the applicant is an Ahmadi who had been attacked over his faith in Bangladesh.
2.A purported letter from “Mir Mohammad Ali, National Ameer”, Ahmadiyya Muslim Jama’at, Bangladesh, in Dhaka, dated 27 February 2003, almost identical to the previous letter.
3.An issue of an alleged newspaper, “The Capital News” of 24 March 2003, published in Dhaka, carrying a front-page article titled "Kadiani Muslim Leaves Home Facing Threat to Life", which quotes an alleged press release on the applicant having to flee the country because of threats to his life over his Ahmadiyya (Kadiani) beliefs. The articles spills onto the last page with a headline that appears to have been handwritten. The newspaper is a very scruffy production.
4.A purported order from the Dhaka Magistrates Court dated 30 March 2003 for the arrest of the applicant and others preaching the Ahmadi faith.
The presiding member continued:
The Tribunal wrote to the applicant stating that the documents that he submitted may be checked for authenticity and pointing out that he had not submitted verification of his alleged Ahmadi identity from the Australian Ahmadiyya organisation which, he was told at the hearing, had expressed readiness to support genuine Ahmadiyya-linked refugee claims.
The purported Ahmadiyya letters of reference from Bangladesh were sent to the Ahmadiyya Muslim Association of Australia for verification.
On 11 May 2003 the organisation wrote to the Tribunal to state that the applicant was not a genuine Ahmadi and that the alleged Ahmadi certificates from Bangladesh that he had submitted were not genuine. It attached a letter dated 11 April 2003 from Meer Mobasher Ali, the National Ameer of the Ahmadiyya Muslim Jama’at in Bangladesh, stating that the certificates submitted by the applicant were “false”.
The presiding member then goes on to state that the applicant was invited to respond to this information and had sought an opportunity to obtain a further certificate. That request was denied and that denial is not contested in these proceedings. It was perfectly understandable for the applicant's request for a further opportunity to present a certificate to be denied because the certificates he had produced were shown to have been fabricated and there was no point in giving the applicant a further opportunity to produce more documents on which the RRT could place no reliance.
The correspondence referred to by the presiding member appears at the court book on pages 102 and 103. It is apparent from reading that correspondence and the presiding member's reasons that the applicant's claims to have been an Ahmadiyya adherent were utterly destroyed by the information received. In the circumstances, it was unnecessary for the presiding member to have regard to the country information regarding the treatment of Ahmadis in Bangladesh in order to deal with the issue of credibility.
For the reasons I expressed in my decision in NAOX v Minister for Immigration [2004] FMCA 55, upheld on appeal in NAOX v Minister for Immigration [2004] FCA 776, even if there had been a want of procedural fairness in relation to the country information that would not have constituted a jurisdictional error in circumstances where the protection visa claim was resolved by reference to determinative credibility findings.
The second ground requires some further consideration. The presiding member having found, on page 120 of the court book, that the applicant was not an Ahmadi by reference to the material already referred to went on to consider country information concerning the treatment of Ahmadis in Bangladesh. The applicant asserts that the presiding member was obliged to consider what the position would have been if the applicant's claims to have been an Ahmadi were genuine and that the RRT failed to do so. Mr Reilly deals with that issue in paragraph 7 of his written submissions. I agree with and adopt Mr Reilly's reference to the proposition that where there is no doubt about the findings on credibility it is not necessary to go on to consider what the position might be if claims were genuine:
The second ground is that the RRT failed to consider the possibility that it was wrong in its finding that the Applicant was not an Ahmadi. The applicant’s submissions para 20 claim that it is “settled law” that the RRT must consider whether its factual findings are wrong, citing Minister for Immigration v Rajalingam (1999) 93 FCR 220 (FC). However Rajalingam at [67] makes clear that there is no such obligation when the RRT’s reasons indicate it has no real doubt about its findings. As in Rajalingam, the RRT’s reasons in this case indicate that it had no real doubt about its findings - indeed quite the contrary - so the obligation to ask itself whether its findings may be wrong did not arise. In any case the RT did consider whether its findings may be wrong by considering whether the applicant’s fears would be well founded if he was an Ahmadi. This ground must fail.
I do not accept Mr Reilly's statement that in any case the RRT did consider whether its findings may be wrong by considering whether the applicant's fears could be well-founded if he was an Ahmadi. On page 121 of the court book the presiding member stated, after considering the country information:
On the basis of all the evidence before me I am not satisfied as to the credibility of the applicant's claims of being an Ahmadi facing persecution in Bangladesh.
It is apparent from my reading of the presiding member's reasons that at no stage did she consider that she might be wrong on the issue of credibility. The presiding member might have been better advised to terminate her reasons at the point of finding that the applicant is not an Ahmadi. His claims for a persecution visa at that point were utterly destroyed and there was no point in continuing to address the issue of credibility. The presiding member did go on but her reasons in that regard are mere surplusage.
There was no consideration of what the position might have been if the applicant was a genuine Ahmadi but there did not need to be because the presiding member was not in any doubt as to the want of credibility in the applicant's claims. In the circumstances the second ground for review also fails.
I will dismiss the application.
On the question of costs, the application having been dismissed, costs should follow the amount. Mr Reilly seeks an order for costs fixed in the sum of $5,000. Having regard to the amount of preparation required of the Minister, including the consideration of the transcript obtained by the applicant which, as it turns out, was initially incomplete, and having regard to the reasonable need for the Minister to be represented by counsel and instructing solicitor today, I am satisfied that costs of $5,000 have been reasonably and properly incurred on behalf of the Minister on a party/party basis. Mr Archibald did not wish to be heard in opposition to Mr Reilly's submission.
I will therefore order that the applicant pay the Minister’s costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 20 December 2004