SZBEG v Minister for Immigration
[2005] FMCA 130
•31 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBEG v MINISTER FOR IMMIGRATION | [2005] FMCA 130 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Bangladesh – application to the RRT rejected on credibility grounds – whether RRT was biased or constructively failed to exercise its jurisdiction considered – whether the RRT proceeding was fair and whether the RRT breached s.425 of the Migration Act 1958 (Cth) considered. PRACTICE AND PROCEDURE – Appearance by counsel for the applicant on a brief from a migration agent who is an admitted legal practitioner in Australia but who is unable to brief counsel and who declines to file a notice of appearance – irregularity of the appearance by counsel. |
Migration Act 1958 (Cth), ss.65, 425
Minister for Immigration v Eshetu (1999) 197 CLR 611
NADH of 2001 v Minister for Immigration [2004] FCAFC 328
NAEQ v Minister for Immigration [2003] FMCA 482
SZBBF v Minister for Immigration [2004] FMCA 628
SZBDL v Minister for Immigration [2005] FMCA 58
WACO v Minister for Immigration (2003) 77 ALD 1
| Applicant: | SZBEG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1585 of 2003 |
| Delivered on: | 31 March 2005 |
| Delivered at: | Sydney |
| Hearing date: Date last submissions received: | 14 February 2005 10 March 2005 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Dr J G Azzi |
| Migration Agent for the Applicant: | Mr S Haque |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
A writ of certiorari shall issue, directed to the Refugee Review Tribunal removing the record of the RRT decision into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the RRT to redetermine the application before it according to law.
The Court directs that this judgment be referred to the NSW Legal Services Commission for such action as it considers appropriate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1585 of 2003
| SZBEG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 20 June 2003 and handed down on 17 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 had made claims of religious persecution on the basis of his adherence to the Ahmadi sect. The applicant applied for a protection visa on 19 July 2001[1]. The delegate’s decision refusing the visa was made on 22 April 2002[2]. The applicant applied to the RRT for review on 17 May 2002[3]. The RRT held a hearing on 11 April 2003[4].
[1] court book, pages 1-32
[2] court book, pages 49-58
[3] court book, pages 65-68
[4] court book, page 75
The applicant claimed to fear persecution by reason of his Ahmadi faith. He claimed to be an organiser of Ahmadi processions and to have been attacked and harmed on a number of occasions by Sunni Muslims[5].
[5] see generally court book, pages 31-32
The RRT found that the applicant was not a credible witness and was an “imposter” rather than a genuine Ahmadi[6]. The RRT noted that the applicant did not have an Ahmadiyya certificate either from Bangladesh or from the local Ahmadiyya organisation in Sydney, and that he appeared to have no interest in engaging the local Ahmadi community[7]. Accordingly, the RRT did not accept that the applicant was an Ahmadi, and so his claim must fail[8]. Further, the RRT, relying upon 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[9].
[6] court book, page 90 at point 3
[7] court book, pages 88-90
[8] court book, page 90 at point 4
[9] court book, page90 at point 8
The application before the Court was filed on 11 August 2003. The applicant asserts the following jurisdictional errors, none of which are particularised:
a)The decision by the RRT had a jurisdictional error of law. The error resulted from an incorrect interpretation of the applicable law to the facts of the case.
b)The RRT failed to take [a] relevant consideration into account in exercising its power to determine the applicant as a refugee.
c)The RRT member refused to accept that the applicant has a well‑founded fear of persecution on Conventional [sic] reasons especially for the member of the Ahamedi [sic] group. Ahmedi members are vulnerable at eyes of the present government.
d)The RRT decision was unjust and was made without taking into account the full gravity of the applicant’s circumstances and the consequences of the claim.
e)The RRT made the decision without any basis as there is no evidence to justify the decision.
f)The RRT unreasonably brought a number of issues which actually deprived the applicant.
g)The RRT made a number of errors to decide the fate of the applicant’s claim. This has adversely affected the merit of the application and deprived him of justice.
A directions hearing in this matter was conducted before Registrar Segal on 22 October 2003. The applicant appeared in person, assisted by a Bengali interpreter. The applicant consented to an order that he file and serve any additional evidence and any amended application by 4 February 2004. Nothing was filed by the applicant by that date or, indeed, before the hearing before me on 14 February 2005. The applicant also consented to an order that he file and serve an outline of written submissions five working days prior to the hearing. That order was not complied with.
At the hearing before me on 14 February 2005 Dr John Azzi appeared and informed the Court that he was instructed by the applicant’s migration agent Mr Sirajul Haque. No appearance had been filed by Mr Haque and Mr Azzi was not able to tell me whether Mr Haque is an admitted legal practitioner. His name did not appear in the most recent list of NSW solicitors available to me. I permitted Dr Azzi to appear for the applicant on the basis that either a notice of appearance would be filed by Mr Haque within seven days or Dr Azzi would inform my associate of the basis on which he appeared (which I assumed would have been on a direct brief from the applicant).
Dr Azzi telephoned my associate on 15 February 2005. He told her that Mr Haque is a legal practitioner but that, for the purposes of this case, Dr Azzi was taking instructions from Mr Haque in his capacity as a migration agent, not as a legal practitioner. I took this to mean that Mr Haque would not or could not comply with my order made on 14 February 2005 that he file a notice of appearance.
I was concerned about Dr Azzi’s response and enquired through the NSW Bar Association about Mr Haque’s status as a legal practitioner. On 17 February 2005 an officer of the Bar Association telephoned my associate and advised as follows:
Mr Haque was admitted on the NSW Roll of Solicitors on 28 May 2004 and received his fully restricted practicing certificated (B123) on the same day.
A fully restricted practicing certificate means that Mr Haque cannot:
·practice on his own;
·brief counsel, except as an employed solicitor;
·be a sole practitioner;
Mr Haque is only entitled to be an employed solicitor, but is not currently. He is not currently practising. Mr Haque was working for Dr Jyoti Bharati up until 17 September 2004.
Dr Bharati gave undertakings to the Legal Services Commissioner in 2003 and on 14 September 2004 which severely restricted his conduct of further migration litigation work[10]. Dr Bharati withdrew from almost all migration proceedings he was instructed in. His undertakings to the Legal Services Commissioner were given following the referral of complaints to the Legal Services Commission, including from this Court, of incompetence. Mr Haque left Dr Bharati’s employment three days after he gave final undertakings to the Legal Services Commissioner and two days after my judgment against Dr Bharati in SZBBF v Minister for Immigration [2004] FMCA 628. I am concerned that Mr Haque may have embarked upon a course of conduct to avoid the consequences of his former employer’s undertakings, and to circumvent the restrictions upon his practising certificate. I am unaware of any capacity for Mr Haque to instruct counsel in legal proceedings before this Court, except as a legal practitioner entitled to do so, or as a litigant in person[11].
[10] transcript: SZBBF v Minister for Immigration, 15 September 2004 at pp.34-35
[11] see s.44 of the Federal Magistrates Act 1999 (Cth).
These concerns lead me to the view that Dr Azzi may have been improperly briefed and that his appearance may have been irregular. The circumstances merit referral to the NSW Legal Services Commission for such action as it considers appropriate.
The evidence
I received the book of relevant documents (the court book) as evidence. Dr Azzi sought to tender a letter to him dated 13 February 2005 from Mr Haque enclosing what was represented to be the transcript of the hearing conducted by the RRT. On its face this could only be an extract from the hearing and the purported transcript was not verified in any way. I marked the document for identification but declined to accept it as evidence. However, I agreed to listen to the audio tape of the RRT hearing in order to verify for myself whether the purported transcript provided by Mr Haque is accurate. I gave the applicant 14 days to tender the audio tape of the hearing. This was done on 25 February 2005.
Upon listening to the audio tape it was obvious to me that the purported transcript could not be accepted as evidence of what occurred at the hearing. Although the purported transcript covered the whole period of the hearing during which the presiding member questioned the applicant, it provided only a rough approximation of what the applicant, through the interpreter, said. Statements attributed to the presiding member were hopelessly inaccurate. Important statements by the presiding member were either omitted altogether or misrepresented. It is appalling that Mr Haque provided the purported transcript to Dr Azzi for use in these legal proceedings without giving the respondent the opportunity to verify its accuracy. The purported transcript was incompetently prepared and should never have been sought to be tendered as evidence.
The only part of the tape that seemed to me to be significant was the discussion between the presiding member and the applicant about the possibility of verifying his claim to be an Ahmadi with the NSW Ahmadi Assocation. The following exchange occurred on that issue:
Presiding member: Do I have your permission to give details of your name, age, place of origin to the Ahmadiyya Association in New South Wales, in this state, for them to trace whether or not you are one of the members of the Ahmadiyya Muslim family?
Interpreter: I knew about, that there is a department like that, … I knew their address in my pocket … am looking after this there after but I lost my wallet and the address was there. But I knew that
Presiding member: So you’ve never actually approached them? You’ve never approached them?
Interpreter: Actually, I don’t know which suburb he is living in. I have only the name but I don’t have the telephone number and other address. I came from ship to sail. I don’t have another document to trace it.
Presiding member: This is your religion. This is your religious family. They have a mosque here in Sydney. You can find out. You can, there are ways to find out, to search for it, contact somebody. Do you have any Amidayya friends in Sydney?
Interpreter: Actually, the mosque is common for all. Only the gatherings are different. We have a mosque in eastern suburb. We also go there for prayer, there also, other places who are…
Presiding member: So did you ever meet any other Ahmadis at the mosque?
Interpreter: I know that some Ahmadi communities there. I tried my best to contact but I could not get in contact. There is about 150 countries that Ahmadiyya is running. I know that Ahmadiyya is in Australia but I didn’t found any of them yet.
Presiding member: Now my question was – I’ll give you some background to this. The Ahmadiyya Association in New South Wales has a very good tracing service. Now, if I give them your name, your full correct name, your date of birth and your place of birth and place of residence in Bangladesh they can verify whether you are on their records as a member of the Ahmadiyya community in Bangladesh. Okay, so that could be evidence to prove or disprove whether you are regarded by them as an Ahmadiyya. But I’m not allowed to ask them – I’m not allowed to give your details to them if you don’t want me to. So what’s your view about that?
Interpreter: If I come to know that address then I can contact with them and this will verify that I am in Australia …. of Ahmadiyya community or not.
Presiding member: So you’d rather not that I do it? You’d rather that I don’t – you’d prefer that I don’t contact them, you’d rather do it yourself at some stage? Is that right? I think you can actually be more direct with me about this. I don’t know what you’re saying now. Let me just go back to the beginning. When you apply for a protection visa in Australia, everything is confidential. We can’t talk about this case outside of this room. Your details are secret, we don’t share them with the embassy of your country, we don’t share them with anybody. We don’t share them with anyone, and the interpreter is sworn on, you know, danger of imprisonment not to discuss your case outside of this hearing. Okay, so everything is very secret because applicants in this Tribunal are afraid that if their personal details are revealed to somebody else there could be a problem. However, sometimes we can ask the applicant to allow us to use their identification details for a specific purpose and the applicant can authorise this or refuse, and it’s up to the applicant. It’s not up to the Tribunal.
Interpreter: Yes, sir, I understand this one but I don’t know. Can you please tell me which one, the first one reason I should do…
Presiding member: No, I’m not telling you what you should do. I will not tell you what you should do. I will not tell you, I will not advise you what to do. I am giving you this information and I suggest – no, just a moment – I’m suggesting what I can do but I will not make the decision for you. That would be an outrageous abuse of my power. So, it’s your decision and I will do what you want.
Interpreter: Sir, … so hard but the last time – that question, I did not…
Presiding member: I will repeat the question. Here it goes. If you permit me I will give your name, address in Bangladesh, your birthdate and your father’s name to the Ahmadiyya Association of New South Wales. Now, if I do that, I will ask them to check their records in Bangladesh and verify for me whether you are known to them as an Ahmadiyya Muslim. Now, usually their searches are quite reliable, or should I say we’ve never had reason to question them in the past. Okay, so if they say, yes, definitely, this man, Mr [applicant] is an Ahmadiyya Muslim, then that will be evidence helping your case. Or it might – I won’t say it will get you a protection visa but it might at least tell me you’re an Ahmadiyya Muslim. Whether Ahmadiyya Muslims in Bangladesh face a real chance of persecution is another question and I don’t see much evidence of that. Okay. But you’re also entitled to say to me, no, I would rather, Mr Tribunal, Mr Hardy, I would rather you don’t divulge my personal details to any party.
Interpreter: Yes, I will … you will check it with Ahmadiyya Association that I am actually – I belong to Ahmadiyaa community or not.
Presiding member: Now, if they don’t know you, do you understand that I wouldn’t call another hearing? If they don’t know you as a member of the Ahmadiyya Muslim Association, do you have any explanation as to why they might not have that information? Is there any reason why they might not know you?
Interpreter: Yes, sir, in that case I…
Presiding member: Yes, okay, what is it?
Interpreter: I was brought up in Shorishabari which is in …and I was studying there. When I was studying in grade eight, actually, involvement with the Ahmadiyya group and I start following them but if they check my address in Shorishabari they might not find me there because when I became an adult I come to Jamalpur.
My associate advised counsel by letter that I would receive that part of the tape as evidence and invited submissions on it within 14 days.
Submissions
Dr Azzi mounted a wide ranging attack upon the RRT decision that did not have any obvious link to the grounds of review advanced in the application. He made the following initial submissions:
1.At time of fleeing Bangladesh in 2000 the applicant had an objectively well-founded fear of persecution because of the incidents with the mosques around this time and the killing of six Ahmadiyas [sic] in October 1999 (see US Department 2001/02 report in court book, page 85).
2.At the same time, the applicant had a subjectively well-founded fear of persecution because of the beating at the bus stop in June 1999.
3.The RRT member erred in holding (court book, page 86) that “it would be very difficult to regard [the 1999 attacks on Ahmadi mosques] as part of anything sustained or systemic” when viewed in a wider light of historical “low-level harassment” against Ahmadis since 1987 (court book, page 124).
4.The RRT member also erred in concluding that the “authorities were effective in preventing most of the damage that was planned for October 1999” (court book page 86) when independent country information shows patently that the authorities have not always been effective – where, in one instance they took 10 hours to arrive at the scene of a bombing of a Catholic church.
5.In some circumstances, persecution will be manifested by a series of discriminatory acts directed at members of a religion in a way that shows that, as a class, they are being selectively or systematically harassed (see Germov & Motta Refugee Law in Australia, 2003, at p 202).
6.Therefore, the RRT member committed a jurisdictional error of law when concluding (court book, page 86) it is very difficult to regard the attacks of 1999 “as anything sustained or systemic”.
7.It is further submitted that the error committed in paragraph 5 above is precipitated by the RRT member taking into account irrelevant considerations. In this regard, the RRT member fell into jurisdictional error by failing to consider the merits of the applicant’s case on its own, instead, considering the “almost identical claims” (court book page 90) of another two applicants who were on the same ship as the applicant.
8.It is incongruous for the RRT member in the same sentence to say that “it is indeed an item of passing interest to the RRT” and in the same sentence to state that “it can be seen that [the] Tribunal considered the present applicant’s claims purely on their own merits” (court book, page 90).
9.It is further submitted that the RRT member’s conclusions on the lack of objectively well-founded fear of persecution was infected with unreasonable observations and conclusions where other independent country information as late as 14 October 2003 reports that “fundamentalists are trying to create more disturbances against Ahmadiyas” (see court book, page 115) and where it is widely perceived that “religious minorities are disadvantaged in practice” (see court book, page 86 – US State Department Report).
10.The RRT fell into error by narrowly focusing on whether the applicant was an Ahmadi and not whether he had a well-founded fear of persecution were he to be required to return to Bangladesh. It is submitted that this “focus was too narrow and itself betrayed jurisdictional error” (NADH of 2001 v Minister for Immigration [2004] FCAFC 328 at [139]).
11.The RRT fell into jurisdictional error and there was a real risk of prejudice to the applicant because of the reliance the RRT placed on the perception that there was an inconsistency in the applicant’s evidence and the failure of the RRT to afford the applicant the opportunity to comment (see WACO v Minister for Immigration (2003) 77 ALD 1 at [42]-[58] and NAEQ v Minister for Immigration [2003] FMCA 482 at [55].
12.In the above circumstances, the RRT fell into jurisdictional error for purposes of s.425 of the Migration Act 1958 (Cth) (“the Migration Act”).
Mr Reilly, for the Minister, was taken by surprise both by Dr Azzi’s appearance and his submissions. He was also taken by surprise by the attempted tender of the purported transcript. Mr Reilly had prepared written submissions on the basis that the Minister had no case to answer because the application gives no particulars of the asserted grounds of review. He also had submitted that the decision of the RRT was based upon an assessment of the applicant’s credibility and there was not basis to disturb the findings of credibility.
It emerged during argument that the presiding member had made no mention in his reasons for decision of a purported Ahmadi membership certificate and English translation appearing at pages 61 and 62 of the court book. In fact the presiding member stated in his reasons that the applicant lacked any certification of his claimed Ahmadiyya credentials[12]. I invited written submissions from counsel on what the Court should make of the apparent failure by the presiding member to deal with the certificate and English translation that he had before him. I noted that the same presiding member had dealt with a certificate in the same terms in another case that had been dealt with the presiding member the day following this decision of the RRT. The two decisions were related in that both applicants jumped ship from the Iranian vessel MV Iran Jamal on the night of 13 July 2001, made similar claims and engaged the same migration agent. According to the RRT, both applicants were for a time living together. I dealt with the other RRT decision in SZBDL v Minister for Immigration [2005] FMCA 58.
[12] court book, page 89
I received the following further written submissions from Dr Azzi and Mr Reilly on 25 February and 22 February respectively. Dr Azzi submits as follows:
1.It is submitted that the critical finding made by the RRT about the applicant being an “impostor” was not open to the RRT on the basis of material before it.
2.It was not on a proper basis that the RRT concluded that the applicant was not an Ahmadiyan given the certificate of membership on the Department’s file[13] and given the failure of the RRT to question the applicant as to its authenticity and/or to weigh its relevance to the applicant’s critical claim of persecution because of his religion.
[13] The certificate was forwarded to the delegate (see court book, page 60) after a delegate of the Department expressed concerns (in his decision dated 22 April 2002 rejecting the applicant’s PV A) about the applicant belonging to the Ahmadi faith on the grounds that the applicant did not have such a certificate (court book, page 55).
3.It is important to bear in mind that the description of the applicant as an “impostor” (court book, page 90) derives from the use of that term in the DFAT cable dated 22 June 1994 (court book, page 88) where it is explicitly stated that a person claiming to be a Ahmadi and travelling without a certificate of membership is to be treated “as an impostor”.
4.Therefore, it can be authoritatively inferred that the RRT member was aware of the existence of the certificate and its importance to the applicant’s case and yet did not make any comment about its authenticity nor give the applicant an opportunity to comment about the same (cf SZBDL v Minister for Immigration [2005] FMCA 58 at [10]).
5.Clearly, the certificate of membership was regarded by the DFAT as a material fact in establishing whether the applicant was an Ahmadi. The RRT member appreciated such importance placed on the certificate. Therefore the RRT was bound to consider or at least turn his mind to the certificate and/or its authenticity.
6.By not turning his mind to dismiss the certificate as either insignificant, insubstantial or inauthentic the RRT “will not have formed his satisfaction in accordance with law”: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 31 and 45.
7.Unlike the facts in SZBDL v Minister for Immigration [10 – Ground 3], the RRT in the present case did not investigate the authenticity or otherwise of the certificate of membership nor did it give the applicant an opportunity to comment on its authenticity.
8.it may be that the RRT is under a limited obligation to investigate the authenticity of documents in “exceptional or rare” cases (Azzi v Minister for Immigration (2002) 120 FCR 48 at [112]). However, before one gets to the issue of authenticity the RRT is first obliged at law to at least turn its mind to the issue of the certificate (Peko-Wallsend).
9.Equally, the RRT is under an “inviolable”[14] statutory obligation to comply with s.425(1) of the Migration Act, especially where the RRT makes an adverse decision against the applicant.
10.By not questioning the applicant about his membership certificate and finding adversely on the critical issue of his religion, the RRT failed to accord with s.425(1) by not inviting the applicant to “give evidence and present arguments relating to the issues arising in relation to the decision under review”.
11.In the light of the preceding circumstances, it is submitted that the “tribunal member was under an obligation either to put his concerns about possible inconsistency directly to the applicant in the hearing and give him an opportunity to comment or at least seek clarification of the applicant’s claims in this respect so that the applicant would be alerted to the prospect of an adverse conclusion on the critical issue based on inconsistency (albeit that it was not the sole issue)”: NAEQ v Minister for Immigration [2003] FMCA 482 at [55].
12.Consequently, there was a denial of procedural fairness in the conduct of the hearing. In the words of Barnes FM:
Whether such failure is viewed as a breach of the common law rules or of s.425 as the statutory expression of the content of the rules of procedural fairness (see Minister for Immigration v Al Shamry [2001] FCA 919 and Minister for Immigration v Awan [2003] FCAFC 140 per Gray ACJ at [12] – [14]) or as a failure to meet an obligation arising from a statutory pre-requisite to the functioning of the Tribunal (see Gray ACJ in Awan at [13]) in relation to s.360), I am satisfied that the failure by the Tribunal in this instance constitutes jurisdictional error in relation to which relief should be granted. (Plaintiff S157 and see NAAG v Minister for Immigration [2003] FCAFC 135 at [57]).[15]
13.Therefore, it is submitted that the RRT committed a jurisdictional error in not considering the certificate of membership and in not affording the applicant an opportunity to comment on its authenticity, thus rendering s.474 of the Act ineffective in protecting the RRT’s critical finding that the applicant was not Ahmadi. That is, there was no material to justify this finding.
[14] See Germov & Motta Refugee Law in Australia (Oxford UP, 2003) at p 794
[15] NAEQ AT [55].
Mr Reilly submits as follows:
1.These submissions are made in response to the Court’s letter of 14 February 2005.
2.No significance can be attached to the fact that in another decision considered by the Court in SZBDL v Minister for Immigration [2005] FMCA 58 the same RRT member considered and made findings concerning documents similar to those at court book, pages 60-64. It is well established that there is no principle of consistency binding the RRT: Ibrahim v Minister for Immigration (2000) 60 ALD 465 (FCA/Marshall J) at [19-21]; Soboleva vMinister for Immigration (2001) 113 FCR 353 (Moore J); Eloujenko vMinister for Immigration [2001] FCA 980 (Hely J) at [23-26], aff‘d [2001] FCA 1791. Any consideration of whether there is a jurisdictional error in this case must proceed on the basis of the material before the RRT in this case and its reasons in this case, not material or reasons in another case.
3.It is unclear why the RRT does not refer to the documents at court book, pages 60-64. The most likely explanation is that they were not considered relevant because the RRT was concerned with the applicant’s failure to contact or obtain certification from the local Australian Ahmadiyya community, and with other contradictions in the applicant’s evidence: court book, pages 88-89. Even if it be assumed that the RRT has overlooked the existence or significance of these documents when stating at court book, page 88.8 that the applicant had not obtained Ahmadi certification subsequent to his departure from Bangladesh, this does not demonstrate jurisdictional error. A single erroneous finding of fact cannot constitute jurisdictional error: NAAP vMinister for Immigration [2003] FCAFC 76 at [42]. The RRT overlooking (or misconstruing the significance of) evidence before it was held not to constitute a breach of procedural fairness or other jurisdictional error in Re Minister for Immigration;Ex parte Applicants S134/2002 (2003) 211 CLR 441: see in particular [10], [34].
In further written submissions filed on 8 March 2005 Dr Azzi submits that the transcript extract set out at paragraph 14 above shows that the applicant had authorised the RRT to check his Ahmadi credentials with the NSW Ahmadiyya Association and it was procedurally unfair for the RRT not to carry out that check: ApplicantNAFF of 2002 v Minister for Immigration [2004] HCA 62. Secondly, Dr Azzi submits that it was unfair and unreasonable for the RRT to treat the applicant’s response to the last question transcribed as an attempt to circumvent the issue: SZDWF v Minister for Immigration [2005] FMCA 56 at [34]-37 per Barnes FM.
In his final written submission filed on 10 March 2005 Mr Reilly submits that the transcribed exchange reproduced at paragraph 14 above does not constitute a definite statement that the RRT would contact the NSW Ahmadiyya Association and hence any failure to do so is irrelevant. Further, he submits that even if a contrary view is taken on that evidence, there was no practical unfairness: Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 at [36]-[38], [105]-[106], [112]-[114] and [149].
Reasoning
The conclusions reached by the RRT in its decision may be found on pages 89-91 of the court book. In relation to the applicant’s claim to be an Ahmadi the presiding member said:
The Applicant’s lack of certification of his claimed Ahmadiyya credentials goes against him. His claim that it would be difficult to obtain such certification due to his having changed his address in Bangladesh at some stage in the past is dismissed. It does not sit with the claim about having worked closely with prominent local figures in the Ahmadiyya community back home.
On his evidence, the Applicant did not satisfy the Tribunal that he joined the ship he joined in 2000 for the purpose of fleeing persecution for reasons of Ahmadiyya beliefs. His history since 1995 reads as a sequence of career choices and nothing more. The Applicant’s attempts to portray his history as one affected by religious persecution is dismissed as inconsistent and implausible.
The Applicant’s failure to have anything to do with the Ahmadiyya community in Australia goes against him.
Taking all these factors into account, the Tribunal concludes that the Applicant has no genuine desire to associate with the Ahmadiyya community. The Tribunal concludes that he is an impostor, not least in view of his unsatisfactorily explained inability to present accreditation from the Ahmadiyya community.
The Tribunal concludes that the Applicant is not an Ahmadiyya Muslim. For this reason, the his [sic] application must fail.
The presiding member went on to say that the decision was in no way dependent on the fact that the applicant and two others lodged almost identical claims on the same date through the same adviser after jumping the same ship on the same night. He said that:
That is indeed an item of passing interest to the fact-finder, but it can be seen that Tribunal [sic] considered the present Applicant’s claims purely on their own merits and in close detail, referring to independent country information. He damaged his own case through vagueness and inconsistency along [sic] a declared lack of involvement with the Ahmadiyya community in the country in which he has sought refuge.
Although the presiding member was in no doubt that the applicant is not an Ahmadi, he went on to consider the position of Ahmadiyya Muslims in Bangladesh. I regard this as surplusage. The presiding member did not need to consider what the position would be if he was wrong as he was in no doubt that the applicant was not an Ahmadi. The claims of the applicant were clearly dealt with on credibility grounds.
Central to the presiding member’s credibility finding was his finding of fact that the applicant was unable to produce any credentials showing that he was an Ahmadi. This was factually incorrect. Mr Haque had written to the case officer of the Minister’s Department on 28 April 2002 providing a certified copy of a letter from the Ahmedia Muslim Jamat and a certified copy of a letter from the same organisation in relation to the applicant’s membership. There is no evidence that these documents were not on the Department’s file considered by the RRT. It is unlikely that the presiding member regarded the documents as irrelevant, as suggested by Mr Reilly. Documents in identical terms were the subject of close scrutiny by the same presiding member the following day in the case I dealt with as SZBDL v Minister for Immigration [2005] FMCA 58. Secondly, in his reasons, the presiding member left no doubt about the importance of Ahmadiyya certification. He refers specifically to country information[16] about the importance of such certification:
All Ahmadis who travel abroad are obliged to carry a certificate [from] a mission in their country of origin. The [Ahmadiyya] spokesperson said we should treat as an impostor any Ahmadi refugee applicant who did not have such a certificate.
[16] court book, page 88
The finding by the presiding member that this applicant was an impostor was based substantially upon the presiding member’s finding that he had no such certificate. This was factually incorrect in that the applicant had presented a purported Bangladeshi certificate. It was not open to the presiding member to simply ignore it. In my view, he probably overlooked it. The existence or non existence of an Ahmadiyya certificate was so fundamental to the credibility finding that the factual finding that there was no certificate assumed the status of a jurisdictional fact. The presiding member could not have achieved the level of satisfaction required by s.65 of the Migration Act without considering the purported Bangladeshi Ahmadiyya certificate. He was in error in finding that no such certificate had been presented. The error on that finding was a jurisdictional error: Minister for Immigration v Eshetu (1999) 197 CLR 611 at [130].
Even if I were wrong in that conclusion the RRT proceeding was unfair. The adverse credibility views formed by the presiding member were formed substantially because of his view that the applicant did not come to Australia with an Ahmadiyya certification and did not try to get any while in Australia. On page 88 of the court book the presiding member said:
The Applicant presented no compelling reason for having failed to travel with or subsequently obtain any such certification. When the Tribunal asked him whether it might enquire with the local Ahmadiyya association as to whether it considered him a genuine Ahmadiyya Muslim, he appeared to head-off the whole exercise: he advised that the association would have difficulty certifying his membership because he changed his address in Bangladesh. This struck the Tribunal as an incongruous position on the Applicant’s part. He had already claimed he was well-known to the community in Bangladesh due to his leadership role there, so with all this in mind he should have plenty of ways of helping the community in Australia to authenticate his claims about membership. However, he had never tried and now he was saying he would not be known to them because they would only know him by his old address. This struck the Tribunal as a position on which a real local leader of the Ahmadiyya community would not conceivably rely.
More than two months have elapsed since the hearing. There has been time for the Applicant to consider his position and the issues that arose in the hearing. He has given no indication of any interest in engaging the local Ahmadiyya community in authenticating or denying his involvement with their religion and its adherents in Bangladesh. This strikes the Tribunal as further evidence of the Applicant’s lack of involvement with the Ahmadiyya community and its religion.
The exchange between the presiding member and the applicant set out in paragraph 14 above shows that the presiding member was concerned to put beyond doubt the question of who would be responsible for checking the applicant’s credentials with the NSW Ahmadiyya Association. After showing some uncertainty and confusion, the applicant finally consented to the RRT undertaking that check. The presiding member had given a clear indication to the applicant that, with his consent, the check would be undertaken by the RRT, not by the applicant. It was most unfair for the presiding member to draw an adverse credibility view from the failure by the applicant to undertake a check that the presiding member had agreed to undertake himself. The presiding member seems to have taken the view that it would be pointless to make the inquiry following the applicant’s answer to the final question transcribed at paragraph 14 above. However, the applicant was simply answering the question put to him. The answer did not relieve the RRT of the obligation it had undertaken.
I find that no inquiry was made by the RRT. This is a matter in which an inference can be properly drawn from the reasons for the RRT decision that no inquiry was made by the RRT. If an inquiry had been made the result of the inquiry would, I am sure, have been referred to in the reasons of the presiding member. In NAFF the High Court unanimously held that such a failure constitutes a breach of the RRT’s statutory duty under s.425 of the Migration Act. The duty is one to consider arguments presented and if, as in this case, it is thought those arguments had been inadequately presented to the extent that its review could not be concluded until further steps had taken place, then the proceedings could not be peremptorily concluded by the making of the decision before those steps had been taken. The result would, in my view, be the same under the general law obligations on the RRT to provide a fair hearing.
I reject Mr Reilly’s submission that there was no practical injustice in this case. The applicant was misled by the presiding member. The presiding member extracted from him agreement for the RRT to make an inquiry of the NSW Ahmadiyya Association on his behalf. The RRT then used the applicant’s failure to make an inquiry against him, in the absence of any inquiry having been made by the RRT. While the presiding member had a range of credibility concerns about the applicant’s claims, it is unlikely that they would have been determinative in the face of a reliable Ahmadiyya certification. Also, while the presiding member doubted that Ahmadis suffer persecution in Bangladesh in any event, another presiding member may take a different view. The applicant was deprived of the opportunity of having his Ahmadi credentials verified by the NSW Ahmadiyya Association. The opportunity lost was a real one.
I find that the RRT breached s.425 of the Migration Act and the general law by failing to make an inquiry of the NSW Ahmadiyya Association about whether the applicant was an Ahmadi. The obligation arose because the RRT made clear to the applicant that the inquiry was a matter of critical significance and required of the applicant a decision as to whether he or the RRT should make that inquiry. Having obtained from the applicant his agreement for the RRT to make the inquiry, the RRT could not then conclude its review without making the inquiry. The breach of s.425 of the Migration Act constitutes a jurisdictional error which vitiates the decision of the RRT.
I see no legal merit in the remaining grounds advanced by or on behalf of the applicant, and I reject them.
I will provide relief in the form of orders for writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 31 March 2005
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