SZBQS v Minister for Immigration
[2007] FMCA 930
•22 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBQS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 930 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Bangladesh claiming fear of persecution on account of religious belief – credibility – whether the Tribunal failed to consider a claim made by the applicant – where applicant claimed to have been persecuted because he was perceived to be an Ahmadi. |
| Migration Act 1958 (Cth), s.474 |
| Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 referred to Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2003) 168 ALR 407 referred to McPhee v S. Bennett Ltd (1935) 52 NSW (WN) 8 referred to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to Ministerfor Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 referred to |
| Applicant: | SZBQS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2091 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 November 2006 |
| Date of Last Submission: | 22 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.R. Young |
| Counsel for the Respondents: | Ms V. McWilliam |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
That there be an order in the nature of certiorari quashing the decision of the second respondent signed on 22 June 2006 and handed down on 4 July 2006.
That there be an order in the nature of mandamus required the second respondent to redetermine the applicant’s application for a protection (Class XA) visa according to law.
That the first respondent is to pay the applicant’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2091 of 2006
| SZBQS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 22nd June 2006 and handed down on 4th July 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection (Class XA) visa.
The applicant seeks orders in the nature of certiorari, quashing the Tribunal decision, and mandamus, requiring the Tribunal to determine his application for review according to law.
Background
The applicant is a citizen of Bangladesh who arrived in Australia on 13th April 2000. He applied for a protection (Class XA) visa on
24th May 2000, claiming to be a member of the Kadiani sect adhering to the Ahmadi beliefs. His application for a visa was refused on
25th August 2000.
Application for Review by the Refugee Review Tribunal
The applicant applied to the Refugee Review Tribunal for a review of that decision on 25th September 2000. His migration adviser made a written submission to the Tribunal on 28th October 2002. The Tribunal affirmed the delegate’s decision on 4th November 2002.
On 29th April 2003 in the Federal Court, Jacobson J set aside the Tribunal decision and remitted the application to the Refugee Review Tribunal for determination according to law. The Tribunal reconsidered the application and on 26th August 2003 affirmed the delegate’s decision. The applicant again sought judicial review of the Tribunal decision and on 22nd March 2006 the Federal Court, on appeal from the Federal Magistrates Court, set aside the Tribunal decision and remitted the application to the Tribunal for determination according to law.
The Refugee Review Tribunal wrote to the applicant on 19th April 2006, inviting him to attend a hearing on 22nd June. The applicant attended the hearing and gave evidence with the assistance of an interpreter in the Bengali language.
A copy of the Tribunal decision record can be found at pages 148 to 165 of the Court Book. The Tribunal’s findings and reasons are set out on pages 161 to 164. The Tribunal was not satisfied that the applicant had been truthful with the Tribunal with regard to be of the Ahmadi faith.[1] The Tribunal set out the reasons why the Tribunal member considered that the applicant was not being truthful:
The applicant – who claims to be a practicing Ahmadi from birth – had minimal knowledge of Ahmadi faith, practices and general history (and his explanation of their beliefs simplistic in the extreme).[2]
[1] See Court Book at page 162.
[2] Ibid
The Tribunal noted that:
The applicant was unequivocal at hearing about the fact that he only feared harm in Bangladesh because of his religion.[3]
[3] Court book at 164
The Tribunal was not satisfied, because of its “grave adverse credibility findings”, that the applicant was actually an Ahmadi and was therefore not satisfied that the incidents which the applicant claimed caused him to fear persecution ever occurred. Accordingly, it was not satisfied that he had a well founded fear of persecution for reasons of his religion or any other Convention reason and affirmed the delegate’s decision not to grant the applicant a protection visa.
Application for judicial review
The application commenced proceedings on 31st July 2006. Counsel for the applicant, Mr Young, described the Tribunal’s conclusion that it was not satisfied that the applicant was an Ahmadi as a “finding based on a quiz” conducted by the Tribunal.
Mr Young submitted that the Tribunal did not carry out its jurisdictional task to review the decision and consider the applicant’s claims and evidence. He raised the possibility that a person who was persecuted for his or her religion might have a simplistic understanding or a less than perfect knowledge of it. He went on to submit that the answers to the Tribunal’s test could not exhaust the Tribunal’s jurisdictional task.
Counsel for the applicant submitted that it is one thing for a Tribunal to apply a “litmus test” to assist it in assessing the applicant’s claims but it is quite another thing to treat a test on a quiz as determinative and final on the issue of credibility. The Tribunal did not accept the applicant’s claim that three key incidents, in 1998, 1999 and 2000, had ever occurred. Counsel for the applicant submitted that the Tribunal did not accept the applicant’s claims about those three incidents because, in the Tribunal’s view, the applicant had failed the religious knowledge test.
Mr Young went on to submit that the Tribunal was obliged to consider the totality of the evidence before it. The applicant’s claims bore rationally on the question of whether he had been persecuted as an Ahmadi. The Tribunal, he submitted, had simply “sidestepped its jurisdictional task”. If the Tribunal’s approach were permissible, the Tribunal could utilise a single question which, if not answered correctly, would result in the Tribunal not being satisfied that the person was an adherent of a particular sect or religion, or hold a particular opinion, or was a member of a particular social group.
Mr Young submitted that before the Refugee Review Tribunal could be satisfied that there was not a real chance that the applicant would be persecuted as an Ahmadi, it had to give consideration to his claims in that regard.
For the first respondent, the Minister, Ms McWilliam summarised the applicant’s claim as raising three grounds:
a)that the Tribunal failed to consider the claim that the applicant had been persecuted because he was perceived to be Ahmadi;
b)that the Tribunal failed to consider that the applicant was an adherent of the Ahmadi faith and was perceived to be an Ahmadi; and
c)that the Tribunal did not consider the possibility that it was wrong in determining that the applicant was not an Ahmadi.
Ms McWilliam submitted that the applicant’s first and second grounds were directed towards a claim that was different from the claim made before the Tribunal. She further submitted that this claim was not raised on the evidence and there is no obligation on the Tribunal to search out and find any available basis for relief (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [78] per Kirby J). It is not for the Tribunal to make out the applicant’s case for him.
Ms McWilliam went on to submit that even if a claim of imputed religious belief was raised on the evidence the Tribunal had made grave adverse credibility findings against the applicant. Credibility findings are matters of fact for the Tribunal alone and should not be disturbed by the Court (see Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]). Where the Tribunal found the applicant to have fabricated his claims, it was immaterial whether the harm that he claimed that he suffered was because of an actual or an imputed religious belief. It was open to the Tribunal not to accept the applicant’s claims (see McPhee v S. Bennett Ltd (1935) 52 NSW (WN) 8, approved by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355).
In respect of the applicant’s third ground, at least as McWilliam described it, it was submitted that there is no obligation on the Tribunal to consider the possibility that its findings were wrong if it has no real doubt that the harm claimed by the applicant had not occurred (see Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [67], [129] and [140].
Counsel for the Minister submitted that, because of the Tribunal’s grave credibility findings there was no real doubt about the Tribunal’s finding that the harm claimed by the applicant had not occurred.
Conclusions
In my view, the applicant’s claim that he was perceived by others to be an Ahmadi does emerge from the material before the Tribunal.
The applicant claimed not only to be an Ahmadi but that he was so perceived. The Tribunal referred to a statement made by the applicant on 22nd May 2000:
I came from a Kadiani sect of Islam, adhering to the faith and practice of Ahmedi family, which is a very controversial and volatile group of Muslims. In our local group there was no other Kadiani family. As such, the other Muslim families have antagonistic attitude and oppressive outlook against our family members. So we are subjected to the oppression from the mainstream Muslim people belonging to the Sunni sect.[4]
[4] See Court Book at 151
I am satisfied that the claim made in the above statement is not only a claim that the applicant is an Ahmadi but that he was perceived to be an Ahmadi and suffered persecution because of that perception.
The finding by the Tribunal that the “applicant was unequivocal at hearing about the fact that he only feared harm in Bangladesh because of his religion”[5] does not affect the fact that the applicant claimed a fear of persecution because he was perceived to be an Ahmadi, because this perception could occur whether the applicant was an Ahmadi or not.
[5] Court Book at 164
The nature of the interrogation carried out by the Tribunal, the “quiz” as Mr Young described it, does not mean that the Tribunal necessarily failed to assess the applicant’s claim that he was an Ahmadi. It is up to the Tribunal to assess the evidence when making findings on matters of fact. I am not satisfied that the Tribunal’s questioning the applicant about the tenets of his faith led it into jurisdictional error in assessing the applicant’s claim to be an Ahmadi.
In my view, however, Mr Young is on firmer ground when he submits that the Tribunal failed to consider the totality of the evidence before it in assessing the applicant’s claim that he had been persecuted as an Ahmadi, whether the applicant was an Ahmadi or not.
Whilst I am not satisfied that the Tribunal fell into jurisdictional error when it made a credibility finding about the applicant’s claim to be an Ahmadi, it appears that the Tribunal did not consider the applicant’s claim to have been persecuted because he was perceived to be one.
The Tribunal appears not to have addressed this question at all. In this regard, I am satisfied that the Tribunal failed to consider a claim made by the applicant and therefore fell into jurisdictional error.
I propose to grant the application and make orders in the nature of certiorari and mandamus. I note that the applicant was represented by counsel and I will hear submissions on costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 15 June 2007
0
4
1