SZCYH v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 310

FEDERAL COURT OF AUSTRALIA

SZCYH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 310

SZCYH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD1668 OF 2004

EMMETT J
4 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1668 OF 2004

BETWEEN:	SZCYH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	4 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed;

2.        The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1668 OF 2004

BETWEEN:	SZCYH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE:	4 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a national of Bangladesh, who arrived in Australia on 8 September 1998.  On 21 October 1998, he lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 26 November 1998, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 8 December 1998, the appellant sought review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 16 March 2000, the Tribunal affirmed the decision not to grant a protection visa.

2. It appears that in September 2000, the appellant became a party to a proceeding in the High Court of Australia generally referred to as the Lie class action.  On 18 June 2003, the appellant filed an application for orders nisi in the High Court which were remitted to this Court.  On 20 February 2004, I declined to make an order nisi, on the basis that no arguable case was demonstrated on the material disclosed in support of the application to the High Court. 

3. The appellant subsequently commenced a proceeding in the Federal Magistrates Court on 11 March 2004.  An amended application and a further amended application were filed in that proceeding.  The further amended application was dealt with by Scarlett FM on 8 November 2004.  On that day his Honour ordered that the application be dismissed with costs.  On 12 November 2004, the applicant filed a notice of appeal to this Court.  The Chief Justice has directed that the appeal be dealt with by a single judge. 

4. On 13 January 2005, an amended notice of appeal was filed.  The document is partly illegible.  I am informed by counsel for the Minister that the amended notice of appeal reproduces in part the amended application before the Federal Magistrates Court.  It does not purport to specify grounds of appeal from the decision of the Federal Magistrates Court. 

5. In the notice of appeal that had been filed on 12 November 2004 the grounds stated were:

   ‘1. The Honourable single judge failed to find error of law, jurisdictional error and procedural unfairness and relief under section 39B of the Judiciary Act 1903.

   2.        The Honourable single judge did not take into account that the applicant have (sic) well founded fear of persecution on convention reasons.’

6. Submissions have been made on behalf of the Minister that, in essence, the issue before this Court is that the Federal Magistrates Court erred in the way in which it dealt with the grounds disclosed in the further amended application. The further amended application purports to claim relief under s 39B of the Judiciary Act 1903 (Cth). However, the only respondent is the Minister.

7. No relief is sought against the Minister as an officer of the Commonwealth as such, although the further amended application purports to claim a writ of prohibition against the Minister from acting upon or giving effect to the decision of the Tribunal. I would assume that that was intended to claim an injunction restraining the Minister from taking particular action. Since the relief claimed purports to be under s 39B, the principal relief, of quashing a decision of the Tribunal, would not be open in the absence of the Tribunal as a party. That is a deficiency that could be easily remedied if there is any substance in the claim for relief.

   THE OPERATION OF S474 OF THE ACT

8. The decision of the Tribunal was given on 16 March 2000, prior to the commencement of s 474 of the Act. Consequently, s 474 of the Act, in its current form, has no application to the decision. While the decision of the Tribunal was made before the commencement of s 474, at the commencement of s 474, the proceedings to which I have referred involving the class action in the Lie claim were on foot. Accordingly, s 474 would not preclude an application for judicial review pursuant to s 39B of the Judiciary Act.

9. However, it would have been open to the appellant to have that decision reviewed under Part 8 of the Act as it then stood. Such an application for review would have been necessarily brought within the time limited by Part 8. That no such application was made might be the reason why, as a matter of discretion, the court would refuse constitutional relief in respect of the decision.

   THE APPLICANT’S CLAIMS AND THE TRIBUNAL’S DECISION

10. The appellant attended a hearing before the Tribunal on 31 January 2000, which was conducted with the assistance of an interpreter.  Although the appellant was represented by an adviser, the adviser did not attend the hearing.

11. The appellant claimed to be a devout and proselytising Ahmadi Muslim.  He claimed fear of persecution in predominantly Sunni Bangladesh on the ground of his religious beliefs.  The Tribunal referred, in its reasons, to certain independent country information concerning Bangladesh.  In particular, it referred to a publication of the United States Department of State concerning Bangladesh, which makes no reference to Ahmadis.  That publication was issued in February 1999 under the heading, ‘COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1998’.

12. The Tribunal cited a cable from the Department of Foreign Affairs and Trade, which the Tribunal considered supported the observation that there is low level harassment of Ahmadis in Bangladesh.  The Tribunal also referred to independent reports provided to the Tribunal by the appellant concerning an incident in October 1999, when a mosque was attacked in Bangladesh.  The appellant claimed that the mosque was occupied by Ahmadi Muslims, and that the attack was evidence of anti-Ahmadi campaigns in Bangladesh.

13. The Tribunal observed that the reports themselves state that the attack may have been the result of an escalation between rival Ahmadi groups.  The Tribunal observed in its reasons that it had put to the appellant, in the course of the hearing, that the violence he described had occurred away from Dacca, where, the appellant told the Tribunal, he used to live.  The Tribunal did not find the appellant’s response to be persuasive.  The appellant responded that no-one would dare publish reports of attacks against Ahmadis in Dacca. 

14. The Tribunal observed that the appellant claimed to have gone to Saudi Arabia in 1997 in order to escape harassment from Sunni Moslems.  The Tribunal suggested to the appellant that, since Saudi Arabia is almost exclusively Sunni Moslem, his real reason for going to Saudi Arabia was to work.  The appellant then changed his claim, saying that he did go there to work when he became threatened in Bangladesh.  The Tribunal considered that the appellant’s claim about seeking religious asylum in Saudi Arabia was difficult to accept, given that Saudi Arabia is predominantly Sunni. 

15. The Tribunal did not find the appellant to be very coherent or articulate in relation to the teachings and tenets that distinguish Ahmadis from other Moslems.  The Tribunal found that surprising, given the appellant’s claim about being an active Ahmadi preacher in Bangladesh.  The Tribunal observed that the appellant had made no contact with Ahmadi organisations in the year and a half that he had been in Australia.  The Tribunal did not regard the appellant’s response, that he was seeking employment, to be a persuasive explanation for such lack of contact. 

16. The appellant also claimed that he had been the victim of false charges laid against him in January 1997.  He claimed that he last left Bangladesh illegally, somehow managing to escape.  The Tribunal observed that the appellant had remained in Bangladesh a further four months before going to Saudi Arabia and was not apprehended upon his return.  The Tribunal also observed that the appellant’s passport names him correctly, and identifies his own father’s name, indicating that he departed Bangladesh legally. 

17. The Tribunal found that the appellant had made a number of serious claims that were false.  It found that he did not leave Bangladesh illegally but had, in fact, twice departed legally.  The fact that he was motivated by a desire to earn money in Saudi Arabia led the Tribunal to the conclusion that his evidence about false charges was itself false. The Tribunal did not consider that the other evidence indicated a real chance that the appellant would be persecuted for reasons of perceived Ahmadi beliefs.

18. The Tribunal observed that the appellant displayed a lack of knowledge of the contents of documents submitted on his behalf by his adviser.  When asked why he was so unfamiliar with those documents, he said his agent had told him not to worry about it.  The Tribunal considered that the appellant's attitude to the documents was cavalier and concluded that that attitude formed a pattern that demonstrated a lack of interest in Ahmadi affairs.

19. The appellant left the Tribunal with the conclusion that he is probably not even an Ahmadi.  The Tribunal nevertheless considered what it would conclude, were it wrong about that question.  Although the Tribunal accepted that, with the exception of isolated episodes, there is low-level discrimination against Ahmadis in Bangladesh, it was not satisfied that the climate in Bangladesh was indicative of future persecution of the appellant.  The Tribunal found that the appellant was an unimpressive and unreliable witness, and was not satisfied that he would face a real chance of persecution in Bangladesh if he were to return.

    THE APPLICANT’S CLAIMS IN THE FEDERAL MAGISTRATES COURT

20. The further amended application filed in the Federal Magistrates Court raises three grounds as giving rise to jurisdictional error, as follows:

    1.The Tribunal’s finding that exceptions to low-level discrimination against Ahmadis in Bangladesh are isolated episodes was made without having regard to relevant material and without evidence. 

    2.The Tribunal failed to carry out its review function and to exercise its jurisdiction in not making any conclusive findings or alternatively accepting any of the appellant’s claims to be an Ahmadi.

    3.The Tribunal failed to carry out its review function and to exercise its jurisdiction in not taking into account certain relevant considerations or integers central to the appellant’s claims for religious persecution.

21. The appellant filed a written submission in support of the appeal.  Counsel for the Minister informs me that that submission is a regurgitation of the written submission filed on behalf of the appellant by counsel in the Federal Magistrates Court.  The appellant also made some oral submissions in the course of the hearing of the appeal. 

22. The appellant said that he was not sure what the Tribunal required, because he did not understand English and he could not tell them everything in English. That is not a complaint made before the Federal Magistrates Court in the further amended application, at a time when the appellant was represented by counsel. Apart from that oral submission, the appellant reiterated that he had come to Australia to live a peaceful life and that he would be killed if he went back to Bangladesh. It is apparent, unfortunately, that the appellant does not really comprehend the very limited nature of the power of this court, or of the Federal Magistrates Court, to interfere with a decision of the Tribunal having regard to the provisions of s 474 of the Act.

23. The Federal Magistrates Court addressed the grounds raised in the written submissions before it.  I shall deal briefly with each of the three grounds.

    DISCRIMINATION AGAINST AHMADIS

24. The particulars furnished in the further amended application are as follows:

    ‘(a)The Tribunal did not have regard to country information concerning the October 1999 bombing.’

    It is apparent from what I have already said concerning the Tribunal’s reasons that the Tribunal did have regard to that material.

    ‘(b)The Tribunal did not have regard to country materials submitted by the appellant in the course of the hearing concerning threats made by the President of a conference in Dacca that, until the Ahmadis are declared as non-Muslims this revolution will not stop.’

25. It appears that the appellant produced to the Tribunal, in the course of the hearing, newspaper reports in Bengali.  The Tribunal invited the appellant to read to it the parts of the reports upon which he wished to rely.  The transcript of the hearing before the Federal Magistrates Court refers briefly to the translation of the reports by the appellant.  The Tribunal said that it would take into account what was said by the appellant in translating the report.  There is no obligation on the Tribunal to refer to every piece of evidence before it in giving its reasons for a decision.  There is no reason to conclude that the Tribunal did not have regard to the report.

    ‘(c)The Tribunal relied on an outdated 1994 country information and on the lack of any mention of Ahmadi’s in the United States Department of States Country Report for 1998.’

26. The weight to be given by the Tribunal to the evidence before it is a matter entirely for the Tribunal.  There is no jurisdictional error in giving weight to particular material and not giving weight to other material.  The Federal Magistrates Court made no error in rejecting the first ground. 

    THE COMMENT BY THE TRIBUNAL THAT THE APPELLANT LEFT THE TRIBUNAL WITH THE CONCLUSION THAT HE IS PROBABLY NOT EVEN AN AHMADI AT ALL

27. The appellant contended that the Tribunal had discontinued its review of the appellant's claim to be an Ahmadi without making a determination.  The Federal Magistrates Court considered that the Tribunal had in fact made a finding, although it was couched in somewhat unfortunate language. 

28. The Tribunal observed in unequivocal terms that it found the appellant an unimpressive and unreliable witness.  It is a fair reading of the Tribunal’s reasons that it was reaching a conclusion, on the balance of probabilities, that the appellant was not an Ahmadi, having regard to his inability to give a coherent and articulate indication of the teachings and tenets that distinguish Ahmadis from other Muslims.  I am not persuaded that the Federal Magistrates Court made any error in relation to the contention that the Tribunal did not make a proper finding as to whether or not the appellant was an Ahmadi. 

29. The Federal Magistrates Court went on to observe that the Tribunal had, in any event, considered the consequences of that conclusion being erroneous.  That of itself indicates that the Tribunal was treating the observation that the appellant was not an Ahmadi as a conclusion.  Ultimately, the Tribunal found that, while there was low level discrimination against Ahmadis in Bangladesh, that was not sufficient to give rise to a well founded fear of persecution if the appellant were to return.

    FAILING TO TAKE ACCOUNT OF RELEVANT INTEGERS

30. The alleged third ground was particularised as follows:

    (a)the Tribunal did not consider separately the appellant’s claims as a convert from Sunni Islam;

    (b)the Tribunal overlooked claims in relation to the following:

    (i)The appellant’s family being forced to declare him as evil in front of the Mosque.

    (ii)Death threats from both Sunni and Shi’a religious activists.

    (iii)Assaults on the appellant's family members.

    (iv)Searches made for the appellant by police and Sunni religious activists.

    (v)The appellant’s fear of facing either a death sentence or life imprisonment.

31. Nothing was said in support of those particulars in the written submissions filed by the appellant.  However, the primary judge dealt with those matters at some length in his Honour’s reasons.  His Honour concluded that the Tribunal’s finding that the appellant was an unimpressive and unreliable witness, and was probably not an Ahmadi, was an answer to those claims. 

32. Logically, it must follow that, if the Tribunal was not satisfied that the appellant was an Ahmadi, then the political incident that was said to give rise to persecution on the ground that he was an Ahmadi could not lead anywhere.

33. I am not persuaded that there was any error in relation to this ground on the part of the Federal Magistrates Court. 

    CONCLUSION

34. It follows that, even if the notice of appeal were treated as raising the grounds of the further amended application on the basis I have indicated, and even if the Tribunal were joined as a party, there was no error on the part of the Federal Magistrates Court.  His Honour was correct in dismissing the application for what appears to have been constitutional relief in respect of the decision of the Tribunal.  I do not consider that there was any jurisdictional error on the part of the Tribunal. It follows that the application should be dismissed with costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             7 April 2005

The Applicant appeared in person
Counsel for the Respondent:	Mr Christos Mantziaris
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	4 March 2005
Date of Judgment:	4 March 2005