SZDMF v Minister for Immigration
[2004] FMCA 919
•22 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDMF v MINISTER FOR IMMIGRATION | [2004] FMCA 919 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91R, 424, 477(1A)
Judiciary Act 1903 (Cth), s.39B
Migration Legislation Amendment (Judicial Review) Act 2001 Schedule 1, Part 2 Item 8
SZAWW & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
| Applicant: | SZDMF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1317 of 2004 |
| Delivered on: | 22 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 25 November 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the assistance of a Bengali interpreter and a friend.
| Counsel for the Respondent: | Mr D Jordan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1317 of 2004
| SZDMF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 September 1994, affirming a decision of a delegate of the respondent (“the delegate”) made on 4 September 1997 to refuse to grant the applicant a protection (866) visa.
Background
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 9 July 1997. On 21 August 1997 he lodged an application for a protection (866) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 4 September 1997 the delegate refused to grant a protection visa and on 10 September 1997 the applicant sought a review of the decision.
The applicant claimed he was born in 1966 in Sylhet, Bangladesh. He is an Ahmadi Muslim, was educated from 1978 to December 1992, and spent the last four years at the Madrasa School in Dhamrai, Dhaka. The applicant married in 1989, obtained a trade certificate in cooking in 1997 and worked as a cook from February 1993 to June 1997. He speaks, reads and writes Bengali and reads English. The applicant left Bangladesh legally and without difficulty in July 1997, on a passport issued to him in his own name. He stated he was a “Razakas’s son (collaborator for Pakistan)”, and that he had been to India and Bhutan in January 1996 to take shelter as a refugee. The applicant made no other claims in his written submissions to the Department (Court Book p.68) (“CB”).
In a subsequent application lodged four days after the original document, he claimed his father migrated from Pakistan in 1970, was a school teacher and collaborated with the Pakistani Army. The applicant claimed his father remained in Bangladesh after the Pakistani Army departed and was subsequently tortured by the Bangladesh Freedom Fighters. As a result of his torture, the applicant claimed his father died a year later. The applicant’s mother died soon after and he was raised by a maternal uncle. He claimed he was hated and teased at school because his father was a collaborator. The applicant claimed he studied until HSC and was a leader of the student front leftist political organisation. He claimed he was neglected by the Awami League government and belonged to an Ahmadi sect and stated that he was considered by some to be a non Muslim. There were false allegations against him and the Awami League searched his uncle’s house (CB p.68).
On 21 June 1997 the applicant submitted a statutory declaration through his solicitor which gave much more detailed information than previously supplied. This repeated the applicant’s original information in much greater detail and contained considerably more factual details (CB pp.45-56).
The Tribunal’s findings and reasons
The Tribunal found that the applicant was not a credible witness. The Tribunal found that he had significantly exaggerated or fabricated aspects of his history in the hope of advancing his claims, particularly in relation to his political activities and his claimed attacks associated with those political activities (CB p.78).
The Tribunal accepted that the applicant was taunted and bullied as a child because of his father’s collaboration with the Pakistani Army during the 1971 war. However, the Tribunal did not accept that nearly thirty years later, the actions of the applicant’s father would have any result which would have a significant seriousness to constitute persecution for the purposes of the Convention (CB pp.75-76).
The Tribunal accepted that the applicant was an Ahmadi Muslim and that, as such, he had been called names. However, the Tribunal did not accept that this was of significant seriousness to constitute persecution within the meaning of the Convention. The Tribunal noted that the applicant had received secondary education and had been able to work, and it referred to country information indicating that members of the Ahmadi sect were successful in business and the professions. The Tribunal noted that the Bangladeshi Government does act when required to protect members of the Ahmadi sect. Further it noted that the country information referred to only one incident affecting Ahmadi Muslims which had occurred several years earlier in October 1993 (CB p.75).
The Tribunal did not believe the applicant’s claim concerning his political activities. This finding was based on the applicant’s evidence at the hearing when asked to provide details of the political organisation to which he claimed membership. In particular, the applicant’s evidence that the Jatiya Samajtantric Dal (JSD) was one of the two main opposition parties in Bangladesh was contradicted by country information (CB pp.76-78).
The Tribunal also considered that the applicant’s claim that he had written poems and articles with political themes and that he had been involved in a protest criticising the Awami League government for reneging on a promise to provide gas to his locality. In the light of its rejection of the applicant’s primary claim in relation to political activities, the Tribunal did not accept that these ancillary claims would result in any ongoing consequence for the applicant.
Application for review of the Tribunal’s decision
On 6 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903. On 13 August 2004 the applicant attended a directions hearing and consented to Short Minutes of Order requiring him to file and serve an amended application setting out the grounds relied upon with any affidavit material to be relied upon on or before 13 September 2004. On 13 September 2004 the applicant filed an amended application setting out the following grounds:
1.The Tribunal erred in law in determining whether the harm I suffered as a member of Ahmedi sect in Bangladesh amounted to persecution within the meaning of the Convention.
2.The Tribunal failed to determine whether I would be sufficient protection from the Court System in Bangladesh at the event if such suffering intolerable in future. This constituted a jurisdictional error and a breach of procedural fairness.
3.The Tribunal failed to assess whether the harm and mistreatment suffered by the Ahmedi sects can intensify in future.
4.The Tribunal failed to assess whether the harm I suffered constituted a well-founded fear of persecution.
5.The Tribunal erred in law in determining that Ahmedi sect had its own district in Dhaka. There is no such district in realty. There was nothing before the Tribunal to suggest this conclusion.
6.The Tribunal erred in law in determining the harm I suffered did fall with in the meaning of United Nations Conventions and Protocols for Refugees. (errors in original)
At the hearing the applicant indicated that he wished to file a further amended application together with supporting affidavits. Counsel for the respondent raised no objection on the ground that he reserve the right to make further written submissions after the hearing if new material arose from the further amended application and the affidavits which he was not in a position to meet during the hearing. Counsel for the respondent also indicated that if the affidavits were to be admitted into evidence there were a number of issues of relevance that he wished to raise as objections. I will refer to that below at paragraph 16.
The grounds in the further amended application were as follows:
1.The Tribunal failed to invite the applicant to contest with the independent country information it used to determine the claims in relation to minority situation in Bangladesh. Thus s424 of the Act was breached.
2.The Tribunal failed to disclose country information in relation to document fraud and thus s424 of the Act was breached.
3.Considering country information related to document fraud was not relevant to the applicant and thus the Tribunal breached procedural fairness.
4.The Tribunal failed to assess whether the problems this applicants faced in his overall activities was related to his membership of the Ahmadi sect and thus an assessment of systematic persecution was overlooked.
The respondent failed to disclose information:
5.The respondent failed to disclose all relevant information in relation to this matter when it was dealt with at RRT. (Errors in original)
Objection to competency
The respondent filed a notice of objection to the competency of the application on 10 June 2004. The notice of objection to competency states:
“The Respondent objects to the jurisdiction of this Court to determine this Application for an order under the Judiciary Act 1903 on the ground that the application relates to a privative clause decision and has not been filed within 28 days of the applicant being notified of the said decision as is required by s.477 (1A) of the Migration Act 1958 (Cth).”
The respondent tendered an affidavit of Angela Margaret Nanson sworn on 24 November 2004 which was read into evidence. The affidavit traced the litigation history of this matter and the circumstances surrounding the issue of the notice of objection to competency.
The respondent indicated that they did not wish to press the objection to competency and adopted submissions accepted by Driver FM in SZAWW & Ors v Minister for Immigration & Multicultural & Indigenous Affairs (“SZAWW”) in relation to the affect of the transition provisions of Schedule 1, Part 2 Item 8 of the Migration Legislation Amendment (Judicial Review) Act 2001: see SZAWW per Driver FM at [4], [7]. With this concession by the respondent, the applicant did not proceed with the tendering of the two supporting affidavits to his further amended application and indicated that his written submissions, filed in Court today, to the extent that they addressed the notice of objection to competency would be withdrawn.
Submissions
The applicant appeared self represented with the aid of a Bengali interpreter. When invited to address the Court to make oral submissions in support of his written submissions handed up at the beginning of the hearing, the applicant became highly emotional and was unable to relay any issues to the Court through the interpreter. He then asked whether a friend who had been assisting him in the preparation of his material could address the Court on his behalf. The friend was identified as Mohammed Faisal. I indicated I would permit this course provided that the friend limit himself to the substantive issues of the application and did not stray into further historical review of the hardships facing the applicant and fellow Ahmadis and the general merits of their position. No objection was raised by the respondent Counsel other than to repeat a request to reserve his position to be able to tender written submissions after the hearing should new issues emerge to which he was not in a position to respond.
The applicant’s friend addressed the issues contained in the applicant’s written submissions, which he indicated were the arguments the applicant wished to rely upon. Those submissions were:
18.1.The Tribunal erred in law in determining whether the harm I suffered as a member of Ahmedi sect in Bangladesh amounted to persecution within the meaning of the Convention. The Tribunal accepted that the applicant was harassed, discriminated and his basic human rights were violated being an Ahmadi Muslim. The Tribunal in It’s finding described, ‘Having considered all of the evidence in relation to this aspect of the applicant’s claims I find that the Taunts, name calling, and threats in his local area of Sylhet, whilst they are unfortunate and distressing, are not singularly or cumulatively of such seriousness as to constitute persecution within the meaning of the Convention’. It is submitted that, under s.91R (1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R (1) (b)), and systematic and discriminatory conduct (s.91R (1) (c)). The expression ‘serious harm’ includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. Therefore, the Tribunal’s finding that, ‘taunts, name calling, and threats’ do not constitute serious harm such as ‘a threat to life or liberty, significant physical harassment or ill-treatment’ is contradictory. The Tribunal mentioned in page of it’s decision record that ‘In appropriate cases it [persecution] may include single acts of opression, serious violations of human rights, and measures ‘in disregard’ of human dignity’. RRT’s finding that the ill-treatment I received did not constitute persecution was also conflicting with the foundation it was based on.
18.2.The Tribunal failed to determine whether I would have sufficient protection form the Court System in Bangladesh at the event if such suffering due to Ahmadi faith becomes intolerable in future. This constituted a jurisdictional error and a breach of procedural fairness.
18.3.The Tribunal erred in law in determining that Ahmedi sect had it’s own district in Dhaka. There is no such district in reality. There was nothing before the Tribunal to suggest this conclusion. The Tribunal did not have any evidence to suggest this assertion.
18.4.The Tribunal erred in law in determining whether the harm I suffered did fall with in the meaning of United Nations Conventions and Protocols for Refugees. The Tribunal ignored that, persecution for Ahmadi faith constitutes two of the five grounds which are religion and membership of a particular social group.
18.5.The Tribunal failed to invite the applicant to contest with the independent country information it used to determine the claims in relation to minority situation in Bangladesh. Thus s424(A) of the Act was breached. None of the country information the Tribunal used which were reasons or part of the reasons to affirm the decision that was under review were put to the Applicant. Court book page 7374, 75, 77 quotes a number of country information that were used by the Tribunal. There is no evidence that any of them were put before the applicant and there is no evidence that the Tribunal invited the applicant to comment on them.
18.6.Considering country information related to document fraud was not relevant to the applicant and thus the Tribunal breached procedural fairness. There is no evidence that this applicant produced any such document and non existence of any such document meant that the Tribunal exceeded its jurisdiction by utilizing unnecessary and irrelevant country information.
18.7.The Tribunal failed to assess whether the problems this applicants faced in his overall activities was related to his membership of Ahmadi sect and thus an assessment of systematic persecution was overlooked. Although the Tribunal had the chance and was informed that all those problems the applicant faced were linked to each other. It was more appropriate for the Tribunal to decide that the applicant was signalled out even when he was in political activity because of his religious belief.
18.8.The respondent did not file and serve all necessary information related to this matter. An affidavit enclosed herewith in relation to that matter. However, the applicant wishes to seek the attention of this honourable court to this issue. The applicant also wishes to let the Honourable court know such non attachment of important document in a court book is a breach of procedural fairness and natural justice hearing rule. (errors in original)
Mr D Jordan of Counsel appearing for the respondent filed written submissions prior to the hearing. It was submitted that in respect of ground 1 the Tribunal made no error in relation to the applicable principles concerning persecution and referred to relevant authority (CB p.67). One authority referred to is Chan v Minister for Immigration & Ethnic Affairs (“Chan”) per Mason CJ at [388]. It was also noted that the Tribunal’s decision was delivered before s.91R of the Act came into effect on 1 October 2001 and therefore s.91R does not apply: Migration Legislation Amendment Act (No. 6) 2001, Schedule 1, Part 2, Item 7. The Tribunal’s finding that the harassment experienced by the applicant because he was an Ahmadi Muslim was not sufficiently serious to constitute persecution was a finding of fact that was open to the Tribunal and does not disclose any error.
In respect of ground 2, it was submitted that this ground cannot be sustained because it is clear from the Tribunal’s decision that the availability of protection by the Bangladeshi government was considered by the Tribunal. The independence of the judiciary was raised by the Tribunal during the hearing (CB p.72) and the ability of the Bangladeshi government to protect Ahmadi Muslims was relied upon in the Tribunal’s findings (CB p.75).
It was submitted that ground 3 should be rejected because the Tribunal clearly recognised its enquiry involved an assessment of the applicant’s claims in relation to the reasonably foreseeable future (CB p.68). Moreover, there was nothing in the material before the Tribunal to suggest that any material change in circumstances was likely to occur.
It was submitted that ground 5 can not be sustained because it is apparent from the Tribunal’s findings that, on this issue, the Tribunal relied upon independent country information (CB p.75)
It was submitted that the effect of grounds 4 and 6 is to traverse the merits of the Tribunal’s decision. As already mentioned at paragraph 16, the objection to competency was not pressed.
Reasons
The applicant in these proceedings was self represented and has complied with the Short Minutes of Order made at the directions hearing requiring him to file and serve an amended application and written submissions. The grounds in the amended application are vague and unparticularised. Although the applicant attempted to make oral submissions in support of his application, due to his emotional state he was unable to do so.
As I have indicated earlier at paragraph 17, the applicant sought assistance from a person in the Court who was identified as a friend. The friend introduced himself as Mohammed Faisal who claims he was familiar with the plight of the Ahmadi Muslims and was willing to help. He advised he had no legal training however it became apparent that he was familiar, to a certain extent, with the process and the arguments broadly relevant to the matter. There was no objection from the respondent Counsel and I have subsequently become aware that Mr Faisal has offered his assistance in other matters involving the Ahmadis. Mr Faisal is fluent in English and did not require the assistance of the Bengali interpreter. I am cognisant of the issue that where the applicant is self represented the Court must independently consider whether any arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors.
The manner in which the grounds have been drafted produce a number of general statements and some overlapping of the issues, making it difficult to address the individual grounds ensuring that all aspects raised by the applicant are satisfactorily addressed. I accept the approach taken by Mr Jordan of Counsel and have reproduced his submissions as I believe they assist me in the resolution of this matter. Regretfully, the applicant’s written submissions do not directly relate to the grounds pleaded and introduce some issues that are not relevant to this matter or the grounds pleaded. A clear example of this is the introduction within the written submissions of the provisions of s.91R. I do no more than to note it has been raised in written submissions although it is not relevant to the legislative structure at the time when the Tribunal’s decision was made. I also refer to Mr Jordan’s submissions which I have set out in paragraph 19 above.
Conclusion
The Tribunal referred to the decision of Mason CJ in Chan at [388] where it is stated:
“A “well-founded” fear required an objective examination of the facts to determine whether the fear was justified but those facts were not confined to those which induced the applicant’s fear. If there was a real chance that the applicant would be persecuted, his fear should be characterised as “well-founded”. The notion of persecution involved selective harassment. A single act of oppression may suffice. As long as the person was threatened with harm and that harm could be seen as part of a course of systematic conduct directed for a convention reason against that person as an individual or as a member of a class, that person was “being persecuted” for the purposes of the Convention.”
The Tribunal acknowledged that the applicant had three main areas in which he claimed to have problems and suffered harm in Bangladesh. The applicant claimed he was an Ahmadi Muslim by birth and as a result has faced harassment and name calling by others. His father and mother were born in what is now known as Pakistan, his father collaborated with the Pakistanis in the 1971 war and the applicant was called names, taunted at school, and the family’s lands taken from them. The applicant claimed to have political involvement in the Chatra Front and the Jatiya Samajtantric Dal (JSD) which he claimed were associated with the Communist Party. As a result of his involvement, the applicant claimed he had been arrested and assaulted and warrants had been issued against him on a false charge.
The Tribunal addressed each one of the issues raised by the applicant in turn. In respect of the claims arising from being an Ahmadi Muslim, the Tribunal considered independent information and was satisfied that the Bangladesh government did act, when required, to protect Ahmadi sect members in Bangladesh. The applicant’s claims resulting from his father being a Pakistani collaborator were considered by the Tribunal. The Tribunal considered that as the applicant had been absent from Bangladesh and it was thirty years since the collaboration of his father, it did not accept there was likely to be any incident of seriousness to constitute persecution within the meaning of the Convention, whether considered singly or cumulatively.
In relation to the balance of the claims made by the applicant, the Tribunal found the applicant was not a credible witness and that he had significantly exaggerated or fabricated aspects of his history in the hope of advancing his claims. This was particularly so in relation to his political involvement and claimed attack and injuries.
In respect of grounds 2, 3 and 5, I accept the submissions of the respondent Counsel and agree that these grounds cannot be sustained. In each circumstance the Tribunal identified the country information upon which it relied and indicated in its decision where this information was put to the applicant seeking his response. The allegation that the respondent failed to disclose this information to the applicant was not supported by its decision and the applicant failed to identify any other category of country information which he believed was withheld.
The remaining issue was the attempt to seek a merits review which is outside the powers of this Court and remains with the primary decision maker in the Tribunal.
Consequently, I have not been able to find any jurisdictional error and the substantial application must be dismissed.
I am satisfied that an order for costs should be made in this matter. I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 22 December 2004
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