SZFVX v Minister for Immigration
[2007] FMCA 978
•27 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFVX v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 978 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal – the Tribunal’s conclusions and thought processes are not issues under s.425 or information under s.424A – issues under s.425 are matters which are determinative of the claim. |
| Migration Act 1958, ss.65, 91X, 424A, 425 |
| SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 |
| Applicant: | SZFVX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3880 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 23 May 2007 |
| Date of Last Submission: | 23 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Byrne |
| Solicitors for the Applicant: | AAT Legal |
| Counsel for the Respondents: | Mr. Izzo |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3880 of 2006
| SZFVX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 23 May 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 17 November 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 27 July 2004 refusing the applicant’s application for a protection visa.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision of 19 January 2005 which was quashed by order of this Court on 23 August 2006 (Court Book (“CB”) page 115).
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
… the applicant is a 35 year old Bangladeshi male, born in Chittagong. His wife and two young sons remain in Bangladesh. He speaks Bengali and is literate in English, and describes his religion as ‘Ahamadia’ (referred to in this decision as Ahmadi). He resided in Chittagong until June 2001, and lived from that time until late 2003, in Naranganj. He completed fourteen years school and college in Chittagong, achieving a Bachelor of Commerce. He worked in Dhaka for one year form 1995 as a store manager (although he appears to have been resident in Chittagong at that time) and from 1996 until 2002 as the owner of a ‘telephone service’ at an unspecified location. (CB 117).
The applicant claims to fear persecution in Bangladesh because of his religious beliefs and membership of a particular social group.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-8 of the Tribunal’s decision (CB 117-121). Relevantly, they are in summary:
a)the applicant claimed that as a person of Ahmadi faith since childhood, he had difficulty practising his religion and was targeted by Muslim fundamentalists and threatened and attacked by the police and by the Islamic party of the then current government;
b)on 23 November 2003, the applicant was attacked by Sunni Muslims during an Ahmadi procession in Dhaka. He had to be hospitalised;
c)the applicant claims that his name was in the “dead list” of the Jamat-e Islami Party;
d)the applicant ran a telephone and facsimile business in Chittagong from 1996 until 2002. At the end of 2002, the business was vandalised. The applicant did not know who the culprits were, but believed he had been targeted due to his Ahmadi adherence;
e)although the applicant did not practise or meet with the local Ahmadi community, he stated that he supported the basic principles of Ahmadiyya Muslim Jamaat (“AMJ”); and
f)regarding his contact with the Ahmadi Association in Australia, the applicant said that he had approached them some two weeks prior to the (first-constituted) Tribunal hearing to request documentation. The applicant said that he did initially know where the mosque was located but that work and financial concerns prevented him making contact with them.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept the applicant was a witness of truth.
b)the Tribunal did not find it plausible that a person who claimed to be an adherent of the Ahmadi faith would not be aware of the existence of Ahmadi mosques in and around the areas he resided in Bangladesh;
c)the Tribunal did not accept it plausible that the applicant, if he was an Ahmadi activist as claimed, would allegedly have contacts/associates/supporters in the Ahmadi community and yet rely on the assistance of a non-Ahmadi person to secure relevant evidence in support of his refugee visa application. Accordingly, the Tribunal was satisfied that the applicant’s claim to be an Ahmadi activist was false and provided for the sole purpose of enhancing his claim to invoke refugee protection obligations in Australia;
d)the Tribunal was satisfied the applicant’s apparent lack of ability to obtain much (if any) documentation from the Ahmadi community in Australia gave rise to a further reason to reject his claimed adherence to/support of/or membership of the Ahmadi faith. This was a further reason that led the Tribunal to conclude that the applicant was not a witness of truth.
In essence the Tribunal found:
… the Tribunal does not accept the applicant is a witness of truth. It is sufficiently satisfied of this that it rejects all his material claims to invoke refugee protection obligations in Australia. This means for instance, that it rejects the applicant is subject to false criminal charges (at least for the reasons he claimed); or that he has been harmed for the reasons he claimed. (CB 128).
Proceedings in this Court
The grounds of the amended application can be paraphrased as follows:
a)the Tribunal breached s.425 of the Act:
i)by finding the applicant was not a witness of truth because he could not provide adequate factual detail to support his claim;
ii)by rejecting the document from a mutawalli as corroborative of the applicant’s membership of a mosque because the applicant had previously been unable to provide detail about that mosque;
iii)the Tribunal was obliged to review the decision of the delegate;
iv)the Tribunal did not identify as an important issue the lack of factual detail supplied by the applicant in relation to an Ahmadi mosque in Dhaka;
v)it was not self-evident that the Tribunal would draw adverse credit conclusions about the lack of detail the applicant supplied given he did not live in Dhaka and the delegate had not based his decision on this report;
b)the Tribunal breached s.424A by failing to state explicitly the relevance to the review of the information concerning the letter from the mutawalli:
i)repeating (a) (i), (ii) and (iv);
ii)the s.424A letter did not comply with s.424A;
iii)the use the Tribunal could make of the information was not self-evident; and
c)the Tribunal failed to consider an integer of the applicant’s claim, namely his membership of a particular social group of Ahmadis in Bangladesh.
Dealing with each of these grounds in turn:
The Tribunal breached Section 425 of the Act:
By finding the applicant was not a witness of truth because he could not provide adequate factual detail to support his claim
Section 425(1) provides:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The subsection is concerned to provide the applicant with natural justice rights in relation to issues before the Tribunal. However the Tribunal’s thought processes and conclusions do not fall within s.425. As the High Court said in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [48]:
… Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:
"the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. (footnotes omitted).
The applicant’s credibility is not an issue as contemplated by s.425, rather, it is a conclusion based on the evidence before the Tribunal. The very words used to express this asserted ground of review demonstrate that the matter in respect of which the applicant complains is not an issue on which evidence was given or arguments presented but, rather, was a conclusion based on such evidence and arguments.
The question of the amount of detail supplied by the applicant is no more than a reference to the fact that it was up to the applicant to put material before the Tribunal such that it could reach the necessary level of satisfaction. Section 65 of the Act provides that the first respondent is to grant a visa if he is satisfied that the relevant criteria for it are met but, if not so satisfied, is to refuse to grant the visa. This does not represent an onus of proof which the applicant must discharge although the fact that the applicant had to make out his claim is implicit in s.425.
That this is not an issue in itself is seen by a consideration of another part of the judgment of the High Court in SZBEL’s case where their Honours said:
The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review. [44]
The conclusion to be drawn from this passage in SZBEL is that the issues arising in relation to the decision under review, and in respect of which s.425 requires that the applicant be given an invitation to give evidence and present arguments, are ones which will be taken into account by the Tribunal when arriving at its decision. Issues will be matters which are determinative of the claim, things on which the applicant has a right to give evidence and present arguments. Thus the simple fact that the applicant had to make out his claim is not an issue.
By rejecting the document from a mutawalli as corroborating the applicant’s membership of a mosque because the applicant had previously been unable to provide detail about that mosque
The relevant issue seems to be the fact that the applicant had not previously provided detail about the mosque in question although he subsequently claimed a link to it.
The fact that previously the applicant had not provided convincing detail was not an issue attracting s.425, although whether he was attached to the mosque or worshipped there was such an issue. This issue was put to the applicant at the hearing as seen at pages 11 and 12 of the Tribunal’s decision (CB 124-125) and he was given the opportunity to give evidence on the issue. Consequently, no breach of s.425 has been demonstrated.
The Tribunal was obliged to review the decision of the delegate
This is not a ground of review based on s.425 and is no more than words prefatory to the final two particulars of this ground of review based on s.425.
The Tribunal did not identify as an important issue the lack of factual detail supplied by the applicant in relation to an Ahmadi mosque in Dhaka
As already noted, the lack of factual detail or the weakness of the evidence advanced by the applicant in support of his claim to be a refugee, is not an issue as that term is understood by s.425. It is always the role of an applicant to satisfy the Tribunal that he has a well-founded fear of persecution for a Convention reason and, for the reasons already expressed, this is not a s.425 issue.
As to the conclusion which the Tribunal drew that the factual detail was unconvincing, it was no more than that, a conclusion. The applicant was given the opportunity at the Tribunal hearing, as demonstrated at pages 11 and 12 of the Tribunal’s decision (CB 124 – 125) to give evidence about his religious observance and associations and this satisfied the Tribunal’s s.425 obligations. The conclusions drawn from such evidence are not issues for the reasons explained by the High Court in SZBEL and quoted above at [12].
It was not self-evident that the Tribunal would draw adverse credit conclusions about the lack of detail the applicant supplied given he did not live in Dhaka and the delegate had not based his decision on this report
This ground too is based on an assumption that a conclusion is an issue under s.425, which it is not, for the reasons already given.
The applicant is correct to say that it was not self-evident that an adverse conclusion on his credit would be drawn by the Tribunal, however, the process of fact-finding and the reaching of a decision is characterised by such realities. The obligations on the Tribunal under s.425 are not that it is to invite the applicant to give evidence and present arguments on its thinking on or its consideration of the evidence presented in relation to the issues arising in relation to the claim or the decision under review. Rather, it is to give the applicant an opportunity to put before the Tribunal the evidence and arguments which the applicant wants the Tribunal to consider when it makes its decision on those issues. As long as the applicant is given that opportunity, it is then up to the Tribunal to consider such evidence and arguments and make its decision.
The Tribunal’s thought processes and conclusions are undertaken in relation to and based on the issues but are not the issues themselves and thus there is no s.425 obligation in relation to them.
Consequently, no jurisdictional error by reason of a breach of s.425 has been demonstrated by the applicant.
The Tribunal breached Section 424A by failing to state explicitly the relevance to the review of the information concerning the letter from the mutawalli:
Section 424A imposes an obligation to alert the applicant to information which the Tribunal considers would be the reason or part of the reason for the Tribunal affirming the delegate’s decision. The relevance or otherwise of the mutawalli’s letter was not information as understood by s.424A although its existence and contents potentially were.
In order for the applicant to make out this part of his review application to this Court, he has to show that either the letter’s existence, or aspects of its existence, or something which it contained or said, was information upon which the Tribunal relied when affirming the delegate’s decision. But, a consideration of the Tribunal’s decision indicates that neither the existence of the letter nor its contents were a reason or part of a reason for the Tribunal affirming the decision of the delegate.
By finding the applicant was not a witness of truth because he could not provide adequate factual detail to support his claim
Just as the Tribunal’s thought processes and conclusions are not issues as that word is comprehended by s.425, so they are not information as that word is comprehended by s.424A: VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 477 [24]. The mutawalli’s letter was provided to the second-constituted Tribunal at the hearing on 7 November 2006 and it said that the applicant was one of the regular worshippers at the mutawalli’s mosque. However, for the reasons expressed at [26] above the mutawalli’s letter was not, itself, a reason or part of a reason for the Tribunal affirming the delegate’s decision. Therefore, the only issue raised by this asserted ground of review is whether the Tribunal’s credit finding in relation to the applicant raised s.424A issues. For the reasons already expressed, it does not.
By rejecting the document from a mutawalli as corroborating the applicant’s membership of a mosque because the applicant had previously been unable to provide detail about that mosque
This is not a case of the Tribunal concluding that something which is not mentioned early in the claim, such as at the time of the visa application, but which is mentioned later, such as at the Tribunal hearing, is a recent invention. The Tribunal did not rely on the absence of the mutawalli’s letter at the first Tribunal hearing and its appearance at the second Tribunal hearing to draw a conclusion adverse to the applicant. Here, it was simply a matter of the new evidence being inconsistent with the dearth of detail in the claim advanced by the applicant up to that point. Such an absence of information does not amount to “information” in this context. As the Full Court of the Federal Court said in WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 at [26]:
In our opinion, the word "information" in s 424A(1) does not encompass a failure to mention a matter to the RRT. As the Full Court observed in Win at [20] "information" is used in the same sense in ss 424(1) and 424A(1). Section 424(1) provides that the RRT "may get any information that it considers relevant". It is inappropriate to speak of the RRT "getting information" where the substance of that information is merely an observation that the appellant did not refer to a particular matter in his evidence. The fact that the appellant failed to refer to a particular matter constitutes nothing more than an aspect of the RRT's reasoning concerning a deficiency in his evidence. That observation cannot meaningfully be described as "information" …
But in any event, the applicant overstates the case by saying that the letter from the mutawalli was rejected. Rather, it did not form the basis of the Tribunal’s finding that the applicant did not have a well-founded fear of persecution for a Convention reason. Although the Tribunal clearly doubted the authenticity of the letter, it did not find it necessary to reject it in order to arrive at the conclusion that the applicant was not a refugee noting that, even if its finding that the applicant was not an Ahmadi was incorrect, it was nevertheless satisfied that he did not have a real chance of persecution for a Convention reason in Bangladesh.
The Tribunal did not identify as an important issue the lack of factual detail supplied by the applicant in relation to an Ahmadi mosque in Dhaka
For the reasons expressed at [20] and [27] this ground also fails.
The s.424A letter did not comply with s.424A
This assertion is not particularised. A consideration of the letter indicates that particulars of the relevant information were provided by the Tribunal, that in respect of each issue the Tribunal set out the reasons why the information was relevant to the review and that in each case the Tribunal invited the applicant to comment on the information. I find that the Tribunal did comply with s.424A(1). In any event, the letter was sent prior to the Tribunal hearing at which the mutawalli’s letter was produced by the applicant and, on this basis, the asserted ground of review is misconceived.
The use the Tribunal could make of the information was not self-evident
As already discussed in these reasons, the Tribunal did not use the fact of the mutawalli’s letter or anything that it contained as a reason or part of a reason for affirming the delegate’s decision. Consequently, this ground is not made out.
The Tribunal failed to consider an integer of the applicant’s claim, namely his membership of a particular social group of Ahmadis in Bangladesh
The applicant submitted that his claim contained a claim to fear persecution not only by reason of his religion and his political activities but also because he was a member of a particular social group. What the applicant said in his protection visa application form reproduced at CB 17 was:
I am an Ahamadia by faith religion. From my boyhood I practice [sic] this religion. As an AHAMADIA belive [sic] I am a member of particular social group. I was in difficulties to practice [sic] my religion last couple of years, I was face trouble to practice [sic] religion and also I face discrimination in my social life …
The applicant observed that the Tribunal made reference to the potential existence of a social group when it said in the s.424A letter it sent to him:
The previous Tribunal believed the applicant identified one principal (if not sole) issue which gave rise to his fear of persecution, that is, his Ahmadi adherence. This relates to the Convention ground of religion, possible membership of a particular social group and might also for instance, give rise to an (imputed) political opinion. The previous Tribunal identified its first task as to assess the credibility of the applicant’s claimed adherence to the Ahmadi sect. (CB 78).
The applicant submits that when arriving at its decision the Tribunal failed to turn its mind to the issue of the applicant being a member of a particular social group, namely Ahmadis in Bangladesh. The applicant submitted that while the Tribunal considered the applicant’s claim to be one of being a member of the Ahmadi faith it failed to consider whether he was also a member of the identified particular social group. The applicant submitted that by focussing on his personal religious commitment to the Ahmadi faith, rather than considering whether membership of the Ahmadi social group could be achieved by means other than religious belief, such as by surname, address or perception, the Tribunal failed to complete the exercise of its jurisdiction as a result of which its decision was affected by jurisdictional error: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244. The applicant submitted that it was possible to be persecuted as a member of a particular social group without being an “adherent”.
Both parties put to one side the Tribunal’s consideration of the applicant’s political engagement as not being relevant to this asserted ground of review.
It was submitted that membership of a social group could go beyond personal commitment to a religious group and beyond any subjective adherence. The applicant further submitted that “adherence” connotes a subjective element which is not necessarily religious and that this had the consequence that it was not necessary for the applicant to successfully demonstrate a religious commitment to the Ahmadi faith in order to be a member of a particular social group made up of Ahmadis in Bangladesh.
The first respondent submitted that, on the contrary, the defining feature of the social group identified by the applicant was membership of the relevant religious community. The first respondent submitted that the applicant identified this as being so where, in the protection visa application form, he identified his membership of the particular social group as being based on his Ahmadi beliefs. In that passage the applicant said:
As an AHAMADIA belive [sic] I am member of particular social group. (CB 17).
The first respondent observed that the religious and social group claims were raised as the same claim and that his claimed membership of a particular social group was based on his personal religious commitment. The Tribunal raised this with the applicant as recorded at CB 119 where it said:
The previous Tribunal asked the applicant what would lead people to think that he was an Ahmadi, if he did not practice [sic] or meet with the local religious community.
To which he responded that:
he supported the basic principles of the AMJ.
The first respondent submitted that the Tribunal did not look solely at the applicant’s personal commitment but looked at his membership of the religious community and said that this was demonstrated by the passage in the s.424A letter quoted at [34] above. The first respondent submitted that the Tribunal’s consideration of the potential existence of the particular social group was demonstrated by its comment at CB 125:
The present Tribunal is satisfied that at the very least the applicant has sought to embellish his association with, activities for, or adherence to, the Ahmadi faith in Bangladesh.
The appropriate conclusion to draw is that the applicant’s claim to membership of a particular social group is defined by the way he expressed it in his protection visa application, namely:
As an AHMADIA belive [sic] I am a member of particular social group. (CB 17).
Rather than define the particular social group as Ahmadis in Bangladesh, as now suggested by the applicant, the correct characterization of the group of which the applicant claimed membership is Ahmadi believers in Bangladesh.
When seen in these terms, the Tribunal’s consideration of the applicant’s adherence to the Ahmadi sect can be seen to deal not only with the applicant’s claim to fear persecution by reason of his religion, but also by reason of his membership of a particular social group which is defined by its religious beliefs and observances. What the applicant has sought to do in these proceedings is to define the particular social group more widely than he did in his protection visa application or in his evidence and arguments to the Tribunal. A consideration of the applicant’s evidence and arguments at the Tribunal, as recorded in its decision record, does not see the applicant suggesting that the social group of which he claims membership can be defined by name, culture, society or descent.
Much was made in argument of whether use by the Tribunal of the word “adherence” could signify membership of the Ahmadi community by means other than religious belief or observance. No doubt the word can be used in that sense but that was not the claim made by the applicant. His claim was based on being an Ahmadi believer. Whether membership of the Ahmadi community manifests itself differently if one is religiously observant, politically active or culturally affiliated is not something which has been addressed by evidence adduced in these proceedings. All that can be said is that the particular social group of which the applicant claims membership is the first of these and thus the genuineness of his allegations of religious adherence was the matter of relevance to the Tribunal.
That is to say, given the allegations made by the applicant, when the Tribunal refers to “adherence” it should be understood to be referring to the adherence claimed by the applicant. That is to say, membership of a community defined by religious belief. Had the applicant claimed membership of a particular social group identified by characteristics such as culture or descent, then the Tribunal would have been in error if it did not consider such claims. But no such claims were made here and the Tribunal did not err by not considering these hypothetical possibilities.
For these reasons, the Tribunal’s conclusion that the applicant was not a witness of truth, in relation to his claim of personal religious commitment to the Ahmadi sect, is decisive not only of his claim to fear persecution by reason of his religious beliefs but also of his claim to fear persecution by reason of his alleged membership of the particular social group made up of Ahmadi believers in Bangladesh.
But even if I am wrong in the characterization of the particular social group and the basis of the applicant’s claimed membership of it, the Tribunal rejected the applicant’s claims, of whatever nature, because he was not a witness of truth. After considering all the various allegations made by the applicant and the presentation and explanation of these allegations the Tribunal concluded that it did:
… not accept the applicant is a witness of truth. It is sufficiently satisfied of this that it rejects all his material claims to invoke refugee protection obligations in Australia. This means for instance, that it rejects the applicant is subject to false criminal charges (at least for the reasons he claimed); or that he has been harmed for the reasons he claimed. (CB 128).
That is to say, whatever social group the applicant claimed membership of the Tribunal rejected it on the basis of its findings on credit. All his material claims were rejected because he could not be believed.
Conclusion
Jurisdictional error on the part of the Tribunal has not been made out.
Consequently, the application will be dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 27 June 2007
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