SZGBH v Minister for Immigration
[2006] FMCA 1177
•3 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGBH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1177 |
| MIGRATION – RRT decision – Bangladeshi fearing persecution for Ahmadi faith – documents found to be fraudulent – no jurisdictional error. |
Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
| Applicant: | SZGBH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG891 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 3 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms T Quinn |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The Tribunal is included as second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG891 of 2005
| SZGBH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 12 April 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”). It seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 February 2005 and handed down on 18 March 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s jurisdiction under s.483A is the same as the Federal Court’s jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa.
The applicant arrived in Australia in April 2004. On 21 May 2004 he lodged an application for a protection visa, assisted by an agent, Mr Mollah. In response to the question seeking an explanation as to why he sought protection in Australia so that he did not have to return to his country of nationality, Bangladesh, he said:
I do no have religious freedom in Bangladesh. I am a Ahmedia Muslim. But Bangladeshi people do not want to recognize Ahmedia sect as Muslim. My family home is destroyed and there is a black law imposed by government to ban Ahmedia publication and palace of worship.
I am also a homosexual. I do not have the courage and opportunity to exercise my homosexuality. I came to Australia to seek religious freedom, secure life and have sex with men.
Although the application stated that the applicant would provide further evidence later, no support for his claim, nor more details, were provided to the Department before the delegate refused the application on 6 August 2004.
The applicant lodged an application for review on 2 September 2004 without appointing any agent. His application was accompanied by a submission which repeated the claim to be a member of the Ahmadiyya sect and to have suffered harm as a result. In relation to the claim to be a homosexual, the applicant said: “mistakenly my primary application to DIMIA I claim that I am a homosexual. Basically that was my wrong claim. I never be a homosexual and don’t like to be”. He said that the Ahmadiyya guidelines “do not support homosexuality”.
Although the submission referred to forwarding to the Tribunal “my membership letter from the ‘Ahmadiyya Office’” obtained from Bangladesh, such a document was first given to the Tribunal when the applicant attended a hearing on 7 December 2004. It is written in English with letterhead purporting to be that of the “Ahmadiyya Muslim Jamaat, Bangladesh”, with an address in Dhaka. It stated:
This is to certify that [the applicant] is an active member of Ahmadia Muslim Community. Before getting his membership, he used to come at our office at times. Then he has intended to become a member of AhmadiasMission. We have provided him necessary guideline and said that you should abide by our guideline.
Afterward, having three months observation about him we have accepted him as a member of Ahmadia Community effective from 4th January 2001. His responsibility was preaching of aim, activities and customs of Mirza Ghulam Ahmad (A) among the other Muslims, such as Sunni Muslims etc.
Due to performance of this duty, [the applicant] has been tortured by Sunni Muslims physically and mentally in different time. One time the Sunni Muslims have attacked his home; we have report for the same.
In his oral evidence to the Tribunal, the applicant maintained that although his parents were not Ahmadiyya, he had converted on 4 January 2001.
The Tribunal said that it asked the applicant if he had contacted the Ahmadiyya community in Sydney, and the applicant said: “he had not been able to find one and he had just prayed at any mosque since the people there would not know of his Ahmadiyya beliefs”. The Tribunal said that it gave him the address of the Ahmadiyya community in Sydney and invited him to gain some verification from them. The applicant subsequently sent a letter to the Tribunal claiming that “recently I discover it and regularly I go there for doing my worship. I have met many Muslim brothers who are belonging to the same ideology that I carry on”. The letter referred to Mr Rahman of the Ahmadiyya Association in Australia, and suggested to the Tribunal that it could contact him.
The Tribunal did write to the Australian Ahmadiyya Association. It sent a copy of the applicant’s certificate from Bangladesh, and asked: “could you please inform us whether, in your opinion, [the applicant] is of the Ahmadiyya faith?”
By letter received on 4 February 2005, the Tribunal received a response from the Ahmadiyya Muslim Association of Australia which stated:
Thank you for your enquiry about [the applicant] who claimed to be an Ahmadi from Bangladesh. We referred his documents to our National Ameer in Bangladesh and they have confirmed that [the applicant] is not a member of the Ahmadiyya Community. Moreover they wrote that his documents are fake and that the writing pad that he has used, is fabricated.
I am also enclosing the letter which I received from Bangladesh Ahmadiyya Community. Thankyou once again, and we are very happy to cooperate with the government at any time.
The enclosed letter from the National Ameer of the Bangladesh Ahmadiyya Muslim Jamaat was dated 6 January 2005. He stated:
… We are in receipt of your above mentioned letter regarding [the applicant] and his application to support him in his asylum case.
We have examined his papers and scrutinized his certificate. In the certificate signature of the National Ameer and Sec. Umur‑e‑Ama are fake.
So is the stationary on which the letter is typed. Producers of such fraudulent papers should be severely dealt with.
We never give any certificate unless reasonable time has passed after one’s baiyat(conversion).
In view of the above mentioned facts we cannot recommend his case to you or to the Australian authorities.
The Tribunal on 7 February 2005 wrote to the applicant enclosing the correspondence from the Ahmadiyya Muslim Association of Sydney, and invited his comments. The Tribunal said:
This information is relevant because the Tribunal notes that there is information in it that might lead the Tribunal to find that you are not of the Ahmadiyya faith. Further, given the information indicates that you have submitted falsified documentation, the Tribunal could find that this leads it to doubt your overall credibility and not to believe your claims with regard to your alleged homosexuality.
The applicant responded to that letter in a letter dated 24 February 2005. He sought to explain the letter from the Bangladesh Ahmadiyya Association by claiming:
After my hearing with the RRT, I had spoken with the National Amir of Ahmadiyya Muslim Jamaat in Bangladesh. I informed him that the RRT could contact with you in relation to me and my protection visa application in Australia. The Amir told me that:
(a)If you give me a donation the sum of 100,000.00 Taka then I will tell the truth to the RRT and I will refer my earlier letter to you as well. If you do not pay me I will say to the RRT that I did not issue you any letter and you were not involvement with the Ahmadiyya Community; and
(b)Why do not inform me before you fly to Australia.
I did apologize to him because I did not inform him before I fly to Australia. I knew and understood that if any member of the Ahmadiyya Community in Bangladesh flies to overseas he or she should inform the Amir. But I reluctant to pay him donation the sum of 100,000.00 Taka.
In short, the applicant alleged that a negative response had been sent from Bangladesh due to his failure to pay money to a person in Bangladesh. He alleged that “the Amir of Ahmadiyya Muslim Jamaat in Bangladesh is engaged in conspiracy against me”. The applicant also enclosed an X‑ray report in support of corroboration of a claim that he once “was heavily injured by the Sunni Muslims and still I carry on that damage in my body”. However, the X‑ray report appears to show a minor change in the left knee without demonstrating injury.
In its statement of reasons, the Tribunal referred to the evidence before the Tribunal, and to the correspondence referred to above.
The Tribunal also referred to having sent the applicant’s certificate to the Department of Immigration Document Examination Unit, and to having received a response from that unit which said that it had received advice from “the overseas post” that the national secretary of the Ahmadiyya Association had advised that the letter was a forgery. This communication was not itself the subject of a s.424A(1) notice, however, in my opinion the Tribunal’s reasons do not reveal that this was necessary. As will appear below, the Tribunal’s reasons relied only upon the evidence provided from the local Ahmadiyya Association which had been put to the applicant.
The Tribunal’s reasons for affirming the delegate’s decision were brief:
The applicant states he has suffered harm and fears further harm because he is a member of the Ahmadi Islamic sect from Sunni Muslims and claims that the government will not protect him.
The Tribunal accepts the evidence from the Ahmadiyya Muslim Association in Sydney that the letter submitted by the applicant to support his claims is fraudulent. The Tribunal accepts the independent evidence of the prevalence of fraudulent documents emanating from Bangladesh. The Tribunal rejects the applicant’s claims that he is a victim of a conspiracy resulting from his failure to pay money to the National Amir in Bangladesh and finds that this is a further claim fabricated by the applicant when faced by evidence of his having submitted a fraudulent document. In the light of this evidence, the Tribunal finds that the applicant is not of the Ahmadi faith and that he has not suffered in Bangladesh because of any activities he claims to have carried out on behalf of his alleged faith.
In the circumstances of the applicant’s case, the Tribunal is not satisfied by the totality of the evidence before it, that there is a real chance the applicant would be harmed now or in the foreseeable future if he returned to Bangladesh.
Overall, the Tribunal is not satisfied that the applicant has a well‑founded fear of persecution for a Convention reason.
In my opinion, it was plainly open to the Tribunal to act on the evidence from the local Association, and to conclude that the applicant’s claim was entirely fraudulent, and that he was not of the Ahmadiyya faith. I consider it was open to the Tribunal not to be persuaded by the applicant’s assertion of a conspiracy. I can find no jurisdictional error in the Tribunal’s reasons or procedures.
The applicant’s application filed in this Court contains four grounds:
1.The RRT did not act good faith in regards to this matter.
2.The RRT ignored the merits of my genuine claim.
3.The RRT did not consider me as a refugee despite many evidentiary documents.
4.The RRT did not made any investigation before saying that my document was not genuine.
I reject the contention that the Tribunal did not act in good faith. I can see no evidence of this. In my opinion the Tribunal did assess the merits of the applicant’s claims and has found them not to be genuine. I find that conclusion was open to it.
The contention that the Tribunal failed to make investigations required of it, was today explained by the applicant on the basis that the Tribunal should have made further inquiries in Bangladesh before rejecting his allegation of conspiracy. In my opinion, it has no support in authorities which establish that the Tribunal is generally under no obligation to conduct its own investigations to obtain support for an applicant’s claims (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], also Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187], WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]).
The applicant’s amended application contains allegations that there was no evidence to support the Tribunal’s conclusions; that it was irrelevant for the Tribunal to suggest to the applicant that Bangladeshi asylum seekers provided fraudulent documents and to invite comments on that; that the Tribunal ignored relevant independent evidence concerning Bangladesh; and that the Tribunal’s decision was contradictory because it did not accept the applicant’s contention that he was a victim of a conspiracy, and accepted the falsity of the evidence from the Bangladeshi Association given to the local Association. In my opinion, none of these contentions have any substance shown in the material before me.
I have considered the submissions of the applicant made to me today and his written submissions, to the extent that they address issues that are capable of providing jurisdictional error, and I do not think that jurisdictional error is made out in this case.
For the above reasons, the Tribunal’s decision was therefore a privative clause decision for which relief is barred by s.474(1) of the Migration Act, and I must dismiss the application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 21 August 2006
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