SZGBH v Minister for Immigration and Multicultural Affairs

[2006] FCA 1512

FEDERAL COURT OF AUSTRALIA

SZGBH v Minister for Immigration and Multicultural Affairs [2006] FCA 1512

Migration Act 1958 (Cth)

SZGBH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD1569 OF 2006

JESSUP J
31 OCTOBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1569 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGBH
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	31 OCTOBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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	NSD1569 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGBH
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	31 OCTOBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of the Federal Magistrates Court given on 3 August 2006 in which it dismissed an application originally made on 12 April 2005 under s 483A of the Migration Act 1958 (Cth) in its then terms. Although that section had since been repealed, the Federal Magistrate pointed out that the repeal did not affect proceedings which had been commenced during the currency of the section. The application under s 483A sought orders by way of judicial review in relation to a decision of the Refugee Review Tribunal dated 28 February 2005 and handed down on 18 March 2005. That decision affirmed a decision of a delegate of the respondent Minister to refuse to grant a protection visa to the appellant under the Act.

2. The appellant is a citizen of Bangladesh who travelled to Australia in April 2004.  He claims to be an adherent of the Ahmadi faith which is apparently a minority religious sect in Bangladesh and, although within the general umbrella of the Muslim religion, is seemingly not well-regarded by the majority of Sunni Muslims in that country.  The appellant put to the Tribunal that his status as a member of the Ahmadi sect led to him being the subject of considerable aggression, violence and other adverse events at the hands of the Sunni Muslims in Bangladesh.  His application for a protection visa may thus be seen as one which is based entirely upon a claimed fear of persecution by reason of his religion.

3. The appellant’s membership of the Ahmadi sect was central to his claim in the Tribunal.  For the purposes of its investigation on review from the delegate, the Tribunal corresponded with a local group of Ahmadi adherents in Sydney referred to as the Ahmadiyya Muslim Association Australia Inc.  That Association informed the Tribunal that they had made enquiries of the National Amir in Bangladesh and had been told that the appellant was not a member of the Ahmadiyya community.  They informed the Tribunal that the documents upon which the appellant relied to establish the contrary had been fabricated.  That correspondence was drawn to the appellant's attention by the Tribunal.  In its decision the Tribunal made a finding that the appellant was not of the Ahmadi faith and that the documents upon which he relied had been fabricated. 

4. When the appellant was confronted with the correspondence from the Australian Association he wrote a fairly lengthy letter to the Tribunal in which he asserted that the National Amir in Bangladesh, with whom the Australian Association had corresponded, had told him that he required a donation in the sum of 100,000 Taka as a condition for telling the Australian authorities, and I infer the Australian Tribunal, the truth about the appellant's status as an Ahmadi.  The appellant said he was reluctant to pay that sum, but he asserted in the Tribunal that the truth was as he had originally claimed, and that the only reason that the Amir in Bangladesh was not supporting his version of the facts was that he had declined to pay the sum which was demanded of him. 

5. The Tribunal rejected the appellant's claims that he was a victim of a conspiracy resulting from his failure to pay money to the National Amir in Bangladesh.  Having found that the appellant's claims to be of the Ahmadi faith were false, it followed, in the view of the Tribunal, that the basis of his fear of persecution were he to return to Bangladesh disappeared.   On that basis the Tribunal had no hesitation in affirming the decision of the delegate. 

6. Before the Federal Magistrate the appellant relied upon four grounds; (1), the Tribunal did not act in good faith; (2), the Tribunal ignored the merits of the appellant's genuine claim; (3), the Tribunal did not consider the appellant as a refugee despite many evidentiary documents; (4), the Tribunal did not make any investigation before saying that the appellant's documents were not genuine.

7. Each of these grounds was considered and rejected by the Federal Magistrate, and nothing which has been put to me today by the appellant has persuaded me that the Federal Magistrate fell into any error in this regard.  Indeed, the appellant made no oral submission at all, contenting himself with relying upon a written outline which he had filed.  That outline does not attempt to join issue with the way in which the Federal Magistrate disposed of the four grounds which had been advanced before him. 

8. In his Notice of Appeal in this court filed on 18 August 2006 the appellant relies upon four grounds as follows:

   1.   The Tribunal identified the wrong issue in relation to my involvement with the Ahmadiyya and made wrong assumptions about my persecution.

   2.   The Tribunal acted in excess of its jurisdiction.

   3.   The Tribunal relied on irrelevant material that is called Independent Evidence.

   4.   The Tribunal made contradiction in its decision in the following manner that being jurisdictional error.

   Although the appellant barely dealt with these grounds in his written outline on which he relied today, in the light of the fact that the appellant is unrepresented I think it would be appropriate for me to say something briefly about each of the grounds in his Notice of Appeal. 

9. As to the identification of the wrong issue and the making of the wrong assumption about the appellant's claim to be persecuted, the appellant provides particulars in the notice to the effect that the Tribunal concluded that he would not be harmed if he returned to Bangladesh.  He says that there was no evidence to support such findings, and pointed out that he claimed that he faced persecution for his religious belief and that that persecution was well-founded for Convention reasons.  This ground could never have succeeded, because it depends entirely upon a substratum of facts which is contradicted by the finding made by the Tribunal that the appellant was not in fact of the Ahmadi faith.

10. As to the ground that the Tribunal acted in excess of its jurisdiction, the appellant particularised that by referring to a comment made by the Tribunal that asylum seekers from Bangladesh often provide fraudulent documents in support of their claims, and by an invitation which the Tribunal extended to the appellant to make a comment about that matter.  The appellant seems to be saying that the matter of the provision of fraudulent documents by other unnamed asylum seekers was irrelevant to his circumstances, and that by putting the matter to him in the way that it did the Tribunal was in effect bringing a negative attitude to bear upon its consideration of the actual documents which the appellant submitted.  Although in one sense it might be said that documents provided by other asylum seekers were not relevant to the appellant's own circumstances, the question which the Tribunal had to address was whether the appellant's documents were genuine or false.  The Tribunal is not a court: it is an expert Tribunal with a specialised jurisdiction, and it is entitled to have access to any broadly probative information which might throw light upon the matter which it had to consider.  Subject to giving the appellant an opportunity to respond, in this case it was clearly open to the Tribunal to take into account the circumstance that Bangladeshi asylum seekers on a broad scale, apparently often seek to rely upon fraudulent documents.  Whether or not that was true was, of course, entirely a matter of fact and a matter for the Tribunal.

11. With respect to the so-called Independent Evidence, the ground in the Notice of Appeal refers to two UK Home Office Country Reports with regard to Bangladesh, one of 2001 and the other of 2004.  The appellant claimed that they were irrelevant in the context of his claim.  This is apparently a similar ground to the one with which I have just dealt, and I would respond to it in the same way.  The Tribunal commonly draws upon broad international assessments of the situation existing in particular countries as background for the way it approaches the consideration of particular cases.  I can think of no reason to question the appropriateness of this practice, either generally or in this particular case.  The particular reports, I should say, dealt with the Ahmadi community in Bangladesh and with the ways members of that community were treated by and interacted with majority Muslims in that country.  I can see nothing in those reports that was in the slightest adverse to the appellant's case, even, assuming (which the Tribunal found was not the case) that he was himself an adherent of the Ahmadi faith.

12. As to the contradiction referred to in the fourth ground in the Notice of Appeal, the appellant refers to two different categories of evidence upon which the Tribunal relied.  The first was the general evidence from independent sources which tended to suggest that there was a very high level of document fraud in Bangladesh and the second was the evidence indirectly conveyed to the Tribunal by the National Amir in Bangladesh.  The appellant seems to make the point that it was inconsistent for the Tribunal to have been sceptical of documentary evidence that emanated from Bangladesh, on the one hand, and yet to have accepted what was apparently said by the National Amir, on the other hand.  For my own part, I cannot see any inconsistency in the two positions taken by the Tribunal in this regard.  However, it is sufficient to say that the weighing and balancing of various factual elements in a claim such as the present and the identification of inconsistencies in the material is pre-eminently a matter for the Tribunal, and whether one may agree or disagree with the way in which the Tribunal conducted that process, on no view would that constitute any basis for a finding of jurisdictional error.

13. So much for the Notice of Appeal.  That leads me to the outline of submissions filed by the appellant.  In that outline, the appellant essentially makes two points.  The first is that the Tribunal overlooked his submission that there was a conspiracy against him involving the National Amir of the Ahmadi faith in Bangladesh and that gentleman's reluctance to admit to the appellant's membership of the Ahmadiyya community in Bangladesh without the payment of the sum of money to which the appellant referred.  He said that the Tribunal gave no weight to his submission in that regard but accepted the version of the National Amir himself, whom the appellant accused of being involved in this conspiracy.  As Mr Johnson, who appeared for the respondent Minister, pointed out, it is wrong to say that the Tribunal overlooked the appellant's submission in this regard.  To the contrary, the Tribunal set out in full the appellant's letter in which he made this accusation against the National Amir in Bangladesh. In the main deliberative paragraph of the Tribunal's reasons it referred to the claim made by the appellant in this regard, and rejected it.  Insofar as the appellant now says that the Tribunal did not, in his words, put any weight to his submission, that was entirely a matter for the Tribunal and wholly within its jurisdiction.  As it happens I believe that the Tribunal gave due respect to the appellant's submission and considered it within the context of the other material which was before it.  The Tribunal found itself obliged to reject the appellant's submissions and to prefer the credibility of that other material.  On no view can this be regarded as an excess of jurisdiction or a failure to exercise jurisdiction: to the contrary it strikes me as being four-square what the Tribunal is established to do.

14. The second point raised by the appellant in his outline is that the Tribunal failed to consider a particular aspect of the appellant's fear of persecution should he return to Bangladesh.  He says that the Tribunal should have turned its mind specifically to the circumstance that he had become a regular adherent of the local Ahmadiyya Muslim Association in Sydney and that he had regularly attended its services and made the association of the local Amir.  It is true that the Tribunal did not say anything about the prospect that the appellant might face persecution in Bangladesh specifically because of that association, as distinct from the broader question of his status as an member of the Ahmadi sect generally.  However, the Tribunal cannot be criticised for that circumstance, as the point was never put to it in those terms.  For that matter, neither was it put to the Federal Magistrate (nor relied upon in the Notice of Appeal in this court).

15. I agree with Mr Johnson that the Tribunal's omission to make reference to a particular argumentative angle, if I could call it that, of the appellant's then case, could not be regarded as a jurisdictional defect.  I would only add that the Tribunal's finding, which must in the circumstances be regarded as sound, that the appellant was not of the Ahmadi faith would seem equally to undercut any suggestion that the appellant might face persecution in Bangladesh as a result of his association with the adherents of that faith in Sydney.  I note, although it is strictly speaking not a matter for this court, that when the Sydney association was asked by the Tribunal to comment upon the appellant's claims to be of the Ahmadi faith, its letter of 1 February 2005 said that the documents upon which the appellant relied were fabricated.  Although that response was based upon correspondence received from the community in Bangladesh, a solid inference arises from it that the appellant was not known to the local Ahmadiyya Association in Sydney.

16. For the above reasons the appeal will be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:        16 November 2006

Counsel for the Applicant:	The Appellant Appeared in Person
Counsel for the Respondent:	Geoffrey Johnson
Solicitor for the Respondent:	Therese Quinn of Philips Fox
Date of Hearing:	31 October 2006
Date of Judgment:	31 October 2006