SZGNE v Minister for Immigration
[2008] FMCA 586
•23 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGNE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 586 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal’s preference for some evidence over other evidence was logical and reasonable – weight to be given evidence is a matter for the Tribunal – discretion not to contact witness did not miscarry – allegation of bias not made out. |
| Migration Act 1958, ss.424A, 426 |
| Johnson v Johnson (2000) 201 CLR 488 Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 |
| First Applicant: | SZGNE |
| Second Applicant: | SZGNF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2832 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 28 April 2008 |
| Date of Last Submission: | 28 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2008 |
REPRESENTATION
| Counsel for the Applicants: | Mr J.R Young |
| Counsel for the Respondents: | Ms V. McWilliam |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2832 of 2007
| SZGNE |
First Applicant
| SZGNF |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of Bangladesh. The applicants claim to be Ahmadi Muslims and allege that while in Bangladesh this led to persecution of the first applicant. The applicants arrived in Australia on 24 June 2004.
The first applicant’s husband is the second applicant in these proceedings. As he has no claims separate from those of his wife, the first applicant will be referred to as “the applicant” in these reasons.
The applicant claims to fear persecution in Bangladesh on the basis of her membership of the Ahmadi community.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 16 September 2004. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the couple. There was a previous Tribunal decision signed on 6 May 2005 (Court Book (“CB”) page 132) which was quashed by order of this Court on 29 September 2006 (CB 143).
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 14 of the Tribunal’s decision (CB 252 – 262). Relevantly, they are in summary:
Protection visa application
In a statement accompanying her protection visa application, the applicant made the following claims:
a)she was born into an Ahmadi family;
b)she was once involved in a heated argument with a female Sunni Muslim classmate while at university. This classmate was a member of the Islamic Chatree Shastha (youth wing of Jamati Islami Bangladesh) and was distributing derogatory anti-Ahmadi pamphlets at college;
c)after this incident members of the student wing of the Jamati Islami branded her as an enemy of Islam;
d)whilst the applicant was studying she met the second applicant who also belonged to the Ahmadi sect. They married in June 2002;
e)the hatred and hostility towards Ahmadis started in October 2001 when a BNP and Jamati Islami coalition came to power;
f)her husband owned a taxi cab business in Dhaka and in November 2003 some young Islamic extremists set fire to one of his taxis prior to a procession and a strike called by the Awami League. The applicants reported the matter to the police but the elders of the Ahmadi community advised them against taking the complaint further;
g)extremist groups sought to have Ahmadis declared as “kafer” and there was a campaign to denounce Ahmadi beliefs and prevent Ahmadis worshipping without restriction; and
h)due to the pressure brought by the Jamati Islami party the Ahmadis will be declared as non-Muslims and will be vulnerable to threats of harm. The applicant and her husband could be killed or seriously harmed if they return to Bangladesh.
First Tribunal
On 22 December 2004 the Tribunal received from the applicant a document purporting to be a copy of a translation of a letter dated 16 June 2004 from a Dr Aziz, who was described as the president of the managing committee of the Ahmadi Mosque in Nirala, Khulna (CB 113, 115). The letter stated that the applicant and her husband were not safe in Bangladesh due to problems between Sunni Muslims and Qadianis (Ahmadis).
At the hearing before the first Tribunal on 2 February 2005, the applicant claimed that:
a)prior to leaving for Australia, she was not living in one place because people opposed to her group were getting information on where people were living and religious leaders were being killed;
b)she moved about in Dhaka five times before coming to Australia;
c)her neighbours and people in the apartment building did not like them. Once, she organised a meeting with other Kadiany people and bombs were thrown. She was hit in the leg and two other people were seriously injured. They were threatened that, if they were found, they would be killed. She did not refer to this incident in her primary application because she had forgotten about it;
d)her father was in hiding;
e)she decided to come to Australia because radicals threatened her that, if she did not change to be a normal Muslim, she would be killed;
f)her husband attends the mosque in Lakemba but she does not; and
g)she has had contact with the Kadiany Association in Australia.
After the hearing the Tribunal received from the applicant:
a)original and translation of the letter from Dr Aziz dated 16 June 2004; and
b)copy of a document purporting to be a medical note relating to an injury sustained by the applicant in a bomb blast on 23 April 2004 (CB 120).
Second Tribunal
Hearing on 3 January 2007
The applicants appeared before the Tribunal on 3 January 2007 but the hearing was adjourned following submissions by the applicants’ adviser that the first applicant had been seriously ill the evening before.
The applicants’ adviser submitted to the Tribunal a letter dated 10 December 2006 purportedly written by the mutawalli of the Ahmadiyya community of East Nakhalpara, Tejgaon, Dhaka. The letter stated that:
a)the applicants were members of the Ahmadiyya community; and
b)the applicant occasionally attended the Mahila (Women) Jamaat Majlish.
The adviser also submitted media reports on the current situation for members of the Ahmadiyya community in Bangladesh.
Section 424A notice
Following the hearing of 3 January 2007 the Tribunal wrote to the Ahmadiyya Muslim Association of Australia (“AMAA”) asking for information concerning the applicant’s membership of the Ahmadi community in Bangladesh. On 14 January 2007 the AMAA responded to the Tribunal’s request for information as follows:
We had asked the Ahmadiyya Community in Bangladesh on a previous occasion, when she had contacted us, to conduct an investigation into the claims of [the applicant]. According to their findings, she is not a member of the Ahmadiyya Community.
On 30 January 2007 the Tribunal wrote to the applicant and invited her to comment on the information it had obtained from the AMAA (CB 206).
On 22 February 2007 the applicant’s adviser wrote to the Tribunal enclosing another copy of the letter from the mutawalli, Rafique Shahid, already submitted at the hearing held on 3 January 2007, as well as an account of a telephone conversation the adviser had had with the author of the letter (CB 215).
On 5 March 2007 the applicant’s adviser advised the Tribunal that the author of the letter was willing to speak to the Tribunal by telephone at the next hearing (CB 221).
Hearing on 6 March 2007
At the hearing before the second Tribunal on 6 March 2007, the applicant claimed that:
a)she had sent a letter and had been twice to the AMAA and they had not responded to her requests;
b)she had been to the Ahmadi mosque in Sydney on two occasions but could not recall the dates; and
c)Sunni Muslim leaders were searching for her and she would be at risk of harm if she returned to Bangladesh;
The applicant submitted a copy of a letter she sent to the AMAA dated 18 December 2004 requesting that the “President of the Ahmadiah Mission” provide her with a letter of support (CB 229). She also enclosed a letter from Dr Aziz.
Post hearing investigations and further invitations to comment
The Tribunal again wrote to the AMAA requesting current information on the status of the applicant. The Tribunal also asked them to investigate the letter of 10 December 2006 from Rafique Shahid which had not been previously seen and considered by the Ameer of the Bangladeshi Ahmadi community.
On 2 May 2007 the AMAA forwarded advice received from the National Ameer of the Ahmadiyah Muslim Jamaat regarding the applicant’s membership of the Ahmadi community in Bangladesh. The Bangladeshi Ameer stated as follows:
We have examined her claims. Her claims are not genuine. Also we have checked our Nakhalpara mosque and there is no such member of the female branch organisation at Nakhalpara. [The applicant] is not an Ahmadi. Her claims are fake. She has used fake letterheads. There is no mutawalli named Rafique Ahmed Shahid.
On 17 May 2007 and 18 June 2007 the Tribunal wrote to the applicant inviting her to comment on the information provided by the Bangladeshi Ameer (CB 234 and 239).
The applicant’s adviser responded on 10 July 2007 (CB 242) and referred the Tribunal to a previous letter dated 12 June 2007 (at CB 237) which, amongst other things:
a)asserted that the applicant was in fact a member of the Nakalpara Ahmadi mosque;
b)asserted that there was a mutawalli named Rafique Shahid; and
c)urged the Tribunal to telephone the Nakalpara mosque or make enquiries through the Australian High Commission in Dhaka.
The letter of 10 July 2007 further stated that the Tribunal should not rely on the information set out in its s.424A letter.
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 found that the applicant was not a truthful or credible witness and did not accept that she was a member of the Ahmadi community in Bangladesh or that she was born into an Ahmadi family. In reaching this conclusion, the Tribunal noted that:
i)she had a very superficial knowledge of Ahmadi belief and her level of knowledge was not consistent with:
· the independent information on the nature of the Ahmadi sect and its particular practices and beliefs; and
· her claim that she grew up in an Ahmadi family, attended an Ahmadi mosque and was a member of an Ahmadi women’s group;
ii)the applicant has not attended the Ahmadi mosque in Sydney for the purpose of worship, prayers or community involvement since her arrival in Australia. The Tribunal accepted that she attended the mosque on two occasions, however, it found that the purpose of those visits was to seek a letter of support from the Ameer of the AMAA;
b)the Tribunal accepted the correctness of the information provided by the AMAA, namely, that the applicant was not an Ahmadi and had not been a member of the Nakhalpara mosque or the female branch organisation, and that the letters from Dr Aziz and Rafique Shahid were fabricated to strengthen her refugee claims;
c)the Tribunal gave no weight to the corroborative evidence in the adviser’s account of a telephone conversation with Rafique Shahid as the identity and position of the author of the letter could not be verified and was not consistent with evidence obtained from the AMAA to the effect that the Ahmadi organisation in Bangladesh had no knowledge of the author;
d)the Tribunal considered the medical report dated 18 May 2004 submitted by the applicant to support her claim that she was injured in a bomb blast whilst involved in an Ahmadi community event. In light of the Tribunal’s finding that she was not an Ahmadi, the Tribunal did not accept that any injury she sustained was the result of targeting for reasons of her religion;
e)the Tribunal concluded that the applicant was not a member of the Ahmadi community in Bangladesh having had regard to:
i)the applicant’s poor knowledge of Ahmadi practices and beliefs;
ii)the information provided to the Tribunal by the AMAA; and
iii)country information which indicated that the Ahmadi community is a close knit and highly structured organisation that, in the context of its own particular structure, is able to provide accurate information on membership of the community;
f)the Tribunal did not accept that the applicant would be imputed with Ahmadi beliefs or would be perceived to be a member unless she was actually a member of an Ahmadi family or a member of the Ahmadi community;
g)due to a lack of evidence, the Tribunal was not satisfied that the second applicant was a member of the Ahmadi community in Bangladesh;
h)the Tribunal did not accept that the applicant’s father was in hiding for reasons of his Ahmadi beliefs or that the applicant:
i)was involved in a heated argument with a female Sunni classmate at college or university;
ii)was branded an enemy of Islam by members of the student wing of Jamati Islami;
iii)married a member of the Ahmadi community and that she and her husband’s taxi was damaged by young Islamic extremists in November 2003;
iv)had moved with her husband five times in Dhaka because their neighbours did not like them;
v)organised a meeting with other Ahmadis (Kadianys), that bombs were thrown or that she and two other people were injured; or
vi)was threatened by members of the community and told she would be killed unless she became a normal Muslim.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows, incorporating amendments made at the hearing:
1)The Second Respondent made jurisdictional error by delagating [sic] its jurisdictional tasks to the Ahmadiya Muslim Association of Australia (AMAA).
2)The Second Respondent made jurisdictional error by pre-judging the possible probative value of evidence from a named person (Rafique Shahid) because the AMAA stated that he was not a mutiwali [sic] as he claimed.
3)The Second Respondent made jurisdictional error by failing to contact Rafique Shahid at the hearing as required by the applicant and thereby deprived the applicant of the hearing to which she was entitled pursuaint [sic] to section 425 in circumstances where the Second Respondent had formed a view, provisional or otherwise, that Rafique Shahid was not a mutuali [sic].
4)The Second Respondent, basing its opinions on the advice of the AMAA, so prejudged the issue of whether the applicant was an Ahmadi so as to constitute actual or apprehended bias by the Second Respondent.
At the hearing the applicant submitted that the second and third grounds were really only particulars of the fourth ground.
Tribunal delegated its jurisdictional task to the AMAA
The implication contained in this first asserted ground of review is that the Tribunal blindly accepted what the AMAA submitted to it and did not exercise any independent judgment or bring any critical faculty to its consideration of the information supplied by the AMAA. However, when considering the Ahmadi community generally, the Tribunal made the following observations:
The independent information indicates that the Ahmadi community is a close knit and tightly organised group in each country in which it is located. Members of the community are expected to attend their mosque and to become members of the various auxiliary associations of the Ahmadi community. The independent information indicates that members of the community and their families are well known to each other. Children are given explicit education in Ahmadi practice and belief. Persons who convert to Ahmadism are required to study Ahmadi beliefs and undergo specific rituals which are then recorded in a particular manner before being accepted into the community. (CB 264 – 265)
…
The country information indicates that the Ahmadi community is a close knit and highly structured organisation and I accept that in the context of its own particular structure it is able to provide accurate information on membership of the community. It can be distinguished from those religious groups which have fluid membership, all encompassing philosophies and a lack of record keeping to readily identify members. (CB 266)
In the context of those observations, the Tribunal’s acceptance of the information provided by the AMAA was logical and reasonable. It can be concluded that the Tribunal gave greater weight to the disinterested advice provided by the AMAA following consultation with its Bangladeshi counterpart than to the claims made by the applicant which lacked similarly weighty evidentiary support. To do so does not amount to an abdication by the Tribunal of its duty to weigh and consider the evidence. Rather, it demonstrates that, having received the evidence relevant to this review application, the Tribunal considered that the information provided by the AMAA was persuasive. In doing so, the Tribunal discharged its duty to receive and consider relevant evidence and to decide which evidence to prefer. No error is disclosed in it doing so.
Tribunal prejudged evidence of Rafique Shahid
The essence of this allegation is that because the information received by the Tribunal from the AMAA was to the effect that there was no mutawalli called Rafique Ahmed Shahid, without more it made a decision as to the probative value of any evidence which Rafique Shahid might be able to give. However, it was logical of the Tribunal to prefer information received from the officials of the religious group of which the applicant claimed membership, to that likely to be given by a person apparently living overseas whose identity could only be confirmed out of his own mouth and who had been disclaimed by the very religious group which would be best placed to vouch for his genuineness.
The assessment of the weight to be given to the information allegedly supplied and to be supplied by Rafique Shahid was a matter for the Tribunal. The fact that it preferred the evidence of the AMAA to that of Mr Shahid cannot support a finding of jurisdictional error in the circumstances.
Failure to contact Mr Shahid because the Tribunal had already decided he was not a mutawalli
By his letter of 5 March 2007 the applicants’ solicitor invited the Tribunal to phone Mr Shahid to ask him “any questions in relation to his confirmation” (CB 221). The Tribunal was obliged to give consideration to such a request but it was not required to grant it: s.426 Migration Act 1958 (“Act”). The issue was explicitly discussed at the Tribunal hearing:
She stated that the Tribunal could telephone him for further information. I pointed out that if the Tribunal was to telephone him there was no way in which his claimed position could be verified. In these circumstances his evidence would have no or very little weight. I put it to her that she could take the letter to the local Ahmadi association (AMAA) and they could confirm his position. (CB 258 – 259)
This demonstrates that the Tribunal turned its mind to the discretion which it had under s.426 but decided, for the reasons stated, that nothing was to be gained by speaking to Mr Shahid. In making the decision it did, the Tribunal’s discretion did not miscarry.
In the circumstances of this case, jurisdictional error is not disclosed by the fact that the Tribunal did not contact Mr Shahid.
Bias by prejudgment
In her written submissions, the applicant says that bias on the part of the Tribunal can be inferred from the following matters:
a)the Tribunal had conflicting information in respect of which it had to make a decision. On the one hand, it had the applicant’s claims that she was Ahmadi and had letters from Dr Aziz and Rafique Shahid confirming this but, on the other hand, the Tribunal had contrary information from the AMAA;
b)the applicants’ adviser gave an account of having spoken by telephone to Rafique Shahid;
c)the Tribunal refused to contact Rafique Shahid;
d)the Tribunal refused to give any weight to the evidence of the adviser; and
e)the Tribunal shut its mind to any evidence contrary to the AMAA’s evidence.
Her principal allegation was that bias might reasonably be apprehended but she also alleged actual bias.
The applicant submits that the Tribunal’s reasoning was circular and refers to the following passage in the Tribunal’s decision:
I have considered the corroborative evidence in the advisor’s account of a telephone conversation with Rafique Shahid. I have not given any weight to this evidence as the identity and position of the author of the letter cannot be verified and it is not consistent with evidence obtained from the AMAA to the effect that the Ahmadi organisation in Bangladesh has no knowledge of the author of the letter. They have stated that he is not a member of the Ahmadiyya in Bangladesh. (CB 265)
The applicant submits that the Tribunal preferred the AMAA’s evidence to the evidence of the applicant’s solicitor without bringing an independent mind to determining which evidence to accept. The applicant builds on this submission saying that the Tribunal’s rejection of evidence concerning Mr Shahid and what he had to say, because of the evidence received from the AMAA, creates an apprehension of bias. The applicant submits:
Where a migration agent or advisor states that he has had a telephone conversation with a certain person such evidence should not be likely [scil: lightly] dismissed merely because it conflicts with information coming from a favourite source of the RRT. (para.22, applicant’s written submissions)
I cannot conclude that the Tribunal’s decision discloses a failure to bring an independent mind to the determination of which evidence to accept. Nor can I conclude that the Tribunal’s decision on this point was whimsical, arbitrary or capricious as the applicant’s submissions might imply. The Tribunal described the basis of its decision and it was a logical one. As already noted, telephone evidence from Mr Shahid whose identity could not be proved except out of his own mouth was, the Tribunal concluded, less weighty than the evidence of the religious organisation of which he claimed to be a member. Far from being arbitrary or capricious, the Tribunal’s decision was logical and open to it.
Further, I cannot agree that the Tribunal “lightly” dismissed what the applicants’ adviser had to say. In this regard, it is important to draw a distinction between the adviser’s account of the conversation and the applicant’s suggestion that Mr Shahid should be contacted by the Tribunal. The Tribunal did not reject the adviser’s account of the conversation, it merely concluded that the evidence provided by the AMAA was to be preferred over whatever Mr Shahid might have to say.
The applicant’s written submissions further say:
The whole of the proceedings from 30 January 2007 onwards bear the hallmarks of a sham because once the RRT was in receipt of information from the AMAA stating that the applicant was not a member of the Ahmaddiya Community of Bangladesh, her fate and that of her husband before the Tribunal were doomed. (para.23)
The test for apprehended bias in the circumstances of the Tribunal’s hearing may be identified by a synthesis of the decisions in Johnson v Johnson (2000) 201 CLR 488, Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 and NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 as being a situation where a fair-minded lay observer who is properly informed as to the nature of the proceedings, the matter in issue and the conduct which is said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal might not bring or might not have brought an impartial and unprejudiced mind to the resolution of the question it is required to decide.
In this case, the applicant is endeavouring to erect an allegation of bias out of a preference by the Tribunal for some evidence over other evidence. In part, this is based on the Tribunal not having contacted Mr Shahid to obtain evidence from him. However, the Tribunal’s discretion did not miscarry and the situation in this case is not analogous to that seen in Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16.
The only evidence touching on the issue of possible bias is the Tribunal’s decision record and the documents referred to in that decision. A consideration of that decision record gives a strong basis for concluding that the Tribunal’s mind was open to persuasion and that a reasonable observer would not apprehend a real and not remote possibility of prejudgment on its part. Through her representative, at the hearing on 3 January 2007 the Tribunal told the applicant that it would follow up with the AMAA her adviser’s request for letters stating whether the applicants were known members of the organisation. It subsequently sent a s.424A notice seeking comments on the information it received. It then held a second hearing on 6 March 2007 and took evidence from the applicant. It subsequently made enquiries and put the results of the enquiries to the applicant in a further s.424A notice, which out of prudence it sent twice (see CB 260.9). This series of events does not suggest a mind which was not open to persuasion.
The applicant is complaining that the Tribunal chose ultimately to rely on information obtained from sources other than her. The fact that it did so does not mean that different evidence might not have produced a different result. I cannot conclude that the evidence supports a conclusion of bias, whether actual or apprehended.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 23 May 2008
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