SZHDG v Minister for Immigration
[2006] FMCA 516
•4 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHDG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 516 |
| MIGRATION – RRT decision – Bangladeshi claiming persecution after conversion to Christianity – disbelieved by Tribunal – religious activity in Australia disregarded by Tribunal – no error found. |
Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R(3), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
| Applicant: | SZHDG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2620 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 4 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 4 April 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2620 of 2005
| SZHDG |
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 19 September 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 July 2005 and handed down on 23 August 2005. The Tribunal affirmed a decision of the 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Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth) but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s jurisdiction under s.483A gives it the same powers as the Federal Court 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 do not have power to set aside the Tribunal decision and send the matter back unless I am satisfied that 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 lodged an application for a protection visa on 9 December 2004 assisted by a migration agent, Mr Mollah. In his application he claimed to have arrived in Australia in October 2004 on a passport showing a name and photograph of a different person who had previously visited Australia in 2003. He claimed that he was a Christian by religion, and in answer to the question: “why did you leave Bangladesh?”, he said:
I am a converted Christian. I was persecuted in Bangladesh because of my Christianity.
I was born in Muslim family. After the conversion I was targeted by Muslim fundamentalist and the ruling extremists. My life was real threat by Muslim fundamentalist. Bangladesh is a Muslim fundamentalist dominated country. In Constitution of Bangladesh State religion is Islam.
I was torture and attack by fundamentalist and police.
I will full details later.
In response to other questions, he said that he thought that “the present government police will kill me”, and also expressed fear of the BNP political party and fanatical Muslim parties. He also referred to having fears “because of my religion conversion and association with the Awami League and protesting against the BNP and their political activities”.
No further information was sent to the Department, before a delegate made a decision refusing the application on 1 February 2005.
The applicant appealed to the Refugee Review Tribunal on 25 February 2005, appointing Mr Mollah as his agent. Accompanying his application was an eight‑page statement containing general submissions concerning the situation in Bangladesh, with elaboration of his claims to be a converted Christian and to have suffered persecution in Bangladesh as a result. This included:
A fanatic Muslim group also attacked me at Dhaka. They also declared me as a Kafer (non‑believer) and tried to kill in early October 2004. They also gave a Fatwa (religious verdict) against me that “I am a non‑believer, atheist, and I should be killed and it would be religious duty for every Muslim people to kill me.
He claimed: “even I am not safe in Sydney. Some of my community people have known I am a converted Christian & I arrived in Sydney”.
The applicant was invited to a hearing on 15 June 2005. He attended, and his agent was present for part of the time. He also was accompanied by a witness, Sister Sullivan of a Josephite Community Aid organisation at Ashfield. In a letter which was given to the Tribunal, she said:
I have known [the applicant] for a few months since he became an enquirer at our Catholic Church at Ashfield. [The applicant] expressed an interest in being involved in our community which is a youth community with an outreach to people who are poor. Since that time, [the applicant] has been coming to our Home Night (a regular gathering once a week during which time we meet as a community and pray together). He is keen to assist us in our volunteer ministry among newly arrived refugees from Sudan.
[The applicant] is very desirous of staying in Australia because he is afraid for his life if he returns to Bangladesh. I do believe that [the applicant] is sincerely interested in the Christian faith and has enrolled in a year‑long programme at Ashfield St Vincent’s Catholic Church which instructs non‑Christians in the Catholic faith. If [the applicant] wishes to persevere in this programme (Rite of Christian Initiation of Adults) he would be baptised a Christian at Easter 2006.
Our community is very happy to support [the applicant] in his application for permanent residency in Australia.
The Tribunal described Sister Sullivan’s oral evidence:
Sister Sullivan told the Tribunal that she met the applicant a month ago when he was referred to her for the Home Night by Sister Therese, the pastoral sister. Sister Sullivan said the applicant was an enquirer, that is, he was participating in the first stage of the Rite of Christian Initiation of Adults (RCIA). She said that people of all faiths attended the Home Night. The applicant was insistent about knowing when and where the gathering occurred which made her less sceptical about his motivation. She said that the RCIA was a long and onerous journey that required commitment. She was of the opinion that the applicant was sincere and not becoming a Christian to get refugee status. She said she had been sceptical in other cases but the way the applicant approached prayer and the Bible, he seemed a real enquirer and had gone into the inquiry section of the RCIA with curiosity which seemed to be coming from somewhere deep. Sister Sullivan also said that the priest at the church thought the applicant was sincere.
The Tribunal asked Sister Sullivan whether the applicant had told her about his life in Bangladesh and why he was interested in Christianity. She replied that he had explained that he had been interested since childhood and had already suffered in Bangladesh. She said that the applicant was very devout when he prayed which made her feel that he was not using the system.
Sister Sullivan explained to the Tribunal that a person who had completed as much as of the RCIA as the applicant “would know very little and that she did not know what the applicant would have learnt at this stage”.
Following the hearing, the applicant forwarded to the Tribunal a statement by the pastoral sister which said:
[The applicant] has been attending St Vincent’s Catholic Church in Ashfield for Mass each Sunday for the past three months. After one month of attending and being impressed with the community and the style of worship, [the applicant] approached the priest to ask about becoming a member of this Christian community. Because of his interest in becoming a Christian and learning about the Catholic faith, I met with him. I work in the parish as the coordinator of the RCIA programme (Rite of Christian Initiation of Adults), the process whereby people wishing to be baptised are instructed over a twelve month period. For the past two months [the applicant] has, along with his “sponsor” S, (a parishioner of the parish), been to instruction sessions with me where he has been introduced to the Christian bible, the life of Jesus and the values held by Christians. I believe [the applicant] to be sincere in his search for Christian faith. Therefore I support [the applicant] in his application for permanent residency in Australia.
According to the Tribunal’s report of what happened at its hearing, the applicant was questioned about his life in Bangladesh. He told the Tribunal that he had started going to church when he was about 11 or 12, was a regular churchgoer and had converted in Bangladesh. That was why he was targeted. He identified the Catholic Church of which he claimed to be a member of the congregation. The Tribunal questioned him about the details of this, and also about his beliefs and knowledge of Christian doctrine. The Tribunal also questioned the applicant about his claimed association with the Awami League. The Tribunal said that it gave the applicant’s agent an opportunity to make written submissions subsequent to the hearing after hearing the tape, but no submissions were made.
Under the heading “Findings and Reasons”, the Tribunal found that the applicant was a national of Bangladesh. It referred to nervousness that had been shown by the applicant in the course of the hearing, and to his claim to have had only nine years of education as explaining shortcomings in his evidence. But it concluded:
Nevertheless, even allowing for the factors referred to above, the Tribunal found the applicant to be a thoroughly unconvincing witness and, for the reasons that follow, finds that he was not a credible witness.
The Tribunal then analysed how the applicant had responded to its questions and the content of his answers. It made what appear to me to be valid criticisms. The Tribunal thought it significant that the applicant showed a lack of knowledge about Christianity and Jesus, and thought that this was inconsistent with somebody who claimed to have been interested in Christianity since childhood, to have attended church on a weekly basis since he was 11 or 12 and to have converted to Catholicism in 2001.
The Tribunal said that it found the applicant’s evidence about his political activities was “also vague and unconvincing”.
It concluded:
In light of the finding that the applicant was not a credible witness the Tribunal finds that his claim about his religious and political activities in Bangladesh have been fabricated. The Tribunal thus does not accept that the applicant has had an interest in Christianity or Jesus in Bangladesh, or that he attended church in Bangladesh or engaged in any Christian activities there or that he converted to Catholicism. Nor does the Tribunal accept that he had any association with the Awami League or protested against the BNP. It follows that the Tribunal does not accept that the applicant was harmed in Bangladesh for reasons of religion or political opinion as he claimed.
Earlier in its reasons the Tribunal had referred to s.91R(3) of the Migration Act, which provides:
91R(3)For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The Tribunal then applied that provision in relation to the applicant’s religious activities in Australia. It said:
In relation to the applicant’s religious activities in Australia, the Tribunal has taken into account the letters from both sisters. It accepts that they believe that the applicant is genuinely interested in Christianity and possibly becoming a Christian. However, in light of the Tribunal’s finding that the applicant was not a credible witness and that he fabricated the claims he has made about his religious activities in Bangladesh it finds that the sole purpose for which he has engaged in these activities in Australia has been to strengthen his refugee case. It therefore has disregarded that conduct in assessing whether he faces a well‑founded fear of persecution in Bangladesh as required by s.91R(3) of the Act.
I have carefully considered the Tribunal’s reasoning, and consider that it was open to it on the material which was before it. Essentially, the Tribunal has disbelieved the applicant’s claims as to what happened to him in Bangladesh in their entirety. It has also taken an adverse view of the applicant’s motivation for his church activities since coming to Australia. Notwithstanding the applicant’s support from the sisters, I think it was open to the Tribunal to arrive at that assessment. I am unable to find any jurisdictional error affecting the Tribunal’s decision.
The applicant’s application filed in this Court adopted a precedent which does not give any particulars of general assertions that the Tribunal failed to consider evidence, was biased, failed to investigate, and misused country information. Counsel for the Minister has attempted to deal with those contentions in his written submission, and I accept his submissions. However, I do not think it useful for me to hypothesise what particulars could have supported the grounds listed in the application – none have been provided by way of amended application or written submission. I have considered them in their generality, and am unable to find any argument arising from them that could assist the applicant.
The applicant has appeared today, and has repeated his claims that he is a Catholic Christian. He also said that he had been unable to obtain legal assistance to help him present his case. I have considered what he said to me, but for the reasons I have given above I am not satisfied that the Tribunal’s decision was affected by jurisdictional error. It is therefore a privative clause decision within s.474(1), and I must dismiss the application.
I certify that the preceding twenty‑two (22) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 19 April 2006
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