SZHJS v Minister for Immigration

[2006] FMCA 967

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHJS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 967

MIGRATION – RRT decision – Bangladeshi claiming persecution as member of Ahmadi faith – Tribunal found no involvement in that faith – reference during hearing to inconsistencies with “prior” information – whether a part of the reason for affirming the delegate’s decision – no breach of s.424A found – application dismissed.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1), 430, 474(1), 483A, Pt.8

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 222 ALR 411
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SZBEG v Minister for Immigration [2005] FMCA 130
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2

Applicant: SZHJS

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3000 of 2005

Judgment of: Smith FM

Hearing date: 19 June 2006

Delivered at: Sydney

Delivered on: 19 June 2006

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Counsel for the First Respondent: Ms S McNaughton

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $5,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3000 of 2005

SZHJS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 18 October 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 30 August 2005 and handed down on 22 September 2005. The Tribunal affirmed a decision of the delegate taken on 22 April 2002, which refused to grant a protection visa to the applicant.

2. The lengthy period between the delegate’s decision and the Tribunal’s decision is accounted for by an earlier decision of the Refugee Review Tribunal handed down on 17 July 2003.  This was the subject of earlier proceedings in this Court, which gave rise to an order by Driver FM quashing the decision and remitting the matter (see SZBEG v Minister for Immigration [2005] FMCA 130). I shall refer to his Honour’s reasons, below.

3. The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41, and the Acts Interpretation Act 1901 (Cth), s.8).

4. 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’s decision and send the matter back to the Tribunal, 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 claim should be believed, nor whether he qualifies for a refugee visa.

5. In the present case, the single ground relied upon is that the Tribunal failed to comply with a duty under s.424A(1) to serve on the applicant a written invitation for comments. It is argued that the Tribunal should have invited his written comments on whether some information in his visa application, which was discussed with him during the hearing, was inconsistent with other evidence he gave to the Tribunal. It is now well established that such a failure would provide a jurisdictional error vitiating the Tribunal’s decision (see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”)). 

6. The applicant arrived in Australia as a crewman on an Iranian ship and left his ship on 13 July 2001.  On 19 July 2001 a protection visa was lodged on his behalf by a migration agent, Mr Sirajul Haque.  The application was supported by a brief statement in which the applicant claimed to fear persecution if he returned to Bangladesh, his country of nationality.  He claimed: “I came from a religious minority community in Bangladesh named Kadeani (Ahmedi) sect.  My family was oppressed by the mainstream Muslim Community on a number of occasions”.  He referred to being “targeted” by a “fundamental group of students” when attending school, and at college to have been “beaten by a group of fanatic Sunni Muslim students and they removed me from the college”.  He also claimed that after gaining training as a seaman in 1995, he could not obtain any other sort of employment “due to my Ahmedi background”.  He also said:  

   7.In the meantime I became one of the vice presidents of Ahmedi Muslim Community [town].  When our people tried to be united Sunni Muslims stood against our activities.  Many times they overthrew our Mosques and tried to kill our leaders.  As a leading activist of the organization I led many religious processions on the street, which made me a target. 

   8.On 21 June 1999 at ten p.m., while I was returning home I was beaten by a group of Orthodox Muslim people at Bus station.  I became unconscious by their inhumane torture and then I was admitted into a nearby clinic and spent 15 days. 

   9.After this incident I left home to go abroad and tried hard to leave the country to secure my life and finally I obtained an opportunity to leave the country by joining MV Iran Jamal. 

7. The applicant was invited by a delegate to provide substantiation of his claims, but the only supporting material which was forwarded by his agent before the delegate’s decision was taken, was a press report of a “grenade attack on a ahmadiyya mosque in the port city of Khulna” at a date that is unclear to me.  A delegate refused the visa application on 22 April 2002. 

8. Subsequent to that decision, the applicant’s agent forwarded to the Department three documents.  These at some stage also reached the Tribunal’s file.  Two of them were in English on letterhead of “Ahmedia Muslim Jamat, Bangladesh”, and were purported to be signed by the general secretary of that establishment in Dhaka.  In one, the applicant was certified to be “a member of Ahmedia Muslim Jamat”. In the other, it was attested that the applicant “played a strong role to stand our voce [sic] against fundamentalists Sunni.  As a result he was targeted by the mainstream Sunni Muslims.  He was a leader and a leading activist of our community.  He experienced oppression and threatened to life by Sunni Muslims.  His life was not save in Bangladesh.  Finally he left the country to secure his life only”.  A document in Sanskrit text was also presented. 

9. The manner in which the first Tribunal dealt with these documents was a ground for the remitter by Driver FM.  In the course of his judgment, Driver FM referred to questioning of the applicant by the Tribunal, in which it appeared to gain the applicant’s agreement that it should make its own inquires of the local Ahmadi association as to their authenticity.  Driver FM thought that the applicant had been misled, when the Tribunal did not in fact conduct those inquiries. 

10. On the remitter, the Tribunal was reconstituted.  The applicant continued to be represented by Mr Haque, who forwarded to the Tribunal a number of press reports concerning incidents of violence directed at Ahmadi Muslims in Bangladesh.  Mr Haque also accompanied the applicant to a Tribunal hearing on 1 July 2005.  I shall refer to some aspects of the Tribunal’s questioning of the applicant further below. 

11. It appears that at the time of the hearing, the Tribunal had initiated inquiries with the local Ahmadiyya Muslim Association of Australia, in particular to discover whether the applicant was known to them as an Ahmadi from Bangladesh.  In a letter to the Tribunal, dated 29 May 2005, the vice president of the Australian association said:  

    We don’t have any knowledge of this person.  As you have mentioned [the applicant] has presented two letters to the tribunal.  If you can send us letters then we can check the authenticity of letters presented to the tribunal. 

12. By letter dated 17 July 2005, after receiving copies of the letters that had been presented on behalf of the applicant, the vice president said: 

    We confirm that [the applicant] is not an Ahmadi and the documents presented to commission, letterhead and signatures on the documents have been forged. 

13. The Tribunal then served on the applicant and his agent an invitation under s.424A(1) to comment upon the contents of this correspondence, which was shown in full to the applicant. The applicant’s agent, Mr Haque, responded by denying that the “document from the relevant authority in Bangladesh” was a “forged document”, but did not present further material to establish its authenticity. 

14. In the Tribunal’s statement of reasons, it recited the history of the matter over nine pages.  This included a lengthy description of the two hearings which had been attended by the applicant, that being the first hearing conducted by the previous Tribunal on 11 April 2003 and the hearing conducted by the Tribunal as presently constituted on 1 July 2005.  

15. A transcript of neither of the hearings is in evidence before me.  However reading the Tribunal’s description, I form the opinion that the Tribunal attempted to give a full narrative of the content of both hearings, without at this point in its reasoning foreshadowing how it proposed to deal with that evidence when making its conclusions. 

16. As I shall consider below, at least four points in its questioning of the applicant, the Tribunal identified departures between what the applicant had told the second Tribunal and what he and his agent had said on previous occasions as to his personal history back in Bangladesh. 

17. At the end of the hearing, the Tribunal also questioned the applicant to assess the extent of his involvement in Ahmadi religious practices, and his knowledge of Ahmadi doctrine and history.  It said: 

    I indicated to him that I understood that at the age of 18 he would have been obliged to sign a bai’at form to secure his adult membership of the Ahmadiyya community (Research Directorate, Documentation, Information and Research Branch, Immigration and Refugee Board of Canada, Pakistan: Update on the Situation of Ahmadis, October 1993 – June 1996, November 1996, Section 3.1, Lahoris and Qadianis).  The Applicant said that he had signed a membership form.  I asked him if he could remember what he had promised to do.  The Applicant said that it was the faith, that it was Muslim and that everyone was Muslim.  He said that the faith was not called Kadiani but Ahmadi although people called it Kadiani because Mirza Ahmad had been born in Qadian village.  He said that Sunni and Shia Muslims believed that Jesus would come after a long time but Ahmadis believed that ‘Isa’ or Jesus had already come.  They believed that he would be of Persian descent and that he would be born on the Indian subcontinent, and Mirza Ahmad, who was of Persian descent, had already been born. 

    I asked the Applicant again what he had promised to do when he had signed the bai’at form.  The Applicant repeated that he had signed the form.  I asked him again if he could tell me what he had promised to do.  He said that they undertook to go from house to house and that they would tell people that Jesus was Mirza Ahmad and that he was already in their hearts.  He said that they wanted everybody to join them.  I noted that the bai’at form contains specific promises (Research Directorate, Documentation, Information and Research Branch, Immigration and Refugee Board of Canada, Pakistan: Update on the Situation of Ahmadis, October 1993 – June 1996, November 1996, Section 3.1, Lahoris and Qadianis; ‘Bai’at (Initiation) Form’, translation dated 12 January 1989, CX3819).  I indicated that if the Applicant could not tell me what those promises were he should say so rather than telling me other things.  The Applicant said that they promised that they would work together.  I put to the Applicant that the bai’at form contained promises including agreeing to pray five times a day, agreeing to remain faithful to God in all circumstances, agreeing to give up pride and vanity and to follow the teachings of Mirza Ghulam Ahmad (Research Directorate, Documentation, Information and Research Branch, Immigration and Refugee Board of Canada, Pakistan: Update on the Situation of Ahmadis, October 1993 – June 1996, November 1996, Section 3.1, Lahoris and Qadianis; ‘Bai’at (Initiation) Form’, translation dated 12 January 1989, CX3819).  I put to the Applicant that it did not appear to me from his answers that he had signed a bai’at form at all. 

    I asked the Applicant what it was that Ahmadis believed about Jesus or ‘Isa’.  The Applicant said that they believed that Jesus had already been born on earth.  They believed that he was the Messiah, Mirza Ahmad.  I indicated to the Applicant that I believed that he was confusing ‘Isa’ or Jesus and the Messiah.  I noted that Muslims did not believe that Jesus was the Messiah.  The difference between Ahmadi beliefs regarding Jesus and those of mainstream Muslims was that Ahmadis believed that Jesus had died a natural death (Hazrat Mirza Bashir‑ud‑din Mahmud Ahmad, ‘Invitation to Ahmadiyyat’, The London Mosque, 1980, downloaded from accessed 5 October 1998).  The Applicant said that Jesus was not dead.  I put to him that Ahmadis believed that Jesus was buried in a grave in Srinagar in Kashmir (‘Jesus in Kashmir’, A London Mosque Publication, downloaded from library/jesusinkashmir.html, accessed 1 July 2005).  I put to the Applicant that Ahmadis believed that Mirza Ghulam Ahmad was the promised Messiah or Mahdi (Hazrat Mirza Bashir‑ud‑din Mahmud Ahmad, ‘Invitation to Ahmadiyyat’, The London Mosque, 1980, downloaded from amsaumd/invitation, accessed 5 October 1998).  The Applicant said that Mirza Ghulam Ahmad was not the Mahdi.  I asked the Applicant what sort of Messiah Mirza Ghulam Ahmad was if he was not the Mahdi.  The Applicant said that the Imam Mahdi was something else. 

    I noted that at the hearing before the Tribunal in 2003 the Applicant had said that he had not made contact with the Ahmadiyya community in Sydney at all.  The Applicant agreed.  He said that he did not know anybody.  I asked him if he had attempted to make contact in the two years since the previous hearing.  The Applicant said that he had been to two or three places.  He said that he had been to the mosque but the mosque had been closed.  I noted that he was claiming that he had been persecuted as an Ahmadi, there was a well‑established Ahmadiyya community in Sydney, he had been here for four years yet he had not made contact.  The Applicant repeated that he did not know anybody and he said that he had been unable to find anybody.  I noted that, not surprisingly, the Ahmadiyya Association had said that they did not know him (Letter from Mr Nasir Kahlon, Vice President, Ahmadiyya Muslim Association Australia Inc, to the RRT dated 29 May 2005).  The Applicant said that he had been there and he had seen the mosque but he had not been able to find anybody.  I noted that the Ahmadiyya Association was still checking the documents he had produced from Bangladesh and that the Tribunal would write to the Applicant when the results of these inquiries were known.  I put to the Applicant, however, that on the basis of his answers at the hearing it would be difficult for me to accept that he had ever been involved with the Ahmadi sect at all. 

18. The Tribunal then referred to its further correspondence with the local Ahmadi association, and its s.424A invitation sent to the applicant. 

19. Under the heading “Findings and Reasons”, the Tribunal referred to the general task of a Tribunal in evaluating the testimony of a person who claims to be a refugee.  It then, in one paragraph, referred to the applicant’s answers to its questioning about his general involvement in the Ahmadi sect, including in Australia which I have extracted above.  It said: 

    In the present case the Applicant claims that he fears that if he returns to Bangladesh he will be persecuted because he is a member of the Ahmadiyya Muslim community.  He claims that he became involved with the Ahmadiyya community after passing his Senior Secondary Certificate in 1987 and he stated at the hearing before me that he had signed a membership form or bai’at form to secure his adult membership of the community.  However as set out above he was unable to tell me the promises contained in the bai’at form.  He confused Jesus or ‘Isa’ and Mirza Ghulam Ahmad, the founder of the Ahmadi sect whom Ahmadis believe to be the promised Messiah or Mahdi.  Despite claiming to be a member of the Ahmadiyya Muslim community the Applicant has not attempted to make contact with the Ahmadiyya community in Sydney.  Not surprisingly, the Ahmadiyya Association told the Tribunal that they did not know him (Letter from Mr Nasir Kahlon, Vice President, Ahmadiyya Muslim Association Australia Inc, to the RRT dated 29 May 2005). 

20. I note that in this paragraph no reference is made at all to any of the inconsistent answers previously given by the applicant as to his personal background in Bangladesh. 

21. The Tribunal then referred to the certificates which had been presented by Mr Haque to the Department to establish the applicant’s membership of an Ahmadi institution in Bangladesh, and to its correspondence with the local Ahmadi association and with the applicant concerning the outcome of that correspondence. 

22. The Tribunal then in two paragraphs gave its reasons for affirming the delegate’s decision: 

    I give weight to the advice of the Ahmadiyya Muslim Association Australia Inc that the Association does not know the Applicant, that he is not an Ahmadi and that the documents, letterhead and signatures on the documents which the Applicant produced to the Department are forged.  I also give weight to the impression I formed on the basis of the Applicant’s answers at the hearing before me.  Having regard to the advice of the Ahmadiyya Muslim Association Australia Inc and the impression I formed on the basis of the Applicant’s answers at the hearing before me, I do not accept that the documents which the Applicant produced to the Department in purported corroboration of his claims are genuine and I give them no weight.  Having regard to the advice of the Ahmadiyya Muslim Association Australia Inc and the impression I formed on the basis of the Applicant’s answers at the hearing before me, I do not accept that the Applicant has ever been involved with the Ahmadi sect.  Since I do not accept that the Applicant has ever been involved with the Ahmadi sect it follows that I do not accept that he was ever attacked in Bangladesh for reasons of his real or perceived adherence to the Ahmadi faith, nor that he was prevented from continuing his education or discriminated against in relation to employment because he was, or was perceived to be, an Ahmadi.  I do not accept that there is a real chance that the Applicant will be persecuted for reasons of his real or perceived religious beliefs if he returns to Bangladesh now or in the reasonably foreseeable future. 

    I am not satisfied that the Applicant has a well‑founded fear of being persecuted for a Convention reason if he returns to Bangladesh. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the Applicant does not satisfy the criterion set out in subsection 36(2) of the Migration Act for the grant of a protection visa. (emphasis added)

1. In my opinion, it is clear that the Tribunal’s reference in this passage to “the impression I formed on the basis of the Applicant’s answers at the hearing before me”, is a reference to the applicant’s answers relevant to whether the Tribunal should accept that the applicant had at any time been an Ahmadi Muslim.  That is, as a reference to the part of his evidence to the hearing which I have extracted above at [17], and to which the Tribunal referred under the heading “Findings and Reasons” which I have extracted above at [19]. I do not consider that, when read in context, the Tribunal is referring to other evidence given by the applicant.

2. However, the applicant’s counsel submitted that the Tribunal’s reference to its “impressions” should not be so read.  In his written submission, counsel referred to four places in the Tribunal’s narrative of the course of evidence at the hearing, where it made reference to inconsistencies in the applicant’s evidence.  It is convenient for me to identify these passages by extracting their identification in the written submission of counsel for the applicant: 

   19.The Tribunal, in the section of its decision titled “Evidence”, recorded a number of inconsistencies between information the applicant provided over the history of his protection visa application.  Specifically: 

   a)The Tribunal noted an inconsistency between a claim the applicant made in his protection visa application and evidence the applicant gave to the first Tribunal in 2003.  The Tribunal recorded at RD 137.6: 

   “The Member noted that the applicant had said in the statement accompanying his application that his family were Ahmadis.  The applicant said that this was a mistake.  He said it had only been him that had belonged to the Ahmadi faith.” 

   b)The Tribunal noted an inconsistency between a claim the applicant made in his protection visa application and evidence the applicant gave to the first Tribunal in 2003.  The Tribunal recorded at RD 138.3: 

   “The Member noted in the statement accompanying his original application the applicant had said that he had been targeted because he had been one of the vice presidents of the Ahmadi community and he had led religious processions on the street.  The applicant said that when he had said that he had been the vice president he had meant that he had been working with the Amir or leader and when he had referred to religious processions he had meant merely going one by one in single file to someone’s house to call them into their religion.” 

   c)The Tribunal noted an inconsistency between a claim the applicant made in his protection visa application and evidence the applicant gave to the second Tribunal in 2005.  The Tribunal recorded at RD 140.4: 

   “I referred to the claim in the statement accompanying his original application that on 21 June 1999 when he had been returning home at 10 pm he had been beaten by a group of Orthodox Muslim people at the bus station.  The applicant said that he did not remember this incident … He said that he had not been attacked by Muslims in 1999.” 

   d)The Tribunal noted an inconsistency between evidence the applicant gave to the first Tribunal and evidence the applicant gave to the second Tribunal.  The Tribunal recorded at RD 140.7: 

   “I referred to the applicant’s evidence at the hearing before the [first] Tribunal that he had become involved in the Ahmadiyya community when he had been in Grade 8.  As referred to above, the applicant said that this was not correct and that he had only become involved after passing his senior secondary certificate in 1987”. 

3. Counsel contended that I should find that these inconsistencies, and the relevant “prior” information which was identified by the Tribunal, was “implicitly” part of “the applicant’s answers at the hearing”, upon which the Tribunal formed the “impression” to which it referred in the emphasised part of its critical reasons set out above at [22].

4. It was argued in support of this inference that the Tribunal was obliged under s.430 of the Migration Act to include in its written statement of reasons “the findings on any material questions of fact” and “the evidence or any other material on which the findings of fact were based”.  However, in my opinion, this does not advance the applicant’s argument, since my understanding of the Tribunal’s reasons for affirming the delegate’s decision is that the evidence upon which its “impression” was based was the applicant’s responses to its questioning seeking to discover whether the applicant revealed a general background knowledge consistent with his claim to have been, and to continue to be, an adherent of the Ahmadi religious sect.  In my opinion, it was not referring to an impression formed from his responses to its questioning of the applicant on other topics, including his claimed personal history in Bangladesh. 

5. I was also referred to Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 222 ALR 411 (“VEAL”) at [12], where the High Court pointed out that the presence of a disclaimer of reliance upon information may be sufficient “to conclude that s 424A was not engaged”.  He argued that no disclaimer was given by this Tribunal in relation to its reliance upon the “inconsistencies” in relation to “prior” information. 

6. However, plainly in VEAL their Honours did not suggest that absent such a disclaimer s.424A should be found to be engaged in every case where a Tribunal has referred to “prior information” in the course of its recitation of evidence, but not in its statement of findings and reasons.  Each case must turn on the Court’s reading of the Tribunal’s reasons for affirming the delegate’s decision.  

7. It is now well established that the Court decides whether a duty arose under s.424A(1) by undertaking an examination of the Tribunal’s actually stated reasons, with a view retrospectively to deciding whether a piece of “prior” information was “the reason, or a part of the reason, for affirming the decision that is under review” (c.f. Allsop J in SZEEU (supra) at [208]‑[216]).

8. In the present case, I find that the various items of “prior” information identified by the applicant’s counsel were not “the reason, or a part of the reason, for affirming the decision that is under review”.  The reason for the Tribunal affirming the delegate’s decision is abundantly clear.  It is that the Tribunal considered that the applicant had put forward a totally fraudulent claim to be an adherent of the Ahmadi faith.  It thought he had never been such an adherent.  It arrived at that opinion based upon its impression of his displayed general knowledge of that faith, and upon the falsity of his certificates.  It was therefore unnecessary for the Tribunal to address lesser inconsistencies in the personal history which he had presented, and I consider that the Tribunal’s reasons should be understood as not finding it necessary to address or rely upon those inconsistencies. 

9. For the above reasons, I do not consider that the ground raised in the amended application succeeds. This was the only ground argued on behalf of the applicant. The Tribunal’s decision is therefore a privative clause decision for which relief is barred under s.474(1), and I must dismiss the application.

I certify that the preceding thirty‑one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  13 July 2006