SZHXF v Minister for Immigration
[2007] FMCA 1491
•14 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHXF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1491 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of Bangladesh claiming fear of persecution for reasons of his religious beliefs – whether Tribunal breached Migration Act 1958 (Cth) s.424A – certiorari and mandamus. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 424A(1)(b), 424A(3)(a), 424A(3)(b) |
| Applicant: | SZHXF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3762 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 March 2007 |
| Date of Last Submission: | 8 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr Mitchell |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The title of the first respondent is changed to Minister for Immigration & Citizenship.
That an order in the nature of certiorari is to issue quashing the decision of the second respondent made on 1 November 2005 and handed down on 29 November 2005.
That an order in the nature of mandamus is to issue directing the second respondent to reconsider and redetermine the application of the applicant for a protection visa according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3762 of 2005
| SZHXF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on
29th November 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant seeks judicial review of that decision. He filed an application and an affidavit in support on 20th December 2005.
He filed an amended application on 8th March 2007. In that amended application the applicant seeks the following orders:
a)A writ of certiorari removing the decision in this Court to be quashed.
b)A writ of mandamus directing the Tribunal to reconsider and redetermine the applicant's application for a protection visa according to law.
c)A writ of prohibition restraining the respondent, his servants and agents from acting upon or giving effect to the decision.
By reference to the respondent, of course, it is meant the first respondent Minister.
Background to this matter is that the applicant is a citizen of Bangladesh. He arrived in Australia on 4th August 2004 and on
16th August 2004 he lodged an application for a protection (Class XA) visa with what was then the Department of Immigration & Multicultural & Indigenous Affairs. On 5th November 2004 a delegate of the Minister refused to grant the application for a protection visa. On 9th December 2004 the applicant applied for a review of that decision. The Tribunal invited the applicant to a hearing to give evidence and present arguments. On 30th March 2005 the applicant attended the hearing and gave oral evidence.
The applicant claims a well‑founded fear of persecution should he be required to return to his native Bangladesh on the ground of his religious belief. The applicant claimed that he was of the Ahmadiyya Muslim faith. He claimed that he had been discriminated against whilst he was at school. In 1992 his father's grocery shop in Chittagong was burnt and the authorities did not respond. The family moved to Rangpur in Bangladesh but in 1993 his father's business was again affected by discrimination and the business suffered accordingly. He himself was subjected to discrimination in 1993 whilst he was engaged in his tertiary studies. He claimed that in January 1996 he had been assaulted and humiliated by Sunni Muslims as part of a student procession celebrating the election of candidates for the student union. During the period 1999 to 2004 the applicant had been involved with Ahmadiyya Muslim Jamaat Bangladesh, the AMJB and whilst visiting Ahmadiyya religious programs in different parts of Bangladesh he faced:
death risks
and his human rights were:
violated severely
The applicant mentioned two incidents, one in January 1999 and one in May 2000. On each occasion the applicant claimed to have been injured. In June 1999 Sunni Muslim supporters tried to attack the applicant's house and his family members were warned that the Sunni Muslims would kill the applicant because he was a:
non‑believer
In October 2003 the applicant claimed that he was forced to resign from his employment as an executive because of conflict with his Sunni Muslim work colleagues. Again in July 2004 whilst preparing to go to prayers he was:
snatched and tortured
by fundamentalist Sunni Muslims and was seriously wounded.
The Tribunal wrote to the applicant about his claims, first on 2nd June 2005. A copy of that letter can be found at page 168 and 169 of the Court book. The letter told the applicant:
The Tribunal has information that would, subject to any comments you make, be the reason or part of the reason for deciding that you are not entitled to a protection visa.
The information is as follows:
The letter then went on to set out information in a letter to the Tribunal of 26th May 2005 from the Ahmadiyya Muslim Association of Australia which confirmed that the applicant attended Friday prayer at the Ahmadiyya Mosque in Marsden Park, New South Wales. The letter noted that the applicant had also provided a letter from one Mr Ahmad dated 2nd August 2004 which the association had sent to the:
National Ameer Ahmadiyya Muslim Jamaat Bangladesh for verification.
The information set out from National Ameer then sent a letter to the AMAA which said this:
We are very sorry that one of our members, Mr Ahmad, has supplied a letter of introduction to a newly converted person violating Jamaat standard practice. We find that he misused his position as Naib‑Sardar of Majlis‑e‑Ansarullaj Bangladesh. It is true that applicant's name (not disclosed) signed Bait form on 23 July 2004 at our Dhaka Mosque when he disclosed that he is going to Australia on an official job he was specifically informed that no certificate or introductory letter will be issued for him. He is a completely unknown person and nothing for or against is known to us, so any financial help or helping in asylum case is not recommended.
The letter told the applicant:
This information is relevant because this information may lead the Tribunal to conclude that significant aspects of your claims are untrue (for example if you have a long history of adherence to the Ahmadiyya faith) that you have concocted or acquired an affiliation with the Ahmadiyya community for the purpose of generating the basis for a claim of protection in Australia.
The letter invited the applicant to comment on that information in writing by 28th June 2005. The letter was clearly intended to comply with s.424A of the Migration Act 1958 (Cth) (“the Act”).
The applicant replied to that letter through the Refugee Advice and Case Work Service on 23rd June 2005 and a copy of that reply can be found at pages 170 through to 116 of the Court book. Some of those documents are in Bengali but have been accompanied by translations. The Tribunal again wrote to the applicant, this time on 29th August 2005. The letter is headed:
Your Application for Review
But from its text is clearly intended to comply with the requirements of s.424A of the Act the letter told the applicant that the Tribunal had information which would, subject to any comments that he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The letter then set out the information to which the Tribunal referred which related to comments made by the Australian High Commission in Dhaka, Bangladesh about the applicant's material. The letter told the applicant that this information was relevant because the information may cause the Tribunal to disbelieve the applicant's claims to be Ahmadi and to dismiss his application for protection. The applicant was invited to comment on that information in writing in English by 21st September 2005.
A copy of that letter can be found at 217 to 219 of the Court Book.
The applicant replied to that letter, again through the Refugee Advice and Case Work Service on 21st September 2005. The letter contained documents by way of submissions and can be found at pages 220 through to 236 of the Court Book.
The Tribunal handed down its decision on 29th November 2005.
A copy of the Tribunal decision record can be found at pages 244 through to 284 of the Court Book. The Tribunal accepted that the applicant was a national of Bangladesh. The Tribunal accepted also that Ahmadis are mistreated in Bangladesh. The Tribunal in its findings and reasons which can be found at pages 280 to 284 of the Court Book said:
Whether an individual Ahmadi would have a real chance of suffering harm amounting to persecution for reason of his religion is a matter for case by case determination, but many would. The critical prior question in this case therefore is whether the applicant is or is not a genuine Ahmadi or whether on the other hand he has generated a proximity to the Ahmadis simply and solely as a basis for a claim for protection.
See Court Book page 280.
The Tribunal did not accept that the applicant was a genuine Ahmadi, nor did the Tribunal accept that he had been involved in activities on behalf of the Ahmadiyya Muslim Jamaat Bangladesh, AMJB.
The Tribunal did not accept that the applicant had suffered problems in his employment or that he was attacked or tortured for reasons of his being an Ahmadi or because he was involved in work on behalf of the AMJB. The Tribunal set out its reasons for those conclusions and did not accept that there was a real chance of the applicant suffering harm amounting to persecution in Bangladesh for reason of his religion or any other Convention reason. The Tribunal affirmed the decision not to grant the applicant protection visa.
The applicant filed an amended application in Court on 8th March 2007. In that amended application the applicant relied on the ground:
The second respondent committed jurisdictional error of law in failing to comply with the requirements of s.424A of the Migration Act. The particulars of that ground are a failure to disclose as required by s.424A(1) in the manner required by s.424(2) the information used by the Tribunal to suggest that the applicant's knowledge of Ahmadi beliefs was inadequate and inaccurate. Further particulars of that claim related to information as to the religious significance that Ahmadis attribute to Ahmadiyya Miraz Ghulam, Jesus Christ and also the prophet Mohammed. Further particulars of that claim are a failure to disclose as required by s.424A(1) in the manner required by s.424A(2) information to the effect that senior members of the Ahmadiyya Muslim Jamaat of Bangladesh gave credible and reliable advice on claims that a person is Ahmadi.
The applicant was represented at the hearing by Mr Karp of counsel. He submitted that the issue in this case is whether certain information which was not disclosed in writing to the applicant or his advisors came within s.424A of the Act:
a)Information was to the religious significance that Ahmadis attribute to Ahmadiyya Miraz Ghulam, Jesus Christ and the prophet Mohammed stated at Court book 278 and extracted at paragraph 14 above.
b)That senior officials of the Ahmadiyya Muslim Jamaat Bangladesh gave reliable advice.
c)The written opinion of the National Ameer of the Ahmadiyya Muslim Jamaat Bangladesh that the applicant is:
positively lying
Mr Karp referred the Court to s.424A of the Act and submitted that in each case the information not disclosed was part of the reason for affirming the decision under review. The Tribunal, he submitted, clearly referred to that in its findings where it referred to independent information which the Tribunal used to make an adverse finding about the applicant's credit. That information which is set out at page 278 of the Court Book is relevantly as follows:
a)Mirza Ghulam Admad was the promised Messiah and Imam Mahdi whose coming had been predicted by the prophet Muhammad
b)Ahmadis therefore believe the prophet Muhammad was the last law‑bearing and independent prophet of God.
c)Ahmadis believe Jesus Christ to be a great prophet of God who escaped death on the cross, travelled to the East in search of the lost tribes of Israel and finally settled in Kashmir where he died of an old age and is buried in a tomb at Srinagar, Kashmir. Ahmadis further believe that the prophesy of Muhammad regarding the second coming of Jesus Christ was fulfilled in the person of Mirza Ghulam Admad.
The Tribunal had stated that because of those beliefs orthodox Islam officially regards Ahmadis as heretical and outside of true Islam.
Mr Karp submitted on behalf of the applicant that the Tribunal framed the critical question as being whether or not the applicant was a genuine Ahmadi. It was aware that it had statements made by the Ameer of the Ahmadiyya Muslim Jamaat Bangladesh, both orally and in writing. These statements were adverse to the applicant. On the other hand, it had evidence tendered by the applicant and on the applicant's behalf, which, not surprisingly, was in the applicant's favour. Mr Karp went on to submit that the Tribunal considered that advice from the Ahmadiyya Muslim Jamaat Bangladesh was careful and reliable and that the Tribunal would normally give weight to it. The Tribunal observed that the Ahmadiyya Muslim Jamaat Bangladesh:
through its most senior officials
denied in writing claims by the applicant to have been involved in various incidents of persecution of Ahmadis. That could have be said to have been disclosed to the applicant by the s.424A letter of
29th August 2005. The Tribunal went on to find the Ameer in clear and unequivocal and in writing stated that the applicant was lying.
He pointed out that this extremely damaging informing was not disclosed and the Tribunal relied on it later. Mr Karp referred the Court to the statement by the Tribunal at page 281 of the Court book where in the final paragraph on the page the Tribunal said:
Finally as indicated above the applicant's answers to my questions adhering about the difference between Ahmadi beliefs and mainstream Muslim beliefs were inadequate, especially for a person claiming a lifetime of practice of a religion and years of active proselytising. There are many things which distinguish Ahmadi beliefs from those of mainstream Muslims. These are summarised above.[1]
See Court Book page 281.
[1] Court Book page 281
The items that were summarised by the Tribunal related to the independent information which was not, of course, disclosed to the applicant in writing. Mr Karp pointed out that the Tribunal went on to discuss matters raised in the applicant's advisor's most recent letters, including a request for further details of inquiries made by the Department of Foreign Affairs & Trade.
The Tribunal went on to say:
As to the request for the record of interview between the High Commission and the Ameer, this would have had more significance if the Ameer had not subsequently written to the High Commission confirming and adding to what he told the High Commission when they met. His statement that the applicant is:
positively lying about his involvement in the various affairs of the Ahmadi Muslim community in Bangladesh could not possibly be more clear or more damning. [2]
[2] Court Book at 282
Mr Karp submitted that the Tribunal had found the applicant had formed an association with the Ahmadi community initially in Bangladesh and later in Australia, solely to generate a claim for protection. The Tribunal found that he was not a genuine Ahmadi on what was said to be two important bases. First is the advice of the Ameer and the second was the Tribunal's lack of satisfaction with the applicant's answers to the Tribunal's questions about Ahmadi beliefs adhering.[3]
[3] Court Book at 283
In the Tribunal's opinion this outweighed all evidence put before it on behalf of the applicant. Mr Karp submitted that the issue in this application was whether the information about:
a)The religious significance that Ahmadis attribute to Ahmadi Miraz Ghulam, Jesus Christ and the prophet Mohammed
b)That senior officials of the Ahmadiyya Muslim Jamaat Bangladesh gave reliable advice.
c)That the written opinion of the National Ameer of the AMJB that the applicant is: positively lying
d)That information not being disclosed in writing to the applicant or his advisors came within s.424A of the Act.
He went on to submit that in each case the information was not disclosed, was part of the reason for affirming the decision under review. The Tribunal clearly, in his submission, refers to that information in making findings as to the purported inadequacy of the applicant's testimony at the hearing. The Tribunal's purported knowledge of the reliability of information from the Ahmadiyya Muslim Jamaat Bangladesh through its most senior officials was a reason for preferring that information to that given by and on behalf of the applicant as was the information from the National Ameer that the applicant was:
positively lying
the exceptions in s.424A(3)(b) and (c) do not apply could the exception in s.424(3)(a) apply to the information from the National Ameer.
That, he submitted, was sufficient to decide the matter in favour of the applicant.
The undisclosed written accusation of the National Ameer was so damning that it must impinge on what the Tribunal refers to as an independent finding. He also submitted that in the alternative the issue is whether s.424A(3)(a) applies to the other information not disclosed. Information about a person must include that which is perceived about him or her. It must also include that which is attributed to a person including religious significance attributed to him or her, plus the Tribunal's purported knowledge of the reliability of those who give information on behalf of the AMJB was outside the exception in s.424(3)(a) similarly the beliefs that are Ahmadis are said to hold as to Miraz Ghulam, Jesus Christ, the prophet Muhammad or any of them are about a specific person or people and are outside the exception in s.424(3)(a).
For the respondent Minister Mr Mitchell of counsel submitted that the information used by the Tribunal to suggest that the applicant's testimony as to his Ahmadiyya beliefs was inadequate was that sourced from the book Religious Bodies in Australia.[4]
[4] Court Book pages 278-280
That and excerpts from that book appear to have been used as a basis for assessing the applicant's testimony before the Tribunal as to his understanding of the tenets of the Ahmadiyya faith. That information was not specifically about the applicant but rather about the Ahmadiyya faith, therefore came within s.424(3)(a) the appraisal of the applicant's testimony as being inadequate was the Tribunal member's subjective appraisal of the applicant's testimony and was not itself information.
Mr Mitchell also submitted that the information sourced from the National Ameer and used by the Tribunal as a basis for its findings as to whether the applicant was an Ahmadi was directly quoted in the letter of 29th August 2005. The Tribunal's reasons indicated that that was exactly what the Tribunal concluded from the information in its reasons. The subjective appraisals made by Tribunal member as to the relative weight to give material or the reliability of the material before the Tribunal was not information but merely an appraisal of the material before it. Section 424A(1)(b) requires that the Tribunal ensure as far as is reasonably practicable that an applicant understands why information that forms part of a decision is relevant to the review.
He submitted that the quoted information in conjunction with the particulars given could not have left the applicant in any misunderstanding as to particulars of information and its relevance. The relevance of the information being the possibility that the Tribunal would not believe the applicant's claim to be an Ahmadi was stated clearly and explicitly. It is not reasonably practicable to require the Tribunal to further particularise what was blatantly obvious from the quoted text or to provide particulars as to the exact weight given.
In considering the submissions and the evidence before me I am of the view that the Tribunal fell into jurisdictional error by reason of the grounds set out in the amended application. I am not of the view that the alternative grounds have been made out but the primary grounds namely that the information as to the religious significance that the Ahmadis attribute to Ahmadi Miraz Ghulam, Jesus Christ, the prophet Muhammad that senior officials of the AMJB gave reliable evidence and the opinion of the National Ameer of the AMJB that the applicant is:
positively lying
is a matter that came within s.424A of the Act and should have been disclosed.
In my view there was a failure to disclose the information used by the second respondent to suggest that the applicant's knowledge of Ahmadi beliefs was inadequate and inaccurate, and there was a failure to disclose information that senior members of the AMJB gave credible and reliable advice on claims that a person is Ahmadi. In my view the Tribunal has fallen into jurisdictional error and the application will be granted by order.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 30 August 2007
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