SZHYM v Minister for Immigration

[2007] FMCA 129

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHYM v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 129

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether independent country information is excluded from the obligations under s.424A(1) of the Migration Act 1958 (Cth).

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3)(a); 424A(3)(b); 474; pt.8 div.2

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 136 ALR 481
Abebe v The Commonwealth (1999) 162 ALR 1
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant: SZHYM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG3817 of 2005

Judgment of: Emmett FM

Hearing date: 5 February 2007

Date of last submission: 5 February 2007

Delivered at: Sydney

Delivered on: 16 February 2007

REPRESENTATION

Applicant appearing on his own behalf

Solicitors for the Respondent: Ms E. Palmer, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3817 of 2005

SZHYM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 November 2005 and handed down on 1 December 2005.

2. The applicant was born on 15 March 1978 and claims to be from Bangladesh and of Bangladeshi ethnicity and Ahmadi Muslim faith (“the Applicant”).

3. The Applicant arrived in Australia on 1 July 2005, having legally departed from Dhaka Airport on a passport issued in his own name and a visa issued on 5 April 2005.

4. On 7 July 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.

5. In his protection visa application, the Applicant claimed that he feared persecution by Sunni Muslims due to his conversion to the Ahmdiyya sect of Muslim religion. He further claimed that he suffered from verbal abuse, physical assault, a death threat and being spat upon as part of a general social and religious discrimination against him by the surrounding Sunni Muslim community.

6. On 16 August 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).

7. On 9 September 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. Before the Tribunal, the Applicant maintained the claims made in his protection visa application. On 1 December 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

8. On 22 December 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Australia has protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

1. The Applicant attended a hearing before the Tribunal at which he gave oral evidence. The Tribunal also noted that it had regard to written submissions provided by the Applicant’s advisor dated 6 July 2005, pre-hearing, and 9 September 2005, post hearing.

2. The Tribunal noted that the Applicant claimed to fear persecution from Sunni people in his local area because of his conversion to the Ahmadi religion. The Tribunal noted in detail the Applicants claims before it and also noted the various matters it explored with the Applicant, particularly, those that gave the Tribunal any cause for concern or required further explanation.

3. The Tribunal accepted that the Applicant is a citizen of Bangladesh.

4. The Tribunal noted the Applicant claimed to have converted to become an Ahmadi in about October 2004. The Tribunal noted in detail the various questions it sought to explore with the Applicant about the Ahmadi faith and his knowledge and practice of that faith. The Tribunal noted that the Applicant stated that his family had been threatened and had told him he could no longer live at home and that one of his brothers had threatened to catch him and beat him. The Tribunal put to the Applicant that such a claim about his brother had not been mentioned in his protection visa application and noted the Applicant’s explanation that “somehow it had not been written down.” The Tribunal noted that the Applicant claimed to have been beaten resulting in hospitalisation for two days, as a result of which, his eldest brother agreed to help him obtain a visa to come to Australia.

5. The Tribunal noted that the Applicant stated that his eldest brother had paid money to a travel agent to obtain the visa.

6. The Tribunal observed that the Applicant’s passport disclosed various visa stamps including unused visas for Malaysia, Singapore and Thailand and noted the Applicant’s explanation that his travel agent put the stamps in without being asked to.

7. The Tribunal also noted that it put to the Applicant that he had received his visa for Australia on 5 April 2005, however, did not leave Bangladesh until 30 June 2005. The Tribunal put to the Applicant that this conduct suggested that he had not genuinely feared that he would be killed or harmed. The Tribunal noted the Applicant’s response that the delay occurred because he was hiding and was afraid to go to Dhaka to fly to Australia.

8. The Tribunal noted that the Applicant had also said that he did not have enough money and that, when it put to the Applicant that if he had been short of money why could he not obtain it from his eldest brother, the Applicant had responded that he could not communicate with his eldest brother because he was in hiding. The Tribunal noted that it put to the Applicant that the Applicant had been able to communicate with the brother because the brother had arranged the visa for him. The Tribunal noted the Applicant’s response that, after arranging the visa, the eldest brother did not communicate with him any further. The Tribunal noted that it put to the Applicant that the eldest brother was living nearby and noted the Applicant’s response that he had moved to Dhaka. When the Tribunal asked the Applicant why he could not contact the brother in Dhaka, the Applicant responded that he had no fixed or mobile telephone connections.

9. The Tribunal also noted that it asked the Applicant why his Ahmadi friends were not able to help him with money and noted the Applicants response that they were not rich. The Tribunal noted that it asked if his Ahmadi friends could afford to give the Applicant the fare to Dhaka and noted the Applicant’s response that he could not communicate with them and that it was hard for him to do so as a member of a Sunni family.

10. The Tribunal noted that the advisor submitted to the Tribunal that the Applicant was newly converted to the Ahmadi faith and had a limited educational background and that, in those circumstances, it was highly unlikely that he would have a strong grasp of the faith.

11. The Tribunal accepted that the Applicant’s educational background was limited, although it noted that the Applicant had “considerable experience of life and was able to travel extensively before his most recent travel to Australia.”

12. However, even considering the Applicant’s claims in this context, the Tribunal was not satisfied that the Applicant had converted to the Ahmadi faith.

13. The Tribunal noted that the Applicant provided a document purporting to be a discharge certificate, dated 19 January 2005, from a clinic where the Applicant had been admitted on 5 January 2005 for treatment for multiple abrasions and haematomas on his legs as a result of an alleged assault. The Tribunal accepted the authenticity of the clinic discharge certificate, however, observed that there was nothing in the certificate to indicate that the Applicant was assaulted because of any involvement with the Ahmadi faith.

14. The Tribunal then had regard to independent country information, including a 2004 ABC Radio National interview with the Imam of the London Mosque of the Ahmadi religion.

15. The Tribunal accepted that “specific knowledge of a religion, its beliefs, structure and history is not an essential requirement for genuine faith.” The Tribunal stated that the Applicant’s knowledge of the Ahmadi faith should be judged in accordance with the Applicant’s claim of “only a brief involvement”.

16. The Tribunal noted various responses provided by the Applicant about the religion that lead the Tribunal to conclude that the responses indicated that the Applicant had not had any significant contact with the Ahmadi faith as he claimed, although he may have acquired some basic knowledge of it through publicly available sources.

17. The Tribunal found that the Applicant made “vague claims about having picked up information on the Ahmadi faith through visiting other mosques.”

18. The Tribunal found that whilst the Applicant was able to provide some facts about the founder of the faith, those facts were partly incorrect.

19. The Tribunal found that the Applicant was unable to give any clear answer about the beliefs of Ahmadis, that his answers were “notably vague and uninformative” and that he did not appear to have “any special knowledge consistent with someone who had converted” to Ahamadi.

20. The Tribunal was not satisfied that the Applicant had ever worshipped at an Ahmadi mosque in Bangladesh or in Australia, as he had claimed to have done.

21. The Tribunal was not satisfied that, if the Applicant were to return to Bangladesh, he would be suspected of abandoning his Sunni faith and converting to the Ahmadi faith before he left Bangladesh. The Tribunal was not satisfied that the Applicant had ever been abused, threatened or physically harmed by reason of his alleged conversion in the past. The Tribunal found that it was reinforced in this view by the fact that, although the Applicant received his visa for Australia on 5 April 2005, he did not leave Bangladesh until 30 June 2005.

22. The Tribunal was not satisfied that the Applicant’s explanations of a fear of travelling to Dhaka and lack of money to do so were “credible”. The Tribunal was not satisfied that, if the Applicant had genuinely feared harm from the Sunnis or his brother or anybody else, he would have remained in Bangladesh for such a lengthy period when he had the means at hand to avoid it by escaping to Australia.

23. The Tribunal concluded that, in light of the information before it, it was not satisfied that the Applicant ever had any significant involvement with the Ahmadi faith in Bangladesh, Australia or anywhere else.

24. Accordingly, the Tribunal was not satisfied that the Applicant has suffered past harm for that reason and is not satisfied there is a real chance that he would do so in the future. The Tribunal noted that the Applicant did not claim to fear harm in Bangladesh for any reason other than his religion.

25. The Tribunal concluded that “having considered the evidence as a whole, it was not satisfied that the Applicant is the person to whom Australia has protection obligations and therefore affirmed the decision not to grant a protection visa.”

The proceeding before this Court

1. The Applicant was unrepresented before this Court although had the assistance of an interpreter. The Applicant has participated in the Panel Advice Scheme.

2. The Applicant commenced the proceeding in this Court by application for judicial review, filed on 22 December 2005, and filed an amended application on 5 December 2006. The Applicant confirmed that he relied upon the amended application and his written submissions, filed on 23 January 2007.

3. At the outset of the hearing the Applicant stated that there were other documents that he wished to have the court consider. However, the Applicant stated that the documents were still in Bangladesh and they had not been provided to the Tribunal. There was no evidence before the Court as to the nature of the documents or why they had not been obtained earlier. On that basis, the Applicant was informed by the Court that such documents were not relevant to this Court’s judicial review of the Tribunal decision.

4. The Applicant made short oral submissions that were consistent with his amended application and his written submission.

Ground 1 – “The applicant claims that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error following the criteria of the s.424A of the Migration Act 1958 (the Act).”

1. Particular (i)(a) alleges that the Tribunal failed to follow s.424A(1) of the Act by having to information contained in the Applicant’s passport, including other visa stamps, showing unused visas from Malaysia, Singapore and Thailand.

2. Such a complaint is misconceived, in circumstances where the Applicant provided a copy of his passport to the Tribunal, at the hearing on 3 November 2005. In these circumstances, by reason of s.424A(3)(b) of the Act, there was no requirement on the Tribunal to comply with s.424A(1) of the Act by giving that information to the Applicant for comment.

3. In any event, the Tribunal made no comment about the existence of other visas in the Findings and Reasons section of its decision and would appear to have accepted the Applicant’s explanation that the visa stamps were placed in his passport by his agent.

4. In the circumstances, such information did not form part of the Tribunal’s reasons for affirming the decision under review.

5. Particular (i)(b) and particular (iv) of the amended application are essentially disagreements with factual findings made by the Tribunal. The findings made by the Tribunal were open to it on the evidence and material up before it and for which it provided reasons. It is not open to this Court to engage in merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 136 ALR 481 at 491; Abebe v The Commonwealth (1999) 162 ALR 1 at 54; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC at [10]).

6. Particular (ii) appears to be a complaint that the Tribunal had regard to independent country information before it, without providing the information to the Applicant for comment. Section 424A(3)(a) of the Act excludes such information for the obligations of s.424A(1).

7. Particular (iii) alleges that the Tribunal had regard to the difference between information in the Applicant’s statement of claim to the Department and his protection visa application. However, there are no particulars provided as to those differences and none are apparent on the face of the Tribunal’s decision. The Tribunal does refer to a claim by the Applicant at the hearing that his brother beat him because of his conversion to Ahmadi and noted that such an allegation was not contained in his protection visa application. However, a fair reading of the decision would lead to the conclusion that the Tribunal accepted the Applicant’s explanation provided to the Tribunal and the inconsistency was not part of the Tribunal’s reason for affirming the decision under review.

8. Accordingly Ground 1 is not made out.

9. Ground 2 relies on the same particulars as ground 1 and these are dealt with above. The only additional particular is that relating to the ABC Radio National Interview in 2004. The Tribunal did not refer to the 2004 ABC Radio National Interview in the Findings and Reasons section of its decision. In any event, such information also falls within s.424A(3)(a) of the Act, as does the Amnesty International information, being information excluded from the obligations of s.424A(1) of the Act.

10. Whilst the Applicant alleges that he did not understand why his application was rejected and that the Tribunal had failed to put particular concerns he had about his evidence to him, the Applicant has not identified issues that the Tribunal should have raised with the Applicant before rejecting his claims. The particulars referred to do not identify any such issue and none is apparent on a fair reading of the decision.

11. Accordingly, Ground 2 is not made out.

Conclusion

1. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

2. The proceeding before this Court is dismissed with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  15 February 2007