SZIAI v Minister for Immigration
[2007] FMCA 1479
•10 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIAI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1479 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of a Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Bangladesh claiming fear of persecution for reason pf religious belief – applicant a member of the Ahmadiyya faith – whether Tribunal failed to comply with Migration Act 1958 (Cth), s.424A – whether Tribunal failed to comply with Migration Act 1958 (Cth) – writs issued. |
| Migration Act 1958 (Cth), ss.424A, 425, 474 |
| SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 referred to SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 referred to VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 363 referred to Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 referred to WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 referred to QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 referred to VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 referred to SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (20060 231 ALR 592; [2006] HCA 63 referred to |
| Applicant: | SZIAI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3507 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 July 2007 |
| Date of Last Submission: | 19 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lloyd |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That there be an order in the nature of certiorari quashing the decision of the second respondent handed down on 26 October 2006.
That there be an order in the nature of mandamus remitting the applicant’s application for review of the decision of a delegate of the first respondent made on 18 August 2005 to the second respondent for determination according to law.
That the first respondent is to pay the applicant’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3507 of 2006
| SZIAI |
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”) handed down on 26th October 2006.
The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a Protection (Class XA) visa.
The applicant filed an application and an affidavit in support on
27th November 2006. In that application, he seeks the following orders:
i)A declaration that the decision made by the Refugee Review Tribunal is void and of no effect;
ii)A writ of prohibition directed to the First Respondent Minister preventing the Minister or the Minister’s agents from taking any steps to detain or remove the applicant as a result of the Tribunal’s purported decision.
iii)A writ of mandamus directed to the Second Respondent (the Tribunal) removing into the court to be quashed the purported decision.
iv)Such other relief as the Court considers appropriate; and
v)Costs.
Background
The applicant is a citizen of Bangladesh who arrived in Australia on 27th May 2005 and applied for a Protection (Class XA) visa on
22nd June 2005. A delegate of the Minister refused the application for a visa on 18th August 2005.
The applicant sought review of the delegate’s decision from the refugee Review Tribunal.
Application for Review by the Refugee Review Tribunal
On 17th November 2005 the Refugee Review Tribunal, differently constituted, affirmed the delegate’s decision. The applicant sought judicial review and 13th June 2006 the Federal Magistrates Court made orders by consent, setting aside the Tribunal decision and remitting the application for review of the delegate’s decision to the Tribunal for determination according to law.
The Tribunal wrote to the applicant on 23rd August 2006, inviting him to attend a hearing to give oral evidence and present arguments in support of his claims on 26th September 2006. At the request of the applicant’s adviser, the Tribunal rescheduled the hearing to
13th September 2006. The applicant’s adviser confirmed that the applicant would attend and forwarded a letter for consideration from Md Nuruzzaman, of the Ahmadiyya Muslim Jamaat, Khulna.
The advisers also informed the Tribunal of the details of a witness who would provide evidence at the hearing.
The applicant attended the hearing on 13th September 2006 and gave evidence about his fears of persecution in Bangladesh by reason of his adherence to the Ahmadiyya faith. The applicant’s witness gave evidence by telephone about how he first met the applicant in Bangladesh when he was handing out leaflets about the Ahmadiyya religion.
The Tribunal wrote to the applicant after the hearing on 13th September 2006, requesting him to provide the following additional information:
A letter, preferably in the form of a Statutory Declaration, from the Imam or other senior person at the Ahmadiyya mosque which you attend. This letter should state that you are known to the writer of the letter as a practising member of the Ahmadiyya faith, and should also state how long you have been attending the mosque and/or other activities in connection with the Ahmadiyya religion.[1]
[1] See Court Book at 83
The applicant’s lawyers replied on 12th October 2006, informing the Tribunal that the applicant has been unable to obtain the information. The applicant claimed that the mosque was not in the practice of issuing letters of that nature.
The Tribunal Decision
The Tribunal handed down its decision on 26th October 2006, affirming the delegate’s decision not to grant a protection visa. A copy of the Tribunal decision record can be found at pages 91 to 105 of the Court Book.
The Tribunal accepted that the applicant was a national of Bangladesh, relying on the evidence of the applicant’s passport inter alia. However, the Tribunal was not satisfied about the applicant’s credibility at the hearing:
In particular it found unconvincing the applicant’s account of the only incident of serious harm he claimed he suffered because of his religion, allegedly in 2005. This account was confused and contradictory, and although the applicant was given a number of opportunities to provide a coherent account at the hearing, he failed to do so.[2]
[2] Court book at 102
The Tribunal expressed doubt that the applicant was ever a committed follower of the Ahmadiyya faith, but gave him the benefit of the doubt in accepting that he converted to the Ahmadiyya faith in 2000.
In particular, whilst the applicant was able to give some information at the hearing about the Ahmadiyya religion.
He was unable to give information about the visit of the worldwide leader of the faith to Australia, an event which was keenly anticipated and much celebrated by the Ahmadiyya community in Australia, as indicated by the website ( Even though this visit took place immediately prior to the applicant’s arrival in Australia, it is clear from the website that this was an event of great magnitude which would have been talked about in the community for some considerable time.[3]
[3] Court Book at 102
The Tribunal gave little weight to the evidence of the applicant’s witness, who was not himself Ahmadiyya “and was unable to state with any conviction that the applicant regularly attended the mosque in Sydney.”[4]
[4] Court Book at 103
The Tribunal found that the applicant did not claim to have suffered serious harm because of his religion between 2000, when he converted to Ahmadiyya, and 2005, when he alleged that he was attacked.
The Tribunal found the applicant’s evidence regarding his separation from his wife and the termination of his job to be “extremely equivocal” and stated that:
Even if these two events had occurred, neither of them is, in the Tribunal’s view, sufficiently serious as to amount to persecution in a Convention sense.[5]
[5] Court Book at 103
The Tribunal also found that any harassment that the applicant experienced as a result of attending Ahmadiyya mosques in Bangladesh was not sufficiently serious as to amount to persecution in a Convention sense.
The Tribunal specifically rejected the applicant’s claim that he was seriously injured by Sunnis in January 2005. The Tribunal took into account the documents that the applicant submitted in relation to his injury but noted that there was nothing in the medical documentation to indicate the circumstances in which the applicant’s leg came to have been fractured. The Tribunal went on to say:
While the applicant lodged a Diary entry with the police, this is a document which was generated by the applicant himself in relation to threats made to him, and does not provide any supporting evidence of threats, nor does it make any reference to the later alleged physical attack on him. The applicant’s account of the attack on him at the Tribunal hearing in September 2006 was confused, contradictory and unconvincing.[6]
[6] Court Book at 103
The Tribunal found that the applicant had not suffered Convention-based persecution in Bangladesh in the past.
The Tribunal then went to consider whether there was a real chance that the applicant would be persecuted if he were to return to Bangladesh in the foreseeable future. It found that the applicant was not, if he ever was, a committed Ahmadi and found that he would not seek to practise that religion if he returned to Bangladesh. Accordingly, the Tribunal was not satisfied that there was a real chance that the applicant would be persecuted for reasons of his religion if he returned to Bangladesh in the foreseeable future.
The Tribunal then went on to state:
Even if the applicant were a committed Ahmadi, the Tribunal has found that he was able to practise this faith in Bangladesh without incurring serious harm in the past, and it has no information before it to indicate that this situation would change for the applicant if he were to return to Bangladesh.[7]
[7] Court Book at 104
The Tribunal stated that it had taken into account the most recent independent country information on the current situation for Ahmadis in Bangladesh in making that finding.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Bangladesh if he returned in the foreseeable future and affirmed the decision not to grant the applicant a Protection (Class XA) visa.
Application for Judicial Review
The applicant commenced proceedings for judicial review in this court on 27th November 2006. He relies on these grounds:
i)The RRT failed to comply with s 424A of the Migration Act 1958 (Cth); and
ii)The RRT failed to comply with s 425 of the Migration Act 1958 (Cth)
The particulars of the first ground are that the Tribunal failed to give to the applicant, in writing, particulars of information which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review; and failed to ensure, as far as is reasonably practicable, that the applicant understood why it was relevant to the review; and failed to invite the applicant to comment on it.
In particular, the applicant claims that the Tribunal failed to give him the requisite s. 424A notice in relation to information that it obtained in relation to a visit to Australia in 2006 by His Holiness Mirza Ahmad Khalifatul Masih V, Head of the Ahmadiyya Movement Worldwide[8]. The Tribunal relied on that information in part to show that the applicant is not a committed Ahmadi.[9]
[8] See Court book at 102
[9] See Court Book at 103
As to the second ground, Counsel for the applicant, Mr Lloyd, submitted that particulars of that ground were to be changed so as to provide that the Tribunal was obliged to invite the applicant to a hearing at which he would be given an opportunity to give oral evidence and make submissions on all of the issues arising in relation to the decision under review. One of the issues in the Tribunal’s decision was the availability of state protection to Ahmadis in Bangladesh. At no point was this issue raised by the Tribunal.
The question of the availability of state protection and related sub-issues was never raised by the Tribunal at the second hearing. As a consequence, the Tribunal did not provide a hearing of the kind required by s. 425 of the Migration Act 1958 (Cth) (“the Act”).
This constitutes a jurisdictional error.
Submissions
Counsel for the applicant, Mr Lloyd, submitted in respect of the first ground, concerning the Tribunal’s failure to comply with s. 424A, that the Tribunal did not accept the applicant to be a committed Ahmadi. This was a critical finding in rejecting his claim to have suffered persecution and to suffer persecution in the future as an Ahmadi.
In reaching this finding, the Tribunal had regard to material (i.e. information) to the effect that the worldwide leader of the Ahmadi faith had visited Australia and when that had occurred. This information was used to undermine the applicant’s claim to be a committed Ahmadi.
It was information that was at least part of the reason for affirming the decision under review and it was information about a specific person and therefore did not fall within s. 424A(3)(a) of the Migration Act.
The Tribunal did not provide a notice and invitation in accordance with its obligations under s. 424A(1) of the Act. This constituted a jurisdictional error.
As to the second ground, the failure to comply with s. 425 of the Act, Mr Lloyd submitted that the Tribunal was obliged to invite the applicant to a hearing at which he would be given an opportunity to give oral evidence and make submissions on all of the issues arising in relation to the decision.
One of the issues in the Tribunal’s decision was the availability of state protection to Ahmadis in Bangladesh. This general issue and the more particular issues supporting inferences relied upon by the Tribunal drawn from country information (at page 104 of the Court Book) formed part of the Tribunal’s analysis and reasons for affirming the decision. They were issues arising in the review from the delegate’s decision.
Mr Lloyd submitted that at no point did the Tribunal raise that issue. The first Tribunal decision revealed that the availability of state protection formed no part of its analysis, and there is no reference to the tribunal’s summary of the matters raised at the hearing. Thus, he submitted that an inference arises that the Tribunal did not raise the issue at the hearing.
A transcript of the second hearing was available, annexed to the affidavit of Robert Liu, solicitor, filed on 21st March 2007.
The transcript shows that the Tribunal never raised the question of the availability of state protection and related sub-issues at that hearing. Consequently, he submitted, the Tribunal did not provide a hearing of the kind required by s. 425 of the Migration Act. This constitutes a jurisdictional error.
Counsel for the respondent Minister, Mr Reilly, replied to the first ground by submitting that the fact that the Tribunal referred to information in its reasons does not necessarily mean that it is “part of the reason” for the Tribunal’s decision (SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at [216]). This conclusion is strengthened by the decision in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [17] and [21]. The fact that the Ahmadi leader visited Australia in 2006 was not in itself of relevance either way to the applicant’s case or the Tribunal’s decision. What was significant was the applicant’s inability to give information about this visit to the Tribunal at the hearing; this is a matter that falls within s. 424A(3)(b). The information that the Ahmadi leader visited Australia in 2006 is not “part of the reason’ for the Tribunal’s decision, so s. 424A was not engaged in respect of that information.
Mr Reilly also submitted that this information is in the nature of country information concerning Ahmadis, so it could not be said to be “specifically about another person” simply because the Ahmadi leader is mentioned in that country information (VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 363 (Weinberg J) at [68]). The Tribunal has no obligation under
s. 424A(3)(a) to provide country information to an applicant (Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 AT [64]-[74], [112]-[138]; WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 at [44]-[46]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7]-[30]; VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 at [11]-[16]).
Mr Reilly submitted that for both of the above reasons the applicant’s first ground fails.
As to the applicant’s second ground, claiming that the Tribunal breached s. 425 of the Migration Act by not raising the issue of state protection of Ahmadis at the hearing, which presumably sought to rely on SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592; [2006] HCA 63, Mr Reilly submitted that this was not a case to which SZBEL applies. This is a case where the applicant himself raised the issue of state protection of Ahmadis by the submissions and country information that he himself put before the delegate.[10] Mr Reilly submitted that SZBEL was concerned with an applicant who was entitled to assume certain matters were not “live” issues[11]. It could hardly apply where the applicant himself made those matters live issues. Given that s. 424A does not require the Tribunal to disclose country information (including information on state protection) it would be anomalous to suggest that such an obligation nevertheless arises under the more general language of s. 425. Thus, he submitted, there was no breach of s. 425 and consequently there was no jurisdictional error established.
[10] See Court Book at 27-40
[11] (2006) 231 ALR 592 at [43]
In oral submissions, Mr Lloyd submitted that SZBEL stands for the proposition that someone is entitled to give oral evidence about issues that are of concern to the Tribunal. That the issue was raised by the applicant is not a point of distinction. That situation occurred in SZBEL because the applicant had claimed to have developed an interest in Christianity.[12] Again, there is nothing in s. 425 that says that the Tribunal does not have to give an applicant an opportunity to argue something for which it does not have to give a s. 424A notice.
[12] (2006) 231 ALR 592 at [13]
Conclusions
As to the applicant’s first ground, I not satisfied that the information about the visit of the head of the Ahmadiyya Movement Worldwide falls within the exception in s. 424A(3)(a) of the Migration Act.
Sub-s. 424A (3) states, relevantly, that the section does not apply to information “(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”.
I am not of the view that information that the particular person visited Australia is information in the nature of country information concerning Ahmadis and is not specifically about another person simply because he is mentioned in that information. The information deals with the visit of a particular person to Australia. It is not just country information about Ahmadis generally.
Again, it appears to me, with respect, to be splitting hairs to claim that the fact that the Ahmadi leader visited Australia was not in itself relevant to the Tribunal’s decision but what was significant was the applicant’s inability to give information about it at the Tribunal hearing. The applicant was unable to give information about the visit to Australia of a particular person. To say that the information upon which the Tribunal relied was not the visit of the person but the fact that the applicant could not give information about it would, if accepted, render s. 424A(3)(a) nugatory.
It is also clear that this piece of information was part of the reason for the Tribunal to affirm the delegate’s decision. It is found, of course, in the section of the decision record headed “Findings and Reasons” and it is used as a reason, although not the only reason, for the Tribunal to find that the applicant “is not now, if he ever was, a committed Ahmadi”.[13] Being a committed Ahmadi was a key part of the applicant’s claim to refugee status.
[13] Court Book at 103
In my view the Tribunal failed to comply with the requirements of
s. 424A(1) in respect of this piece of information and thereby fell into jurisdictional error.
As to the claim that the Tribunal breached s. 425 in not raising the question of state protection of Ahmadis, it is true that the applicant’s material submitted in support of his application for a protection visa referred to the question of state protection. Independent country information submitted by the applicant referred to the police stepping security for Ahmadiyya mosques in the Nirala and Labonchora[14] areas. However, the delegate’s decision does not refer to state protection for Ahmadis at all.[15]
[14] Court Book at 39
[15] See Court Book at 51-52.
However, my reading of the transcript of the Tribunal hearing shows that state protection was discussed. At page 19 of the Transcript there is a discussion of the police surrounding the Ahmadiyya mosques when there were attacks by Sunni Muslims:
Q157 So describe to me a typical attack of the kind you said used to happen in groups.
A(Int) They used to come with sticks and with some weapon and break the mosque. Then the police used to come and defer them.
Q158 So did the police actually arrest these people, did they chase them away, what did the police do?
A(Int) No, did not arrest but they stopped the fighting.
Q159 So you, the Ahmadiyya community, used to also fight against these people who were trying to attack the mosque?
A(Int) We did not attack them but as an Ahmadiyya we resorted to the police for our safety but we are not allowed to defend ourselves, like hurt somebody else.
Q160 So the police used not to arrest people but they would break up the fights.
A(Int) Yes.[16]
[16] Transcript 19 and 20
In my view the applicant was not only given an opportunity to discuss state protection of Ahmadis but he actually gave evidence about the actions of the police. There is no breach of s. 425 and the applicant’s second ground fails.
As the applicant’s first ground has succeeded and I have found that there was a breach of s. 424A, I am satisfied that the Tribunal fell into jurisdictional error. Accordingly, the Tribunal decision does not attract the protection of s. 474 of the Migration Act. I propose to make orders in the nature of certiorari and mandamus.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 23 August 2007
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