SZIAI v Minister for Immigration & Anor
[2008] FMCA 788
•18 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIAI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 788 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Bangladesh claiming fear of persecution for reason of religious belief – applicant a member of the Ahmadiyya faith – whether Tribunal fell into jurisdictional error in its application of Migration Act 1958 (Cth) s.91R(3) – credibility – where applicant provided letters in support of his claims – whether the Tribunal’s failure to contact the authors of the letters gave rise to jurisdictional error – whether the Tribunal fell into jurisdictional error when it drew an adverse inference against the applicant because he had not referred to a particular person who he claimed had converted him to the Ahmadi faith in his original application for a protection visa or at the first Tribunal hearing – “Wednesbury unreasonableness” – whether Tribunal acted unreasonably in failing to make enquiries – whether “rare or exceptional circumstances” – whether “overwhelming” circumstances – no jurisdictional error. PRACTICE & PROCEDURE – Tribunal to be differently constituted – Federal Magistrates Court does not have the power to order that on remittal the Tribunal is to be differently constituted. |
| Migration Act 1958 (Cth), ss.91R, 424A, 474 |
| SZIAI v Minister for Immigration & Anor [2007] FMCA 1479 referred to. Minister for Immigration and Citizenship v Le (2007) 242 ALR 455; [2007] FCA 1318 followed WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74 distinguished Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 referred to Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223; [1947] 2 All ER 680 cited Minister for Immigration and Multicultural and Indigenous affairs v SGLB (2004) 207 ALR 12; 78 ALD 224; [2004] HCA 32 referred to SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 followed |
| Applicant: | SZIAI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 606 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 April 2008 |
| Date of Last Submission: | 7 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Zipser |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 606 of 2008
| SZIAI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, a citizen of Bangladesh, asks the Court to set aside a decision of the Refugee Review Tribunal made on 19th February 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a Protection (Class XA) visa.
The applicant asks the Court to make the following orders:
1. That the decision of the Tribunal be quashed;
2. That the matter be remitted to the Tribunal differently constituted to be determined according to law; and
3. Costs.
He claims that the Tribunal fell into jurisdictional error:
(a)When it made a finding that he was not a witness of truth;
(b)When it found he was not a genuine Ahmadi; and
(c)
In its application of subsection 91R(3) of the Migration
Act.
The first respondent, the Minister for Immigration and Citizenship, has filed a Response claiming that the application for judicial review does not establish any jurisdictional error in the decision of the Refugee Review Tribunal.
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. In a statement accompanying his application for a visa, the applicant claimed that he had born in a Sunni Muslim family but he converted to Ahmadiyya Muslim Jamaat on 1st January 2000. He claimed to have been disowned by his family and to have been threatened and targeted by Sunni Muslims.
A delegate of the Minister refused the application for a visa on 18th August 2005. The delegate found that the applicant had provided “no details whatsoever” of ever personally suffering any harm or mistreatment in Bangladesh of such a nature and severity as to constitute persecution in terms of the Convention. The delegate also found that the applicant had provided “no details whatsoever” of facing any harm or mistreatment, which would amount to persecution in Convention terms, upon his return to Bangladesh. The delegate went on to find:
In support of my conclusion that the applicant does not have a genuine fear of facing persecution upon his return to Bangladesh, I note that he was able to legally leave Bangladesh on a Bangladeshi passport in his own name, which he obtained with no difficulties, and which is valid for his return to that country[1].
[1] See Court Book at 52
The delegate found that the harm or mistreatment feared by the applicant did not involve serious harm and systematic and discriminatory conduct and did not constitute persecution.
Application for Review by the Refugee Review Tribunal
The applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. An application for review was received at the Sydney Registry of the Tribunal on 12th September 2005. The application contained details of the applicant’s then migration adviser, Mohammed Amjad Hossain Khan. No other documentary evidence was submitted with the application.
The Tribunal wrote to the applicant, care of his adviser, on 17th October 2005 and invited him to attend a hearing on 16th November 2005. The applicant provided various documents to the Tribunal in support of his claim. The applicant attended the hearing and gave evidence with the assistance of an interpreter in the Bengali language.
The First Refugee Review Tribunal Decision
The Tribunal signed its decision on 17th November 2005 and handed the decision down on 8th December. The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant commenced proceedings in the Federal Magistrates Court seeking judicial review and on 13th June 2006 the Court made orders by consent in the nature of certiorari and mandamus, quashing the decision and remitting the application to the Tribunal for determination according to law.
The Tribunal invited the applicant to attend a second hearing on 26th September 2006. This hearing was rescheduled to 13th September at the request of the applicant’s solicitor. The applicant provided some further documentary evidence to the Tribunal in support of his claim.
The applicant attended the second hearing and gave evidence.
The Second Refugee Review Tribunal Decision
The Tribunal (differently constituted) signed its decision on 17th October 2006 and handed the decision down on 26th October. The Tribunal again affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant again sought judicial review from the Federal Magistrates Court. On 10th September 2007, after a hearing, I made orders in the nature of certiorari and mandamus, remitting the application to the Refugee Review Tribunal for determination according to law (SZIAI v Minister for Immigration & Anor[2]).
[2] [2007] FMCA 1479
The Tribunal wrote to the applicant on 11th October 2007, inviting him to attend a hearing. The applicant attended the hearing and gave evidence. He provided 8 photographs, his passport and some other documents to the Tribunal.
The applicant’s solicitor wrote to the Tribunal on 14th November 2007, consenting to a request that the Tribunal should contact the mosque to which the applicant had referred in relation to whether the mosque was of the belief that the applicant was an Ahmadi as claimed. The solicitor also complained about the way in which the request was framed, suggesting that it raised an apprehension of bias and asked that the Tribunal disqualify itself.
The Tribunal wrote to the Amir and Missionary in Charge of the mosque, at Marsden Park in New South Wales, on 15th November 2007, seeking information about the applicant. A copy of the letter can be found at pages 148 and 149 of the Court Book.
The Amir replied on 10th January 2008, enclosing a letter from the National Ameer in Bangladesh, saying that the applicant’s letters of support appeared to have been forged[3].
[3] Court Book at 150 and 151
The Tribunal then wrote to the applicant’s solicitor on 14th January 2008, in a letter intended to comply with the requirements of s 424A of the Migration Act. The letter invited the applicant to comment on various items of information that the Tribunal considered would, subject to any comments made by the applicant, be the reason or a part of the reason for affirming the delegate’s decision. The letter set out the information, which included statements from the applicant’s evidence to the earlier Tribunal hearings on 16th November 2005 and 13th September 2006 and the various letters from the Ahmadiyya hierarchy. The letter invited the applicant to provide comments in writing by 29th January 2008.
The applicant’s solicitor replied on 29th January 2008, saying:
We are instructed to inform the RRT that the applicant disagrees with the information forwarded and states that he is an Ahmadi. He cannot, however, otherwise prove that to be so[4].
[4] Court Book at 172
The Third Tribunal Decision
The Tribunal signed its decision on 11th February 2008 and handed the decision down on 19th February. A copy of the Tribunal Decision Record can be found at pages 179 to 206 of the Court Book. The Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa.
In its decision, the Tribunal considered the applicant’s evidence to the two earlier Tribunals as well as the evidence given to it. The Tribunal also considered the post-hearing correspondence.
The Tribunal’s findings and Reasons
The Tribunal’s findings and Reasons are set out on pages 198 to 206 of the Court Book.
The Tribunal expressed considerable doubt about the credibility of the applicant’s claims, saying:
…I consider that there are good reasons for doubting that the applicant is telling the truth about his claimed conversion to the Ahmadi faith and the persecution he claims to fear for reasons of his religion if he returns to Bangladesh[5].
[5] Court Book at 199
The Tribunal then proceeded to set out six reasons why it had doubts about the applicant’s credibility.
First, the Tribunal had contacted the Ahmadiyya Muslim Association of Australia requesting advice on whether the applicant was known to the Ahmadiyya Muslim Jamaat Bangladesh. The response from the Ahmadiyya Muslim association of Australia contained the response from the Ahmadiyya Muslim Jamaat Bangladesh that said that the Khulna Jamaat that:
…they could not find the applicant’s name in their records and that both the ‘Certifications’ which the applicant had produced were fake and forged[6].
[6] Court Book at 200
The Tribunal considered that this information cast doubt on the applicant’s claims that he had converted to the Ahmadi faith in January 2000 and was also relevant to the applicant’s overall credibility.
Second, the Tribunal referred to the applicant’s claim to the second Tribunal hearing that he had been converted to the Ahmadiyya sect at Khulna by one Md Nuruzzaman, who had provided a ‘certification’ that the applicant “took Bayet” (i.e. converted to the Ahmadi faith) on 1st January 2000 with his assistance and had taken part in all activities of the Ahmadiyya Muslim Jamaat at Khulna.
The Tribunal noted that the applicant had not mentioned Md Nuruzzaman either in the statement accompanying his original application or at the hearing before the first Tribunal on 16th November 2005. The Tribunal took the view that the applicant had altered his evidence to accord with the ‘Certification’ from Md Nuruzzaman which he had procured from Bangladesh. This showed that the applicant was prepared to tailor his evidence to what he perceived to be his advantage without regard for the truth. The Tribunal also found this information to be relevant to the applicant’s overall credibility[7].
[7] ibid.
Third, the Tribunal noted that at the first Tribunal hearing on 16th November 2005 the applicant was unaware that Mirza Tahir Ahmad, the fourth Khalifa of the Ahmadiyya faith, had died in 2003. At the third Tribunal hearing on 9th November 2007 the applicant was aware of the identity of the current Khalifa, who had been elected in 2003 after the death of the earlier Khalifa.
The Tribunal took the view that:
…an adherent of the Ahmadi faith could be expected to know who the current head of the Ahmadiyya movement was and that the fact that it appeared that in November 2005 the applicant had not been aware of the death of the fourth Khalifa in 2003 and the succession of the fifth Khalifa cast doubt on his claims to be an adherent of the Ahmadi faith[8].
[8] Court Book at 201
The Tribunal also considered that this also reflected on the applicant’s overall credibility.
Fourth, the Tribunal noted significant inconsistencies in the applicant’s accounts of an attack on him on 14th January 2005. The applicant had claimed that he had been threatened and attacked because of his conversion to the Ahmadi faith. The Tribunal considered that these inconsistencies cast doubt on whether he was telling the truth about the incidents and were also relevant to the applicant’s overall credibility[9].
[9] Court Book at 203
Fifth, the Tribunal referred to the fact that the applicant had originally claimed when applying for a protection visa that there were false charged pending against him but had later told the third Tribunal hearing that there were no false charges. The Tribunal doubted that there were false charges pending against the applicant, as he had originally claimed. The Tribunal considered that this was also relevant to the applicant’s overall credibility[10].
[10] Court Book at 203-204
Sixth, the Tribunal noted that the applicant had left Bangladesh on 19th April 2005 and travelled to Malaysia and Indonesia. He had returned to Bangladesh on 23rd April 2005. The Tribunal considered that the fact that the applicant had returned to Bangladesh cast doubt on his claim that:
…as a result of the supposed attack on him in January 2005 he had believed that he had to leave Bangladesh for the safety of his life[11].
[11] Court Book at 204
The Tribunal also considered that this was relevant to the applicant’s overall credibility.
Accordingly, the Tribunal came to this conclusion:
Having regard to the information referred to in the Tribunal’s letter dated 14 January 2008 as set out above, I conclude that the applicant is not a witness of truth and that there is no truth to the claims he has made in support of his application for a protection visa. I consider that the corroboration afforded for the applicant’s claims by the documents he has produced and the evidence of his witness, Mr Mostaque Ahmed Syed, who gave evidence at the hearing before the second Tribunal on 13 September 2006 does not outweigh the problems with the applicant’s evidence outlined above[12].
[12] Court Book 204-205
The Tribunal did not accept the applicant’s claims that he had converted to the Ahmadi faith and that he had been threatened and attacked as a result. The Tribunal found there were no false charges pending against the applicant. The Tribunal based its findings on a rejection of the applicant’s credibility.
Because, the Tribunal did not accept that the applicant was a genuine Ahmadi, it was not satisfied that he had engaged in his conduct in attending the Ahmadi mosque in Australia otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal disregarded his conduct in accordance in accordance with subsection 91R(3) of the Migration Act.
The Tribunal did not accept that there was a real chance that the applicant would be persecuted for reasons of his religion if he were to return to Bangladesh, either then or in the reasonably foreseeable future and affirmed the decision not to grant him a protection visa.
Application for Judicial review
The applicant was represented at the hearing by Mr Zipser of counsel. He told the Court that Ground 3 of the application was abandoned. Mr Zipser submitted that there were two issues, relating the first 2 grounds in the original application, that he wished to argue:
(a)The “further inquiries issue”; and
(b)The “Late Claim issue”.
In respect of the “further inquiries issue”, Mr Zipser submitted that the applicant had provided letters in support of his claims from two people, Md Nuruzzaman and Md Millat Hossein. Each of them set out his mobile telephone number in his letter. Mr Zipser submitted that the Tribunal could have contacted the authors to verify their claims, but failed to do so. In the circumstances, the tribunal’s failure to contact the authors gave rise to jurisdictional error.
Mr Zipser referred the Court to the decision of Kenny J in Minister for Immigration and Citizenship v Le[13], where her Honour stated at [63]:
A failure by a decision maker to obtain important information on a critical issue, which the decision maker knows or ought reasonably to know is readily available, may be characterized as so unreasonable that no reasonable decision maker would proceed to make the decision without making the inquiry.
[13] (2007) 242 ALR 455; [2007] FCA 1318
Mr Zipser submitted that in the present case the tribunal could have phoned Md Nuruzzaman or Md Millat Hossein to seek to confirm they were who they purported to be and that their letters were genuine. The applicant had asked the Tribunal to telephone Md Nuruzzaman. He submitted that, in the circumstances, the Tribunal’s failure to telephone Md Nuruzzaman or Md Millat Hossein was unreasonable in the sense explained in Minister for Immigration and Citizenship v Le and gave rise to jurisdictional error.
Turning to the “Late claim issue”, Mr Zipser took issue with the Tribunal’s finding that the applicant had not mentioned the fact that Md Nuruzzaman had been the one to convert him to the Ahmadi faith in his June 2005 statement setting out his claim for the grant of a protection visa, nor had he mentioned him at the first Tribunal hearing. The Tribunal, it will be recalled, had found that this was relevant to the review because the Tribunal might conclude that the applicant had altered his evidence to accord with the ‘Certification’ from Md Nuruzzaman that he had procured from Bangladesh.
Mr Zipser referred the Court to the decision of the Full Court of the Federal Court in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs[14], where Lee and Moore JJ stated:
In regard to the Tribunal’s conclusion that the appellant’s claims could be discarded because they had not been raised at the first opportunity, that approach, as the Tribunal was aware, was not to be taken lightly. In this realm there may be many reasons, apparent or latent, that may explain such a circumstance. As authorities and texts in this area have made clear, a Tribunal must exercise considerable care before following that course and, obviously, must consider any material that supports the appellant’s case before determining that the failure to raise claims of a fear of persecution at the first opportunity led to a conclusion that the subsequent claims were invented; see Kopalapillai v MIMA (1998) 86 FCR 547 at 558[15].
[14] (2004) 80 ALD 568; [2004] FCAFC 74
[15] (2004) 80 ALD 568; [2004] FCAFC 74 at 558 [30]
Mr Zipser pointed out that in Kopalapillai v Minister for Immigration and Multicultural Affairs the Full Court of the Federal Court has stated:
Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency[16]
[16] (1996) 86 FCR 547 at 558
Counsel for the applicant submits that the Tribunal has found the applicant not to be a witness of truth, partly because he provided a detail of his claim late. He submits that this approach breaches the principle set out in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs and Kopalapillai v Minister for Immigration and Multicultural Affairs, thereby giving rise to jurisdictional error.
Counsel for the first respondent, Mr Smith, in a written submission filed before the applicant’s submission, which is dated the day before the hearing, submitted that:
The grounds in the application are Delphic at best and embarrassing at worst.
As to the first two grounds, Mr Smith submitted that the findings that the applicant was not a witness of truth and that he was not a genuine Ahmadiyya are findings of fact. The findings were based on the Tribunal’s assessment of the applicant’s evidence, internal inconsistencies in that evidence, and inconsistencies between the applicant’s evidence and other information known to the Tribunal, of which the applicant was informed.
Accordingly, he submitted, they are findings of fact that were open to the Tribunal on the material and therefore cannot be reviewed by the Court.
In direct reply to Mr Zipser’s reliance on Minister for Immigration and Citizenship v Le, Mr Smith submitted that it is necessary to examine the whole proceedings to decide whether the circumstances are “exceptional” or “overwhelming” so as to be characterised as so unreasonable that no reasonable decision-maker would make such a decision (see Associated Provincial Picture Houses v Wednesbury Corp[17]).
[17] [1948] 1 KB 223; [1947] 2 All ER 680
In this case, the Tribunal made inquiries about the applicant’s membership of the Ahmadiyya Association. This, he submitted, is not an exceptional case. The Tribunal had made inquiries and had then invited the applicant to comment on the information it had obtained. Mr Smith submitted that it in those circumstances it could not be unreasonable not to make an inquiry by ringing a mobile telephone.
He submitted that this case falls well outside the type of exceptional cases referred to by Kenny J in Minister for Immigration and Citizenship v Le.
As to the applicant’s second ground, Mr Smith submitted that it is no principle of law that the Refugee Review Tribunal cannot reject a claim on the basis of the lateness of the claim. The decision in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs turned on procedural fairness.
The Tribunal’s analysis is not a reliance on the applicant’s delay in making the claim at all. The applicant was filling details once his documents were shown to be forged. It was only then that the name of Md Nuruzzaman cropped up in the applicant’s evidence. It was not a late claim but a change in evidence. The matter must be seen in the light of the finding that the documents were forged.
In any event, Mr Smith submitted, the Refugee Review Tribunal had 5 other cogent reasons for denying the applicant’s claims.
Conclusions
In examining the first of the applicant’s grounds, it is instructive to examine the relevant aspects of Kenny J’s judgment in Minister for Immigration and Citizenship v Le, which was a decision on appeal from the Federal Magistrates Court and, therefore, binding on this Court. At [60] her Honour said (inter alia):
On the one hand, the authorities establish that the tribunal has no general obligation to initiate inquiries or to make an applicant’s case for him or her. These authorities stretch back over the life of the tribunal: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21-2; 78 ALD 224 at 232-4; [2004] HCA 32 per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and ALR 49; ALD 261 per Callinan J;…[18]
On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the tribunal’s failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the same sense used in Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223; [1947] 2 All ER 680.
[18] other authorities omitted
Her Honour also stated:
[63] The concept of vitiating unreasonableness has been extended to the manner in which a decision was made. Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterised as so unreasonable that no reasonable decision-maker would proceed to make the decision without making the inquiry…
The phrase “Wednesbury unreasonableness” is often raised in submissions to this Court. The phrase comes from the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corp (supra):
It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind[19]
[19] [1948] 1 KB 223 at 229-230
The test to be applied here, then, is whether, in all the circumstances, the Tribunal’s decision not to telephone Md Nuruzzaman or Md Millat Hossein can be characterised as “rare or exceptional” or “overwhelming” so as to lead to a finding that the Tribunal’s decision not to do so should be found to be “manifestly unreasonable” or “so unreasonable that no reasonable authority could ever have come to it”.
The circumstances are that the applicant provided two documents to the Tribunal hearing on 9th November 2007. One was a translation of a ‘certification’ signed by Md. Nuruzzaman dated 07 Aug 2006[20]. The other was a translation of a ‘certification’ signed by Md. Millat Hossein, also dated 07 Aug 2006[21]. Each certification claimed that the applicant was a member of the Ahmadiyya Muslim Jamaat. Each document provided a mobile telephone number.
[20] Court Book at 146
[21] Court Book at 147
A research adviser for the Tribunal wrote to the Amir and Missionary-In-Charge of the Ahmadiyya Muslim Association of Australia on 15th November 2007, enclosing copies of the two certifications and asking for advice on “whether the following individual[22] is known to the Ahmadiyya Muslim Jamaat Bangladesh”[23].
[22] i.e. the applicant
[23] Court Book at 148-149
The Ahmadiyya Muslim Association Australia Inc. replied on 10th January 2008, stating:
We wish to inform you that we have received information regarding the above reference from the Bangladesh Ahmadiyya Muslim Jamaat. Please find the required information attached[24]
[24] Court Book at 150
The letter contained a copy of a letter dated 08.01.2008 from the National Ameer of the Ahmadiyya Muslim Jamaat, Bangladesh, saying (inter alia):
For your kind information on enquiry our Khulna Jamaat informed me that they could not find any such name in their record. Both the certificates submit by him are fake & forged. Moreover as you know local Ameer/Presidents can only issue certificates for transfer of a member from one local Jamaat to other Jamaats within the country. Only National Ameer can issue a certificate for international travel/transfer of a member[25].
[25] Court Book at 151
This information was put to the applicant by the Tribunal in its s 424A letter of 14 January 2008 for his comment. Copies of the relevant correspondence were attached. The Tribunal said in its letter:
As you will see, the National Ameer of the Ahmadiyya Muslim Jamaat Bangladesh said that he had been informed by the Khulna Jamaat they could not find your name in their records and that both the ‘Certifications’ which you had produced were fake and forged.
This information is relevant to the review because it casts doubts on your claims that you converted to the Ahmadi faith in January 2000, that you were threatened, attacked and targeted to be killed because of your conversion, that you fear being persecuted by Sunni Muslims in Bangladesh because of your conversion, that your life is in danger in Bangladesh and that you are unable to practise your religion in Bangladesh. The advice provided by the National Ameer of the Ahmadiyya Muslim Jamaat Bangladesh may lead the Tribunal to conclude that there is no truth to the claims which form the basis of your application for a protection visa and that you do not genuinely fear being persecuted for reasons of your religion if you return to Bangladesh now or in the reasonably foreseeable future. This information is also relevant to your overall credibility, that is, whether you can be believed[26].
[26] Court Book at 155
The applicant’s then solicitor replied to that letter on behalf of his client on 29th January 2008, saying:
We are instructed to inform the RRT that the applicant disagrees with the information forwarded and states that he is an Ahmadi. He cannot, however, otherwise prove that to be so[27].
[27] Court Book at 172
The information that the documents purporting to be from Md. Nuruzzaman and Md. Millat Hossein were “fake & forged” was a very powerful piece of information from an obviously independent source, and the Tribunal was entitled to rely on that information as persuasive. When that information was put to the applicant for comment, all he could do was disagree and maintain that he was an Ahmadi.
Clearly, in the light of reliable information that the ‘certifications’ purporting to be from Md. Nuruzzaman and Md. Millat Hossein were fakes and forgeries, the Tribunal was not acting unreasonably when it decided not to telephone either of the authors of those documents. What would have been the point?
I am satisfied that the circumstances described are neither rare nor exceptional. They are certainly not overwhelming. The Tribunal’s decision not to telephone either of the two mobile telephone numbers was not manifestly unreasonable and was not so unreasonable that no reasonable authority could ever have come to it.
It was not unreasonable at all.
The applicant’s first ground fails.
The applicant’s second ground, the “late claim issue”, claims that the Tribunal fell into jurisdictional error when it found that the applicant was not a witness of truth, partly because he provided a detail of his claim late.
This matter should be considered in context. The claim was that he had been converted to the Ahmadi faith by Md. Nuruzzaman on 1st January 2000. The Tribunal gave as one of its reasons for rejecting the applicant on credibility grounds was that he had only stated that it was Md. Nuruzzaman who converted him after he received the certification purporting to be from that person.
This was the same Md. Nuruzzaman who was the purported author of the document about which the Tribunal had evidence that it was a forgery or a fake.
The reason was only one of six reasons that the Tribunal gave for rejecting the applicant’s claim on credibility grounds.
I am not of the view that the Tribunal has acted in breach of the decision in WAIJ, which I note is a decision on appeal from the Federal Magistrates Court. The paragraph cited states:
In regard to the tribunal’s conclusion that the appellant’s claims could be discarded because they had not been raised at the first opportunity, that approach, as the tribunal was aware, was not to be taken lightly[28].
[28] (2004) 80 ALD 568; [2004] FCAFC at [30]
This is not the situation here. It was always the applicant’s case that he had converted to the Ahmadi faith on 1st January 2000, which led to his being persecuted in Bangladesh. That was his central claim. What was a late claim was that he had been converted by Md. Nuruzzaman. That was a detail of the claim, made after he produced a document that was subsequently claimed to be forged.
I am not satisfied that ground 2 shows any jurisdictional error.
The Tribunal decision is not jurisdictional error and is therefore a privative clause decision, as defined in subsection 474(2) of the Migration Act. It is final and conclusive and not subject to orders in the nature of certiorari or mandamus, which the applicant sought in this matter.
There is another matter that ought to be mentioned. In his application, the applicant sought an order “that the matter be remitted to the Tribunal differently constituted to be determined according to law”. I am satisfied that the Federal Magistrates Court does not have the power on remitting an application to the Refugee Review Tribunal to order that the Tribunal be differently constituted (Minister for Immigration & Multicultural Affairs[29]). It is therefore inappropriate to seek such an order in an application to this Court.
[29] [2006] FCAFC 107 at [30]
The application will be dismissed with costs.
It also appears, in a memorandum from the Court Registry, that the applicant may not have paid the setting down fee for the hearing date of 7 May 2008. Should that be the case, I will make an order that the amount be paid forthwith.
I certify that the preceding eight four (84) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. L. Coutman
Date: 16 June 2008
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