SZIHC v Minister for Immigration
[2007] FMCA 709
•24 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIHC v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 709 |
| MIGRATION – Bias not established – alleged failure to deal with part of the claims – not established – eighteen month delay in lodging an application for a protection visa is a relevant consideration in assessing genuineness or an alleged fear of persecution. |
| Migration Act 1958, ss.420, 424A, 425, 425A, 474 |
| Chen Xin He v Minister for Immigration and Ethnic Affairs, 23 November, 1995 (unreported) Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 Dranichnikov v Minister for Immigration and Multicultural Affairs; Re Minister for Immigration [2003] HCA 26 |
| Applicant: | SZIHC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3310 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 19 March 2007 |
| Date of Last Submission: | 19 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2007 |
REPRESENTATION
| Solicitor for the Applicant: | Mr R. Turner of McMahon’s National Lawyers |
| Counsel for the Respondents: | Ms S. Sirtes |
| Solicitor for the Respondents: | Ms N. Johnson of Sparke Helmore |
ORDERS
The application and amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3310 of 2006
| SZIHC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 14 November 2006 for an order to show cause why a remedy should not be granted in respect of the Refugee Review Tribunal (“the Tribunal”) dated 22 September 2006 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. An amended application foreshadowed in the applicant’s outline of written submissions filed and served on 1 March 2007, was filed in Court by leave on 19 March 2007.
This matter has been remitted twice to the Tribunal for re-hearing by orders made on 27 July 2005 and 26 June 2006. The decision of the delegate was affirmed on both occasions. The later decision was handed down on 22 September 2006 (Court Book “CB” 191), which is the decision now under review.
The applicant was born on 30 September 1972 and claims to be from Bangladesh, and of Bangladeshi ethnicity and Muslim faith (“the Applicant”).
The applicant arrived in Australia on 12 July 1998 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 27 February 2001. In this application he claimed to fear persecution on the basis of his active political career in the Freedom Party of Bangladesh. The applicant claimed that he was arrested and tortured by the authorities for his association with the political group, and stated that “the present Government is the most corrupt and want to suppress and crush its adversaries without any mercy” (CB 17). The main ground of the amended application is that the Tribunal failed to deal with the claim of membership of the Freedom Party, and that this failure amounted to a jurisdictional error.
This application was refused by a delegate of the first respondent on
27 April 2001 (CB 29).
On 29 May 2001 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 39).
On 1 May 2003 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. The applicant sought review of that decision in the Federal Court and on 28 July 2005, the Court, by consent, set aside the decision and remitted the matter to the Tribunal to be determined according to law (CB 192).
On 15 December 2005 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. The applicant sought review of that decision in the Federal Magistrates Court, and on 26 June 2006, the matter was again remitted to the Tribunal to be determined according to law (CB 192). The application filed on 14 March 2006 had “two convention based claims which are religion and political”. The amended application made no claim that the Tribunal had erred in any way in relation to his religion based ground. However as it is part of the original application the Court will deal with it.
On 17 August 2006 the applicant attended a Tribunal hearing to give oral evidence. He claimed that he:
…currently feared persecution in Bangladesh mainy (sic) because he would be unable to practice his religion – Ahmadi Islam – in that country, due to the opposition from the majority Sunni Muslims. He had had political problems in the past because of his Freedom Party membership, but he was no longer involved politically. He nonetheless feared that his political past could also be used against him. (CB 202.4)
The applicant claimed that “He had mentioned his fear of religious persecution to the migration agent, but had followed the agent’s advice not to include it in his refugee claims as he risked ‘being kicked out’” of Australia (CB 202.5).
On 22 September 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (quote from CB 206 first paragraph under “Findings and Reasons” to the end of first paragraph of CB 210) (emphasis added):
The Tribunal accepts that the applicant has Bangladeshi nationality, based on his passport and in the absence of any evidence to the contrary. It therefore assesses his claims against that country.
Essentially, it is the Applicant’s claims that he faces persecution in Bangladesh for reason of his religion (adherence to the Ahmadi faith) and political opinion (his past association with the Freedom Party). He claims to have suffered past harm for reason of his religion and his political opinion. The applicant’s current claim is that he will be unable to safely practice his religion in Bangladesh, because of the risk of persecution from Sunni Muslims and the State’s inability to protect him. The applicant claims he is no longer associated with the Freedom Party, but that his political past may still be used against him.
The Tribunal is required to determine whether the Applicant has a well-founded fear of persecution in Bangladesh, and if so, whether this amounts to persecution for a Convention-related reason. The Tribunal refers to all the evidence before it, including that presented to the Department, the applicant’s written and oral submissions to the Tribunal as previously constituted (in both instances) and in its current form, as well as relevant country information (contained in the delegate’s decision, as well as that provided to the Tribunal by the applicant himself).
The Tribunal accepts that: ‘applicants for refugee status face particular problems of proof as an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.’ The Tribunal also accepts that: ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para. 196). However, the Handbook also states (at para 203): ‘The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts’.
It is for the Tribunal not only to consider inconsistencies but also to determine what evidence it finds credible (Nicholson J. in Chen Xin He v MIEA , 23 November, 1995 (unreported) at p.11). The Tribunal does not have to accept uncritically all statements and allegations made by an applicant. (Beaumont J in Randhawa v MIEA , 124 ALR 265 at p.278). ‘The mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is well-founded or that it is for reasons of political opinion …[it is] for the Applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.’ (MIEA v Guo and Anor (1997) 144 ALR 567 at 596).
The Tribunal found the applicant to be a well-spoken, articulate witness, yet much of his evidence was unsubstantiated, illogical, inconsistent and improvised. Most significantly, the Tribunal’s concerns relate to the applicant’s refugee claims, as set out below. However, the applicant’s unreliability was more pervasive, and also manifested itself on issues of procedure (such as why he delayed the submission of his refugee claims) as well as incidental matters (such as his unconvincing explanation of his finances, after inadvertently revealing that he drives a car in Australia).
The applicant claims to fear persecution for reason of both his religion and his (past) political opinion. The Tribunal considers these separately, dealing first of all with his claimed Ahmadi adherence, which he claims is now his main concern.
For the following reasons, the Tribunal does not accept that the applicant adheres to the Ahmadi religion.
First, the circumstances in which the applicant claimed to be an Ahmadi raise grave doubts about the veracity of this claim. As noted in the Tribunal’s letter of 3 August 2006, the applicant omitted any reference of this in his protection visa application (February 2001) and in the Tribunal’s first review (mid-2003). The first mention of it was at his November 2005 Tribunal hearing. The applicant laid the blame for this at the feet of his former migration agent, initially claiming (at the November 2005 hearing) that his adviser had warned him the Refugee Review Tribunal would expel him from the hearing room if he raised such claims. The applicant later corrected this, saying the adviser had said that the Minister would deport him if he raised religious claims. He explained to the Tribunal that, even though he declared his religion (‘Islam’) throughout the refugee process, he held back admitting that he was an Ahmadi, realising that there was tension between Muslims and Christians in Australia even before September 2001. The Tribunal finds the applicant’s explanation contrived and unconvincing. It does not accept that he failed to mention his Ahmadi-related claims for fear of being poorly treated by Australian decision-makers.
Second, the Tribunal found the applicant’s account of his introduction and sustained attraction to the Ahmadi faith to be superficial. Beyond vague references to being inspired and to feeling that it was better than what Sunni Islam had to offer, the applicant did not appear able to identify any particular features apart from the Ahmadi recognition of their messiah. In the end, he suggested that there were not really many differences. In the Tribunal’s opinion, this is hardly a ringing endorsement of the applicant’s claim to have a strong basis for his commitment to the faith. The generality of the applicant’s evidence and his lack of some specific knowledge (such as the Ahmadi view of Jesus) cast further doubt on the duration and intensity of his Ahmadi adherence, indeed on whether it has any foundation in fact at all.
Third, the applicant’s account of his involvement with the Ahmadi community in Bangladesh was unconvincing. It was his contention that ‘membership’ would be available only after several generations, ie. there was no conversion process. It seems remarkable that the chief imam (who, the applicant claims, regarded him as a ‘son’) would be available for contact in Bangladesh, yet not be willing to provide the applicant – who allegedly left Bangladesh to flee further persecution – some certification or practical assistance. The applicant referred to having been in contact with the imam prior to the 2004 attack on the main mosque, yet now relies on this attack to explain his complete lack of corroboration. In the Tribunal’s opinion, the applicant made the unsubstantiated claim about the lack of Ahmadi documentation for people who have converted was made only in order to remove any expectations that he seek or provide any formal identification or other proof of his claims.
Fourth, the applicant’s account of his practices in Australia was totally unpersuasive. He told the current Tribunal that he had been attending the mosque for four or five years. Before the second Tribunal, he claimed not to have become involved earlier because he did not know where to look and because he had been afraid to ask. At the most recent hearing, the applicant had with him several brochures that he had collected from the Ahmadiyya Muslim Assocation, ‘just to read’. The Tribunal also notes that the applicant was also able to describe in general terms the route to the mosque and library in Marsden Park. In the Tribunal’s view, the applicant’s visits to the mosque and possession of brochures say little about the intensity and genuineness of his claimed adherence to the faith – or whether they were aimed at simply preparing for the Tribunal hearing. The Tribunal views with great scepticism the applicant’s claim to have attended the mosque regularly for a number of years, and then only to pray privately and occasionally visit the library. It is remarkable, after such a period, that the applicant was able to give only negligible, and even then, shaky evidence on contacts with fellow worshippers; the names of the imam or other prominent association members; or knowledge of or interest in any of the community’s activities. The applicant gave the Tribunal to understand that he was not interested in such contacts; that they would not be open to him, anyway, as he was not a ‘member’; and that he chose not to confide in or share his experiences as an Ahmadi with anyone because he did not need their help. The Tribunal cannot reconcile this attitude with the applicant’s claimed engagement, commitment and contacts in Dhaka, where, for instance, he allegedly even ventured out of hiding in 1997 to address an Ahmadi protest outside the Prime Minister’s Office and where he was considered to be the chief imam’s ‘son’.
In the Tribunal’s opinion, the applicant’s claimed Ahmadi adherence is entirely expedient and unbelievable. He would have the Tribunal believe that he was a committed activist in Bangladesh who took risks for his faith, yet at the same time remain completely marginalised because he does not have an Ahmadi pedigree and formal ‘membership’. Because of their current mistreatment in Bangladesh, the applicant claims that most Ahmadis are now in hiding and therefore unable to corroborate his claim, notwithstanding the fact that he appears to have made no effort to contact them or even to enquire after the welfare of his supposed former fellow worshippers. In Australia, the applicant now relies on his lack of formal ‘membership’ to explain his continued non-involvement in the community and consequent lack of corroboration. These factors, considered together with the applicant’s scant knowledge of Ahmadism and the spurious timing of this claim, indicate that his claimed Ahmadism has no foundation in fact.
The Tribunal concludes that the applicant is not an Ahmadi, and will not be perceived by anyone as such, in Australia or Bangladesh.
The applicant’s timing of his departure from Bangladesh and the lodgement of his protection visa application reinforce the Tribunal’s finding above that he is not an Ahmadi, indeed that he does not have any attributes that give rise to a well-founded fear of persecution. As noted in the Tribunal’s letter of 3 August 2006, the applicant did not obtain a passport until April 1998 and did not leave Bangladesh until July 1998. This is hardly the conduct of a person experiencing serious incidents as early as 1993 (in connection with his Freedom Party activities, as he told the Tribunal in May 2003) and continuing right through 1997 and 1998 (including an Ahmadi-related attack in July 1997).
The Tribunal notes the applicant’s claim that he had to pay a bribe for the passport, but does not consider this as evidence that he is of adverse interest to the authorities or an adequate explanation for his lengthy delay – indeed, the applicant made a point in his most recent letter to the Tribunal that his acquisition and use of a passport does not undermine his claim (to have been subject to false cases arising from his political opinion), precisely because his dispute was not with the administration but rather the political parties. The Tribunal also does not find convincing the applicant’s additional comment at the most recent hearing, that his delay in departing Bangladesh was in part due to his having applied to other countries for visas.
As set out in the Tribunal’s s.424A letter, also relevant is the delay in the lodgement of the protection visa application, some 18 months after the applicant’s arrival in Australia and only after the expiry of his visa. The applicant’s explanation was that he did not need protection at that stage, because he already had legal status. Responding to the Tribunal’s observation that genuine refugees could be expected to seek protection at the earliest available opportunity, the applicant then added that he thought the situation for Ahmadis might improve in Bangladesh. He could not think of any reason why he might have thought this, though. This was evidently an improvised response, and not in fact an issue to which the applicant appears to have turned his mind. In the Tribunal’s view, this was so because the applicant is not an Ahmadi, and because his interest in that community does not go beyond his decision in late 2005 to base his refugee claims on his alleged membership.
It follows from the above that the Tribunal rejects the applicant’s claim that his mother is an Ahmadi; that he became involved in it through some student friends; that he had any other association with the movement or its adherents (such as seeking shelter with Ahmadi relatives in Chittagong for six months); or that he suffered harm in incidents, whether one with a clearly Ahmadi or religious character (such as in July 1997 or March 1998) or more tentative links (such as in February 1997 and December 1997). Having found that the applicant is not an Ahmadi, the Tribunal does not accept that he suffered any consequential harm in these or any other related incidents. In its opinion, the applicant lacks credibility and has invented these incidents for the purpose of his refugee application.
The Tribunal notes that, although the applicant has virtually resiled from his claims connected with the Freedom Party – insofar as he says he no longer has any interest in and will not undertake future activities for them – he expresses fear that his ‘political past’ may be used against him. In the Tribunal’s opinion, this goes somewhat further than the applicant’s position in his letter of 9 December 2005, where he indicates that he is no longer ‘operative’ in the Freedom Party, but hints that this was perhaps only the result of his wishing to avoid the AL’s oppressive treatment of FP members. The Tribunal therefore considers this ‘residual’ claim, and its cumulative effect.
As noted above, the Tribunal does not find the applicant to be a credible witness. Taking into account the applicant’s evidence to the two previous Tribunal’s about his association with the Freedom Party and its consequences, and the applicant’s current position regarding that claim (his readiness to more or less drop it when convenient), the Tribunal is of the view that he is no longer pursuing it because it had no truth in it from the outset. Traces of such expediency can be found in other evidence from the applicant, eg. when he told the second Tribunal that he had written on his student visa application that he was a full-time student because he thought the application should reflect what he was applying for, yet insisted before that Tribunal that he had in fact also been a full-time politician at the same time. The Tribunal finds that the applicant will say whatever it takes to suit his immediate interests, and is not satisfied that he has ever had anything to do with the Freedom Party. It follows that the Tribunal does not accept that the applicant has any relevant ‘past history’ with the Freedom Party, and it therefore is not satisfied that there is a consequential risk of persecution.
The Tribunal has considered all the applicant’s claims, individually and cumulatively. The Tribunal does not accept that he has any past, present or prospective association with the Ahmadi community or the Freedom Party, or will be so perceived. It also does not accept that the applicant has suffered past harm, let alone persecution, for any reasons linked with his now-dismissed claims based on religion and political opinion, or for any reason at all. The material before the Tribunal does not suggest any other factors that might establish a real chance of prospective harm for any Convention reason. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for one or more of the Convention reasons, now or in the reasonably foreseeable future, if he returns to Bangladesh. He is not a refugee.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out six grounds as follows (emphasis added):
1)The Tribunal denied the applicant natural justice in determining the appeal in that the Tribunal was biased, or, in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision.
2)The Refugee Review Tribunal (RRT) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant’s protection visa application.
3)The tribunal failed to properly and adequately identify issue the tribunal referred to when it became clear that the applicant was confused and uncertain of which issue of the convention the tribunal was referring to.
4)The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.
5)The second respondent (“the tribunal”) denied the applicant natural justice and procedural fairness pursuant to section 420 and section 425 of the Migration Act 1958.
6)The applicant was deprived of the natural justice and procedural fairness.
Particulars
The applicant was offered a hearing and accordingly he responded and attended the hearing. The applicant was not given any adverse information, referred in the tribunal’s decision, at the time or after the hearing with the tribunal. The issues that would be raised in the hearing were not also given to the applicant prior to the hearing.
7)The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself the wrong question in deciding that the applicant’s claim. The applicant has two convention based claim which are religion and political, but currently the applicant is more concerned of his faith considering the situation of his country of national.
8)The tribunal has completed ignored the applicant’s claim. The Tribunal did not make any enquire of the applicant’s religious claim which was available to them. The tribunal has failed to have a fresh look in to the applicant’s protection visa claim; and to take the relevant legal issues in to consideration during reviewing his appeal application. The tribunal failed to maintain their procedural fairness.
9)The tribunal was biased by the previous decision and did not consider the calim (sic claim) with the neutral point of view as such the applicant was deprived by the natural justice.
The applicant’s written submissions foreshadowed the grounds in the then proposed amended application as:
a)The Tribunal failed to consider the applicant’s claim that he feared persecution because of his past membership of the Freedom Party, and that
b)The Tribunal relied on irrelevant information being the delay in lodging a protection visa application for 18 months after arriving in Australia.
The applicant told the Court on 19 March 2007 that the grounds in the amended application filed in Court were exactly the same as those in the foreshadowed application, and that is the basis upon which leave to file the amended application was granted. On examination that is not so, therefore the Court will deal with the grounds in the amended application filed in Court.
Grounds of the application
Ground 1 alleges bias or grounds for a reasonable apprehension of bias. There is no evidence that the Tribunal approached the applicant’s case with a closed mind. To establish a basis for a reasonable apprehension of bias, it must be firmly established that a fair minded lay observer might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question that the Tribunal in required to decide: Re Refugee Review Tribunal & Anor; ex parte H (2001) 179 ALR 425 at 434 [27]. Nothing has been put to the Tribunal to establish the claims of bias and they are rejected.
Ground 2 alleges a failure to follow the proper procedure. As will be shown, ss.424A, 425, and 425A were complied with. Nothing was put to substantiate this ground and it is dismissed.
Ground 3 alleges that the Tribunal failed to properly identify the issue when it became clear that the applicant was confused as to what the issue was.
The Court finds that the letter to the applicant on 3 August 2006 (CB 124) inviting him to comment on information the Tribunal had, set out clearly the information and why it was relevant. The Court finds no error of law and rejects this ground.
Ground 4 alleges bias. Nothing has been put to establish this ground and it is rejected.
Ground 5 alleges a breach of s.420 and s.425. Section 420 requires the Tribunal to provide a mechanism that is fair, just, economical, informal, and quick. Nothing has been put to show a breach of this section.
Section 425 requires the Tribunal to invite the applicant to appear before it. The Tribunal did that by letter dated 20 July 2006 (CB 122). This ground is dismissed.
Section 425A specifies matters relating to the notice of invitation to appear. Nothing has been put to show a breach of this section.
Ground 6 alleges a denial of natural justice and procedural fairness. The particulars complain that the applicant attended the hearing but he was not given adverse information at the time or after the hearing, and he was not given prior notice of what would be raised at the hearing.
Section 424A requires the Tribunal to give the applicant in writing, particulars of the information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. It did this by letter dated 3 August 2006 (CB 124). The Tribunal’s decision is based primarily on an adverse finding as to credibility (CB 209.8). The Tribunal found the applicant’s evidence to be contrived and unconvincing (CB 207.5) and superficial (CB 207.6) and totally unpersuasive (CB 208.1). The s.424A letter stated that the information referred to “may cast doubts on your veracity”. The applicant was therefore made fully aware that the primary concern was his credibility. The Court finds no breach of s.424A.
The Court finds no breach of Division 4 of Part 7 of the Migration Act.
Ground 7 alleges that the Tribunal asked itself the wrong question as the main issue was the applicant’s religion. At Court Book 206.3 the Tribunal referred to the applicant’s claim of persecution for his religion. At CB 207.2 the claim of religious persecution was referred to again. The Tribunal then set out extensive reasons for it not accepting that the applicant adheres to the Ahmadi religion (CB 207.3). Those reasons are set out in full on CB 207–209.5. Clearly the Tribunal gave careful consideration to the applicant’s claim to fear religious persecution. Ground 7 is rejected.
Ground 8 alleges that the Tribunal ignored the applicant’s claim (the Court assumes this includes the claim based on alleged membership of the Freedom Party) and failed to maintain procedural fairness. An examination of the decision shows that this is not so (as detailed below) and the ground is dismissed.
Ground 9 again alleges bias. Nothing has been put to show bias or a basis for a reasonable apprehension of bias and the ground is dismissed.
Grounds of the amended application
Ground (a) alleges that the Tribunal failed to consider the applicant’s claim that he feared persecution because of his past membership of the Freedom Party. The Tribunal examined the applicant’s claim to fear persecution because of his membership of the Freedom Party commencing CB 209.6. The Tribunal considered that ground “even though the applicant has virtually resiled from his claims connected with the Freedom Party” (CB 209.6). The Court did not use that finding for not considering the claim, but went on to consider it and concluded that it was not satisfied that he has ever had anything to do with the Freedom Party (CB 209.9). It concluded therefore that it was not satisfied that there was a consequential risk of persecution for that reason (CB 209.10). Those findings of credibility and fact were properly open to the Tribunal and the Court rejects this ground.
It was submitted for the applicant that the Tribunal failed to deal with his claim to fear persecution because of membership of the Freedom Party. An examination of the Tribunal’s decision shows clearly that this is not so. At Court Book 209 the Tribunal dealt with the claim in detail. At Court Book 209.6 the Tribunal concluded that
the applicant has virtually resiled from his claims connected with the Freedom Party – insofar as he says he no longer has any interest in and will not undertake future activities for them – he expresses fear that his “political past” may be used against him.
The applicant seeks to challenge the finding that he “virtually resiled from his claims connected with the Freedom Party.” The Court holds that the finding of fact as to the status of that claim was reasonably open to the Tribunal, and is not open to review. However, the point is of no significance as the Tribunal went on to deal with the claim that his “political past” may be used against him. The Tribunal considered this claim in detail (at CB 209.8) at Tribunal concluded that:
· The applicant was not a credible witness;
· Taking account of his evidence to the two previous Tribunals about his association with the Freedom Party and its consequences;
· and the applicant’s current position regarding that claim (his readiness to more or less drop it when convenient),
· the Tribunal is of the view that he is no longer pursuing it because it had no truth in it from the outset.
· The Tribunal…is not satisfied that he has ever had anything to do with the Freedom Party.
· The Tribunal does not accept that the applicant has any relevant ‘past history’ with the Freedom Party, and it therefore is not satisfied that there is a consequential risk of persecution. (CB 209)
· The Tribunal does not accept that he has any past, present or prospective association with the Ahmadi community or the Freedom Party, or will be so perceived. It does not accept that the applicant has suffered harm, let alone persecution, for any reasons linked with his now-dismissed claims based on religion and political opinion, or for any reason at all. (CB 210.1)
The Court holds that all these findings were reasonably open to the Tribunal and are not subject to review. The Tribunal therefore dealt with the applicant’s claims of persecution for membership of the Freedom Party and rejected it.
The Court finds that all aspects of the applicant’s claims were dealt with by the Tribunal. Therefore the decision referred to by the applicant of Dranichnikov v Minister for Immigration and Multicultural Affairs; Re Minister for Immigration [2003] HCA 26 is of no assistance to the applicant. That decision related to where the Tribunal failed “to respond to a substantial, clearly articulated argument relying on established facts”, which is not the situation in this matter.
In the second ground of the applicant’s amended application it is alleged that the Tribunal relied on irrelevant information: being the delay in lodging a protection visa for 18 months after arriving in Australia. The Tribunal explained in the s.424A letter (CB 124.8) why it considered the 18 month delay to be relevant. The applicant said that the delay occurred because he had a valid visa to stay in Australia up until the date the application for the protection visa was lodged, and that the delay was therefore an irrelevant consideration. The Tribunal dealt with the issue at Court Book 209.2 as follows:
As set out in the Tribunal’s s.424A letter, also relevant is the delay in the lodgement of the protection visa application, some 18 months after the applicant arrived in Australia and only after the expiry of his visa.
The Tribunal then considered the applicant’s reason for the delay, stating that “the applicant’s explanation was that he did not need protection at that stage, because he already had legal status.” The Tribunal continued:
Responding to the Tribunal’s observation that genuine refugees could be expected to seek protection at the earliest available opportunity, the applicant then added…
The Court finds that the issue the Tribunal was considering was why the applicant has delayed 18 months before applying for a protection visa if he was a genuine refugee. The date of expiry of his then current visa was not the issue. The delay itself was the relevant issue. The Tribunal was entitled to have regard to that issue: Selvadurai v Minister for Immigration and Ethnic Affairs & Anor(1994) 34 ALD 347.
The first respondent relied on a decision in Selvadurai (supra) per Heerey J at page 3 para.(v) that
The applicant complained of the Tribunal's taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant's alleged fear of persecution. It is a rational consideration open on the material. Natural justice does not require every possible adverse inference from uncontested facts to be put to an applicant. A decision-maker does not have to provide an applicant with a draft of the proposed reasons for decision.
The applicant sought to distinguish that case on the basis that the applicant in Selvadurai applied for a protection visa just prior to the expiration of his visa. Here also the applicant applied for a protection visa just before his visa expired. He applied for a protection visa on
27 February 2001 (CB 1) and his visa current at that stage expired at midnight on 27 February 2001 (applicant’s outline of submissions para.18). This case is therefore not distinguishable from Selvadurai. The Court applies with respect what his Honour decided in para.(v) as follows:In my opinion, that (i.e. delay of 20 months) was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant's alleged fear of persecution. It is a rational consideration open on the material.
The relevance of the decision in Selvadurai is that where there is a long delay between arriving in Australia and applying for a protection visa, the delay is a relevant issue in deciding genuiness. The issue of whether or not the initial visa is still valid when the application for a protection visa is lodged is of little relevance. Even without the decision in Selvadurai the Court would hold that it was open to the Tribunal to consider the 18 month delay in seeking a protection visa to be a relevant matter. The Court finds that the delay of 18 months was not an irrelevant consideration.
The Court finds that the Tribunal was entitled to treat the delay as relevant for the reasons it set out. The allegation that the information was factually incorrect is of no consequence as there was no relevant issue of whether the visa expired on 27 February or 28 February 2001. The actual date of expiry was not expressed to be of any relevance to the Tribunal in reaching its decision. The date of expiry did not form any part of the Tribunal’s decision, other that in its statement that “the lodgement of the protection visa application some 18 months after the applicant’s arrival in Australia and only after the expiry of his visa” (CB 209.2). Clearly it was the 18 months delay and not the actual day of the expiry of the visa that was relevant. The fact is that the application for a protection visa was filed by the applicant 18 months after his arrival in Australia. The Tribunal was entitled to consider that to be relevant, and the Court will not interfere. The Court rejects this ground.
The Court finds that the decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 7 May 2007
2
3
1