SZILU v Minister for Immigration and Citizenship

[2007] FCA 1906

FEDERAL COURT OF AUSTRALIA

SZILU v Minister for Immigration and Citizenship [2007] FCA 1906

SZILU v MINISTER FOR IMMIGRATION AND CITIZENSHIP
AND REFUGEE REVIEW TRIBUNAL

NSD 1577 OF 2007

LINDGREN J
14 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1577 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZILU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE OF ORDER:	14 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

3.The amount of the costs referred to in order 2 be fixed in a sum of $2200.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1577 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZILU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE:	14 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The appellant appeals from a judgment of the Federal Magistrates Court of Australia given on 23 July 2007.  That Court dismissed the appellant’s application for constitutional writs in respect of a decision of the second respondent (the Tribunal).  The Tribunal had, in a decision signed on 8 March 2007 and handed down on 29 March 2007, affirmed a decision of a delegate of the first respondent (respectively the Delegate and the Minister) refusing to grant to the appellant a protection (Class XA) visa.

2. The second respondent submits to such order as the Court may make, save as to costs.

   BACKGROUND

3. The appellant arrived in Australia on 16 July 2005.  On 9 August 2005 he applied to the then Department of Immigration and Multicultural and Indigenous Affairs for a protection visa.  On 9 September 2005 the Delegate refused to grant the visa.  On 25 September 2005 the appellant applied to the Tribunal for a review of that decision.  In a decision signed on 12 January 2006 and handed down on 31 January 2006, the Tribunal affirmed the Delegate’s decision.

4. The appellant applied to the Federal Magistrates Court for a review of the Tribunal’s decision of 12 January 2006. By consent, on 6 November 2006 the Tribunal’s decision was quashed and the matter remitted to the Tribunal to be determined according to law. On 2 January 2007 the Tribunal wrote to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) (the Act) inviting the appellant to comment upon information that the Tribunal had, set out in that letter, that might be the reason or part of the reason for the Tribunal affirming the Delegate’s decision.

5. On 25 January 2007, the appellant replied, and later on 29 January 2007 he wrote a further letter to the Tribunal enclosing a copy of a letter dated 20 January 2007 purporting to come from, and be signed by, Md Abul Kalam Azad, “Ex-President, Ahmadiya Muslim Jamate, Rajshahi, Bangladesh”, of which I will say more later.

6. On 30 January 2007 the appellant appeared before the Tribunal (differently constituted) when the Tribunal conducted an oral hearing.  On 8 March 2007 the Tribunal made the decision affirming the Delegate’s decision which gave rise to the application in the Federal Magistrates Court.

7. The appellant filed the application for relief in the Federal Magistrates Court on 23 April 2007.  On 23 July 2007, Driver FM dismissed the application and ordered the appellant to pay the Minister’s costs:  see SZILU v Minister for Immigration & Citizenship & Anor [2007] FMCA 1195.

8. On 9 August 2007 the appellant filed his notice of appeal in this Court.

   THE APPELLANT’S CLAIMS

9. The appellant claims to fear persecution in Bangladesh because of his religious beliefs and practices.  He claimed that he had become a follower of the Ahmadiya (sometimes spelt “Ahmadiyya” or “Ahmadia”) Kadiani Muslim faith in September 2004.  It will be recalled that he arrived in Australia on 16 July 2005.

10. In his visa application the appellant claimed that he had been attacked more than once in the intervening period by radical Sunni Muslims, village people and unknown persons.  He claimed that he then changed his course and started to practise his faith more privately.

11. The appellant claimed that in January 2005 “a few guys” attacked him after they found Ahmadiya leaflets in his bag.  He placed that attack as having occurred on 17 January 2005 and said that at the time he had been on his motorcycle en route to distribute leaflets.  He claimed that he was beaten and badly cut, but was rescued by strangers in a jeep and was hospitalised in a local clinic for 10 days while he recovered.  He said that after that incident he was in fear for his life and went to Dhaka and began to look for ways to leave Bangladesh.  He claimed that if he were to return he would be killed by fundamentalist Muslims.

    THE TRIBUNAL’S FINDINGS AND REASONS

12. The Tribunal did not accept that the appellant was a witness of truth.  It set out its reasons for this assessment under three headings.

13. First, the Tribunal noted the absence of an adequate explanation from the appellant for his not leaving Bangladesh until three months after he had obtained his visa to travel to Australia.  The Tribunal noted that the appellant owned and operated a garment business in Bangladesh which had given him the opportunity to travel to such places as Korea, Thailand, India and Japan.  At the hearing the appellant said that he had last travelled to Korea and Japan in 2003, although he had commenced travelling, apparently for business purposes, in or around the early 1990s.  The appellant did give reasons explaining his delayed departure from Bangladesh, in summary, his need to have sufficient funds.  For reasons which the Tribunal gave, however, it did not accept that explanation. 

14. Second, the Tribunal noted that the appellant’s evidence as to his continuing his religious activities in Australia was unsatisfactory.  The appellant had not presented any support from local Ahmadis, and the Tribunal found that he did not attend the mosque regularly. 

1. Third, there was positive evidence in the form of a letter dated 6 December 2005 on the letterhead of the Ahmadiyya Muslim Association Australia Inc (the Australian Ahmadi Association) and signed by “Nasir Kahlop, Vice President” stating:

   We can confirm that [the appellant] is not a member of our community and he is not an Ahmadi.

   THE DECISION OF THE FEDERAL MAGISTRATES COURT

2. In the Federal Magistrates Court, Driver FM addressed the five grounds of review on which the appellant relied.  The first ground was:

   The Tribunal made jurisdictional error in that, having given the applicant particulars of information under section 424A relating to irrevent [sic] issues.

3. His Honour noted that in the course of the appellant’s oral submissions, it became apparent that the appellant had intended to refer to s 424 of the Act. The nub of the appellant’s complaint was that the Tribunal should have made inquiries by telephone to Bangladesh in relation to the letter dated 20 January 2007 from Mr Azad to which I referred at [5] above and to which I will refer again below. The background to this ground is that presiding member of the Tribunal had decided that the letter was “false and submitted for the sole purpose of enhancing the [appellant’s] claim to invoke refugee protection obligations in Australia”. The writer of the letter of 20 January 2007 had invited a reader of it who might require any further information in relation to the matter to contact him on his mobile telephone, the number of which was given in the letter.

4. Driver FM thought there was no substance in the first ground.  His Honour considered that it was a matter for the Tribunal what enquiries it made.  For this proposition his Honour referred to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (see esp [43] per Gummow and Hayne JJ). The Federal Magistrate stated that the Tribunal explained its reasons why it did not take up the appellant’s invitation to telephone the number given in the letter, and said that the Tribunal would probably have been told by the person answering that he was the author of the letter and that its contents were true. The Tribunal was apparently not satisfied that this would have advanced matters.

1. The second ground was that the Tribunal failed to have regard to the appellant’s “corroborative documents”, apparently, again, a reference to the letter from Mr Azad.  The Federal Magistrate dealt with this complaint by stating that it was obvious from the Tribunal’s reasons that the Tribunal had considered the appellant’s document.

2. The third ground was that the Tribunal had failed to provide particulars of the information that it considered would be the reason or part of the reason for affirming the decision under review. No particulars of this ground were given. The learned Magistrate noted (at [7]) that again the appellant’s complaint was that the Tribunal did not explain to his satisfaction its reason for not taking up his suggestion to make the telephone call to Mr Azad. The Federal Magistrate said that there was no obligation on the Tribunal under s 424A of the Act to disclose its reasoning process in declining his request.

3. The fourth ground is that the Tribunal was “biased by country information”.  His Honour noted that there was no evidence to support the complaint of bias, either actual or apprehended, and that the Tribunal had been entitled to have regard to country information about the Ahmadiya Muslim sect and about document fraud in Bangladesh. 

4. The fifth ground was that the Tribunal had failed to accord substantial justice in the case.  The Federal Magistrate noted that in his oral submissions the appellant had said that this ground again related to the Tribunal’s failure to make the telephone inquiry of Mr Azard as the appellant had requested.

   CONSIDERATION OF THE APPEAL TO THIS COURT

5. The first ground of appeal as stated in the notice of appeal is as follows:

   1.His Honour erred by finding that the Refugee Tribunal (“RRT”) was entitled to determine whether the Appellant feared persecution on the grounds of religion or particular social group, it was not established by the Tribunal.  As such it may amount to persecution.

6. Ground 1 appears to be a complaint about an alleged misconception by the Tribunal of the basis upon which the appellant made his claims.  There is no substance to the complaint.  The Tribunal rejected the appellant’s factual claims in their entirety.  The Tribunal did not dispose of the matter by reference to some erroneous identification of a particular social group or a particular religion.  In any event, at the heart of the appellant’s claims was his claimed fear of persecution because of his adherence to the Ahmadi faith, as the Tribunal correctly appreciated.

7. The second ground of appeal is as follows:

   2.His Honour erred by failing to have regard to the applicant, whether the applicant was a member of Ahmedia or not?  Whether the applicant will face any persecution upon return to Bangladesh?

8. The allegation in Ground 2 is that appellant’s claims to be an Ahmadi were not considered.  This is not the case.  The Tribunal considered, but did not believe, the appellant’s material claims.  Its consideration of the claims led the Tribunal to the conclusion that the appellant would not face persecution upon his return to Bangladesh.

9. The third ground of appeal is as follows: 

   3.His Honour erred that the Tribunal did not provide an opportunity to the applicant about the concern of the Tribunal before taking the decision.  It was an error by the part of the Tribunal.

10. Ground 3 appears to be a complaint that the Tribunal did not put the appellant on notice of its concerns before making its decision. No particulars are provided so it is not possible to answer this claim other than by reference to the fact that the Tribunal went beyond the call of duty when it sent to the appellant the letter dated 2 January 2007 (referred to at [4] above). This letter not only identified information which the Tribunal had in its possession which might form the reason or part of the reason for affirming the Delegate’s decision, but also identified the possible reasoning processes (or thoughts or conclusions) which might have led the Tribunal to its decision.

11. On the hearing today I asked the appellant if he wished to say anything in support of his appeal.  As he did before the Federal Magistrates Court, he complained that he had submitted papers to the Tribunal including a telephone number in Bangladesh but that the Tribunal had not followed that up.  He also appeared at one stage to suggest that the Tribunal should have contacted the Australian Ahmadi Association and obtained confirmation from it that Mr Azad was indeed an Ex-President of the Ahmadiya Muslim Jamate, Rajshahi, in Bangladesh.

12. I referred earlier to the letter dated 6 December 2005 on the letterhead of the Australian Ahmadi Association.  The Tribunal dealt with this matter and the associated letter from Mr Azad dated 20 January 2007 at some length.  The Tribunal confirmed that the appellant had provided the letter dated 20 January 2007 to the Tribunal on 29 January 2007, the day prior to the hearing (on 30 January 2007).  The Tribunal also recorded that the appellant had invited the Tribunal to follow up the letter by a telephone inquiry.  It should be noted that the letter from Mr Azad stated that the appellant had been known to him for quite a long time;  that the appellant was a member of the “Ahmadiya Muslim Jamat, Rajshahi” in Bangladesh; that the appellant had renounced Sunni beliefs and embraced “Ahamadiyat” beliefs; that the appellant had faced persecution while in Bangladesh due to his strong adherence to the Ahmadiya movement; that Bangladesh was experiencing a state of emergency and that human rights were in suspension; that if the appellant returned home he would be persecuted; and that the writer could be contacted on his mobile telephone (which was given) if the reader of the letter needed further information in relation to the matter.  The letter was addressed “To whom it may concern”.

13. The Tribunal explained to the appellant that it was a matter for the discretion of the Tribunal whether to telephone the witness and the decision depended on whether the Tribunal believed that that course would be helpful.  The Tribunal asked the appellant what the witness might be able to tell the Tribunal and the appellant replied that the witness would corroborate his claims, which the Tribunal understood to mean repeat the claims already made by the witness.  The Tribunal’s reasons for decision state (p11):  “After further discussion, the Tribunal ultimately decided not to call the witness.”

14. The Tribunal put to the appellant that there were high levels of document fraud in Bangladesh (something which, the Tribunal noted, had been put to the appellant previously), yet the appellant had not asked the person “to plead or otherwise support his case” in order for him to obtain evidence from the Australian Ahmadi Association.  The Tribunal’s reasons continue:

    The applicant then claimed this man had supported him to the Australian Ahmadis.  It took numerous questions to elicit the following evidence but the Tribunal understands the applicant was claiming the offer to provide further evidence in the letter of 20 January 2007, was also meant to be for the Australian Ahmadis.

15. The Tribunal declared itself not satisfied that the appellant’s claim was plausible.  In substance the Tribunal found it implausible that if his claims had been genuine the appellant would not have obtained more support than he had.  The Tribunal noted that the appellant had been before the Tribunal (differently constituted) previously and had known what the previous and present concerns of the Tribunal as previously and now constituted were, and presumably had knowledge of other members of his local Bangladeshi community in Australia.

16. The Tribunal then stated:

    Accordingly, the Tribunal is satisfied the document of 20 January 2007 is false and submitted for the sole purpose of enhancing the [appellant’s] claim to invoke refugee protection obligations in Australia.  This is a further reason that ultimately led the Tribunal to conclude the present applicant was not a witness of truth.

17. I do not think that the Tribunal’s decision not to follow up the letter of 20 January 2007 constituted jurisdictional error.  Section 426 of the Act gives an applicant a right within seven days after being notified of the invitation to appear before the Tribunal to give evidence, to give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.  Although the appellant’s request of the Tribunal did not satisfy these requirements, even if it had done so, subs (3) of s 426 would make it clear that the Tribunal was not required to obtain evidence from Mr Azad.  Subsection (3) states:

    If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.

18. It would be inconsistent with this provision to require the Tribunal to obtain evidence from either Mr Azad or the Australian Ahmadi Association.

19. I have dealt with the only complaint that has been made on the appeal.  In my view the learned Federal Magistrate was correct in his disposal of the application for review.

CONCLUSION

1. For the above reasons, the appeal will be dismissed with costs. 

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:
Dated:        4 December 2007

The Appellant appeared in person.
Counsel for the First Respondent:		Ms L Clegg
Solicitor for the First Respondent:		Sparke Helmore
The Second Respondent did not appear.
Date of Hearing:		14 November 2007
Date of Judgment:		14 November 2007