SZLPO v Minister for Immigration
[2010] FMCA 232
•8 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLPO v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 232 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation of reliance on irrelevant considerations – breach of s.424AA not proved – breaches of s.425 not proved – Tribunal has no general duty to make enquiries – allegation of bias not proved – refusal of lengthy period to respond to s.424AA notification did not amount to miscarriage of discretion – s.424(1) does not require the Tribunal itself to contact the sources of information it obtains. |
| Migration Act 1958, ss.91R, 424, 424AA, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration & Citizenship v SZJGV (2009) 238 CLR 642 |
| Applicant: | SZLPO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2552 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 4 March 2010 |
| Date of Last Submission: | 4 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 April 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2552 of 2009
| SZLPO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh where, he claims, he was born into an Ahmadi family. He claims that while in Bangladesh, Sunni Muslims from the Ahlee Sunna al Jahmah group attacked his village and tried to kill him. He claims that he was severely injured in the attack and was forced to flee Bangladesh in order to save his life.
The applicant claims to fear persecution in Bangladesh because of his Ahmadi faith.
After his arrival in Australia on 8 February 2007, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 20 April 2007. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. A previous Tribunal decision signed on 20 September 2007 was quashed by order of the Full Court of the Federal Court on 22 May 2009.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 15 of the Tribunal’s decision (Relevant Documents (“RD”) pages 189 – 200). Relevant factual allegations are summarised below.
Primary application
In a statement accompanying his visa application, the applicant made the following claims:
a)he is a Kadiani Muslim;
b)he was the president of the Kadiani Muslim Association in his “upazila”;
c)Sunni Muslims led by the “Ahlee Sunna al Jahmah people” have, for a long time, attempted to kill him and his family;
d)on 5 September 2006 a group of Sunni Muslims attacked his Kadiani village, burning their houses, killing their children and destroying their crops. Because he was a leader of the Kadiani, the Sunni Muslims wanted to kill him. He was attacked and suffered severe injuries;
e)prior to this incident, the Ahlee Sunni leader lodged a false criminal case against him, accusing him of being an “enemy” of the Islam;
f)he fled to Dubai on 7 October 2005 and felt safe whenever he was there despite the fact that it was a country “for the Sunnis”. Even so, he wanted to move to a western country for safety and made arrangements to travel to Australia;
g)he returned to Bangladesh on 11 October 2006 to visit his mother and sick sister. During this visit, Sunnis sent people to murder him. He went into hiding before returning to Dubai on 19 December 2006; and
h)“fanatic Sunnis” will persecute him if he returns to Bangladesh.
Tribunal as first constituted
On 5 July 2007 the applicant provided the Tribunal with a letter of introduction dated 15 April 2005 purportedly signed by Mohammed Asaduzzam Bhuiyan, the president of the “Ahmadiyya Muslim Jamaat Krora, Bangladesh”. The letter of introduction stated, amongst other things, that the applicant was a regular member of the “Ahmadiyya Muslim jamat Krora, Bangladesh” and was president of the “Ahmadiyya Muslim jamaat” in his “upazilla”.
On 2 August 2007, in what appears to have been a s.424A notice, the Tribunal as first constituted advised the applicant of information it had received from the Department of Foreign Affairs & Trade (“DFAT”) to the effect that, having contacted the office of the National Ameer of the Ahmadiyya Muslim Jamaat of Bangladesh in Dhaka, advice had been received that the letter of introduction was false and not signed by Mr Bhuiyan and that the applicant was not a member of Ahmadiyya Muslim Jama’at.
The Tribunal advised the applicant that this information was relevant because it could lead the Tribunal to conclude that the document was fraudulent and that the applicant was not a member of the Ahmadiyya Muslim Jama’at as claimed.
The applicant responded on 16 August 2007 and claimed that Mr Bhuiyan, with whom he was not on good terms, had influenced the Central Committee to speak against him. He claimed that the Krora Committee in Bangladesh was divided into two groups: the Bhuiyan Group which was led by Mr Asaduzzaman Bhuiyan and the Atique Group (or the “young group”) which was led by a Mr Atique. The applicant claimed that he actively supported the Atique Group.
Tribunal as secondly constituted
The applicant appeared before the Tribunal on 29 July 2009 and made the following additional claims:
a)the statement he lodged with his protection visa application was incorrect where it referred to the attack on his village having occurred on 5 September 2006. The incident occurred in 2005. He had not lived in his village since the attack;
b)he requested the letter of introduction in 2005 because, having been attacked and persecuted in different places and at different times, he thought it might be useful to have;
c)he did not bring the letter with him to Australia (it apparently remained in Bangladesh) because he was in Dubai (until his travel to Australia) and he might have lost it or Sunni Muslims might have seen it in which case he would have had problems. Also, he did not think that it would be needed and he was very stressed and worried at the time;
d)two false cases were filed against him by the Ahlee Sunna al Jahmet accusing him of having weapons and of having done something against Islam. Charges were laid and warrants for his arrest were issued by the police as a result. He did not give these details to the Tribunal as first constituted because he only became aware of them eighteen months after his arrival in Australia;
e)he attended the Australian Ahmadiyya Mosque six or seven months prior to the hearing but had not attended since as he had been busy working and the community was located a long way from where he lived; and
f)he obtained his Australian visa in 2006 but did not come here earlier than he did because the restaurant where he was working in Dubai was very busy and they had asked him to stay on for a while.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal again found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s second decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant was an Ahmadi because:
i)he provided a letter of introduction from the President of the Ahmadiyya Muslim Jamaat Krora, Bangladesh, one Mr Asaduzzaman Bhuiyan, which that gentleman denied writing. The Tribunal found that the applicant’s explanation of why Mr Bhuiyan would do this and why the National Ameer of the Ahmadiyya Muslim Jamaat Bangladesh would deny that he was an Ahmadi was both unconvincing and inconsistent with the independent information. It accepted as correct the information provided to DFAT by Mr Bhuiyan and the National Ameer and concluded that the letter had been fabricated by the applicant to strengthen his claims to be a refugee;
ii)although the letter of introduction was dated 15 April 2005 and was obtained for the purpose of establishing the applicant’s identity as an Ahmadi, the applicant did not produce the letter until 5 July 2007, another indication to the Tribunal that the letter had been fabricated. In this respect, the Tribunal noted that the applicant did not bring the letter with him to Australia even though his purpose in coming to Australia was to claim protection on the basis that he was an Ahmadi. The Tribunal found that this behaviour was not consistent with the applicant’s claim to fear persecution in Bangladesh; and
iii)in light of the independent information that the Ahmadiyya community is a highly structured, tight-knit community throughout the world, the Tribunal found that, were the applicant a genuine Ahmadi, he would have actively and consistently participated in the Australian Ahmadiyya community despite work commitments or travel difficulties;
b)the Tribunal did not accept that the applicant was concerned about concealing his identity as an Ahmadi in Dubai or that he was fearful that the letter of introduction might be discovered in Dubai, noting that he delayed coming to Australia until February 2007 despite having obtained his visa in December 2006. The Tribunal also found that his delay in coming to Australia was not consistent with his claim that he had to flee Bangladesh because of persecution;
c)the Tribunal accepted that the applicant had some knowledge of the beliefs and organisational structure of the Ahmadiyya community but found that this did not overcome its finding that he was not a witness of credit. The Tribunal considered that the applicant had learned about the Ahmadiyya religion solely to support his refugee claim;
d)having found that the applicant is not an Ahmadi, the Tribunal was not satisfied that he had attended the Australian Ahmadiyya community Mosque or had been involved in any Ahmadiyya activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal therefore disregarded this conduct; and
e)in light of its findings summarised above, the Tribunal did not accept that the applicant had suffered harm as a result of his Ahmadiyya faith or that DFAT’s enquiries would result in him being subjected to any risk of harm in Bangladesh.
Proceedings in this Court
The applicant’s amended application contains five numbered paragraphs. However, more than one allegation is made in each of those paragraphs and it is necessary to deal with those allegations individually and not solely by reference to the paragraph numbers in the document. The applicant also made further allegations at the hearing in these proceedings.
Ground 1
“Tribunal made a jurisdictional error that the Tribunal put the wrong reasons to reject the applicant’s review application”
This allegation was particularised as follows:
(i)The letter provided by the president of the Ahmadiyya Muslim Krora Bangladesh, Mr Asaduzzaman Bhuiyan.
(ii)Investigations by the DFAT.
(iii)The letter of introduction is dated 15 April 2005.
(iv)The applicant has not become involved in the Ahmadiyya community in Australia.
The applicant alleges that the Tribunal relied on the four particularised matters although they had nothing to do with “the legal requirements” under the Act.
What the applicant appears to be asserting is that the Tribunal relied on irrelevant considerations when reaching its decision. However, the matters which the applicant has particularised are not “considerations” in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; Abebe v Commonwealth (1999) 197 CLR 510 or Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323. Rather than “considerations” which the Tribunal was obliged to consider or to exclude from its deliberations, the particularised matters were matters of fact which were relevant to the issues which the Tribunal had to decide.
Whether consideration of particular evidence will amount to an error of law will turn on whether the Tribunal’s exercise of power or purported exercise of power is affected thereby: Craig v South Australia (1995) 184 CLR 163; such as by causing the Tribunal to exceed the power or authority given to it by the Act: Minister for Immigration & Multicultural Affairs v Yusuf. The Tribunal’s reference to and consideration of the matters particularised by the applicant did not lead it to make a decision outside the limits of powers conferred on it or to do something which it lacked the power to do; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141 [163]; such as misapplying the test it was called upon to apply. Nor was it a manifestation of some other error of law: Craig v South Australia at 179. The matters were simply ones relevant to be taken into account when the Tribunal considered whether the applicant met the criteria for the grant of a protection visa.
As nothing raised by the applicant in this allegation points to jurisdictional error, this allegation is not made out.
Tribunal denied applicant the opportunity to comment on the particularised information
This allegation would appear to allege that the Tribunal failed to comply with its obligations under s.424A or s.424AA of the Act which relevantly provide:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) …
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This 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; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; …
424AA Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
The first two particulars set out above at [16] relate to the enquiries which DFAT made in Bangladesh on the Tribunal’s behalf. The content of the DFAT report to the Tribunal was read to the applicant at the commencement of the second Tribunal hearing. That report stated:
Post contacted the office of the National Ameer of the Ahmadiyya Muslim Jamaat of Bangladesh in Dhaka. We received the following response on 31 July 2007 from the office in writing:
Text Begins
On receipt of your query on the captioned subject, we have investigated the case and came to the conclusion as under:
A.The letter of introduction submitted is false and not signed by Mr. Asaduzzaman Bhuiyan, President, Ahmadiyya Muslim Jama’at, Krora.
B.The applicant is not a member of Ahmadiyya Muslim Jama’at.
Sources:
1. Direct Consultation with Mr. Asaduzzaman Bhuiyan, President, AMJ, Krora, who confirmed that he did not sign such letter and he never had such “Letter Pad”.
2.Investigation from the nearby Jama’at of the applicant’s birth place Sreemangal, Moulvibazar.
3.Our records. (emphasis included)
Paragraph 80 of the Tribunal’s reasons disclose that, pursuant to s.424AA of the Act, the applicant was invited to comment on or respond to the information provided by the National Ameer and Mr Bhuiyan and that he was allowed a month to do so. Although the Tribunal’s summary of the relevant exchange in that part of its decision record which sets out what occurred at its hearing, para.44, refers only to Mr Bhuiyan and not to the National Ameer too, I conclude that this was merely an omission in the drafting of its decision record. Further, the applicant has adduced no evidence to support the allegation that the relevant information was not put to him during the hearing. I am satisfied by the Tribunal’s statement at para.80 that, in fact, the two important pieces of information arising out of the DFAT report were indeed put to the applicant in the course of the Tribunal hearing. As will be discussed below in relation to another asserted ground of review, the Tribunal’s reasons should not be construed minutely or finely with an eye keenly attuned to the perception of error.
The third particular relates to a document which the applicant himself supplied to the Tribunal. Section 424A(3)(b) provides that such information need not be notified to an applicant pursuant to s.424A(1). The exceptions set out in s.424A(3) also apply to verbal notifications pursuant to s.424AA: SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415. Moreover, conclusions which the Tribunal drew from consideration of that document were not “information” for the purposes of the sections: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190.
The fourth particular relates to evidence given by the applicant at the hearing which also falls within the exception found in s.424A(3)(b).
It might also be that the applicant alleges a breach of s.425 which relevantly provides:
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
However, as recorded above, the Tribunal read the DFAT report to the applicant at the beginning of the second hearing. Moreover, it asked him if he wished to respond to that information. Although this appears to be a notification pursuant to s.424AA, the fact that the Tribunal put this information to the applicant, including the statement that the letter of introduction was false, also satisfied the Tribunal’s obligations under s.425 to raise with the applicant the issues of the letter’s fraudulent character and his non-membership of the Bangladesh Ahmadi community.
For these reasons, the second element of the first asserted ground of review does not disclose jurisdictional error on the Tribunal’s part.
Ground 2
Tribunal wrongly asked the question why the applicant had not brought the letter of introduction with him
Section 424(1) of the Act empowers the Tribunal to get any information that it considers relevant. Given that the letter in question purported to support the applicant’s claims to fear persecution, it was at least reasonable that the Tribunal question the applicant’s failure to arm himself with a document which was crucial to his claim. No error is disclosed by the fact that it did so.
Applicant denied an opportunity to explain
The applicant alleges that he was not given an opportunity to explain to the Tribunal why he had not provided the letter earlier than 5 July 2007. Paragraph 46 of the Tribunal’s decision record discloses that:
The Tribunal asked the applicant why he had not brought with him to Australia the letter of introduction from Mr Buyian.
That paragraph continues by recording the applicant’s response to the Tribunal’s question. The allegation therefore fails on the facts.
Tribunal made a mistake in its finding in para.74
The applicant alleges in his amended application:
The Tribunal made a mistake in its finding at paragraph 74 of the RRT decision mentioning that it is not consistent that the applicant’s claim that he feared Sunni Muslims in Dubai. The Tribunal should know that the Ahmadiyya Muslims are feared from Sunni Muslims and the Muslim population in Dubai are Sunni majority. Ahmadiyyas are not safe from Sunni Muslims countries, Ahmadiyya Muslims activities are not allowed in Dubai, it is very dangerous and unimaginable religious practice in Dubai for Ahmadiyya Muslims.
Paragraph 74 of the Tribunal’s decision record states:
The Tribunal also does not accept that the applicant was concerned about concealing his identity as an Ahmadiyya in Dubai or that he was fearful that the letter of introduction might be discovered in Dubai. Despite these fears, the applicant’s evidence is that he delayed coming to Australia until February 2007 although he had obtained his visa in 2006, as he returned to Dubai first in December 2006 and he worked for a while in Dubai because the restaurant was very busy. Despite having the visa to come to Australia the applicant delayed coming to Australia. The Tribunal is of the view that his delay in coming to Australia is not consistent with the applicant’s claim that he had to flee Bangladesh because he was persecuted due to his religion or his claim that he feared Sunni Muslims in Dubai.
The Tribunal’s findings of fact on non-jurisdictional matters are not open to review in these proceedings if they were open on the evidence as these were. In the circumstances, even if the Tribunal had made or reached an incorrect factual conclusion of the sort the applicant alleges, that would not amount to a basis upon which the Tribunal’s decision might be set aside: Re Refugee Review Tribunal; Ex parte Aala at 141 [163]; Kirk v Industrial Relations Commission of New South Wales (2010) 84 ALJR 154 at 172 [66].
Ground 3
Tribunal wrongly put to the applicant that his failure to become involved in the Australian Ahmadiyya community might lead the Tribunal to not accept that the applicant is an Ahmadiyya
The applicant alleged that his involvement in the Australian Ahmadiyya community was not a legal criterion for being given protection in Australia and that a lack of such involvement did not amount to a failure to satisfy any criterion for the grant of a protection visa. Although that is correct, the Tribunal’s conclusions on the credibility of the applicant’s claims were relevant to its ultimate decision whether it was satisfied that he has a well-founded fear of persecution for a Convention reason.
In any event, the allegation misstates what the Tribunal relevantly put to the applicant. Paragraph 44 of the Tribunal’s decision records that it:
… put to the applicant that there is information which might cause the Tribunal to doubt that the applicant is Ahmadiyya and if the Tribunal made such a finding, the Tribunal might then refuse the visa application.
Consequently, the applicant’s allegation fails on the facts.
Applicant not given an opportunity to explain his position concerning his involvement in the Australian Ahmadiyya community
The meaning of this allegation is not clear. It may be that the applicant alleges that he was not given an opportunity to explain his involvement in the Australian Ahmadiyya community, in the context that this was a legal criterion for the grant of a protection visa. If so, and as already noted, any failure on the Tribunal’s part to give the applicant such an opportunity was of no significance as this matter was not a criterion for the grant of such a visa.
If the applicant implies that there was some breach of the Tribunal’s notification obligations under s.425, it should be observed that the Tribunal put the following to the applicant:
The Tribunal put to the applicant that the Tribunal must disregard any of the applicant’s conduct in Australia, such as the visits he may have made to the Australian Ahmadiyya unless the Tribunal is satisfied that the applicant engaged in this conduct for a reason other than for the purpose of strengthening his claim to be a refugee. (para.49)
The applicant made a response to the matter which was put to him and thus, to the extent that this allegation relates to his rights under s.425, it fails on the facts.
Tribunal failed to find out that the applicant has fear for his life for his religious opinion and the Tribunal did not assess that fear
To the extent that this is an allegation that the Tribunal erred by not finding that the applicant feared for his life because of his religious opinion, for the reasons given at [32] above, such an allegation must fail.
To the extent that this is an allegation that the Tribunal should have undertaken inquiries in order to “find out” enough information to satisfy it that the applicant did have such a fear, it must be noted that the Tribunal has no general duty to make inquiries. Where the Court is called upon to consider whether exceptional circumstances existed which might have required the Tribunal to make an enquiry, jurisdictional error will not be shown unless a decision not to make such inquiries amounts to a failure to conduct a proper review and a constructive failure to exercise jurisdiction: Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489. No such situation exists here.
Tribunal made a mistake that it rejected the applicant’s genuine claim to be an Ahmadi because of his conduct in Australia
Again, the applicant challenges a factual finding made by the Tribunal. For the reasons already given, this does not amount to jurisdictional error.
Ground 4
Tribunal did not find whether the applicant has fear of harm for his religious beliefs but rejected the claim on the basis that he is not a member of the Australian Ahmadiyya community
This allegation mischaracterises the role which the issue of the applicant’s engagement with the Australian Ahmadi community had in the Tribunal’s decision-making. First, this allegation gives undue importance to the Tribunal’s finding that the applicant was not actively involved in the Australian Ahmadiyya community. It ignores the Tribunal’s more important adverse findings concerning the applicant’s purported involvement in the Ahmadi community in Bangladesh, the falsity of the letter said to have been signed by a Bangladeshi Ahmadi leader and the applicant’s delay in coming to Australia. Secondly, the summary of the Tribunal’s reasons set out above at [14] indicates that the applicant’s failure to satisfy the Tribunal that he had a well-founded fear of persecution for a Convention reason did not turn on his involvement in the Australian Ahmadiyya community. Rather, his lack of involvement was simply one issue which went to the credibility of his core allegation that he is an Ahmadi.
For these reasons, this ground does not disclose error on the Tribunal’s part.
Breach of s.91R(3)
The Tribunal found that it was not satisfied that the applicant attended the Australian Ahmadiyya community mosque or was involved in any Ahmadiyya activities in Australia otherwise than for the purposes of strengthening his claim to be a refugee and thus disregarded that conduct pursuant to s.91R(3). The applicant submitted that if the Tribunal was required by s.91R(3) to disregard this conduct in Australia, it could not rely on that conduct when concluding that he was not an Ahmadi. However, s.91R(3), where it applies, does not require the Tribunal to disregard the conduct in question for all purposes:
The legislative purpose of s 91R(3) as disclosed in the Second Reading Speech is to ensure that an applicant for a protection visa in seeking to demonstrate a well-founded fear of persecution within the meaning of Art 1A(2) cannot place any reliance upon, nor gain any advantage from, conduct engaged in within Australia for the purpose of strengthening his or her claim to meet the criteria of classification as a refugee under Art 1A(2). Neither that purpose nor Australia’s protection obligations under the Refugees Convention require that such conduct be disregarded where it is adverse to an applicant’s credibility. (Minister for Immigration & Citizenship v SZJGV (2009) 238 CLR 642 at 651 [9], per French CJ and Bell J)
As was said by Crennan and Kiefel JJ in SZJGV:
If it is determined that evidence of the conduct would strengthen the person’s claim, it is to be disregarded, consistent with the objective of sub-s (3); if it would not strengthen the claim, it may be taken into account. (at 669 [64])
For these reasons, it did not amount to jurisdictional error for the Tribunal to take into account the applicant’s conduct in Australia when concluding that he was not truly an Ahmadi as he claimed while disregarding that conduct as evidence supportive of that claim.
Breach of s.424AA
This part of the allegation was expressed as follows:
The Tribunal wrongly mentioned that the Tribunal is not satisfied that the applicant attended the Australian Ahmadiyya community Mosque or was involved in any Ahmadiyya activities in Australia but the Tribunal did not follow section 91R(3) of the Act (paragraph 78 of the RRT decision) and the Tribunal did not comply with the requirement of s.42AA [sic] of the Act. The explanation given in paragraph 80 to satisfy the requirement is not sufficient for complying s.424AA of the Act.
On the face of it, the alleged breach of s.424AA alleged in this part of the amended application relates to information associated with the applicant’s involvement in the Australian Ahmadiyya community. To the extent that this is so, no jurisdictional error is disclosed because the information in question was information supplied to the Tribunal by the applicant for the purposes of its review and thus fell within the exception found in s.424A(3)(b) which also applies to notifications pursuant to s.424AA.
To the extent that the alleged breach of s.424AA is put on a wider basis, at para.80 of its decision the Tribunal relevantly said:
The applicant was invited to comment or respond to the information provided by the National Ameer and Mr Asaduzzaman Bhuiyan pursuant to s424AA of the Act. The applicant was allowed a month to provide further information.
That part of the Tribunal’s summary of its hearing which is relevant to this statement is found at para.44:
The Tribunal put to the applicant that there is information which might cause the Tribunal to doubt that the applicant is Ahmadiyya and if the Tribunal made such a finding, the Tribunal might then refuse the visa application. This information is the denial by Mr Buyian that he wrote the applicant’s letter of introduction and the applicant's evidence that he has had little involvement with the Ahmadiyya in Australia. The Tribunal informed the applicant that he was entitled to ask for time to provide a written or verbal response to this information. The Tribunal indicated that there would now be a short adjournment and the applicant could discuss with his adviser whether he wanted to make a response.
That summary of how the Tribunal used s.424AA to notify the applicant of certain information might have been expressed more clearly in order to put beyond argument that the Tribunal had complied with the procedural requirements of that section. However, as stated earlier in these reasons, I am satisfied that, in fact, it did comply with those requirements. The Court should not be concerned with looseness in the Tribunal’s language nor with unhappy phrasing of its reasons for decision. Those reasons are not to be construed minutely or finely with an eye keenly attuned to the perception of error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The Tribunal’s summary in para.44 indicates a conscious application of the procedural requirements of s.424AA, a conclusion which is fortified by the Tribunal’s statement at para.80 of its decision.
For these reasons, I do not conclude that the Tribunal failed to comply with the requirements of s.424AA.
Ground 5
Tribunal made a jurisdictional error because it had already made up its mind that the applicant was not a member of the Australian Ahmadiyya community and for that reason did not grant an extension of time for the applicant to provide further documents
The first part of this allegation suggests that the Tribunal had prejudged the applicant’s claim and that its decision should be set aside for actual bias. At the outset it should be noted that no transcript of the Tribunal hearing was tendered and thus the only evidence relevant to this question is the Tribunal’s decision record. Having reviewed that document, I can identify nothing in the Tribunal’s summary of its hearing nor in the reasons given for its decision which would support a conclusion that the Tribunal entered into the review with a mind so committed to a conclusion already formed as to be incapable of alteration: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507; or indeed anything approaching such a state of mind. Clearly, the applicant’s claims presented, in the Tribunal’s opinion, a number of concerning features. However, the applicant was given what appears to have been an adequate opportunity to articulate his evidence and submissions and to address the concerns put to him by the Tribunal. Moreover, the concerns which the Tribunal raised with the applicant, whether pursuant to s.424AA or s.425, do not suggest that the Tribunal’s mind was not open to persuasion which is the relevant question: Jia’s case per Gleeson CJ and Gummow J at 531 [71].
Nor does the Tribunal’s discretionary refusal to accede to the applicant’s 27 August 2009 request for more time to respond to the s.424AA notification (RD 182) suggest error on its part. After the Tribunal made its notification at the hearing, the applicant requested a further two to three months to provide further documents. The Tribunal allowed one month, stating that it was reluctant to allow the period requested as the information in question, namely the perceived fraudulent nature of the letter of introduction, had been known to the applicant for some considerable time. The Tribunal hearing took place on 29 July 2009 and the letter requesting further time was dated and received by the Tribunal on 27 August 2009, being very close to the end of the one month period which the Tribunal had allowed the applicant. The letter of 27 August 2009 submitted no new facts or information which would have compelled the Tribunal to reconsider its original decision to allow the applicant one month from the hearing date within which to submit further material.
The Tribunal explained its reasons for not allowing further time in para.80 of its decision:
He wrote to the Tribunal on 27 August 2009 seeking an extension of time to gather some documents to support his statement that he was an Ahmadiyya. However, the applicant did not indicate the nature of the documents he was seeking. The Tribunal also does not accept the explanation given by the applicant in response to the information provided by the National Ameer and Mr Asaduzzaman Bhuiyan. The applicant has been aware since the first Tribunal in 2007 that the National Ameer has denied that he was a member of the Ahmadiyya community and that the letter of introduction was found to be false. In these circumstances the Tribunal decided not to grant an extension of time but indicated that any submissions the applicant provided before this decision was made would be taken into consideration. The applicant has not submitted any further documents relating to this issue.
In those circumstances, the applicant has failed to demonstrate that the relevant exercise of discretion miscarried.
Tribunal made a mistake by not giving any proper reason for being satisfied that DFAT’s inquiries would not have breached the established protocols for the protection of claimants
Any failure to give reasons does not, without more, amount to jurisdictional error: Applicant S1507/2003 v Minister for Immigration & Multicultural Affairs [2007] FCA 290; SZNOM v Minister for Immigration & Citizenship [2009] FCA 1244.
Allegations made at hearing
At the hearing in these proceedings the applicant raised a number of additional grounds which he said justified the setting aside of the Tribunal’s decision.
DFAT enquiries beyond power
In his written submissions the applicant queried the power of DFAT to make the enquiries which it made and submitted that the Tribunal could not request DFAT to make such inquiries. The applicant submitted that, in asking DFAT to make enquiries which it was not empowered to make, the Tribunal exceeded its own powers and erred as a result. However, whether or not DFAT had the power to do what it did, the fact is that it did make enquiries for the Tribunal. Further, the real question is not the extent of DFAT’s powers but whether the Tribunal had power to obtain information in this way. In this regard, the broad terms of s.424(1) must be noted. That subsection provides:
In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
Section 424(1) confers a general power on the Tribunal to obtain any information that it considers relevant. The only limitation on that power is that the Tribunal must have regard to that information in making its decision: SZKTI at 501 [37]. As the High Court said, s.424(1) puts into statutory form a power to obtain information by asking questions, an obvious power to give an inquisitorial body: SZKTI at 503 [45].
Further, nothing about s.424(1) suggests that the Tribunal itself is obliged to contact the ultimate source of the information. Were that to be so, the Tribunal could never rely on the information commonly called “independent country information” which is prepared by bodies such as the US Department of State, the UK Home Office, Amnesty International and media agencies, all of which were relied upon by the Tribunal on this occasion and to which no objection has been made by the applicant.
Tribunal did not personally contact Mr Bhuiyan and the National Ameer in Bangladesh
In his written submissions, the applicant argued that the Tribunal erred by not speaking directly to the two men in Bangladesh who provided information in relation to the alleged letter of introduction. Moreover, he submitted, the DFAT report did not confirm that the High Commission in Dhaka had met Mr Bhuiyan personally or even spoke to him and did not show that the letter of introduction had been sent to Mr Bhuiyan to inspect. He submitted that these alleged failures compromised the quality of the evidence as to the letter’s falsity. In his written submissions the applicant also said that the DFAT advice did not make clear whether its officers “investigated” or whether the National Ameer or someone else did so. He submitted that, there being many unanswered questions concerning DFAT’s action in response to the Tribunal’s request for advice, the Tribunal erred by relying on the response it received from DFAT.
The reliability of evidence sourced from third parties is an issue entirely different from the question of the Tribunal’s power to obtain information, which was considered above at [58]-[60]. It may be, if the Tribunal does not have the opportunity to speak directly to an information source, that it will discount the persuasiveness of that information. However, the weight which the Tribunal gives evidence, including evidence of that sort, is not a matter into which the Court may inquire. That is a matter for the Tribunal alone as part of its fact finding. Consequently, the applicant’s submissions concerning the reliability of the Bangladeshi evidence which the Tribunal took into account do not demonstrate jurisdictional error on the Tribunal’s part.
Tribunal denied the applicant an opportunity to have Mr Bhuiyan give evidence
The applicant’s submission was that he had wanted to have additional time to put material before the Tribunal, in part, so that he could organise for Mr Bhuiyan to talk to the Tribunal. He said that the Tribunal did not give him an opportunity to arrange this, although he conceded at the hearing in these proceedings that he had not told the Tribunal that he had wished Mr Bhuiyan to speak to it. The Tribunal’s refusal of the applicant’s request of 27 August 2009 has already been considered. It has also been noted that in the letter of 27 August 2009 the applicant made no reference to any matter additional to those which he had raised before the Tribunal at the hearing. In particular, there is no reference in the letter to a desire to have Mr Bhuiyan speak to the Tribunal. Nor does the Tribunal’s note of its conversation with the applicant on 11 September 2009, when a Tribunal officer advised him that his request of 27 August 2009 was refused, record that the applicant advised that he wished Mr Bhuiyan to speak to the Tribunal (RD 184).
Given that the applicant states and the evidence demonstrates that no indication was made to the Tribunal that the applicant would be seeking to have Mr Bhuiyan speak to it, there is no basis to conclude that the Tribunal’s discretion miscarried on the basis now alleged by the applicant.
Tribunal rejected applicant’s claim because he was not active in the Ahmadiyya community in Australia
The thrust of the applicant’s submission was that neither the Act nor the Convention required the applicant to be involved in the Ahmadiyya community in Australia before it could be found that he had a well-founded fear of persecution for a Convention reason.
Contrary to the implication of this allegation, the applicant’s claim was not rejected because he was not a member of the Australian Ahmadiyya community. The discussion at paras.75 and 76 of the Tribunal’s decision record discloses that the applicant’s lack of engagement in the Australian Ahmadiyya community and his unpersuasive explanation reflected badly on the credibility of his claim to be an Ahmadi. What the Tribunal said was:
The Tribunal is of the view that if the applicant was Ahmadiyya he would have actively and consistently participated in the Australian Ahmadiyya community despite work commitments or the travel required, and his failure to be involved in the Australian Ahmadiyya community also leads the Tribunal to not accept that the applicant was an Ahmaddiyya in Bangladesh. The Tribunal does not accept that the applicant has continued to practice [sic] his faith in Australia. (para.76)
This passage demonstrates that membership of the Australian Ahmadiyya community was not a precondition to the Tribunal being satisfied that the applicant met the Convention test. Rather, the Tribunal relied on the extent of the applicant’s engagement with the Australian Ahmadi community when concluding that his essential claim, to be an adherent of a religious community which would lead him to have a well-founded fear of persecution in Bangladesh were he to return, was simply not to be believed. Moreover, as has already been noted above in relation to s.91R(3), the Tribunal did not err by taking the applicant’s conduct in Australia into account when reaching this conclusion.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 8 April 2010
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