SZMYR v Minister for Immigration
[2009] FMCA 164
•24 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMYR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 164 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal’s discretion did not miscarry when it refused extension of time within which to respond to its s.424A notice – Court cannot review or supervise the Tribunal’s exercise of its fact finding function including the enquiries it undertakes – Tribunal’s decision not based on personal beliefs. |
| Migration Act 1958, ss.424A, 424B, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZMYR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3073 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 24 February 2009 |
| Date of Last Submission: | 24 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 February 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3073 of 2008
| SZMYR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh and claims to be of the Ahmadi faith. He claims that, while in Bangladesh, he was mistreated as a student and could not find a job because of his religion. The applicant arrived in Australia on 9 January 2008 and claims to fear persecution in Bangladesh by reason of his Ahmadi faith.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 8 April 2008. 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.
In these judicial review proceedings the Court’s 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 – 11 of the Tribunal’s decision (Court Book (“CB”) pages 130 – 137. Relevantly, they are in summary:
Protection visa application
The applicant made the following claims in his protection visa application:
a)he was born into an Ahmadi family;
b)there are no separate religious schools for the Ahmadi community in Bangladesh. As a result, Ahmadi children have to go to Sunni administered schools where they suffer persecution at the hands of Sunni mullahs and students;
c)the applicant studied at a local madrassa and was mistreated because of his Ahmadi faith. His father subsequently moved him to a madrassa within another district but he was also mistreated there;
d)in 1987 he was admitted into a senior madrassa for further study. He tried to hide his religious identity from the other students but they did not believe him and he was again mistreated;
e)in 1989 he was admitted into a madrassa dominated by the Islamic Chatra Shibir, the student wing of Jamat-i-Islami Bangladesh. The students there tried to pressure him into joining their party but when he refused they tortured him and ordered him to leave. He complained to the school authorities but no action was taken. The applicant was suspended from this madrassa and he did not undertake any further studies;
f)after his suspension the applicant spent five years in Bangladesh without a job and his entire family faced the same mistreatment and vilification that he faced;
g)in 1996 he went to Saipan where he worked as a security officer. There were some Sunni Muslims from Bangladesh there and sometimes they teased him about his faith;
h)in 2005 he married a local Christian woman. When he returned to Bangladesh in December 2006 to visit his ailing parents he did not take his wife as he thought she would be persecuted;
i)in May 2007 he returned to Saipan and discovered that his wife had found a boyfriend and that their marriage had broken down. His wife’s boyfriend was violent and threatened the applicant;
j)he was frightened by these threats but did not complain to the law enforcement agencies as they do not take punitive action against locals; and
k)having been persecuted in Bangladesh because of his Ahmadi faith, the applicant did not wish to return there and decided to seek protection in Australia.
Tribunal hearing
The Tribunal wrote to the applicant on 15 May 2008 and asked him to provide details of his address in Bangladesh as well as information relating to his father. The Tribunal indicated that it would approach the Ahmadiyya Muslim Association of Australia (“AMAA”) and request information regarding the applicant’s membership of the Ahmadi community in Bangladesh.
At the hearing before the Tribunal on 23 June 2008, the applicant provided the following documents:
a)a typewritten list of the names and details of his family members;
b)bay’yat documentation dated 28 March 1995 endorsed with the personal details of the applicant;
c)list of amounts to be donated to the Ahmadiyya Muslim Jamaat, Bangladesh dated 28 March 1995; and
d)a copy of a letter from the Amir Ahmadiyya Muslim Jamaat in Dhaka to the Amir in charge of the Ahmadiyya Muslim Jamaat in Australia dated 28 March 1995.
The applicant also made the following additional claims:
a)he has been to the Ahmadi mosque in Sydney on one occasion. The leader of the mosque was not there at the time;
b)his parents sent him to Islamic religious schools because there were no Ahmadi schools in his local area. Also, Ahmadi teaching is very close to Sunni Muslim teaching and his parents wanted him to have a religious education in a madrassa;
c)despite the mistreatment he suffered he did not attend government schools because government schools do not provide religious education;
d)he could not find a full-time job after he left school in 1991/1992 but worked “here and there”. Nevertheless, he managed to support himself until he left Bangladesh in 1996;
e)he fears returning to Bangladesh because Ahmadis are persecuted there and because he might not be able to get a job;
f)his did not want to force his wife to convert to Ahmadism as he respected her beliefs. He also did not want her to report him to the authorities in Saipan because he could lose his residency. He later said that when they were married she had promised to convert to Ahmadism;
g)his family could not talk about their beliefs in Bangladesh because there was no Ahmadi community or establishments in their local area. His father was a convert to Ahmadism and taught him the rituals at home while his mother was illiterate and did not have an in-depth knowledge or interest in Ahmadi beliefs and activities;
h)he went through the bay’yat in 1995;
i)he could not join an Ahmadi community in Saipan because there were no Ahmadis there; and
j)he went to see the head of the Ahmadi organisation in Australia but he was not available so the applicant obtained some documents from Bangladesh to verify his claim that he is an Ahmadi.
Post-hearing enquiries
The Tribunal wrote to the applicant on 8 August 2008 inviting him to comment on information that the Tribunal had received from the National Ameer of the Ahmadiyya Muslim Jamaat in Bangladesh on 9 July 2008, which indicated that:
a)the applicant was not a member of Dhaka Jamaat;
b)the documents he provided to the Tribunal were “fake and fictitious”; and
c)no one knew the applicant and he was not an Ahmadi.
On 1 September 2008 the applicant responded and asked for an extension of time to gather evidence to support his claim. The Tribunal refused to grant the request but indicated to the applicant that any submissions received prior to the handing down of its decision would be taken into consideration. No further documents or submissions were received by the Tribunal before it made its decision.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal 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 did not accept that the applicant was, or is, an Ahmadi, noting that:
a)his evidence about how his family practised the Ahmadi faith was not consistent with independent information;
b)he did not provide details of the Ahmadi community in Bangladesh to which he purportedly belonged;
c)according to information received from the National Ameer of the Ahmadiyya Muslim Jamaat in Bangladesh, the documents provided by the applicant purporting to confirm his membership of the Ahmadi community were “fake and fictitious”;
d)he did not address the issue of the falsity of the documents when invited to by the Tribunal nor did he provide a satisfactory explanation in this regard. In the circumstances, the Tribunal found that the documents had been fabricated to support the applicant’s claim to be an Ahmadi;
e)he did not know the name of important religious texts or the identity of the current khalifa, matters of fundamental importance to Ahmadi practice. The Tribunal did not accept that a genuine Ahmadi would be unaware of these matters and found that such knowledge as the applicant did have of Ahmadi beliefs and practices was gained recently through his own research;
f)if the applicant were a genuine Ahmadi he would not have married a Christian woman or would have put in place arrangements for her conversion at the time of their marriage. The Tribunal found his conduct in this respect to be inconsistent with a person with genuine Ahmadi beliefs;
g)given that the vast majority of schools in Bangladesh are secular government schools, it was implausible that the applicant or his family would choose for him a series of Sunni madrassas, particularly if he had been identified as an Ahmadi and had been mistreated for this reason. The Tribunal considered the applicant’s attendance at these schools to be inconsistent with his claim to have grown up as an Ahmadi and did not accept that he was sent to these schools to receive a religious education since conservative Sunni teaching is actively opposed to Ahmadi practice and belief; and
h)independent information indicated that the Ahmadi community is highly structured and tightly knit and community membership is verifiable. According to information received from the Ameer of the Ahmadiyya Muslim Jamaat in Bangladesh, the applicant was not a member of the Dhaka Jamaat and is not a genuine Ahmadi.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
(1)The applicant claims that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error that the Tribunal did not allow the applicant time to provide other documents in support of his claim. So the applicant was not able to prove his case before the Tribunal.
(2)The applicant claims that the Tribunal made a jurisdictional error that it accepted or used the report of AMAA against the applicant to reject his claim because the Tribunal enquired the applicant’s documents through Ahmadia Muslim Association of Australia (AMAA) but the applicant has not become a member of AMAA for few reasons, so it would have been proper to send documents not involving AMAA. The Tribunal could have sent the documents directly to the writer of the documents but the Tribunal did not do that the Tribunal made a mistake in this regard.
(3)The Tribunal made a jurisdictional error that the Tribunal rejected the applicant’s claim on the basis of Tribunal’s own belief which is not a fair procedure to assess a claim for protection because the law does not allow to assess a claim on personal beliefs and the independent information is about Pakistan and also is very old.
(4)The Tribunal made a jurisdictional error that the Tribunal did not allow the applicant time because the applicant needed time to check the information received by the Tribunal against the applicant’s believe as an Ahmadia because when the Tribunal assessed the applicant’s claims, the Tribunal should have more careful to elect the way it would verify the documents and evidences and the applicant think that the Tribunal did not apply proper method for verification.
Applicant not given time to provide other documents
The first ground alleged in the amended application contains two elements. First, that the Tribunal erred by not giving the applicant additional time within which to respond to the Tribunal’s s.424A notice and, secondly, that this denial of additional time prevented him from proving his case before the Tribunal.
As for the extension of time issue, the Tribunal’s s.424A notice inviting the applicant to comment on information was dated 8 August 2008 and required a response by 2 September 2008. The applicant replied by letter dated 1 September 2008, and according to the copy of which appears at CB 122, it was apparently sent by facsimile on 2 September 2008. The applicant sought an extension of time within which to provide a response to that notice. In that letter he made no substantive response to the notice saying:
I would like to request you to extension of time to gather some evidence, which could help the trueness of my statement. I already spoke to Bangladesh and hope that soon I will be able to provide my comment with supporting evidence.
Finally, I would be able to provide further documentary evidence that may deemed necessary. (CB 122)
The Tribunal considered that response and, indeed, in its reply dated 10 September 2008 said that it had considered the request carefully. The consideration which the Tribunal gave to the request is explained in greater detail in para.98 of its decision. The decision whether an extension of time for response to the notice would be given was a discretionary one. The Tribunal was under no obligation to accede to that request as s.424B(4) makes clear. Nothing has been put before the Court to support a conclusion that the Tribunal’s exercise of its discretion miscarried. Indeed, the evidence satisfies me that it did not.
Further, although the applicant alleges that the failure to accede to his request for an extension of time meant that he was unable to prove his case before the Tribunal, he has put nothing before the Court by way of evidence which substantiates this allegation. Not only did the applicant have the period from receipt of the Tribunal’s s.424A notice dated 8 August 2008 until the handing down of the Tribunal decision on 30 October 2008 within which to put his hand on the evidence he said he wanted to put before the Tribunal, he has also had until today to demonstrate that this allegation has substance. Nothing has been put in evidence by the applicant which supports this aspect of the allegation and I find that it is not proved.
As a result, the first ground pleaded in the amended application is not made out.
Tribunal’s enquiries to the AMAA not proper
The second ground of the amended application alleged that the Tribunal erred by sourcing information in a way which the applicant says was mistaken. The applicant suggests that checking the veracity of the document he submitted in support of his claim should have been undertaken in a fashion different from that which was chosen by the Tribunal.
Really, what the applicant is suggesting is that the Court should supervise the Tribunal in the exercise of its fact finding function with the related implication that the Court may review the factual findings reached by the Tribunal. The Court does not have power to do this. The role of the Court is to declare and enforce the law which governs the Tribunal’s operations. The Tribunal’s function is, operating within the law, to determine the facts of the matter. How it goes about determining which evidence will be the foundation for material findings of fact is a matter for it, not the Court.
For these reasons, the second ground pleaded in the amended application does not disclose jurisdictional error on the part of the Tribunal.
Tribunal’s decision based on personal belief
The third ground pleaded in the amended application is particularised as follows:
(i)Women are expected to participate in the Ahmadi community to the same extent as the men (AB-146).
(ii)If the applicant had been a genuine Ahmadi I consider that he would have either not have married a Christian woman or he would have put in place arrangements for conversion at the time of the marriage (AB-147).
(iii)Conservative Sunni teaching is actively opposed to Ahmadis and Ahmadi practice belief (AB-146).
(iv)I am supported by my findings that the applicant is not an Ahmadi by the information provided by the Ameer of the Ahmadiyya Muslim Jamaat Bangladesh via the Ahmadiyya Muslim Association Australia (AMAA).
The applicant’s third allegation, namely, that the Tribunal’s decision was impermissibly based on its own beliefs, which might be interpreted to be prejudgment or prejudice, must fail on the facts. Far from being based on preconceived notions, the Tribunal’s decision was transparently grounded on the evidence which was before it, such as the repudiation of the applicant and his documents by the Ahmadiyya National Ameer in Bangladesh and the other information quoted in its decision record.
The only arguable exception to this finding is the Tribunal’s observation that conservative Sunni teaching is actively opposed to Ahmadis and Ahmadi practice and belief, at least to the extent that the basis for this comment is not clearly identifiable in the independent information quoted by the Tribunal. However, it is consistent with that information as well as with the applicant’s essential claim to fear persecution in Bangladesh and I do not conclude that it represents a personal belief of the Tribunal rather than a conclusion based on the evidence.
As to the complaint in the amended application’s third ground that “the independent information is about Pakistan and also is very old”, it must be observed that the relevant independent information relied upon by the Tribunal was not about Pakistan but was concerned with the Ahmadi faith and thus this aspect of the application fails on the facts.
As to the age of the information relied on by the Tribunal, this allegation is no more than a further challenge to the Tribunal’s factual findings. The Tribunal is entitled to determine which evidence it finds persuasive and which it does not.
For these reasons, the third ground alleged in the amended application does not disclose jurisdictional error on the Tribunal’s part.
Tribunal did not apply proper methods to verify documents
The matters raised by the fourth ground of the amended application do no more than repeat what was alleged in the first and the second grounds of that document. For the reasons given in relation to those allegations, the fourth ground pleaded in the amended application must also fail.
Oral submissions
In his oral submissions today, the applicant raised a number of issues going to the merits of the Tribunal’s decision and the facts found by it prefatory to that conclusion. None of the issues raised by the applicant today disclose jurisdictional error on the part of the Tribunal as they were concerned with matters which are solely within the province of the Tribunal and are not properly the subject of judicial review proceedings in this Court.
Conclusion
For these reasons, jurisdictional error on the part of the Tribunal has not been made out and the application will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 9 March 2009
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