SZTFP v Minister for Immigration

[2014] FCCA 2012

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTFP v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2012

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no issue of principle.

Legislation:

Migration Act 1958, ss.36, 91R, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZTFP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2027 of 2013

Judgment of: Judge Cameron

Hearing date: 6 August 2014

Date of Last Submission: 6 August 2014

Delivered at: Sydney

Delivered on: 6 August 2014

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr M. Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2027 of 2013

SZTFP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Bangladesh who arrived in Australia on 15 December 2011.  On 25 January 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Bangladesh because of his religious beliefs.  On 14 September 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. 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.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa were set out in the Tribunal’s decision. As summarised by the Tribunal, the applicant relevantly made the following claims.

2. The applicant relevantly made the following claims in his protection visa application:

   a)if he returned to Bangladesh he would be harmed by his relatives, neighbours, the general public and the Bangladeshi government because he had converted from Sunni Islam to the Ahmadiyya Islamic faith;

   b)he had been assaulted by his family members and threatened by neighbours and others in order to persuade him to give up his Ahmadiyya faith.  His family had burnt his wife’s hand because they blamed her for his interest in Ahmadism;

   c)with the support of his family, one of his neighbours had brought an Islamic cleric and some fundamental Sunni Muslims to his home.  He was beaten, dragged to the nearest mosque and forced to cite the Tawba.  To avoid torture he agreed to give up his practice of Ahmadism.  He was threatened that if he did not attend the mosque for prayers on the following Friday he would be stoned; and

   d)in fear, he and his wife went into hiding at the home of one of his wife’s friends.

3. At a Tribunal hearing on 22 July 2013 the applicant claimed:

   a)in November 2011, after his family found out about his conversion to Ahmadism, the local Imam was brought to his house and he was threatened that if he did not attend the Tawba the following Friday and denounce Ahmadism he would be lashed.  His father had also threatened to disown him if he did not renounce his belief in Ahmadism.  Before that Friday came, he went into hiding; and

   b)he had attended the Ahmadiyya mosque in Dhaka once or twice a week from February 2010 until November 2011.  Since his arrival in Australia he had attended an Ahmadiyya mosque once or twice a week.

4. In its decision the Tribunal referred to enquiries it had made of the Ahmadiyya Muslim Association of Australia and the Ahmadiyya Muslim Jama’at in Bangladesh.  On 29 May 2013 the Tribunal wrote to the Ameer and Missionary in-charge of the Ahmadiyya Muslim Association of Australia seeking information on whether the applicant was a follower of the Ahmadiyya faith and asking that association to make similar enquiries with its equivalent association in Bangladesh.  In an email response sent on 10 July 2013 the Ahmadiyya Ameer of Australia stated that there was no evidence or record of the applicant being an Ahmadi or a member of the Ahmadiyya Muslim Jama’at in Bangladesh and that it seemed that his claim was false.  The response attached a letter from the Ameer of the Ahmadiyya Muslim Jama’at in Dhaka stating that a “boit form” for the applicant had not been found in a search of the association’s records, that the applicant had no “budget” and that his name was not recorded as a member of the Ahmadiyya Muslim Jama’at Dhaka.  The writer nevertheless stated that the applicant and his brother had attended the Ahmadiyya mosque in Dhaka several times. 

5. At its hearing the Tribunal put to the applicant for his comments or response the information it had received from the Australian and Bangladeshi Ahmadiyya associations.  In a written response dated 29 July 2013, the applicant claimed:

   a)he was a true Ahmadiyya follower and had attended the Bangladesh Ahmadiyya mosque with a friend who introduced him as his younger brother because it was culturally appropriate to do so in Bangladesh.  He had been persecuted because of his attendance at the mosque and had left Bangladesh without undertaking the conversion;

   b)he had gone to the Ameer of Australia to take his bai’at (oath of conversion) but the Ameer had told him he had to make a huge donation to the mosque.  He had been unable to do so and so his procedure was pending but if he made the donation the Ameer would arrange his bai’at procedure;

   c)he had attended the mosque almost every Friday since his arrival in Australia and had had face to face meetings with the Ameer of Australia.  He could not understand why the Ameer had said he did not know him but believed it was because he had been unable to make the donation requested of him; and

   d)the discrepancies in his evidence were a result of his mental situation.

The Tribunal’s decision and reasons

1. The Tribunal 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”) or s.36(2)(aa) of the Act. The Tribunal found that the applicant was not a credible, truthful or reliable witness and for the following reasons was not satisfied that he was a genuine Aymadiyya follower who had fled Bangladesh because of his faith or who had faced the difficulties he claimed because of his faith:

   a)the Tribunal noted that the applicant had provided internally inconsistent and confusing evidence about whether he had converted to the Aymadiyya faith, saying in his protection visa application that he had but then saying at both the departmental interview and Tribunal hearing that he had not.  The Tribunal expected that if the applicant had converted, his evidence would have been consistent, particularly as he had indicated at its hearing that he understood that there was a process to be undertaken in order to convert.  The Tribunal noted that the applicant stated at its hearing that he had been in the process of converting in Bangladesh before his family found out in August 2011, when his difficulty started, and that in a post-hearing letter he had stated that he could not take the bai’at because of the persecution he had faced.  The Tribunal further noted that the applicant had stated that he had not converted and that the statement in his application might have arisen out of language problems.  The Tribunal did not accept any of those explanations;

   b)the Tribunal noted that the applicant’s evidence in his application about the difficulties he faced in Bangladesh as a result of his interest in the Ahmadiyya faith was inconsistent with the evidence he gave at the Tribunal hearing.  It noted that when that inconsistent evidence was put to him the applicant stated that the version of events he had given to the Tribunal was the correct one and that what was contained in his protection visa application was the result of a language problem.  The Tribunal rejected those explanations and noted that it expected the applicant to have been consistent about what had happened to him, particularly as those events had only occurred in 2011 and had led to his departure from Bangladesh;

   c)the Tribunal did not accept that the applicant had gone into hiding as claimed.  It noted that he had given evidence that he had continued attending his usual place of work until his departure.  The Tribunal did not accept the applicant’s explanation, that his employer had not known much and would not have minded if he had known, and it found that there was no reasonable explanation for the applicant’s attendance at work while he claimed to have been in hiding because of a fear of his family and neighbours.  It found that his family, with whom he claimed to have lived until November 2011, would have known where he worked;

   d)the Tribunal noted that the evidence given by the Ameer of Bangladesh was different from that given by the applicant.  The Tribunal referred to country information indicating that there were strong community links between Ahmadis and to information indicating that the Ameer of Bangladesh was not aware of people who practised the faith but were not directly involved with the community.  The Tribunal did not accept the applicant’s explanations for the Ameer’s evidence and found that the latter’s lack of knowledge of the applicant as an Ahmadiyya and the inconsistency between the applicant’s evidence and that of the Ameer of Bangladesh added to the applicant’s lack of credibility and strengthened its view that he was not a witness of truth;

   e)the Tribunal found that if the applicant had been awaiting conversion or the bai’at procedure and the Ameer of Australia thought him to be genuinely interested in the Ahmadiyya faith, the Ameer would have said so rather than stating that the applicant’s claims were false.  It did not accept that the Ameer of Australia had indicated that the applicant’s claims were false simply because he had not made a requested donation.  The Tribunal noted that the applicant had asked it to invite him and the Ameer of Australia to another hearing but it refused to do so because it did not accept that another hearing would alter the Ameer’s significant written evidence that the applicant’s claims were false.  The Tribunal accepted that the applicant had attended the mosque and met the Ameer of Australia but found that that only added to its finding that he was not a genuine Ahmadi because, even after meeting the applicant, the Ameer indicated that his claims were false;

   f)based on his ability to speak about some of the tenets of the Ahmadiyya faith and the requirements of conversion, the Tribunal accepted that the applicant had attended an Ahmadiyya place of worship in Bangladesh on several occasions and possibly one in Australia as well. However, the Tribunal found that some knowledge and attendance at worship did not necessarily establish belief and it found that the applicant’s knowledge was confined to generalities which were easily available publicly. It found that the applicant’s knowledge at his departmental interview had been vague and lacking in detail and had not been commensurate with his claimed consistent practice in Bangladesh and Australia or with a person who had been considering conversion since August 2011 as he had claimed. The Tribunal did not accept that the applicant’s attendance at a mosque in Bangladesh was otherwise than for the purpose of fabricating a claim and, while accepting that the applicant had attended an Ahmadiyya mosque in Australia, based on its finding that he was not a genuine Ahmadiyya follower, the Tribunal was not satisfied that the applicant’s conduct in obtaining knowledge and attending the mosque had been otherwise than to strengthen his claim to be a refugee. Consequently, pursuant to s.91R(3) of the Act, the Tribunal disregarded that conduct in assessing the applicant’s claims; and

   g)the Tribunal considered whether the applicant might have been prevented from presenting his claims by the mental difficulties he claimed arose from being away from his country and relatives and because of the persecution he had suffered and was satisfied that he had not.  The Tribunal noted that no medical or psychological evidence had been provided to support that claim.  It found that the applicant had been able to participate effectively at the departmental interview and had been able to articulate his claims.  It found that his answers to its questions were responsive and composed and that he had maintained his composure throughout its hearing and the departmental interview.  The Tribunal therefore did not accept that the discrepancies in the applicant’s evidence were a result of his claimed mental situation.

2. Having found that the applicant was not a genuine Ahmadiyya follower and that he was not a credible witness, the Tribunal rejected all his claims concerning all the harm he alleged he had faced in Bangladesh. 

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Tribunal failed to assess my credibility in terms of the Migration Act.

   2.The Tribunal’s decision was affected by an error in that that [sic] the Tribunal failed to assess the country information which was in my favour of possible persecution on the basis of my religious belief.

   3.The Tribunal misinterpreted the Ahmadiyya ideology not accepted the notion that non-registered Ahmadiyya believers are also the member of Ahmadiyya community.

Ground 1

1. A person’s credibility is a question of fact and it is the Tribunal’s task to make such findings, the Court’s role being limited to determining whether the Tribunal has applied the law correctly in the conduct and determination of the review.  As the applicant raised no question of law in the context of the first ground of the application, the allegation discloses no basis upon which the Tribunal’s decision might be set aside.

Ground 2

1. The second ground of the application was based on an assumption that the Tribunal was obliged to seek out information and to consider material which the applicant had not placed before it.  In some limited circumstances the Tribunal may have a duty to make inquiries but those circumstances were not present in this case.  Consequently, the second ground of the application does not disclose jurisdictional error on the Tribunal’s part.

Ground 3

1. The Tribunal did not find that the applicant was not an Ahmadiyya simply because he was not “registered”.  The Tribunal concluded that the applicant gave internally inconsistent and confusing evidence concerning his conversion to Ahmadism.  The applicant’s account given to the Tribunal was inconsistent with the account he gave to the Minister’s department.  Also, the applicant’s claim to be a member of the Ahmadi community was not supported by the two Ameers who provided information to the Tribunal.

2. For those reasons, I conclude that the third ground of the application does not disclose error on the Tribunal’s part. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  3 September 2014