FEDERAL COURT OF AUSTRALIA

SZAOT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1473

SZAOT v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 545 OF 2004

ALLSOP J

12 NOVEMBER 2004

SYDNEY

On Appeal from the orders of a Federal magistrate

THE COURT ORDERS THAT:

1.         That the appeal be dismissed.

2.         The appellant pay the respondent's costs.

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

On Appeal from the orders of a Federal magistrate

REASONS FOR JUDGMENT

1                     This is an appeal from orders of a Federal Magistrate dismissing an application made under s 39B of the Judiciary Act 1903 (Cth).  That application had sought orders in relation to a decision of the Refugee Review Tribunal (the “Tribunal”) which had affirmed a decision of the delegate of the Minister not to grant a protection visa. 

2                     This is a hearing in the appellate jurisdiction of the Court, the Chief Justice having given a direction under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) for one Judge of the Court to hear the appeal.

3                     The appellant is a citizen of Bangladesh who arrived in Australia on 17 November 2001.  The substance of the claim for persecution under the Convention and for a protection visa under the Migration Act 1958 (Cth) were the claims made by the appellant that his Ahmadi beliefs placed him in a position in Bangladesh where he would suffer persecution upon his return and that he had a well founded fear of such persecution.  The finding of the Tribunal, which was not contradicted in any of the material before me, was that Ahmadis consider themselves to be Muslims but differ from mainstream Muslims in that they believe in a prophet after the prophet Mohammed. 

4                     The particular claims of the appellant are helpfully summarised by counsel for the Minister in paragraph 2.2 of her written submissions.  In the interests of brevity, I will simply refer to those paragraphs by incorporation.  The submissions will remain on the Court file.  In summary, the appellant pointed to violence in the past by Sunni Muslims towards Ahmadis, attacks that he has suffered in the past himself, the enmity of his own family and enormous mental pressure caused by his beliefs. 

5                     The Tribunal, after dealing with the claims and evidence of the appellant, referred to a body of country information.  The Tribunal found that that country information revealed the following matters:

1.         There was no evidence of persecution or discrimination against Ahmadis.

2.         Governments in Bangladesh had not sanctioned or condoned attacks on Ahmadi believers by extremists.

3.         The majority of Muslims in Bangladesh do not discriminate against Ahmadis.

4.         These general assertions were illustrated by a holding in February 2000 of a Convention of Ahmadis attended by Ahmadis and scholars from not only Bangladesh but many other countries.

5.         There had been two main attacks on Ahmadis in recent times in 1993 and 1999 and also that Muslim extremists had at times occupied some Ahmadi mosques.

6.         The fundamentalist group carrying out the attacks against Ahmadis in the 1990s is small and does not have the support of mainstream Muslim public opinion in Bangladesh.

7.         Whilst the attacks that had occurred by extremists were real, in response the Government had deployed police and ordered a nationwide security alert, tightening security at key installations.  The Government and prominent personalities had publicly condemned the violence.  Also, steps were taken administratively against a senior police officer who had apparently not taken adequate steps to prevent the violence. 

6                     In its findings and reasons, the Tribunal said that it was not satisfied that the appellant was an Ahmadi.  It said this largely because it was said he made no local contact with an Ahmadi Muslim association in Australia and that he had no credentials from Bangladesh as to his faith.  Based on a Department of Foreign Affairs and Trade document which the Tribunal had, these matters were seen as central to a conclusion that the appellant was not Ahmadi. 

7                     The Tribunal however then proceeded on the basis that the appellant was an Ahmadi and it concluded that he did not have a well founded fear of persecution.  This part of the reasons was not directed to the appellant's personal belief but to the existence of the well founded basis for any fear.  Using the country information to which I have referred, the Tribunal concluded that Ahmadis in Bangladesh, whilst subject to isolated attacks and degree of suspicion and discrimination, did not suffer discrimination amounting to persecution and they are allowed freely to practise their faith and have the protection of the authorities.  On this basis the Tribunal was not prepared to accept the appellant's claims that Ahmadis are not able to practise their religion freely and that they can only worship in secret.

8                     For similar reasons, the Tribunal said that it was not satisfied that the appellant himself had been constantly at risk of being killed over his faith.  Whilst, as I have earlier indicated, the Tribunal accepted the existence of some acts of violence in the past, for the reason that it was not tolerated by, it was said, the Government and because of the existence of protection by the authorities, there was no basis to conclude that any fear of the appellant would be well founded. 

9                     Further, looking at the material before it as a whole, the Tribunal came to the conclusion that the appellant had fabricated the claims of danger facing him in Bangladesh. 

10                  The Tribunal dealt with submissions put by the appellant's then adviser as to systematic discrimination in Bangladesh of Ahmadis.  The Tribunal concluded that there may be discrimination that could be described as systematic but that such discrimination was not sufficiently serious as to amount to persecution. 

11                  Finally, the Tribunal said that the attitude of his family to his conversion to the Ahmadi faith was not a matter that amounted to persecution. 

12                  Once again the careful submissions of counsel for the respondent helpfully summarise these matters in paragraphs 4.1 to 4.2.  Also, paragraphs 4.3 to 4.5 of those submissions helpfully isolate the particular difficulties in the arguments that the approach of the Tribunal was in error.

13                  The amended application for review which was before the Federal Magistrates Court identifies various asserted errors of the Tribunal.  The grounds of the application were in the following terms:

The Grounds of the Application Are:

(Particulars of fraud or bad faith if alleged (Order 54B, rule 2 federal Court Rules)

1.                  The Tribunal decision was not with any lawful effect rather it was infected by jurisdictional error –

Particulars:

a)        That the Tribunal did not comply with the mandatory obligations that contained in s 424A of the Migration Act.

b)        That the Tribunal references includes –

1)        Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379;

2)        Applicant a & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 191 CLR 559,

3)        Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293,

4)        Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 and

5)        Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574

c)        That the Tribunal did not ensure, as far as reasonable practicable, or at all, that the applicant understood why all those abovementioned references and information were relevant to his own Refugee Review Tribunal application as required by s 424A(1)(b) of the Migration Act.

d)        That the Tribunal did not give the applicant notice of the particulars of the information or references in the manner required by s 424A(1)(a) and 424(2)(a) of the Migration Act.

e)        The Tribunal cited only a part of some reports and references in deciding my application instead of the whole reports or references.

f)         The Tribunal enclosed the US State department report probably while preparing my green book only, but the tribunal did not enclose or send to me the copy of the US State department report while sending the RRT decision with respect to my application.

14                  As can be seen from the above grounds of the application, the first substantive complaint was the failure of the Tribunal to comply with s 424A of the Migration Act.  The substance of the complaint was that the various legal authorities referred to by the Tribunal were not the subject of notification and notice contemplated by s 424A.  No error was committed by the Tribunal in this regard.  These are not matters to which 424A is directed.  Section 424A(3) identifies what the section does not apply to.  After some disagreement by different benches of this Court as to the width of s 424A(1) and (3), in particular in relation to country information, it is now clear that the interpretation of s 424A(3) does not require the giving of information other than that specifically about the applicant:  see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264.  The Tribunal was not obliged to notify the appellant about the Australian law governing the application.  That conclusion would deal with paragraphs (a), (b), (c) and (d) of the amended application. 

15                  As to ground (e), there is no requirement on the Tribunal to cite all parts of all reports.  It is a matter for it in its fact finding process, what parts of the country information it wishes to refer to. 

16                  To the extent that paragraph (f) complains of a failure to provide country information, it suffers from the same difficulty as the complaint about the non-provision of the legal cases:  see NAMW.   

17                  The learned Federal Magistrate dealt with the application before him on the basis of the grounds before him and the submissions before him.  The Magistrate concluded, correctly in my view, that section 424A was not contravened.  Further, the Federal Magistrate dealt with the balance of the application in similar terms to that which I have already referred.  The approach of the Magistrate can best be seen in [15], [16] and [17] of his reasons which are set out as follows. 

The Tribunal's decision in this case was essentially made upon the finding of credibility and then certain findings of fact in which the Tribunal accepted independent country information that had been discussed with the applicant. The Tribunal weighed up that information against the criteria in the Migration Act and, in particular, the criteria of serious persecution found in s.91R. It concluded that the complaints made by the applicant, event if they were true, would not amount to persecution and, therefore, it was unable to be satisfied that the applicant was a person to whom this country owed protection obligations.

Those findings are the very essence of the Tribunal's duty. The Tribunal is not obliged to refer to or address all the material before it; MIMA v Singh (2000) 98 FCR 569; Applicant S70 of 2003 v MIMIA [2004] FCA 84 per Hely J at [45]. The Tribunal's reasons may be short but they are clear and they bear direct relevance to the matters before it.

In all the circumstances, I am unable to see any grounds upon which the Tribunal could be said to have fallen into jurisdictional error in the manner in which it came to its decision in this case. The application shall be dismissed and the applicant shall be ordered to pay the respondent's costs which I assess in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

18                  The amended notice of appeal in this Court sets out six paragraphs in the following terms:

1.      I am totally aggrieved by the dismissal decision of my judicial Review application of my protection visa application by the Federal Magistrates Court Raphael FM on 01 April 2004 with the order for cost even though I have serious persecution in Bangladesh due to my religion belief.

2.      The Federal Magistrate Raphael FM could not consider that there is a breach of natural justice occurred in making the decision by the tribunal.

3.      The tribunal decision was unjust and was made without taking into account the full consideration of the circumstances and the consequences of the claims.

4.      There was no other material or evidence to justify the decision.

5.      The Tribunal cited so many out dated and partial reports, which are not even relevant to my claims in the application.

6.      The Tribunal decision involved Jurisdictional error of law and I have categorically mentioned to the Raphael FM that the decision was infected by jurisdictional error.  Such as –

(a)     The Tribunal did not comply with the mandatory obligations that contained in section 424A of the migration act.

(b)     The Tribunal did not ensure, as far as practicable, or at all, that I understood why all those references and information were relevant to my review application as required by section 424A(1)(a) and 424(2)(a) of the migration act.

(c)      The Tribunal did not give me the Particulars of the Information or references in the manner required by section 424A(1)(a) and 424(2)(a) of the migration act.

Therefore it appears that –

1)            The Raphael FM failed to remit the matter to the Tribunal for lawful consideration even though the RRT has made jurisdictional error in my review application.

2)            The Raphael FM being a higher judicial authority did not consider that I have been deprived of natural justice and also did not remit this matter to the RRT for reconsideration and lawful effect of my application.

19                  Ground 1 is not a ground of appeal. 

20                  Ground 2 is an unparticularised assertion that the Magistrate failed to consider a breach of natural justice.  No coherent basis for an assertion of a failure to accord procedural fairness was made other than the matters in the application.  I should add at this point that the Tribunal in its reasons stated that it discussed with the applicant independent evidence in relation to Ahmadis in Bangladesh.  There has not been shown to me an evidential foundation for a conclusion that procedural fairness was not otherwise accorded in respects other than the asserted failure to comply with s 424A. 

21                  The third ground of appeal is a general assertion as to the error of the factual conclusion.  It is not clear from the ground what particular aspect of jurisdictional error was committed by the Tribunal.  None was asserted.

22                  The fourth ground manifestly cannot be made out.  There was at least some material, or evidence, upon which the decision could be reached. 

23                  The fifth ground is a complaint as to the reliability of the fact finding of the Tribunal.  This Court does not sit as a court of appeal on factual matters.  It must be shown generally that the fact finding of the Tribunal was so irrational or absurd as to not amount to the proper execution of the task required by the statute.  The material before me does not permit me to draw that conclusion.  Further, I note that some of the country information relied upon by the Tribunal was dated 2003, only a few months before the decision. 

24                  As to grounds 6(a), (b) and (c), I have already dealt with those matters. 

25                  The applicant's supplementary submissions filed in this Court will remain on the file.  They raise no further matter other than that which I have dealt, except that on the second page there is an assertion that the Tribunal asked itself the wrong question and failed to take into account relevant material.  From my reading of the material, in particular the reasons of the Tribunal, it appears to me that the Tribunal correctly directed itself as to a statutory task.  The assertion of failure to take into account relevant material was really an assertion that other country information and other evidence should have been given primary weight.  This is not a matter of jurisdictional error.

26                  Also there is an assertion on the second page of these submissions that the respondent's solicitor, presumably the solicitor from Clayton Utz, is said to have exercised her power by emailing the court with respect to some important and vital information beyond the jurisdictional authority of the respondent.  It is not clear to me what is being asserted in this paragraph.  Written submissions were filed.  They were not served on the appellant as they should have been.  I dealt with this on an earlier occasion in granting an adjournment.  I do not propose to examine any other correspondence between my associate and the solicitors.  I am certainly not aware of any inappropriate contact and as far as I am aware there was no defect in the appeal process whatsoever.  I am not aware, and there is no evidence, of any defect in the first instance procedure.

27                  The appellant made brief submissions this morning on the hearing of the appeal.  He indicated that the position of Ahmadis in Bangladesh was such as to be sufficient to base his fear of persecution.  In support of this he sought to tender pages from the web edition of The Daily Star in English and Bengali.  This material was dated August 2004.  It is not material which could have been before the Tribunal.  It was not before the learned Federal Magistrate.  There is no basis in the principles of admission of fresh evidence on appeal which would allow me to receive it.  The purpose of the material is to show the position in Bangladesh.  These are matters for the Tribunal.  I marked the material for identification (MFI 1) and left it on the Court file.

28                  For the above reasons the appeal should be dismissed.

29                  I am not aware on the material before me of any reason why the usual order for costs should not be made following the event. 

30                  Thus the orders of the court are:

1.    That the appeal be dismissed.

2.    The appellant pay the respondent's costs.

Associate:

Dated:              17  November 2004