FEDERAL COURT OF AUSTRALIA

NARZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1696

NARZ v Minister for Immigration and Multicultural and Indigenous Affairs

NSD 1247 of 2004

ALLSOP J

22 DECEMBER 2004

SYDNEY

ON APPEAL FROM A JUDGMENT OF A FEDERAL MAGISTRATE

THE COURT ORDERS THAT:

1.                  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 A JUDGMENT OF A FEDERAL MAGISTRATE

REASONS FOR JUDGMENT

1                     This is an appeal from orders made by a Federal Magistrate dismissing an application made under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 29 March 2003 and handed down on 16 April 2003 in which the Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the appellant. 

2                     The notice of appeal set out eight grounds which were only in minor respects related to the particular position of the appellant.  They were in the following terms:

2.        The Single judge of the Federal Magistrates Court in her Honours Judgment delivered on the 2 August 2004 failed to find error of law, Jurisdictional error, Procedural fairness and relief under Section 39B of the Judiciary Act 1903.

3.        The grounds and relief is very much similar with a recent High Court Judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002).  Catchwords:  Immigration – Refugee – Protection visa – Decision by Minister to refuse application for visa – Review of decision by Refugee Review Tribunal – Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Register of Tribunal for purpose of review – Nature and extent of obligation – Migration Act 1958 (Cth), ss 148(3), 424(1).

4.        The Honorable trial judge erred in considering the real state of affairs of my application, I have feared harm.  And also the present ruling government fail to protect minority’s life, I am Kadiani as my religious believe [sic] and a member of a perticular [sic] social group.  Honorable Trial judge did not take into consideration.

5.        S474 of the Migration act is ineffective as per the recent two decision of the High Court of Australia.  Honorable trial judge did not consider this in favor of me.

6.        I will face persecution if I return back to my country of origin as there are significant level of violation of human rights and religious persecution, this was not considered by honorable Federal Magistrates.

7.         I also mention recent High Court judgement [sic]: Plaintiff S 157/2002 v Commonwealth of Australia [2003] HCA 1(4 February 2003).

8.        Recent Federal Court of Australia judgement [sic]: SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 (14 February 2003).

9.        I will submit full details of my grounds after received the copy of reasons for judgement.

3                     The grounds in the application were eight in number were in the following terms:

1.                  That the decision involved a jurisdictional error of law being an error of law involving an incorrect interpretation of the applicable law to the fact of the case was found by the Refugee Review Tribunal.

2.                  The Tribunal ignored the merits of the claim and the Tribunal gave the decision without considering valid documents submitted by the applicant without proper reasons.

3.                  The tribunal decision was unjust and was made without taking into account the full gravity of the applicant’s circumstances and the consequences of the claim.

4.                  The Tribunal decision was an improper exercise of the power conferred by the Migration Act or the regulations.

5.                  There was no evidence or other material to justify the making of the decision.

6.                  The applicant was a kadiani subject to oppression by the mainstream Sunni community.

7.                  The Tribunal referred Bangladesh Constitution and its fundament [sic] perception, which came to effect in December 1972.  But the tribunal is not aware that secularism and Banglaee nationalism were curtailed from the Constitution and inserted Islam as the state religion.  So, the finding by the tribunal is not jusitifiable.

8.                  The Tribunal failed to accord procedural fairness as the applicant was not provided an opportunity to response [sic] on information which the tribunal relied on it [sic] decision.

4                     The applicant is a citizen of Bangladesh who claimed to fear persecution because of his religion as an Ahmadi of the Qadiyani sect.  He claimed that he was born of conservative Sunni Muslim parents and converted in 1993.  His claim was that when his conversion became known he was criticised by the community of Sunni Muslims and this culminated in his being targeted for persecution.  In its reasons the Tribunal summarised the claims of the appellant in a form with which he apparently agreed.  This summary was in the following terms:

The applicant was born of conservative Sunni parents, an only son.  At school, one of his friend was an Ahmadi of the Qadiyani sect whose father was a priest.  The applicant became to know and appreciate the Ahmadi ways and was converted in to that faith in 1993.  When his conversion became known, he was criticised by the community of Sunni Muslims, culminating in him being targeted by the local Jaamat-e-Islami.  He left the country in 1994 in fear for Malaysia, where he initially worked illegally.  He returned for a three month visit in 1997/1998.  While he was not physically harmed himself in Bangladesh, other Ahmadi were.  His home was attacked and ransacked in 1994 after he left and again in 1999, when again he was away.  The incidents were reported to the police.  He believed that, because he was Ahmadi, and particularly a Sunni convert, he would be persecuted.  He felt that while Ahmadi generally were persecuted, his persecution would be more severe because he had abandoned his Sunni faith.

5                     In a comprehensive set of reasons the Tribunal examined the claims and evidence of the appellant, the material that the appellant had put forward, and the country information.

6                     The Federal Magistrate summarised the approach of the Tribunal in paragraphs 4 to 9 of her Honour’s reasons as follows:

The Tribunal found that the applicant's claim failed on its facts.  It was not satisfied that the applicant is or was an Ahmadi of the Qadiyani sect.  It had regard, in particular, to his poor knowledge of that faith, the fact that he had made no attempt to practice the faith in Malaysia between 1994 and 1999 and that despite having been in Australia since 2001, he had made no formal effort to practice the religion or to contact the sect in Australia. 

The Tribunal went on to find that even if that finding of fact was wrong, the applicant’s practice of his religion had lapsed or was at such a low level as not to expose him to adverse notice in Bangladesh.  The Tribunal had regard to the fact that the applicant had given evidence that he had converted in 1993 and the presence of some documentary support for a conversion then or in 1997.  Accepting that evidence at face value, the Tribunal found that the difficulties the applicant described as resulting from his conversion were of relatively low order. 

He had never been physically threatened or harassed and there was no evidence that he was personally discriminated against.  There was no assurance that the claimed incidents of attacks on his family home while he was outside the country were motivated by religious persecution reasons. 

The Tribunal found the applicant's written claim that he had been sentenced to death by stoning by the Mullahs not credible for three reasons; first the fact that it was not referred to in his oral evidence despite being an item of such importance, second, that the applicant did not know what a ‘fatwa’ was and third that there was independent information accepted by the Tribunal that such fatwas are illegal in Bangladesh. 

As to the attacks on other Ahmadi, the Tribunal accepted independent evidence that there was no systematic persecution of the sect in Bangladesh, that the authorities do not tolerate religious harassment and do provide protection when required.  It found that the degree of state protection for the applicant as a member of the Ahmadi faith would be adequate.  The Tribunal was satisfied that there was no real chance of the applicant being persecuted on grounds of religion or for any other Convention reason. 

The Tribunal considered the particular claim of the applicant that his persecution would be more severe because he had abandoned his Sunni religion.  It cited the absence of any credible evidence that the applicant had been personally threatened, harmed or harassed either before he went to Malaysia or during his return visit to Bangladesh as a result of his conversion.  Given that he had not practiced the faith since he left for Malaysia in 1994, the Tribunal was not satisfied that he would be persecuted if he returned to Bangladesh.  If there was a threat of persecution, the Tribunal was satisfied that the protection of the state would be available to him either where he formerly resided or somewhere else in the country and whether he was born as an Ahmadi or was a convert to that faith from Islam.  The Tribunal was satisfied that the applicant did not have a well founded fear of persecution should he return to Bangladesh. 

7                     The Federal Magistrate then dealt with each of the eight grounds in turn in a manner which in my view displayed no error.  As to the first ground of the application no particulars were provided and no such error was said to be apparent.  The Magistrate was of the view that the Tribunal properly considered and applied the applicable law and that the appellant failed on the facts.  I perceive no error of approach in that of the Federal Magistrate or the Tribunal in this regard.

8                     The second ground of the application was that the Tribunal ignored the merits of the claim and gave its decision without considering valid documents submitted by the applicant.  The Federal Magistrate rejected this contention concluding that the Tribunal had regard to the elements of the applicant’s claims as set out in his protection visa application and in submissions put to the Tribunal and as raised at the Tribunal hearing.  The Magistrate also said that the Tribunal had regard to the documents submitted through his migration adviser.  The Federal Magistrate also noted that the Tribunal had, as was apparent from its reasons, raised its concerns about the letter from the Word Commissioner of Dahka City Council.  There was no transcript of the hearing before the Tribunal before the Federal Magistrate.  The Federal Magistrate concluded that on the material before her it could not be said that the Tribunal had failed to deal with the matter on the merits or without regard to relevant documents. 

9                     The Federal Magistrate then dealt with what her Honour correctly described as generalised claims that the decision was unjust and that it did not take into account the full gravity of the appellant’s circumstances and that it was an improper exercise of power (grounds 3 and 4 of the application).  The Federal Magistrate said that none of these generalised claims was established.  I agree.  The Federal Magistrate at this point in her reasons noted the allegation in ground 8 of the lack of procedural fairness and said that in so far as the generalised claims in grounds 3 and 4 overlapped with this assertion, it was not established on any material before the Court.

10                  Apparently, the appellant claimed before the Federal Magistrate that he had not been provided with an opportunity to respond to information on which the Tribunal relied.  The Federal Magistrate was of the view that the basis of such a claim had not been established.  Looking at the evidence of the conduct of the Tribunal hearing by reference only to what was before her, that is, the reasons of the Tribunal and the relevant documents the Federal Magistrate concluded that those reasons and those documents indicated that the critical issues and relevant material were raised with the appellant and that he had an opportunity to comment.  I agree with these conclusions; and there is nothing before me to establish the substance of any claim that independent country information or any important aspect of it had not been drawn to the attention of the applicant.

11                  The Federal Magistrate rejected the claim in the unparticularised assertion that there was no evidence or material to justify the making of the decision.  I agree. The Tribunal approached the matter on the basis of material that was before it and I see no error in this conclusion.

12                  The notice of appeal does not identify with any precision any particular error of the Federal Magistrate. 

13                  Submissions were filed on behalf of the appellant which in a discursive way discussed the underlying merits of the claim.  After an introduction in which the appellant identified his lack of legal assistance the submissions are critical of the Tribunal’s decision in a number of respects.  It was said that the claims were not admitted without any reasons.  I reject this; the Tribunal gave full reasons.  It was asserted that the Tribunal denied the material facts of the case by saying that Ahmadis were safe in Bangladesh was contradicted by reports for it.  These assertions are no more than taking issue with the factual findings of the Tribunal on the material before it.  It was asserted that the Tribunal badly constructed its decision and there were a number of errors in it.  No further assistance was given in this regard.  These matters do not disclose any jurisdictional error in the Tribunal or error on the part of the Federal Magistrate.  Various matters concerning the political affairs of Bangladesh on, before and after 1 October 2001 were dealt with.  These submissions were no more than taking issue with the factual conclusions of the Tribunal.  None of the submissions filed by the appellant supports any conclusion that the approach of the Federal Magistrate was in error.

14                  Finally, I should deal with the notice of appeal.  The first ground (ground 2) does not identify an error. 

15                  The second ground (ground 3) asserts a relevance of Muin and Lie no factual foundation was laid before the Federal Magistrate for the application of Muin and Lie.

16                  The third ground (ground 4) is no more than a factual assertion underpinning his claim.

17                  The fourth ground (ground 5) is an assertion as to the effect of s 474 of the Migration Act 1958 (Cth) and after the decision in Plaintiff S 157 does not lead anywhere.  The Magistrate dealt with the matter on a basis conformable with the law as expounded by the High Court in Plaintiff S 157.

18                  The fifth ground (ground 6) was no more than an assertion of the underlying facts. 

19                  The sixth ground (ground 7) asserts the relevance of Plaintiff S 157.  As I indicated above the Magistrate approached the matter on the basis of the law as expanded in Plaintiff S 157.

20                  The seventh ground (ground 8) is the reference to a Federal Court case and no further relevance is apparently given to this reference.

21                  The eight ground (ground 9) is not a ground of appeal and no amended notice of appeal was filed.

22                  The claim for a protection visa was rejected by the Tribunal for factual reasons as identified in the reasons of the Federal Magistrate.  The Federal Magistrate dealt with the complaints made about the Tribunal’s reasons in a way which displays no error.  The submissions of the appellant and the notice of appeal do not demonstrate any error in either the Federal Magistrate’s reasons or the reasons of the Tribunal.

23                  The appeal should be dismissed with costs.

Associate:

Dated:              22 December 2004