FEDERAL COURT OF AUSTRALIA

SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 697

MIGRATION – where Tribunal invited appellant to comment but declined to permit him to submit further evidence – s 427 (1)(d) of the Migration Act 1958 (Cth) is permissive not mandatory – general country information is not required to be disclosed under s 424A(1) of the Act –– the Tribunal may conclude that it is not satisfied of factual matters even though there is no rebutting evidence – no error established

Migration Act 1958 (Cth) s 424A(1), s 424(1), s 424A(3)(a), s 424A(3)(b), s 427(1)(d), s 474

Appellant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

Dissananayake v Minister for Immigration and Multicultural Affairs [2002] FCA 976

Marshood v Minister for Immigration and Multicultural Affairs [2000] FCA 1536

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW[2004] FCAFC 264

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12

Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288

Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553

Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal (2002) 190 ALR 601

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265

Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24

SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 598

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546

VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459

WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330

Win v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 105 FCR 212

SZBCE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD1954 OF 2004

BENNETT J

2 JUNE 2005

SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of his Honour Federal Magistrate Driver made on 10 December 2004, dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 10 December 2004. The Tribunal affirmed a decision of the respondent’s delegate refusing the appellant a protection (Class XA) visa.

2                     Counsel for the respondent, Ms Allars, has provided very helpful submissions. I have drawn upon these submissions in setting out the facts and claims of the appellant’s case below.

Grounds in appeal

3                     The grounds set out in the notice of appeal are (adopting fresh numbering) that Driver FM erred in failing to hold that:

(i)                  the Tribunal made an error of law, jurisdictional error and procedural fairness;

(ii)                the Tribunal made an error of a kind similar to that in Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal (2002) 190 ALR 601 (‘Muin’);

(iii)               the government in Bangladesh fails to protect civilians’ lives;

(iv)              two recent decisions of the High Court that s 474 of the Migration Act 1958 (Cth) (‘the Act’) is ineffective apply;

(v)                the Tribunal erred in refusing to conclude that the appellant was a member of Ahamadi and a member of the popular faith although it had sufficient evidence before it;

(vi)              the Tribunal failed to consider properly the certificate the appellant provided by investigating its genuineness;

(vii)             the Tribunal did not disclose to the appellant for comment adverse country information;

(viii)           the Tribunal failed to afford the appellant procedural fairness as required under  s 424A(1) of the Act;

(ix)              the Tribunal did not complete the exercise of its jurisdiction as it made no findings as to what socio-political and religious change might occur in Bangladesh in the reasonably foreseeable future and as to whether the appellant’s fear of persecution as a member of a highly marginalised religious group were well founded;

(x)                the Tribunal did not base its decision upon a rational foundation in that when it applied the criteria it should have been satisfied the appellant met those criteria;

(xi)              the Tribunal did not provide the appellant with particulars of information which formed part of the reasons of the Tribunal, namely that violence against Ahmadiyya Muslim Jamat of Bangladesh has subsided and that information was not ‘just information about a class of persons’; and

(xii)             the Tribunal did not put to the appellant its doubts about documents containing information personal to the appellant from different sources in Bangladesh.

Grounds in application

4                     The grounds raised in the amended application filed on 23 November 2004 are set out in the judgment of Driver FM ([2004] FMCA 1017 at [2]). Two grounds were argued. The first was denial of procedural fairness in that the Tribunal did not provide the appellant with adequate particulars of the independent country information and an opportunity to respond to it. The second ground was jurisdictional error in that the Tribunal failed to consider the possibility that its failure to achieve the requisite degree of satisfaction as to the appellant being an Ahmadi was wrong before it reached the affirmative conclusion that he did not have a well–founded fear of persecution. The appellant filed an affidavit, affirmed on 18 November 2004, annexing part of the transcript of proceedings before the Tribunal on 3 March 2003. The appellant filed written submissions below, and was represented by counsel.

Whetherchallenge to primary judge’s findings of fact

5                     In Ground 3 (extracted above at [3]), the appellant appears to challenge Driver FM’s findings of fact. No finding of fact of the kind claimed was made by Driver FM.

PART B: RELEVANT FACTS

Findings of Tribunal

6                     The appellant, a citizen of Bangladesh, sought a protection visa on the ground that he had a well founded fear of persecution on religious grounds as a member of the Ahmadiya sect of Muslims. He claimed that he suffered death threats, was attacked, and had to live underground.

Conclusions of Court

7                     Driver FM set out the findings of the Tribunal (at [1]). Essentially the Tribunal was not satisfied that the appellant was an Ahmadi and found that letters in the form of certificates he had provided were not genuine. The Tribunal also concluded on the basis of country information that there was not a real chance that a person who was Ahmadi would face a real chance of persecution in Bangladesh.

8                     Driver FM held that no denial of procedural fairness was established because the appellant was notified of the country information, and the information obtained by the Tribunal as a result of its enquiries. Driver FM also rejected the second ground of review, which is not the subject of appeal.

GROUND 1: Procedural fairness and jurisdictional error

9                     Ground 1 in the appeal is expressed generally. It is regarded as being particularised in the following grounds and therefore is not considered separately.

GROUND 2: Whether an error of a kind similar to that in Muin

10                  Ground 2 relies upon principles set out in Muin, relating to failure by the Tribunal to draw an applicant’s attention to material adverse to his claims.

11                  The appellant has not explained on what basis he says he was misled by the country information which the Tribunal did or did not take into account. There was no evidence before Driver FM that the Tribunal acted inconsistently with any representation made to the appellant that it had looked at his papers.

12                  In the present case there is simply no factual basis for the application of Muin or for establishing a denial of procedural fairness based on Muin.

GROUND 3: Whether failure to consider the real state of affairs in Bangladesh

13                  Ground 3 expresses disagreement with findings of fact made by the Tribunal, although they are claimed to have been made by Driver FM. It does not raise any error of law.

GROUND 4: Failure to apply two recent decisions of the High Court that s 474 of the Act is ineffective

14                  Ground 4 appears to claim that Driver FM did not apply the High Court’s decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (‘Plaintiff 157’). There is no express reference in the judgment to the decision. However Driver FM found no jurisdictional error. No error is established. 

GROUNDS 5 and 6: Whether error in refusing to conclude that the appellant was a member of Ahamadi or to consider the certificate by investigating its genuineness

15                  The Tribunal was not satisfied that the appellant was a member of Ahmadi. It undertook investigations by contacting the general secretary of the Ahmadiyya Muslim Association of Australia for information as to the genuineness of documents provided by the appellant and as to whether he was known to the association. That association informed the Tribunal that the certificate provided by the appellant was not genuine and enclosed a letter from its counterpart organisation in Bangladesh to that effect. No error is established in the way in which the Tribunal conducted these enquiries.

16                  The Tribunal determined that it would not carry out any further investigation of the issue. It had no duty to do so.

17                  Section 427(1)(d) of the Act empowers the Tribunal to require the Secretary of the Department to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review and to give the Tribunal a report of that investigation or examination.

18                  In Dissananayake v Minister for Immigration and Multicultural Affairs [2002] FCA 976 at [18] the Federal Court held that s 427(1)(d) of the Act is permissive, not mandatory.  The fact that the Tribunal did not use the facility in s 427(1)(d) does not indicate it fell into legal error(SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 598 at [40]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]). In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12,the High Court held that s 427(1)(d) of the Act confers a power to obtain information but does not impose any duty or obligation to make inquiries (13 at [1] per Gleeson CJ, 21 - 2 at [42] – [43] per Gummow and Hayne JJ). Further, even if an appellant requests that the Tribunal take oral or written evidence from a witness, the Tribunal is not required to obtain such evidence. It follows that the Tribunal has no duty to inquire. For the same reasons s 424(1) of the Act has been held to be an enabling provision, conferring power rather than imposing a duty (Win v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 105 FCR 212, 217 at [15]).

19                  In Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 at [58] the Gummow & Hayne JJ held that there was no denial of procedural fairness when the Tribunal failed to press an appellant with further questions, as if in a cross examination because in conducting an inquisitorial hearing the Tribunal is not obliged to prompt an elaboration which the appellant chooses not to embark upon (at [58]).

20                  There is no basis in s 427(1)(d) or elsewhere in the Act, or at common law, for the contention that the Tribunal had a duty to do more than it did in obtaining country information. No error is established.

GROUNDS 7 AND 12: Whether error of failure to disclose for comment adverse country information or to put to appellant doubts about documents containing information personal to the appellant

21                  The appellant claims that the Tribunal did not put to him its doubt about documents containing information personal to the appellant from different sources. The Tribunal did put to the appellant its doubts about the genuineness of the certificate, warning him that it may contact the relevant organisation to check its genuineness. In advance of the hearing the Tribunal advised the appellant that the outcome of this investigation was that the Ahmadiya Muslim Association of Australia had advised it that the appellant was not an Ahmadi. It invited the appellant to comment. There is no error in the conclusion of Driver FM that no denial of procedural fairness is established (at [7] – [8]).

22                  The Tribunal relied upon country information as to the number of recent attacks in Bangladesh on Ahmadi people and the fact that the Bangladeshi government does not sanction or condone mistreatment of Ahmadi believers. Having found that the appellant was not a genuine Ahmadi it was strictly not necessary for the Tribunal to consider the objective component of the test of well-founded fear of persecution. However the appellant was given an opportunity to provide the Tribunal with country information about the position of Ahmadi people in Bangladesh and did so. For the reasons given by Driver FM (at [4]), there was no failure to provide procedural fairness as the delegate and the Tribunal put the country information to the appellant.

GROUNDS 8 AND 11: Whether failure to comply with s 424A(1) of the Act

23                  Ground 8 claims that the Tribunal failed to comply with s 424A of the Act. The appellant also claims in Ground 11 that the Tribunal did not provide him with particulars of information which formed part of the reasons of the Tribunal, namely that violence against Ahmadiyya Muslim Jamat of Bangladesh has subsided and that information was not ‘just information about a class of persons’.

24                  As the Tribunal found that the appellant was not an Ahmadi, the particular findings about the position of the Ahmadi are not necessary to the decision. However, the Tribunal did consider this question and the appellant bases some of his appeal on this aspect of the Tribunal’s reasons.

25                  If the appellant’s claim extends to the information in the certificate which he provided to the Tribunal, that was information ‘that the appellant gave for the purposes of the application’ within the meaning of s 424A(3)(b) of the Act. It is therefore excepted from the duty imposed by s 424A(1) of the Act.

26                  If the information claimed to fall within s 424A(1) of the Act is the information from the Ahmadiyya Muslim Association of Australia, the Tribunal put particulars of this information to the appellant prior to the hearing (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [20] per Gleeson CJ).

27                  The appellant appears to rely upon the country information to which the Tribunal referred in its reasons. That is information which is ‘not specifically about [the appellant] or another person and is just about a class of person of which [the appellant] or other person is a member’ within the meaning of s 424A(3)(a) of the Act. General country information of the kind to which the Tribunal referred falls within s 424A(3)(a) and is not required to be disclosed under s 424A(1) of the Act (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW[2004] FCAFC 264; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44] – [46] per RD Nicholson, Jacobson and Bennett JJ).

GROUND 9: Whether error of failure to make findings as to socio-political and religious change in Bangladesh in reasonably foreseeable future in relation to highly marginalised religious group

28                  The critical time when an appellant must show a genuine fear (subjective) founded on a real chance (objective) that he will be persecuted if he returns, is the time at which the determination is made (Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 at 290 - 4. See also Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 556 - 557; Appellant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Kirby J). The way in which the Tribunal dealt with the issue of the political situation in Bangladesh did not indicate that it misunderstood the question before it or in any other sense failed to exercise its jurisdiction.

29                  The Tribunal was not satisfied that the appellant had a subjective well-founded fear of persecution. It was not necessary for the Tribunal to proceed to consider whether the objective component of the test was met. In any event the Tribunal considered the objective component and concluded that Ahmadis in Bangladesh do not face a real risk of harm and are not targets of systematic harm. No error is established.

GROUND 10: Whether decision not based upon a rational foundation

30                  The appellant claims that the Tribunal’s decision was not based upon circumstances giving a rational foundation for the belief entertained as to the Tribunal’s findings, when applied to the applicable criteria.

31                  This ground appears to amount to no more than disagreement with the outcome of the review by the Tribunal. The appellant failed to make out a case which satisfied the Tribunal that he was entitled to a protection visa (See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596). The Tribunal is not required to accept without question the allegations made by an appellant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J). The Tribunal may conclude that it is not satisfied of factual matters, even though there is no rebutting evidence as to those matters (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348; Marshood v Minister for Immigration and Multicultural Affairs [2000] FCA 1536 at [13]). Further, as was held by Tamberlin J in SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 at [14] ‘the want of logic does not, of itself, suffice to constitute an error of law’. No error is established.

matters raised at the hearing

32                  The appellant appeared in person, assisted by an interpreter.  He raised three additional matters at the hearing.  Otherwise, he relied on his written submissions and the amended notice of appeal.

Issue 1

33                  The appellant asserted that he had told the Tribunal that a case had been made against him in the Magistrates Court in Bangladesh and that the Tribunal had ignored his point.

34                  The Tribunal made specific reference to the submission to it by the appellant of ‘a purported order from Dhaka Magistrates Court dated 30 March 2003 for the arrest of the [appellant] and others for preaching the Ahmadi faith’.  The Tribunal made a finding that the documentation submitted by the appellant had been fabricated and stated that it was not satisfied that the court order for his arrest was genuine.  The further reason given by the Tribunal was that independent evidence does not show that Ahmadis are banned from expounding  and preaching their faith.

35                  Such a finding was open to the Tribunal.  It cannot be said that the Tribunal failed to consider this aspect of the appellant’s claim.

Issue 2

36                  The Tribunal made its findings on the veracity of the documentation submitted by the appellant in the form of letters from Ahmadiyya Muslim Jama’at  in Chittagong and Dhaka.  The latter purported to be from “Mir Mohammad Ali, National Ameer” and was dated 27 February 2003.  The Tribunal had checked the authenticity of those documents by sending them to the Ahmadiyya Muslim Association of Australia for verification.  On 11 May 2003, that organisation wrote to the Tribunal saying that the appellant was not a genuine Ahmadi and the alleged Ahmadi certificates from Bangladesh were not genuine.  It attached a letter, dated 11 April 2003 from Meer Mobasher Ali, the National Ameer of the Ahmadiyya Muslim Jama’at in Bangladesh, stating that the certificates submitted by the appellant were ‘improper and false’.

37                  The Tribunal stated that it communicated this news to the appellant and formally asked him for a response.

38                  In a written reply dated 23 May 2003, the appellant said that he was a true Ahmadi and that he wanted a chance to obtain a certificate from ‘Mr Mobasherur Rahaman present National Ameer Bangladesh ‘Ahamadyia Muslim Jamat’ (elected on 22 March 2003, the previous Ameer Mr Mir Mohammed Ali retired on 21 March 2003’.

39                  The Tribunal stated that it did not consider it necessary to grant the appellant’s request.

40                  The appellant contends, in effect, that the Tribunal denied him procedural fairness in not giving him the opportunity he requested.

41                  It can be taken that the Tribunal, in notifying the appellant of the results of its inquiries and asking him for a response, was complying with its obligations under s 424A(1) of the Act.  In deciding whether the Tribunal denied the appellant procedural fairness, a number of factors are relevant:

·        On 11 April 2003, the National Ameer sent its letter to the tribunal.

·        By letter dated 14 May 2003, the Tribunal sought a response from the appellant.  It invited him to comment in writing by 28 May 2003.

·        The appellant did respond by letter dated 23 May 2003, sent to the Tribunal under cover of a letter from his solicitors dated 28 May 2003 and repeated his assertion that he was a genuine Ahmadi.  He also sought the opportunity to obtain a further certificate.

·        The appellant asserted that the new Ameer had been elected on 22 March 2003. 

·        The letter, signed by the Ameer but on the letterhead of the Bangladesh organisation, stated that there had been no certificate issued as submitted by the appellant.  Furthermore, the letter stated that local Jamats like Chittagong are not authorised to issue such certificates.

·        The appellant, in his letter of 23 May 2003, referred to the new Ameer by the name Mr Mobasher Ur Rahaman and the previous Ameer as Mr Mir Mohammed Ali.  The signatory of the 11 April 2003 letter, as National Ameer, was Meer Mobashsher Ali.

·        The decision of the Tribunal was made on 11 June 2003.  The appellant had not forwarded any further material to the Tribunal.

42                  In the circumstances and in view of the strong evidence of the fabrication of the certificates already provided, the Tribunal was not obliged further to adjourn the hearing.  The Tribunal had complied with the mandatory requirements of s 424A of the Act, including s424A(1)(c) of the Act.  It gave the appellant time in which to comment and the appellant did so.  What the appellant sought was the opportunity to submit further evidence.  The appellant said it was to be from the then current Ameer and he made a mistake as to the name of that person.  The letter already received by the Tribunal was from the then current Ameer.  That letter and the covering letter from the Australian association unequivocally stated that the appellant was not an Ahmadi.  There was no point in allowing further time for the obtaining of a certificate from the very person who had already provided one.

Issue 3

43                  The appellant asserted that the Australian association consisted mainly of Pakistanis who did not like Bangladeshis.  It was not clear how the appellant relied on this, even if it were true.  When asked, the appellant said that he had not told the Tribunal of this claim but he also asserted that he had told the Tribunal that this was the case and that he would try to obtain another certificate but did not do so. The appellant has not established that this matter was raised at all with the Tribunal.

44                  In any event, it is hard to see the relevance of this assertion, as the letter stating that the certificates on which the appellant relied were false came not from the Australian association but from Bangladesh. 

Relief

45                  No jurisdictional error in the reasons of Driver FM is established. Accordingly, the appeal should be dismissed with costs.

Associate:

Dated:              2 June 2005

The appellant appeared in person assisted by an interpreter