FEDERAL COURT OF AUSTRALIA

SZTFP v Minister for Immigration and Border Protection [2014] FCA 1236

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant is to pay the first respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    The appellant appeals from a decision of the Federal Circuit Court of Australia (the FCCA) delivered on 6 August 2014 (SZTFP v Minister for Immigration & Anor [2014] FCCA 2012). The FCCA dismissed the appellant’s application for judicial review under s 476 of the Migration Act 1958 (Cth). The judicial review application related to an unsuccessful review by the Refugee Review Tribunal (the Tribunal) of the delegate’s decision to refuse the appellant’s application for a protection visa.

2    For the reasons which follow, the appeal should be dismissed.

Background

3    The appellant is a citizen of Bangladesh who arrived in Australia on 15 December 2011. On 25 January 2012, he applied for a protection visa in which he claimed that he feared persecution in Bangladesh because of his religious beliefs. His application was refused by the Minister’s delegate on 14 September 2012. The appellant then applied to the Tribunal for a review of that decision. As noted above, the review was unsuccessful.

4    It is convenient to summarise the Tribunal’s reasons for decision.

5    The Tribunal was not satisfied that the appellant is a person to whom Australia owes 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 appellant was not a credible, truthful or reliable witness and for the following reasons, was not satisfied that he was a genuine Ahmadiyya 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 at [28] of its decision record that the appellant had provided internally inconsistent and confusing evidence about whether he had converted to the Ahmadiyya faith, having said 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 appellant 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 appellant 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 appellant had stated that he had not converted and that the statement in his protection visa application might have arisen out of language problems. The Tribunal did not accept any of those explanations and noted that the appellant spoke English;

(b)    the Tribunal noted at [29] that the appellant’s evidence in his application about the difficulties he faced in Bangladesh as a result of his interest in the Ahmadiyya faith (including claims that he was beaten, threatened with lashing and forced to cite the Tawba) was inconsistent with the evidence he gave at the Tribunal hearing. It noted that when that inconsistent evidence was put to him, the appellant 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 appellant 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)    at [30], the Tribunal did not accept that the appellant had gone into hiding in November 2011 with his wife because he feared that he would be lashed. 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 appellant’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 his 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 at [37] that the information provided by the Ameer in Bangladesh was different from that given by the appellant. The Tribunal referred to country information indicating that there were strong community links between Ahmadis and to information indicating that the Ameer in Bangladesh was not aware of people who practised the faith but were not directly involved with the community. The Tribunal did not accept the appellant’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 his evidence and that of the Ameer in Bangladesh added to the Tribunal’s finding that the appellant lacked credibility and strengthened its view that he was not a witness of truth;

(e)    the Tribunal found at [41] that if the appellant had been awaiting conversion or the bai’at procedure and the Ameer in Australia thought him to be genuinely interested in the Ahmadiyya faith, the Ameer would have said so rather than stating that the appellant’s claims were false. It did not accept that the Ameer in Australia had indicated that the appellant’s claims were false simply because he had not made a requested donation. The Tribunal noted that the appellant had asked it to invite him and the Ameer in 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 appellant had attended the mosque and met the Ameer in Australia but found that that only added to its finding that he was not a genuine Ahmadi because, even after meeting the appellant, 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 at [45] that the appellant had attended an Ahmadiyya place of worship in Bangladesh on several occasions and possibly one in Australia as well (see [43]). However, the Tribunal found at [46] that some knowledge and attendance at worship did not necessarily establish belief. It found that the appellant’s knowledge was confined to generalities which were easily available publicly. It found that the appellant’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 appellant’s attendance at a mosque in Bangladesh was otherwise than for the purpose of fabricating a claim and, while accepting that he 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 appellant’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 appellant’s claims; and

(g)    the Tribunal considered at [49] whether the appellant 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 been so prevented. The Tribunal noted that no medical or psychological evidence had been provided to support that claim. It found that the appellant 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 appellant’s evidence were a result of his claimed mental situation.

6    Having found that the appellant 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 and would face if he were returned.

7    The Tribunal also rejected the appellant’s claims relating to the complementary protection provisions in the Act for reasons which are set out in [55]-[59] of the Tribunal’s decision record.

FCCA proceeding

8    The appellant’s application for judicial review in the FCCA raised the following grounds (without correction):

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 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.

9    Each of those grounds was rejected by the primary judge. As to the first, his Honour held that a person’s credibility is a question of fact and that it is the Tribunal’s task to make such a finding. He added that, since the appellant raised no question of law in the context of this ground, there was no basis upon which the Tribunal’s decision might be set aside.

10    As to the second ground, the primary judge observed that it was based on an assumption that the Tribunal was obliged to seek out information and to consider material which the appellant had not placed before it. Whilst recognising that the Tribunal may have a duty to make enquiries in some limited circumstances, the primary judge found that those circumstances were not present here.

11    As to the third ground, the primary judge found that the Tribunal did not find that the appellant was not an Ahmadiyya simply because he was not “registered”. Rather, his Honour pointed out that the Tribunal concluded that the appellant had given internally inconsistent and confusing evidence concerning his conversion to Ahmadism. The primary judge highlighted that the appellant’s account given to the Tribunal was inconsistent with the evidence he had given to the Minister’s department. His Honour also added that the appellant’s claim to be a member of the Ahmadi community was not supported by the two Ameers who provided information to the Tribunal.

12    Finding that no jurisdictional error had been established, the appellant’s application was dismissed.

The appeal

13    The appellant raised the following six grounds of appeal (without correction):

1.    The Refugee Tribunal Failed to consider my overall credibility at the time of assessment of my protection visa Application.

2.    That I have not fabricated the facts about my persecution

3.    That I am not known to the Amir is not true

4.    That I was in regular attendance at the mosque in Dhaka and not several times.

5.    I continue to belief is being an Ahmadeyya and disagree that it is only knowledge I have of this faith

6.    I continue to fear that I will be persecuted or even killed on my return to Bangladesh due to my faith.

14    The appellant did not provide any written submissions in support of his appeal. At the commencement of the hearing of his appeal, and without prior notice, the appellant sought an adjournment on the basis that he wished to obtain legal advice. He did not provide any affidavit evidence in support of his application. He said from the bar table that he had been unable to obtain legal advice because he was not working until recently. He said that he had been employed for a little over two weeks and needed time to obtain paid legal advice. The Minister opposed an adjournment.

15    The Court explained to the appellant that it was under no obligation to provide him with a legal advisor and that it was a matter for the appellant to make appropriate and timely inquiries as to the availability of pro bono or paid legal advice, noting that the decision against which he appeals had been delivered on 6 August 2014, i.e. more than three months ago. Taking into account these matters, the application for adjournment was refused.

16    The appellant was then provided with several opportunities to say anything by way of oral submissions in support of his appeal. The appellant did not address any of the six grounds of appeal, other than to say he was telling the truth and wanted the truth to prevail. He also submitted that his life would be at risk if he were returned to his country of origin. The Court explained to the appellant the nature and extent of the Court’s jurisdiction in hearing his appeal and for the need for him to identify appealable error in the decision below which, in effect, required him to demonstrate why the FCCA had erred in not finding any jurisdictional error in the decision of the Tribunal.

17    Mr Smith, who appeared for the Minister, made brief oral submissions which supplemented the written outline of submissions filed on behalf of the Minister.

Resolution of the appeal

18    The first ground of appeal must be rejected. It is plain from the summary above of the Tribunal’s reasons that it did in fact consider the appellant’s overall credibility in conducting its review. The primary judge was correct to observe that it is the Tribunal’s task to make findings in respect of a person’s credibility. That is not to say, however, that such findings are unreviewable (see, for example, the observations of Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 37; (2013) 212 FCR 99 at [78] with which I respectfully agree), but the primary judge was correct to dismiss this aspect of the appellant’s case because no jurisdictional error was established in the particular circumstances here.

19    In my view, grounds 2-6 relate to findings of fact made by the Tribunal. Having regard to the way in which these grounds are pleaded, they do not raise any alleged jurisdictional error on the part of the Tribunal, let alone any appealable error on the part of the primary judge. Even if the appellant was permitted to raise these grounds on appeal (they were not raised below), they merely invite an impermissible review of the merits of the Tribunal’s decision.

20    Noting that the appellant was not legally represented in the appeal (nor below), I have also considered whether or not the Tribunal’s reasons disclose some jurisdictional error which has not been raised by him. I can discern no such error.

21    For these reasons, the appeal should be dismissed and the appellant ordered to pay the Minister’s costs.

Associate:

Dated:    18 November 2014