SZHIU v. Minister for Immigration and Another

"Ground 1 - Whether the Refugee Review Tribunal made jurisdictional error by imperssibly delegating its role as a further of fact to the Ahmadiyya Muslim Associate (“AMAA”).

[10] In the Tribunal’s “Findings and Reasons”, it makes the following statement: ""Independent information shows that the Ahmadiyya Muslim Association of Australia is located at Marsden Park in Sydney (www.ahmadiyya.org.au). The applicant therefore had ready access to the major Ahmadiyya community in Australia. Independent information shows that Ahmadis live in closely knit social networks that are organised along national lines with highly formalised relations... The applicant has been in Australia since February 2005. However, at the hearing he stated that since arrival he had only phoned “them” two or three times but they would not help him as he had no evidence, and they did not return his calls. The applicant has had no involvement with the Ahmadiyya community in Australia at all, and this leads the Tribunal to conclude that he was not and is not an Ahmadi. (CB 326)... At the hearing the applicant stated that they (the Ahmadiyya in Australia) would not help him as he had no evidence. In Australia the Ahmadiyya Muslim Association of Australia will provide an opinion in writing to the effect that a person is, or is not, an Ahmadi, after consulting with the National Ameer of the overseas country (ie the National Ameer of Ahmadiyya Muslim Jamaat in Bangladesh). The applicant’s lack of a letter of support from the AMAA leads the Tribunal to conclude that he was not and is not an Ahmadi. (CB 327).

[11] The Tribunal has relied upon independent country information in respect of the Ahmadiyya Muslim Association in Australia (“the association”) and taken into account the applicant’s own evidence given during the hearing as to what he has done since his arrival in Australia to establish contact with that association. I agree with the submissions made by Mr Knackstredt that a fair reading of the “Claims and Evidence” section and a subsequent finding of the Tribunal does not demonstrate that the Tribunal delegated its role as a fact finder to the association or any other body or person. The Tribunal carried out its function to source and rely upon the independent country information which it believed was appropriate in the circumstances and relied on that information. In the absence of any particulars in respect of this alleged claim I am satisfied that the Tribunal has undertaken this task appropriately and there is no evidence of any jurisdictional error in its approach.

Ground 2 - The Refugee Review Tribunal made jurisdictional error by adopting a rule or [policy] (a requirement of a letter of support from the AMAA) without regard to the merits of the case.

[12] The passage extracted at [10] above indicates that: ""...Ahmadiyya Muslim Association of Australia will provide an opinion in writing to the effect that a person is, or is not, an Ahmadi after consulting with the National Ameer of the overseas country (ie the National Ameer of Ahmadiyah Muslim Jamaat in Bangladesh). The applicant’s lack of a letter of support from the AMAA leads the Tribunal to conclude that he was not and is not an Ahmadi.(CB 327)""

[14] The Tribunal then considers the evidence presented by the applicant in support of his claim that he was involved with the Ahmadiyya community and was a practicing Ahmadi. The Tribunal considered a number of factors that raised doubt in respect of this claim:

a.the applicant was unable to identify differences between the Sunni and Ahmadiyya religion apart from the Ahmadis’ faith in a prophet after Mohammed;

b.his inability to identify the major differences in belief between Sunni and Ahmadiyya did not support his claims that he completed a course in religious teaching and that he developed an ongoing interest over several years in respect to Ahmadiyya;

c.the applicant’s complete lack of involvement in the Ahmadiyya community in Australia since arriving on 4 February 2005 despite his health issues, working two jobs and that the association did not return his calls;

d.in Australia the applicant would have been able to continue and develop his interests in the Ahmadiyya belief without the fear of being harmed but he did not pursue this course (CB 327).

[16] I agree with Mr Knackstredt in his written submissions that a fair reading of the Tribunal’s reasons discloses that in coming to its conclusion on this integer of the applicant’s claim, the Tribunal considered the merits of the applicant’s claim in detail. Moreover, it is submitted that the findings the Tribunal made were open to it on the evidence and it cannot be said that it made its decision without regard to the particular factors of the case.

[17] On a fair reading of the decision record there is no indication that the Tribunal adopted a rule or policy requiring a letter of support from the association to establish that the applicant was a member of that faith. The comment recorded in the Tribunal’s decision merely states that if an application is made to the association, it will issue an opinion in writing as to the status of the person involved after it has made the appropriate verifying enquiries from the authorities of that faith in the country in which the person making the claim claims to have been a member of that faith. The Tribunal quite definitely did not make any statement suggesting that the issue of such a letter was a necessary pre-requisite in establishing membership of that religious faith. It was on the applicant’s own admission that he had only been attending and observing at the mosque in Dhaka for a period of three years and that it would be necessary to have completed six to seven years of that pattern prior to acceptance as a member of the faith.

Ground 3 - The Refugee Review Tribunal made jurisdictional error by having regard to conduct in Australia in breach of s.91R(3) of the Migration Act 1958.

[18] The applicant’s involvement with the Ahmadiyya community in Australia was discussed with him at the Tribunal hearing held on 29 August 2007. ""The Tribunal records the following in respect of this aspect. The Tribunal asked whether he developed an interest in the Ahmadi community in Australia. He stated he had not, as he was working. He phoned them and they asked if he had any evidence, he told them he did not and they would not help. The Tribunal asked whether he had done anything with the Ahmadi community in Australia. He stated he had not and described his 2 jobs and his health concerns (asthma and a bad back) which were under treatment. The Tribunal asked how being unwell prevented his involvement with the Ahmadi community. He explained how he had back pain and had to do plenty of exercise, he went to the gym, he got plenty of rest – he had a hard job as a kitchen hand – he got to bed at 2am and also worked at a factory if they phoned. The Tribunal indicated that he did not associate with, or consider himself a part of the Ahmadi community. He stated that he had no ties here he had called 2 or 3 times but they did not reply – he was working and unwell. (CB 311)""

[19] In the Tribunal’s “Findings and Reasons” it makes the following statement: ""...When he prepared his application the only claim he made was based upon being an Ahmadi. However, the applicant has had no involvement at all with the Ahmadiyya community in Australia since arriving in Australia on 4 February 2005 (as shown by his passport produced at the hearing). The applicant’s reasons for this were that it had health issues and two jobs and they did not return his calls. But these reasons do not explain why, after fleeing to Australia, he had made no real effort to continue his claim association with the claimed interest in the Ahmadiyya. In Australia he would have been able to continue and develop his claimed interest in Ahmadiyya beliefs without the fear of being harmed and with few or no difficulties. His lack of efforts, particularly in light of his application where being an Ahmadiyya was his only claim, show that he had no interest in Ahmadiyya and the Ahmadiyya beliefs. (CB 327)""

[21] On the applicant’s own evidence presented to the Tribunal at the hearing, s.91R(3) of the Act was not invoked and it was unnecessary for the Tribunal to make any determination under that section. The passages extracted above clearly demonstrate that the applicant is not making any claim in respect of his involvement in the Ahmadiyya faith while in Australia. Consequently there is no claim to pursue this course in an attempt to strengthen his claim. This appears to be nothing more than a misunderstanding of the Act generally and particularly this provision as it is clearly not invoked by the facts in this case and the ground cannot be sustained.

Ground 4 - The Refugee Review Tribunal made jurisdictional error in that it breached its heavy obligation under s.425 of the Migration Act in relation to letters sent to the applicant.

[22] This ground is pleaded in the absence of any particulars so the Court can only assume that the applicant is referring to the operation of s.425 as it applies in the context of Part 7, Division 4 of the Act and refers to the letter of 17 July 2007 forwarded to the applicant’s agent, Mr Md Sragul for the attention of the applicant (CB 213-214).

[24] In the absence of any particulars directed at any error or inadequacy of the notice issued under the provisions of the Act it is not apparent that there is any defect in that notice. The applicant was represented by a qualified migration agent and that agent has not raised any issue in respect of that notice. The applicant via his agent has complied with that notice by forwarding the response to hearing invitation (CB 241) indicating that he intended to appear at the hearing and that he required the services of a Bengali interpreter and that he would be assisted at the hearing by his migration agent. The applicant subsequently appeared at the Tribunal hearing and there is no reference in the decision record as to any problem with the notice or any issue that flowed from it.

[25] In the absence of any apparent error regarding the issue of the invitation to the hearing it must be assumed that the applicant is claiming that the method in which the Tribunal conducted the hearing is the basis of his complaint. In his written submissions the applicant claims that the hearing was conducted over a period of six hours without a break and that the Tribunal’s method of questioning was unfair.

[26] Contrary to this allegation the Tribunal’s hearing record completed by the case officer, Mr Michael Haynes, records that the hearing was to commence at 1.30pm on 29 August 2007 and was scheduled for a period of three hours and thirty minutes. Besides the Tribunal member and the applicant, the applicant’s agent in Sirajul Haque the barrister Mr Bruce Levitt and the Bengali interpreter were present. The hearing did not actually start at 1.45pm and continued to 5.55 pm (CB 257-259).

[27] There is nothing in the Court Book or on the decision record to indicate that either of the professional advisors representing the applicant or the applicant himself raised with the Tribunal member any complaint in respect to the duration of the hearing or the conduct. The Court does not have the benefit of a transcript or copies of the hearing tapes to determine whether this issue was raised at any time during the actual hearing. Moreover the applicant has not provided any evidence establishing that requesting a break in the hearing was refused, or that any failure to allow a break significantly affected his ability to give evidence.

[28] The applicant also complains about the Tribunal’s method of questioning but is unsupported by any evidence. There is nothing on the face of the Tribunal’s reasons to indicate that the Tribunal’s questions were irrelevant or otherwise unfair. Importantly, the Tribunal’s hearing is conducted on an inquisitorial basis...

[30] On a fair reading of the material available to this Court I am satisfied that the Tribunal has complied with its obligation under s.425(1) of the Act.

[31] The applicant also raises the complaint that certain issues were not drawn to his attention during the Tribunal hearing. The applicant has not identified these issues nor has he provided a copy of the transcript of that hearing. The burden of proof rests with the applicant to establish jurisdictional error and in the absence of any particulars or a transcript of the proceedings it cannot be determined whether there were any issues that arose in relation to the matter in which the applicant was not alerted: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]. I agree with Mr Knackstredt that in the absence of any evidence to the contrary a fair reading of the Tribunal’s reasons discloses that the issues raised in relation to the decision under review were adequately canvassed with the applicant in the context of the authorities set out above. It is not apparent that the Tribunal member has not complied with that regime and this does not give rise to a broad allegation that the way in which it conducted the hearing breached the provision or attention of the Act giving rise to a jurisdictional error.

Ground 5 - The Refugee Review Tribunal ignored relevant evidence in relation to four letters of support from Awami League officials

[32] The applicant provided the second Tribunal with the following letters...

[34] After considering the letters in the context of the remainder of the claims and the information available to the Tribunal the following conclusion was reached: In light of independent information concerning the high level of fraudulent documents and corruption in Bangladesh, and given the finding made above, the Tribunal does not accept the accuracy of the contents of the documents which outline an involvement in the Awami League (from Md. Abdul Jalil, Md. Zahid Ahsan Russell, Md. Royal [illegible], Md. Asman Ullah Khan ). (CB 333)

[35] More generally, the Tribunal set out all of the applicant’s claims in detail and considered them in turn. (CB 325-333) It is submitted that to thextent that the applicant is able to demonstrate that the Tribunal did not make a finding on a particular matter of fact, it is submitted that it was not necessary for the Tribunal to make a finding on every particular matter raised by the evidence. Those findings would have been subsumed by its more general findings that the applicant had fabricated his claim: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 per French, Sackville and Hely JJ at [46]-[47]...

[36] The applicant has not identified in particulars or submissions what integers of his claims were not addressed. Nor is it apparent from a review of the decision record that the applicant raised integers that have not been considered. To the extent that this ground infers that the Tribunal should have made a different finding is an attempt to invite this Court to undertake a merits review which is clearly outside the jurisdiction of this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors; [1996] HCA 6; (1996) 185 CLR 259; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10].

Ground 6 - The Tribunal was biased

[38] This ground is a bland statement of jurisdictional error which is not particularised and not supported by any submissions. There is no attempt to state whether it is actual or apprehended bias. Presumably it is actual bias that may exist where the Tribunal member has a pre-existing state of mind which disables him from undertaking or rendering himself unwilling to undertake any proper evaluation of the relevant materials before him which were relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [35] and [72]. Actual bias may be said to exist where the Tribunal member is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented: Jia Legeng at [71]-[72].

[40] A case of actual bias is seldom made out by reference solely to the reasons for decision and no inference of bias or pre-judgment can be drawn from the adverse findings in the Tribunal’s reasons: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 at [3].

[41] Apprehended bias will exist where a fair minded lay observer who is properly informed as to the nature of the proceedings, the matter in issue and the conduct of the proceedings, would not apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, re ex parte H [2001] HCA 28; (2001) 75 ALJR 982 at [27]; Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288. It is not a requirement of natural justice that the Tribunal member’s mind be absent of any predisposition or inclination for, or against, an argument or conclusion. All that is required is for the Tribunal member to be open to persuasion: Jia Legeng at [72] and [86].

[42] I agree with the submissions made by Mr Knackstredt that the applicant has not provided any particulars of bias or bad faith which would be sufficient to satisfy the heavy burden for establishing such allegations and the ground cannot be sustained.

Ground 7 - Breach of s.424A

[43] This ground is also made without particulars. It should also be noted that the Tribunal did in fact issue an “Invitation to Comment on Information” letter on 12 September 2007 pursuant to s.424A. In that letter the Tribunal indicates that it has information that would subject to any comment made by the applicant, be the reason, or part of the reason for deciding that the applicant was not entitled to a Protection visa. It then sets out the relevant pieces of information and questions each of those (CB 274-279). The applicant makes no reference in his written submissions to this letter and whether his complaint relates to the format of that letter or to other material not contained in that letter.

[45] 45.The Tribunal’s decision was based upon:

a.the evidence given to it by the applicant;

b.independent information relating to both integers of the applicant’s claim;

c.a lack of evidence;

d.inconsistencies in the applicant’s evidence given during both Tribunal hearings; and

e.inconsistencies between the evidence given to the Tribunal and the applicant’s written claims.

All these categories of information are exempt from the operation of s.424A(1).

Ground 8 - Failed to consider certain country information

[47] This claim is also made in the absence of particulars or submissions which focus on what is disputed by the applicant. Section 424(1) of the Act confers power on the Tribunal to seek additional information that is relevant to the determination of an application for review. This is a discretionary power and only requires the Tribunal to have regard to such information if it in fact seeks and subsequently obtains it: SZIYN v Minister for Immigration & Citizenship [2008] FCA 151 per Emmett J at [16]...

[48] The Tribunal in its decision referred to a considerable amount of independent country information. Whether the Tribunal accepts the relevant weight given to any part of that information falls within the Tribunal’s discretionary powers: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 per French J at [27].

[49] 49.There is no obligation on the Tribunal to conduct further enquiries to obtain the independent country information referred to by the applicant in his submissions. If the applicant wished for the Tribunal to consider that information then the applicant is required to obtain that information and supply it to the Tribunal as part of his application or associated submissions. "