MZYKV v Minister for Immigration and Citizenship

Federal Court of Australia|2012-08-31|Before: Streeton J

Introduction 1 By a notice of appeal dated 1 May 2012, the appellant appeals from the decision of a Federal Magistrate given on 23 April 2012. The Federal Magistrate dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal ("Tribunal") given on 28 July 2011, which affirmed the first respondent's refusal to grant the appellant a Protection (Class XA) visa. 2 The appellant relied on written submissions filed on 31 July 2012. The first respondent, in opposition to the appeal, relied on written submissions dated 1 August 2012. 3 At the hearing of the appeal, the appellant, who was not legally represented, appeared with the assistance of an English/Bengali interpreter. 4 The appellant is a 51 year old citizen of Bangladesh who arrived in Australia on 10 February 2010 on a business visa. On 8 March 2010, he applied to the Department of Immigration and Citizenship for a Protection visa. 5 On 1 July 2010, the appellant attended an interview with a delegate of the first respondent. By a decision dated 7 September 2010, the delegate, who had "serious concerns" about the appellant's credibility, refused to grant the visa. 6 On 8 October 2010, the appellant applied to the Tribunal for review of the delegate's decision. On 20 December 2010, the Tribunal affirmed the delegate's decision. 7 The appellant applied to the Federal Magistrates Court for prerogative relief. As the first respondent considered that the Tribunal's procedure may have breached s 424A of the Migration Act 1958 (Cth) ("the Act"), on 2 March 2011, Registrar Caporale, by consent, set aside its decision and remitted the matter to the Tribunal for hearing and determination according to law. 8 On 28 July 2011, a differently constituted Tribunal affirmed the decision of the first respondent, by his delegate, not to grant the appellant a Protection (Class XA) visa. 9 On 24 August 2011, the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal's decision. On 30 January 2012, the appellant filed an amended application. The appellant was self-represented at the hearing before the Federal Magistrate. The Federal Magistrate dismissed the amended application.

the appellant's claims 10 The appellant claimed to have a well-founded fear of persecution by reason of his religion. 11 In his visa application, the appellant claimed that: (a) he was a Muslim who followed the Ahmadiyya faith; (b) he feared persecution from Islamic fundamentalists and the government could not protect him; and (c) he was a garment businessman operating a factory in Dhaka since 2004. He was forced to close his business because of his Ahmadiyya faith. He claimed there was a mosque attended by Sunni Muslims next to his garment factory. When Sunni Muslims attending this mosque came to know of his religious beliefs they tortured him, threatened to kill him and shut down his business. They declared him a "murtad". He had to pay bribes of increasing amounts. When he refused to meet further demands, his son was kidnapped and a ransom of 10,000,000 taka was demanded. The appellant paid the ransom and sent his son to his native village. In November 2009, when the kidnappers demanded a further 10,000,000 taka and threatened his family, the family returned to the appellant's native village. Local members of Jamat-e-Islami within his village took steps to isolate the family. The appellant claimed that his children were in danger and could not attend school due to Islamic fundamentalists. The appellant approached local police but the local authorities did not protect him. As his village was no longer safe, he relocated to another part of Dhaka. The appellant could not remain in hiding because he had to work to support his family. He was recognised in the streets and started to receive threats. 12 At the interview before the delegate, the appellant claimed that in early 2008, he began to attend a local Ahmadiyya mosque and was subsequently targeted for extortion by Muslim extremists from the nearby Rahim Metal Mosque. When workers in his factory learned of his attendance at the Ahmadiyya mosque they used the information to extort money. He paid two workers monthly bribes to secure their silence about his religious beliefs. In February 2009, they demanded the sum of "one crore" taka (BDT 10,000,000). When the appellant could not pay, the workers abducted his son and held him to ransom. After the appellant paid the ransom, he was targeted by other extortionists. He fled with his family to his home village, but learnt of attacks on his factory in Dhaka. His factory was closed on 25 February 2009, after police intervened to end the vandalism and looting. 13 The appellant claimed that he remained in hiding, but was threatened by residents of the neighbouring village. He approached local police, who said that they could not help. The appellant returned to Dhaka with his family and then fled to Australia. He since learned that business suppliers to whom he owed money had lodged claims for debts against him with the police in Bangladesh. 14 In response to the delegate's questions about his religious beliefs, the appellant claimed that he had attended the Ahmadiyya mosque approximately 20 times but his visits became less frequent after August 2008, when the threats and extortion demands began. He estimated that he last attended the mosque in December 2009. 15 Before the delegate, the appellant stated that although he had become an Ahmadi "in his mind", he had never formally joined the Ahmadi community. Further, he had not attended an Ahmadiyya mosque in Australia, because he did not know of any mosques in Sydney and depended on the goodwill of the Bangladeshi man he lived with.

Hearing before the first Tribunal 16 On 23 November 2010, before the first Tribunal, the appellant explained that although he had located an Ahmadiyya mosque in Sydney in the last two months, he had not attended because he lacked the funds to travel there and did not wish to offend his Bangladeshi housemate. 17 During the hearing, the first Tribunal gave the appellant an opportunity to comment on its concerns about his credibility due, inter alia, to: (a) the inconsistencies between his accounts to the delegate and the first Tribunal; (b) his failure to pursue the Ahmadiyya faith in Australia and evidence from the Ameer of the Ahmadiyya Muslim Association of Australia about the typical practices of overseas Ahmadi wishing to practise their faith in Australia; and (c) country information suggesting the Ahmadiyya community is a close-knit, highly structured organisation that can provide accurate information about its membership, and country information suggesting that the situation of the Ahmadiyya community in Bangladesh had improved.

Hearing before the differently constituted Tribunal 18 The Tribunal advised the appellant that everything in issue before the first Tribunal remained in issue. The Tribunal also received the appellant's evidence that after moving to Melbourne, he contacted the Ahmadiyya community there and received financial assistance, but was told that he could not become a registered member until his immigration status was finalised. The Tribunal contacted the President of the Ahmadiyya Muslim Association in Victoria, who advised by email that the appellant had once visited his residence to request financial assistance and help finding work. The appellant subsequently telephoned the President several times to enquire about work. The President stated that the appellant "never told him that he is an Ahmadi", or that he had contacted the Sydney office or lodged any immigration protection case in connection with his religious beliefs. The Tribunal informed the appellant of that information in accordance with s 424AA of the Act and gave him an opportunity to comment.

The tribunal's decision 19 The Tribunal found that the appellant was a citizen of Bangladesh. 20 On the basis of inconsistencies in the appellant's claim, the Tribunal was not satisfied that he was a truthful, credible or reliable witness. Based on its assessment of his credibility, the Tribunal did not accept that the appellant had the actual or imputed religious belief he claimed. It found that he was not an Ahmadi and was never interested or involved in that faith in Bangladesh. It did not accept that the appellant was persecuted as a result or that any failure of his business was connected to his actual or perceived interest or involvement in the Ahmadiyya faith or any other Convention reason. The Tribunal was not satisfied that the appellant was a person to whom Australia had any protection obligations. 21 The Tribunal noted the appellant's claims that he feared return to Bangladesh because he owed money to people who had filed cases against him and could face imprisonment. 22 The Tribunal noted that the appellant claimed before the first Tribunal that had he not suffered extortion because of his Ahmadiyya belief, his business would not have closed and he would not have debts, but agreed that suppliers wanted the money because he was indebted to them. The Tribunal stated at [141]: The Tribunal has considered the applicant's claims in relation to the money he owes to his suppliers. The Tribunal has rejected the applicant's claims that any business related failure or financial misfortune he may have experienced in Bangladesh was for the reasons of his religion or any other Convention reason. The applicant's evidence clearly indicates that action, including legal action, taken by his suppliers is motivated by their desire to recover money owed to them by the applicant, his partners and their company. Indeed, the applicant stated at the third hearing that the alleged sentence handed down against him would be enforced if he and his partners failed to repay money owed by their company. There was no evidence before the Tribunal, and the Tribunal is not satisfied, that the suppliers' conduct in relation to the applicant is for the reason of his race, religion, nationality, political opinion or membership of any particular social group apparent on the face of the evidence. 23 The Tribunal concluded at [142]: The Tribunal does not accept that the applicant has been harmed in the past or that, if he was to return to Bangladesh now or in the reasonably foreseeable future, there is a real chance that he will be harmed for the reason of religion, race, imputed political opinion, membership of a particular social group or any Convention reason. The Tribunal is also not satisfied that the applicant has a subjective fear of being persecuted. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in the relevant sense.

the Federal magistrate's reasons for decision 24 The grounds of review before the Federal Magistrate's Court are replicated by the current grounds of appeal. 25 The Federal Magistrate rejected the complaints comprising grounds 1 and 2 of the appeal at paragraphs [13] and [17] of his decision. His Honour concluded that, in substance, the appellant sought to challenge the merits of the Tribunal's decision. His Honour considered that the impugned findings were open on the material and that, accordingly, jurisdictional error was not made out (at [13]). To the extent the appellant alleged actual or ostensible bias by the Tribunal, the Federal Magistrate was not persuaded that the allegation was made out (at [17]). 26 The Federal Magistrate rejected the complaint of want of procedural fairness in ground 3. The Federal Magistrate was not persuaded that the conduct of the appellant's hearing before the Tribunal by way of video link interfered with the appellant's right to a proper hearing (at [26]).

Ground 1 27 Ground 1 of the notice of appeal states: The Refugee Review Tribunal failed to establish the nexus between my fear of Court proceeding lodged against me by my suppliers' if I was to return Bangladesh and my religious practice and opinion as Ahmadiyya. The Court below failed to recognise this. Particulars: A. The Tribunal failed to establish the nexus between the applicant's fear of Court proceeding lodged against him by his suppliers' if he was to return Bangladesh and his religious practice and opinion as Ahmadiyya. Further the Tribunal made the following comment that: i) There was no evidence before the Tribunal, and the Tribunal is not satisfied, that the suppliers' conduct in relation to the applicant is for the reason of his race, religion, nationality, political opinion or membership of any particular social group apparent on the face of the evidence. 28 In support of ground 1, the appellant submitted that: The tribunal failed to establish the nexus between my fear of Court proceeding lodged against me by my suppliers' if I was to return Bangladesh, my religious practice and opinion as Ahmadiyya. Further the Tribunal made the following comment that: There was no evidence before the Tribunal, and the Tribunal is not satisfied, that the suppliers' conduct in relation to the applicant is for the reason of his race, religion, nationality, political opinion or membership of any particular social group apparent on the face of the evidence. I submit that the Tribunal misunderstood the conflict between the supplier and me. Our main conflict was based on the religion. However the Tribunal failed to establish the nexus between my fear and the Court proceeding lodged against me by the supplier. Accordingly I submit that the Tribunal failed to focus the reality of chances of my persecution on my return to Bangladesh. The failure of the Tribunal to address this issue prevented it from having the rational basis to determine the chance of persecution of me in the future and resulted in the Tribunal not considering an essential substantial matter to my claims w396/01 v MIMA (2000) 68 ALD 69 at [33]. 29 Before me, the appellant stated that "the department" had failed to understand that he had changed his religion to Ahmadiyya and would have a well-founded fear if he returned to Bangladesh, as Ahmadiyya adherents were in fear for their lives. The appellant sought to tender a newspaper article to that effect, which I did not admit. 30 The appellant, as I understood him, submitted that the Tribunal erred in concluding that his fear of harm from business suppliers or creditors was not connected to his religious views, as his business difficulties only occurred when he changed his religion. The appellant asserted that he would be killed if he returned to Bangladesh because of his religious views. 31 The appellant asserted that as the Tribunal did not interview other people involved with the Ahmadiyya religion, it could have no knowledge of the faith. The appellant also submitted that no one had asked him about his religion or how he was involved with it. He sought that this Court consider his need for protection. 32 As the first respondent submitted, the appellant's written and oral complaints under ground 1 were not valid grounds of appeal and did not establish jurisdictional error. 33 The Tribunal did not believe the appellant's account of matters fundamental to his claim to protection. It was not persuaded that: (a) the appellant was "ever involved in the Ahmadiyya mosque or community in Bangladesh"; (b) the appellant could not return to his business on account of his "actual or perceived interest or involvement in the Ahmadiyya faith", or that his business was threatened, his factory was attacked and his workers went on strike; (c) the failure of the appellant's business was in any way connected to his actual or perceived interest or involvement in the Ahmadiyya faith or any other Convention reason; (d) the appellant is an Ahmadi or was ever interested in or involved in the Ahmadiyya faith in Bangladesh; and (e) any business-related failure or financial misfortune the appellant may have experienced in Bangladesh was for the reason of his religion or for any other Convention reason. 34 As the Federal Magistrate found, in substance, the appellant sought to challenge the Tribunal's findings on credit and fact, which were clearly open on the material before it. (See, for example, SZAXF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1464 at [31] per Stone J; NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ; Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547). 35 The Tribunal, for the reasons it stated, disbelieved the appellant's claims that he had ever visited, performed prayers or listened to sermons at an Ahmadiyya mosque in Bangladesh or was interested in, involved in or an adherent of the Ahmadiyya faith. It necessarily rejected the claim that he had suffered, or was at risk of, threats or harm by reason of his beliefs or involvement in that faith. The Tribunal did not accept that the threats, abduction, harm or discrimination the appellant claimed that he and his family had suffered resulted from his involvement in the Ahmadiyya faith or any other Convention reason. The appellant advanced no other Convention reason for the business difficulties he claimed to have suffered and the Tribunal was entitled, on the material before it, to make the relevant findings and conclusions. 36 The appellant's submissions (unsurprisingly, given his lack of legal representation) were predicated on a misconception of this Court's task and its limited jurisdiction in conducting a judicial review. Further, as counsel for the first respondent submitted, some of the appellant's oral complaints were not in the notice of appeal or were manifestly incorrect. Contrary to the appellant's assertion that the Tribunal failed to contact adherents of the Ahmadiyya faith, as the Tribunal noted, the first Tribunal contacted the office of the Ameer of the Ahmadiyya Muslim Jamaat Bangladesh, the Ahmadiyya Association in Bangladesh and the Ahmadiyya Association in Australia for information and obtained independent information about the Ahmadiyya faith. The Tribunal spoke to the Ameer of the Ahmadiyya Muslim Association of Australia and contacted the President of the Ahmadiyya Muslim Association, Victoria, Australia, to verify the appellant's claims. It also, contrary to the appellant's assertions, asked him many questions about the Ahmadiyya religion and how he was involved with it. In effect, the appellant challenged the Tribunal's findings of fact and sought a review of his case on the merits. 37 In my opinion, the allegations in ground 1 of the appeal are not established.

Ground 2 38 Ground 2 of the notice of appeal states: The Refugee Review Tribunal showed its negative attitude towards me and did not put adequate attention of my activities as an Ahmadiyya and subsequent fear in Bangladesh. The Court below failed to recognise this. Particulars A. The Tribunal showed its negative attitude towards me and did not put adequate attention of my activities as an Ahmadiyya in Australia and subsequent fear in Bangladesh. The following comments indicated Tribunal's negative attitude that: i) Any contact the applicant may have had with the Ahmadiyya community in Victoria was solely for the purpose of strengthening his claim to be a refugee. ii) If he was to return to Bangladesh now or in the reasonably foreseeable future, there is a real chance that he will be harmed for the reason of religion, race, imputed political opinion, membership of a particular social group or any Convention reason. 39 In support of ground 2, the appellant's written submissions stated: I submit that the Tribunal failed to deal my religious activities in Australian as an Ahmadiyya. The Tribunal failed to ask me any material question that how I would have been adversely affected by the religious activities in Australia if I return to country in Bangladesh. As an Ahmaidyya (sic) practitioner, I received threats and suffered harassment by the Sunni Muslims in Bangladesh that forced me to leave my home country. I am attending the Ahmadiyya activities in Australia. However the Tribunal failed to deal my religious activities in Australia. The Tribunal failed to consider the fact that there is a strong possibility to be persecuted if I return to Bangladesh on the basis of my religious activities in Australia. 40 Ground 2 appears in large part to overlap with ground 1. It principally challenges the Tribunal's assessment of credibility and the weight it accorded to the evidence, which are matters for the Tribunal. The appellant under this ground reiterated claims which the Tribunal rejected, and asserted that the Tribunal should have accepted them. The Tribunal's assessment of the appellant's claims and the evidence before it was detailed, comprehensive and thorough. It did not, in my opinion, disclose jurisdictional error. 41 The appellant's reference to the Tribunal's "negative attitude" to him may simply be a way of stating that the Tribunal disbelieved his assertions and did not uphold his claims. If and in so far as it alleges actual or apprehended bias by the Tribunal, no basis for such a claim was apparent. It is recognised that actual bias occurs where a "decision-maker has made up his or her mind before a conclusion could properly be reached and is incapable of being persuaded differently (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 ("Jia") at [72] per Gleeson CJ and Gummow J). A party alleging actual bias carries a heavy onus. The allegation should be "distinctly made and clearly proved". See Jia at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. While, as Kenny J observed in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [21], a case of bias is seldom made out by reference solely to the decision-maker's reasons for decision, in this case, there is nothing at all in the reasons to suggest bias. 42 Apprehended bias in curial proceedings requires that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 ("Ex parte H") at [27]). In Ex parte H at [28]-[29], Gleeson CJ, Gaudron and Gummow JJ observed that the expression of the above test might be somewhat modified when applied to administrative proceedings, to take account of their different nature. 43 The appellant provided no evidence or submissions to support the allegation of bias, whether actual or apprehended, which was first raised in his amended application below. As the first respondent submitted, there was nothing to suggest that the Tribunal's decision was other than impartial and based on a bona fide assessment of the appellant's claims and evidence. 44 In my opinion, the allegations in ground 2 are not established.

Ground 3 45 Ground 3 of the notice of appeal states: The Refugee Review Tribunal failed to follow the procedural fairness to assess my application. The Court below failed to recognise this. Particulars: A. The Tribunal failed to follow the procedural fairness to assess my application that: i) My hearing with the Tribunal held by video conference. However the sound system was not clear and sometimes the picture was disappear those cause the hearing disrupted. I requested the Tribunal's Member to postpone the hearing on the basis of those disruptions, but the hearing was continuing with ignoring my request. 46 The appellant made no submissions, whether written or oral, which specifically related to ground 3. 47 Division 4 of Pt 7 of the Act sets out the legislative regime for the Tribunal's conduct of a review. Section 422B states that Div 4 of Pt 7 is taken to be "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". 48 The material before the Court indicates that the Tribunal correctly described the legal framework, gave proper consideration to the appellant's evidence and discharged its obligations of procedural fairness. 49 The appellant's complaint that he was denied procedural fairness by the use of a faulty video link is not established. The appellant's application for review was received in the Tribunal's Sydney registry where the hearing before the first Tribunal was conducted. When the appellant moved to Melbourne, the Tribunal invited him by a letter dated 4 May 2011 to attend a hearing before the Tribunal on 10 June 2011 to be conducted by video conference. The invitation expressly brought the use of video conferencing to the appellant's attention and invited him to contact the Tribunal, if he had "a preference to attend in person in Sydney". On 10 June 2011, the Tribunal adjourned the scheduled hearing and by a letter dated 15 June 2011, invited the appellant to attend a resumed hearing on 22 July 2011, again by video link. The appellant accepted the invitation to attend by video link on both occasions without indicating any difficulty. 50 The transcript of the Tribunal hearing, which was before the Federal Magistrate, indicates that at the outset of the hearing, the Tribunal asked the appellant if he had any problems with hearing and the interpreter responded that there were no problems. The appellant then stated that the volume was too high, after which it was adjusted. The appellant was instructed how to adjust the volume by using the controls. The transcript indicates, and before me, the appellant did not dispute, that he participated in the hearing, presented evidence and argument, and made no further reference to any difficulties with sound. When asked if he wished to add anything further, he made clear that he did not. 51 Section 429A of the Act provides: 429A Oral evidence by telephone etc. For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by: (a) telephone; or (b) closed-circuit television; or (c) any other means of communication. 52 As the first respondent submitted, s 429A is an enabling provision under which the Tribunal has a discretion to allow an appearance and the giving of evidence by various means, including video link. There is nothing to suggest that in this case the discretion miscarried or that there was any procedural irregularity. Rather, the material filed discloses that the appellant was advised of the issues arising on review, afforded an opportunity to present evidence and argument and participated actively in the hearing. 53 In my opinion, the allegations in ground 3 are not established.

Conclusion 54 In my opinion, the appeal should be dismissed with costs. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dodds-Streeton.

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