SZASX v Minister for Immigration and Multicultural and Indigenous Affairs

Federal Court of Australia|2005-02-08|Before: Tamberlin J

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate ("the Magistrate") dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 2 May 2003.

BACKGROUND 2 The appellant is a 44-year-old male and a citizen of Bangladesh. He arrived in Australia on 9 September 2001 and thereafter lodged an application for a protection visa on the basis that he was a refugee entitled to protection under the provisions of the well-known Convention relating to the Status of Refugees. The basis on which the appellant places his case is that there is a real chance that he will suffer persecution on religious grounds if he is returned to Bangladesh. His claim to a well-founded fear of persecution is by reason of his conversion from the Sunni Muslim faith to the Ahmadiyya faith. 3 The appellant's case was to the effect that, when his family and friends found out about his conversion in 1998, they directed hostility towards him and threatened to throw him out of the family. The appellant stated that at a time which he does not remember in detail, he was attacked by Sunni Muslims while delivering a speech at a religious convention. He was hospitalised for two weeks. He also claims that young boys and Sunni Muslims attacked and attempted to kill him after he left a religious meeting. In these circumstances, the appellant fled to Australia.

PROCEDURAL HISTORY 4 There was an application before the delegate of the respondent to refuse the application. There was then an application for review of the delegate's decision, which was dismissed by the Tribunal. 5 In its findings and reasons, the Tribunal directed its attention in considerable detail to the independent country information. It is fair to say, as counsel for the respondent has indicated, that the decision turned fundamentally on the perceived conflict between the independent country information and the position being advocated by the appellant in relation to the danger of persecution of him as a member of the Ahmadiyya faith 6 The Tribunal member had expressed considerable doubts about the credibility of the applicant's claim to being of the Ahmadiyya faith and gave reasons for adopting that position, including detailed country information. The Tribunal member, however, went on to consider the matter on the basis that, even if the applicant was a convert to that faith, the Tribunal member was not satisfied that he had a well-founded fear of persecution. 7 In the Tribunal member's assessment, the country information, which is specifically referred to in some detail in the decision, was considered to indicate that there might be isolated attacks upon Ahmadis but that there was no discrimination that was sufficient as a matter of degree to amount to persecution. The country information, in the view of the Tribunal member, indicated that Ahmadis in Bangladesh were allowed to freely practise their faith, had the protection of the authorities in the event of harassment or attack and could freely and publicly espouse views that might be controversial to other Muslims. 8 While there may have been some violence and while the Tribunal member was prepared to accept that there might have been some risk at the time in relation to a bomb attack in the mosque in 1999, the Tribunal member considered that such attacks were random and isolated and that Ahmadis had been offered protection by the authorities since that time. Accordingly, there was no sufficient persecution. 9 The Tribunal member expressed the view that the evidence did not satisfy the Tribunal that the applicant's claim that he had been injured in an attack in 2000/2001 in fact occurred. Moreover, the Tribunal member was not satisfied as to the credibility of the applicant's claims of being sought out and attacked by his family and having to leave Bangladesh under a false name.

THE APPEAL 10 Although there is no strict onus in these questions, where there is an appeal, it is incumbent on the appellant to demonstrate some error in the decision of the Tribunal or, additionally or alternatively, some error in the reasoning of the Magistrate. 11 The notice of appeal refers to a number of grounds, none of which are particularised in any way. At the hearing before me this morning, the appellant was unable to assist me in any way in developing these grounds in order to demonstrate in what respects there had been a contravention of the principles and previous decisions of the court and of the legislation. 12 I have, of course, considered the decision of the learned Magistrate and I note that it is an extensive decision that canvasses the grounds of the application for review in considerable detail. On their face, I can detect no error in the way in which, or the principles in relation to which, the decision was made by the Magistrate. 13 In the notice of appeal, there is reference to failure to afford natural justice. As counsel for the respondent has pointed out, this is a matter to which the provisions of s 422B of the Migration Act 1958 (Cth) ("the Act") apply. The country information that was relied on in this case was put to the appellant and also it was not specifically referable to the appellant. Accordingly, in my view, there has been no demonstration that the Tribunal has failed to afford natural justice. 14 I have been referred to two recent decisions of the Court. In Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, it was decided that, in order for the country information to come within the requirements of s 424A of the Act, the country information must to be specific to the appellant. This decision was recently followed by Allsop J in SZAOT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1473. 15 I am bound by the decision of the Full Court and, in this case, the prerequisites to establishing any breach of natural justice have not been made out. 16 As I indicated earlier, the appellant referred to other generalised grounds, such as that the Tribunal decision was unjust and made without giving full consideration to the relevant circumstances. Having read the Tribunal decision, I consider that this ground of appeal has not been made out. There was a thorough discussion of the claims and also of the country information and there is a line of reasoning that permits the conclusion reached. 17 In relation to the suggestion that the Tribunal had no substantive material or evidence to justify its decision, the position is, in fact, that there was a great deal of material referred to. There was a large body of evidence to provide a basis for the conclusion and this ground has not been made out. 18 It is also said that there were outdated reports and references considered by the Tribunal which were not relevant to the claims of the appellant for protection. In my view, the country information referred to is within a sufficient proximate time span in relation to the hearing of the matter as to make it relevant and significant if the Tribunal thought it appropriate. 19 Accordingly, for these reasons, I order that the appeal be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate: Dated: 17 February 2005 The Appellant appeared in person with the assistance of an interpreter.

Counsel for the Respondent: Rachel Francois

Solicitor for the Respondent: Clayton Utz

Date of Hearing: 8 February 2005

Date of Judgment: 8 February 2005

Migration Act 1958(Cth)ss 422B, 424A

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