SZBQS v Minister for Immigration & Anor [2008] FMCA 812

1. Found that there were good reasons not to accept much of the applicant's evidence on credibility grounds, having discussed that eventuality with the applicant at hearing and put the credibility concerns to the applicant by way of s.424A letter, particularly in regard to the letters from the Ahmadiyya Muslim Jamat Bangladesh (CB 351.7 to 352.5). 2. Found there were "numerous inconsistencies in the applicant's evidence" as given to the various Tribunals (the applicant having attended four hearings corresponding with each of the reviews) (CB 352.5 to 356.8.).

1. Summarised the matters in respect of which the applicant gave inconsistent evidence (CB 356.9 to 356.6). The Tribunal found that the inconsistencies had a double impact on the applicant's claims namely they cast doubt on the veracity of the claims themselves and simultaneously cast doubt on his credibility by reason of the fact the Tribunal considered him not to be telling the truth (CB 356.6).

1. Noted that the applicant had not responded to the Tribunal's s.424A letter within the extended period granted to him, which left the Tribunal without any explanation other than those proffered at hearing, namely that he was not mentally well and had difficulty remembering certain dates and events (CB 357.7). The Tribunal found it had no evidence before it to support the assertion the applicant had not been well at the hearing. Moreover, the Tribunal noted (and put to the applicant at hearing) that he seemed to be able to remember dates and events when it suited him (CB 357.8). 2. Noted that the fact the applicant's parents were still at the address at which they had resided throughout all the material events of the applicant's claims, cast doubt on his claims that his family were being persecuted in Bangladesh by reason of their religion (CB 358.3). 3. Did not accept the applicant's claims that he was an adherent of the Qadiani or Ahmadi faiths, based upon the information in the letter from the Ahmadiyya Muslim Jamaat Bangladesh and the parents' address (CB 358.5). 4. Did not accept there was a real chance that the applicant would be persecuted for reasons of his or his family's real or perceived religious adherence or political views. 5. Did not accept there was a real chance that the applicant would be persecuted by reason of his membership of a particular social group comprised of various permutations of being a shopkeeper/businessman/prosperous/Qadiani or Ahmadi/SNP supporters (CB 358.8). 6. Did not accept there was a real chance that the applicant would be persecuted in Bangladesh in the reasonably foreseeable future by reason of his real or perceived opposition to the caretaker government (CB 358.9 to 359.3)

1. The applicant relies upon a show cause application filed on 25 March 2008. That application sets out the following grounds:
   • 1. The Second Respondent did not consider an integer of the applicant's claims namely that a number of occasions he was attacked by the extreme Sunni Muslims in Bangladesh.
   • 2. The Second Respondent failed to allow the applicant further time to produce documents and these documents were determining factor of the applicant's matter. The Second Respondent made an error not providing an opportunity to file relevant documents.
   • 3. The Second Respondent failed not considering the current situation prevailing in Bangladesh.

1. Both the applicant and the Minister filed written submissions. Those of the applicant were filed on 16 June 2008 and those of the Minister were filed on 10 June 2008. In relation to ground 1, the applicant refers to an alleged incident in 1998 when he says he was kidnapped by activists of the Awami League, an incident on 18 March 1999 when he says he was beaten while returning home from a mosque and an incident on 20 January 2000 when he was returning home. The applicant asserts that the Tribunal failed to consider those incidents. Secondly, the applicant submits that the Tribunal erred in failing to give him additional time requested to respond to the letter sent to him by the Tribunal pursuant to s.424A of the Migration Act. Thirdly (and somewhat confusingly), the applicant asserts that the Tribunal failed to consider the current situation in Bangladesh and refers to the military coup which took place on 11 January 2007. Strangely, the applicant also asserts that the Tribunal erred in not limiting its consideration to his religious and social group claims.
2. In relation to ground 1, the Minister makes the following submissions:
   • The applicant's religious claims centred around his alleged adherence to the Qadiani/Ahmadi faiths. He claimed to have been attacked on a number of occasions by Sunni Muslims and Sunni Muslim groups under the auspices of Jamaat-e-Islami.
   • A plain reading of the Tribunal's decision shows that the Tribunal considered these claims at length. Ultimately, it found there to be multiple inconsistencies in the applicant's evidence relating to the claims (CB 356.9 to 357.5) and found that he:
     • a) was not a religious adherent as claimed; and
     • b) had not been perceived to be such and/or persecuted by any persons in Bangladesh for that reason.
   • If the applicant's complaint is that the Tribunal did not make specific findings in relation to every claimed attack by Sunni Muslims, then such a complaint does not give rise to a jurisdictional error.
   • In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] the Full Court made plain that the Tribunal is not required to refer to every piece of evidence, and went on to state the following at [47]:
     • The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
   • Clearly, it is implicit in the findings referred to in sub-paragraphs [10(a)] & [10(b)] above, that if the applicant was neither an adherent, nor perceived to be, nor persecuted by reason of his religion in Bangladesh, that the Tribunal has also rejected the sub-species of claim that he was attacked by Sunni Muslims.
3. In relation to ground 2, the Minister submits:
   • On 20 November 2007 the Tribunal wrote to the applicant pursuant to section 424A of the Act (CB 320 to 326), requesting that the response be received by 4 December 2007. On 3 December 2007 the applicant wrote to the Tribunal requesting 3 further weeks to respond (CB 327).
   • On 4 December 2007 the Tribunal responded and granted an extension to 10 January 2008 (CB 329).
   • A further request for an extension of time was made on 8 January 2008 (CB 330), which the Tribunal declined (CB 331). Moreover, the Tribunal's decision was not handed down until 26 February 2008 which in essence means that had the applicant forwarded anything to the Tribunal, it would have been obliged to consider the information. Nothing was received.
   • In the circumstances, the first respondent submits that:
     • a) The times and extension granted were more than reasonable;
     • b) The Tribunal was, in fact, under no obligation to have granted one extension to the applicant, let alone two; and
     • c) The applicant in fact did not seek any further time to provide documents. Neither extension request made reference to time to obtain documents, rather they simply asked for further time to comment. The second letter made reference to offices being closed in Bangladesh and the applicant not having obtained a migration agent.
4. In relation to ground 3, the Minister submits:
   • That being so, the bare allegation that is made cannot be born out. The main aspect of the applicant's claim which turned upon the social/political climate in Bangladesh was clearly the claim to fear persecution by reason of the applicant's opposition to the caretaker government. The Tribunal consulted independent country information in order to consider the political landscape in Bangladesh.
   • Otherwise the decision turned upon the veracity of the applicant's own claims and the Tribunal's view in relation to his credibility.
5. At the trial of this matter on 17 June 2008 the applicant declined to make oral submissions and relied upon his written submissions. Counsel for the Minister, while relying on her written submissions, drew attention to the recent decision of the Full Court in SZKTI v Minister for Immigration & Citizenship [2008] FCAFC 83 and sought the opportunity to make additional written submissions concerning the possible application of that decision to this case. I gave leave for the parties to file additional written submissions on that subject by 31 July 2008. At the request of the parties, I also granted an extension of time for the filing of the submissions.
6. The applicant, through counsel, made additional written submissions on 1 August 2008. By reference to the decision of the Full Federal Court in SZKTI and later decisions of the Federal Court that have commented on it, the applicant submits that the Tribunal breached s.424(2) of the Migration Act because there is no evidence that the approach to the Bangladesh National Ameer (through the Ahmadiyya Muslim Association Australia) was in writing. The applicant also asserts a breach of s.425 of the Migration Act by reference to the decision of the High Court in SZBEL v Minister for Immigration [2006] HCA 63; (2006) 228 CLR 152.
7. Additional written submissions were filed by the Minister on 6 August 2008. Relevantly, the Minister submits as follows:

1. there is no substance to the asserted breach of s.425 and the submissions made are outside the scope of the leave granted; 2. in relation to ss.424, 424A and 424B, this case can be distinguished from SZKTI (and SZKCQ[2]) because: 1. the Ahmadiyya Association is not a "person" for the purposes of s.424B(1); 2. the Tribunal has an implied power to gather information in addition to the powers conferred by s.424; 3. if s.424 applies, notwithstanding that the Tribunal did not comply with all elements of s.424B the circumstances of the present case are distinguishable; and

1. if s.424B was breached giving rise to jurisdictional error, relief should nevertheless be refused in the exercise of discretion.

1. There is no substance to the grounds of review in the application. It is plain from the Tribunal decision[3] that the Tribunal considered each of the alleged attacks or kidnapping referred to by the applicant. Further, even if that were not so, the Tribunal rejected the applicant's fundamental claim to be an adherent to the Ahmadi or Qadiani sect based upon inconsistencies in the applicant's evidence and the information received from the National Ameer of the Ahmadiyya Muslim Jamaat Bangladesh that a document purportedly from the Ameer in support of his claim to be a member of the sect was a fabrication. Having rejected the applicant's fundamental claim to be an Ahmadiyya, it was unnecessary for the Tribunal to deal with each and every assertion of harm suffered by the applicant because he was an Ahmadiyya.
2. In relation to the second ground, the applicant was given ample time to respond to the s.424A invitation. The repeated requests for more time from the applicant were on their face not very convincing and the Tribunal adopted a generous attitude. In any event, the applicant made no attempt to deal with the issues raised in the s.424A letter up to the time the Tribunal decision was handed down. Neither has the applicant put forward anything to indicate what response he might have made.
3. The third ground has no substance. The Tribunal decision records that the applicant's representative at the hearing submitted that the caretaker government in Bangladesh was illegal and that it was violating various human rights. The applicant himself said that the caretaker government was an illegitimate government, that there was no safety for the people there and that if you opened a newspaper you would see that everyone was killing and murdering everyone there[4]. The issue having been raised by the applicant, it was necessary and appropriate for the Tribunal to deal with it. The Tribunal was entitled to have regard to country information from the Australian Department of Foreign Affairs and Trade about the situation in Bangladesh in dealing with that issue. The Tribunal cannot be criticised for dealing with any potential Convention nexus in relation to the applicant's claims, not limited as specifically raised by the applicant.
4. I reject the contention in the post hearing submissions by counsel for the applicant that s.425 was breached in this case. I accept the submissions of counsel for the Minister that it is sufficiently clear from the record in the Tribunal decision of what occurred at the hearing conducted by the Tribunal that the applicant was put on notice that his claim to be an Ahmadi was subject to question. The Tribunal decision records[5]:
   • I asked the applicant if he had any objection to the Tribunal checking with the Ahmadiyya Muslim Association Australia to ascertain whether he was in fact an Ahmadi as he claimed. The applicant's representative suggested that the Tribunal should contact the National Amir in Bangladesh. I noted that this was what the Ahmadiyya Muslim Association Australia would do: they would check with the National Amir in Bangladesh and they would also be able to check if the letter which the applicant had produced to the Tribunal purporting to be from the National Amir was genuine. The applicant said that he did want the Tribunal to check because the Tribunal would find out that he was an Ahmadi. (counsel's emphasis retained)
5. The significant issue in this case is whether the Tribunal decision is vitiated by a failure to comply with the requirements of s.424B of the Migration Act. I agree with, and adopt for the purposes of this judgment, counsel for the Minister's submissions dealing with the reasoning of the Full Federal Court in SZKTI:
   • In SZKTI the Tribunal sought comment on certain information and asked that the applicant provide additional information. The request was made 3 months after the Tribunal hearing. In response the appellant provided, inter alia_, a letter from two elders of a Local Church in Sydney, which included a telephone number for one of the elders. In forwarding the letter to the Tribunal, the appellant told the member that the Tribunal should contact the elders if it had any questions about his religious activities in Sydney. The Tribunal waited another two months before calling one of the elders. Part of the information obtained by questioning the elder by telephone formed part of the Tribunal's decision in affirming the delegate's decision._
   • In considering the statutory construction of section 424 of the Act, the Court summarised (see SZKTI at [35]) the question before it as being whether:
     • the _[T]_ribunal could simply telephone [the elder] and ask him questions without having followed the procedures in ss 424(2), (3) and 424B of the Act.
   • The Full Court concluded that the Tribunal is empowered to obtain information from various sources in addition to any material or evidence it obtains at a section 425 hearing: see SZKTI at [37]. However, when section 424(2) is engaged the Tribunal is bound to follow the procedures in sections 424(3) and 424B: see SZKTI
6. The invitation issued by the Tribunal was in the following terms:
   • Wednesday, 12 September 2007
   • Mahmood Ahmed
   • Amir & Missionary In-Charge
   • Ahmadiyya Muslim Association of Australia
   • Al Masjid Baitul Huda
   • Lot 20 Hollingsworth Road
   • Marsden Park NSW 2765

• Ref. Country Information Request BGD32360
  • Dear Mr Mahmood Ahmed,
  • A Member of the Australian Refugee Review Tribunal (RRT) has requested your assistance in regard to the claim of an Applicant to the Tribunal who claims to be a member of the Ahmadiyya faith. As you know, the RRT is an independent Tribunal set up by legislation to undertake merit review of applications for refugee status of persons in Australia; the Tribunal would be grateful for the assistance of the AMAA in verifying the claim of the Applicant with the office of the national Amir in his country of origin.
  • Please receive this letter as a request for advice on whether the following individual is known to the Ahmadiyya Muslim Jamaat Bangladesh.
  • Name: [applicant's name]
  • Date of birth: [applicant's date of birth]
  • Address: [applicant's address]
  • Father's name: [applicant's father's name]
  • Grandfather's name: [applicant's grandfather's name]
  • Additional query: The Applicant has supplied two letters from the office of the National Amir of the Ahmadiyya Muslim Jamaat Bangladesh confirming the Applicant's membership of the Ahmadi faith (the first was issued in July 2000 and the other in September 2007). Please ask the office of the Bangladesh National Amir to confirm the authenticity of these letters.
  • If you have any questions about this request, please do not hesitate to contact me, either by Email (matthew.tubridy@mrt-rrt.gov.au) or by telephone (+61 2 9276 5461) or fax (+61 2 9276 5599).
  • Please be aware that any information you provide may form part of the information used by the Tribunal to review applications for refugee status. Through use of the information, your identity and that of your organisation may be disclosed to applicants, their advisers, the Australian Department of Immigration and Multicultural Affairs, or otherwise become publicly available.
  • Thank you very much for your time and I hope you are able to provide some assistance.
  • Yours sincerely,
  • Matthew Tubridy, Senior Researcher, Refugee Review Tribunal

7. I reject the Minister's contention that s.424B(1) does not apply because the Ahmadiyya Association is neither a body corporate nor a body politic nor a natural person. First, it may be an unincorporated association under State law. More importantly, it is obvious that the Tribunal was seeking information from persons with authority to respond on behalf of the Association. It was to those "persons" that the request was directed. In particular, the request was directed to Mr Mahmood Ahmed, the Amir and Missionary In-Charge of the Ahmadiyya Muslim Association of Australia.
8. I accept that the Tribunal has power to gather information additional to that conferred by s.424. Division 4 of Part 7 of the Migration Act provides additional means, for example in ss.424A, 426 and 429A. Further, I accept the Minister's submission that in SZAYW v Minister for Immigration [2006] HCA 49; (2006) 230 CLR 486 the High Court accepted at [7] and [23] that the Tribunal possessed implied powers to regulate its proceedings in addition to its statutory powers. However, the High Court did not in that case say that those implied powers extended the operation of the statutory powers to obtain information bearing upon the outcome of an application. In my view, the request to the Australian Ahmadiyya Association was a request falling within the purview of s.424 and, on the authority of SZKTI and SZKCQ the Tribunal was bound to meet the requirements of s.424B in making that request.
9. Importantly, in this case the request was made in writing. That is a considerable distinguishing feature of this case. While it is true that the letter did not explicitly specify the way in which the information requested was to be given, the request implicitly required a written response, given that the request was a formal one in writing. Of course, the request had to be in writing, but it was expressed as a formal request for information on advice, which in my view could have no interpretation other than as a request for a written response. The scheme of is to distinguish between invitations calling for a written response and invitations calling for an oral response at an interview. In the absence of an invitation to attend an interview, it is in my view clear from the letter that a written response was called for. The obligation to "specify" the manner of the response contained in is not in my view breached when it is obvious from the invitation what manner of response was called for. A written response was given. Further, the letter specifically asked Mr Ahmed to make inquiries about the applicant to the Office of the Bangladesh National Amir to confirm the authenticity of letters purportedly from that body furnished by the applicant. I reject counsel for the applicant's contention that the approach by the Australian Association to the Amir in Bangladesh was itself a request that was required to be in writing. In my view, it is sufficiently clear from the Tribunal's letter that the response called for was a written response providing information gathered from the Ahmadiyya organisation in Bangladesh about the authenticity of the applicant's documents and about the accuracy of his claim to have been an Ahmadi in Bangladesh.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM

[1] There have been four Tribunal decisions in this matter

[2] SZKCQ v Minister for Immigration [2008] FCAFC 119

[8] I leave out of consideration s.160 of the Evidence Act 1995 (Cth), which does not bind the Tribunal (s.420(2) of the Migration Act)

[10] assuming receipt within a week of despatch