SZTFP v Minister for Immigration and Border Protection

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.