SZHIU v Minister for Immigration and Citizenship [2009] FCA 101 (18 February 2009)

Last Updated: 19 February 2009

FEDERAL COURT OF AUSTRALIA

SZHIU v Minister for Immigration and Citizenship [2009] FCA 101

SZHIU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1413 OF 2008

COWDROY J
18 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1413 OF 2008

BETWEEN:

SZHIU Applicant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	18 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave be granted to the Applicant to file a Notice of Appeal raising for determination the question whether the Tribunal was required to consider the effect of delay, if any, upon the inconsistencies in the Applicant’s testimony before the Refugee Review Tribunal on 21 July 2005 and 29 August 2007 concerning the Applicant’s recollection of the murder of Mr Ahsanullah Master.
2. The costs of this application are to be included in the costs of the appeal.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1413 OF 2008

BETWEEN:

SZHIU Applicant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE:	18 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an application for an extension of time to file and serve a Notice of Appeal from a decision of Federal Magistrate Lloyd-Jones delivered on 15 August 2008 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 16 October 2007. The Tribunal’s decision affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa (‘protection visa’) to the applicant.

BACKGROUND

2. The applicant is a citizen of Bangladesh who arrived in Australia on 4 February 2005. On 14 February 2005 the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused such application on 29 March 2005. The applicant applied to the Tribunal for a review of that decision, and on 2 September 2005 the Tribunal affirmed the delegate’s decision. The applicant subsequently sought judicial review of the Tribunal’s decision and the Federal Magistrates Court remitted the matter back to the Tribunal on 30 May 2007.
3. Before the differently constituted Tribunal the applicant claimed to fear persecution resulting from his membership of the Ahmadiyya in Bangladesh. He claimed that Ahmadi were persecuted in Bangladesh, particularly by the Jamayet party, a religious Muslim party which formed part of the government.
4. Before the second Tribunal hearing the applicant made a claim for protection that had not been made before the first Tribunal. The applicant alleged for the first time that he was an active member of the Awami League in Bangladesh and that he had worked for a Member of Parliament, Mr Ahsanullah Master (‘the politician’), who was assassinated in 2004 (‘the incident’). He claimed that he was persecuted by the Bangladesh Nationalist Party (‘BNP’) after the 2001 elections. He stated that he feared the government parties and the police and that as a consequence he fled Bangladesh.
5. By letter dated 12 September 2007 the Tribunal wrote to the applicant pursuant to s 424A of the Migration Act 1958 (Cth) (‘the Act’) detailing inconsistencies in the evidence given by the applicant at the Tribunal’s first hearing compared to the evidence provided for the Tribunal’s second hearing (‘the s 424A letter’). The Tribunal informed the applicant that the information was relevant because ‘the changing claims may cast doubt on your credibility and may lead to the Tribunal questioning the veracity of your claims’. The Tribunal also drew attention to the political situation in Bangladesh and noted that the independent country information suggested that the chance that a supporter of the Awami League would suffer harm ‘now or in the reasonably foreseeable future, is remote’. Eleven issues of concern were raised by the Tribunal in its letter.
6. By letter dated 26 September 2007 the applicant sought an extension of time to respond to the s 424A letter. Such request was refused by the Tribunal on the same date though it indicated that it would consider any information lodged prior to the decision being handed down. No further information was supplied to the Tribunal.

THE TRIBUNAL DECISION

7. In respect of the applicant’s claims of religious persecution, the Tribunal took into account the applicant’s lack of knowledge of significant Ahmadiyya beliefs and the fact that the applicant had no involvement with the Ahmadiyya community in Australia. The Tribunal concluded that the applicant was not an Ahmadi or a member of the Ahmadiyya community. Further, the Tribunal found his evidence regarding his religious beliefs to be inconsistent with what he had claimed before the first Tribunal and that the applicant fabricated such claim to establish a basis for refugee status. The Tribunal found that the applicant would not face any real chance of persecution in Bangladesh for reasons of his religion or imputed religious belief.
8. In respect of the applicant’s claim of persecution on the basis of political opinion, the Tribunal cited significant inconsistencies in his evidence as a reason for finding that the applicant was not a credible witness. The Tribunal found that the applicant’s claims to have suffered harm in Bangladesh as a result of his political activism and political opinion were fabricated to establish a basis for refugee status. Although the Tribunal found that the applicant may have had a general interest in the political aims of the Awami League, it concluded that he would not face a real chance of persecution in Bangladesh by reason of his political opinion.

APPLICATION IN THE FEDERAL MAGISTRATES COURT

9. By application filed in the Federal Magistrates Court of Australia on 12 November 2007 the applicant sought judicial review of the Tribunal’s second decision.
10. Before Federal Magistrate Lloyd-Jones the applicant claimed that:
    1. The Tribunal impermissibly delegated its role as a finder of fact to the Ahmadiyya Muslim Associate (‘AMAA’);
    2. The Tribunal fell into jurisdictional error by requiring a letter of support from the AMAA in order to establish that the applicant was a member of the Ahmadiyya faith;
    3. The Tribunal had regard to conduct in Australia which was in breach of s 91R(3) of the Act;
    4. The Tribunal breached its obligation under s 425 of the Act in relation to letters sent to the applicant;
    5. The Tribunal ignored relevant evidence in relation to four letters of support from Awami League officials;
    6. The Tribunal decision was affected by bias;
    7. The Tribunal failed to comply with its obligations under s 424A of the Act.
    8. The Tribunal failed to consider certain country information.
11. Lloyd-Jones FM found that a fair reading of the Tribunal’s second decision did not indicate that the Tribunal delegated its role as a fact finder to any association or body. His Honour was satisfied that the Tribunal carried out its function in sourcing independent country information which it believed was appropriate and took into account the applicant’s own evidence in making its decision.
12. As to the second ground his Honour found that there was no indication that the Tribunal adopted a policy which required a letter of support from the AMAA to establish that the applicant was a member of the Ahmadiyya faith. His Honour found that the Tribunal’s findings were open to it on the evidence before it and that it could not be said that the Tribunal made its decision without regard to the particular facts of the case.
13. As to the applicant’s claims regarding s 91R(3) of the Act, his Honour found that the applicant was not making any claim in relation to his involvement in the Ahmadiyya faith while in Australia and that therefore there was no claim for which s 91R(3) of the Act could operate. Accordingly, s 91R(3) was not relevant and it was unnecessary for the Tribunal to make any determination in respect of such issue.
14. In considering the claim that the Tribunal was in breach of s 425 of the Act, his Honour was satisfied that there was no evidence to indicate that the applicant was not provided with a fair hearing nor that certain issues were not put to him at hearing. His Honour found that the Tribunal’s second decision demonstrated that it complied with its obligations under s 425 of the Act.
15. In relation to the fifth ground of review Lloyd-Jones FM noted that the applicant had not identified in particulars or submissions which integers of his claims had not been addressed by the Tribunal. Nor was it apparent from a review of the decision record that the applicant raised integers that had not been considered. To the extent that this ground implied that the Tribunal should have made a different finding, his Honour found that such ground was merely an attempt to invite the Court to undertake merits review which is outside its jurisdiction.
16. As to the allegation of bias, his Honour noted that the allegation was not supported by any particulars or submissions, and found that there was no evidence to support such an allegation.
17. His Honour found the seventh ground was unsupported by any particulars and that the Tribunal had sent the s 424A letter to the applicant detailing the information which would be the reason or part of the reason for affirming the delegate’s decision. His Honour noted that all of the information upon which the decision was based was exempt from the operation of s 424A of the Act.
18. Finally, in relation to the eighth ground his Honour noted that s 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, and that such power is discretionary. Section 424(1) only requires the Tribunal to have regard to the additional information if it in fact seeks and subsequently obtains it: see SZIYN v Minister for Immigration & Citizenship [2008] FCA 151. His Honour stated that the weight to be given to certain information was a matter for the Tribunal and that there was no obligation on the Tribunal to conduct further inquiries.

APPLICATION TO THIS COURT

19. Pursuant to O 52 r 15(1) of the Federal Court Rules (Cth) (‘the Rules’) any appeal from the decision of Lloyd-Jones FM was to be filed in this Court no later than 5 September 2008. No appeal was filed by that date. On 9 September 2008 the applicant filed in this Court an application for an extension of time to file and serve a notice of appeal from the decision of Lloyd-Jones FM. Accompanying that application was an affidavit annexing a draft notice of appeal which contained four proposed grounds of appeal. However, at the hearing the applicant abandoned the draft notice of appeal and relied upon a Further Amended Draft Notice of Appeal which raises two proposed grounds of appeal, namely:

His Honour committed an error of law in dismissing the application from a decision of the Second Respondent in circumstances where the Second Respondent failed to exercise its power reasonably and/or judicially in relation to inconsistencies it perceived in the appellant’s evidence.
His Honour further erred in circumstances where the Tribunal failed to comply with 424A in relation to information (i) that the appellant’s adviser had been involved in the case from at least 30 May 2005 and (ii) that a pre-planned attempt had occurred a couple of months before the MP suffered serious injuries.

Accordingly, leave of this Court is required pursuant to O 52 r 15(2) of the Rules to allow the applicant to file and serve a notice of appeal out of time.

20. In considering whether ‘special reasons’ exist to warrant a grant of leave under O 52 r 15(2) of the Rules, the Court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave, and that there is merit in the substantial application: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

Explanation for delay

21. The applicant has provided an explanation for his failure to file his notice of appeal within the requisite period, namely that the decision of Lloyd-Jones FM was forwarded to an incorrect address by the Court Registry. The evidence establishes that the letter which was sent to the applicant dated 12 August 2008 advising him that the judgment of Lloyd-Jones FM would be handed down on 15 August 2008 was forwarded to an incorrect address. The Minister does not dispute such explanation and the Court accepts the applicant’s reason for the delay.

Prejudice to the respondent

22. The Minister has not suggested that he would suffer any prejudice should the Court grant leave.

Merit of the substantial application

23. The applicant’s submissions contain purported extracts from the transcript of the proceedings before the first Tribunal. Since the transcript has not been tendered, the Court upholds the objection of the Minister that such submissions cannot be relied upon.

Ground 1: The Tribunal failed to exercise its powers reasonably or judicially

24. The first particular of the applicant’s first proposed ground of appeal refers to the Tribunal’s rejection of his claims due to inconsistencies in his evidence in respect of the differences between the Sunni and Ahmadiyya religions.
25. In his protection visa application, the applicant claimed to be an Ahmadi. Before the first Tribunal hearing he claimed that he was committed to the Ahmadiyya religion but had been unable to complete this conversion before coming to Australia. Before the second Tribunal hearing the applicant did not pursue such claim. The Tribunal observed:

The applicant’s evidence showed that he no longer claimed to be an Ahmadi or even a member of the Ahmadiyya community. His evidence that he merely attended proceedings at the mosque and just visited as an observer, was not consistent with his earlier claim to be an Ahmadi and/or member of the Ahmadiyya community in Bangladesh. This inconsistency raises strong concern about his credibility and the veracity of his claims.

26. At the second Tribunal hearing the Tribunal asked the applicant to explain the main differences between the Sunni and Ahmadiyya religions. The Tribunal observed:

At the hearing the applicant knew the location of the main Ahmadi mosque in Dhaka and that a significant difference between their beliefs and the Sunni beliefs concerned whether Mohammed was the last prophet. However, the applicant did not state any other differences between the Sunni and Ahmadiyya religions, and when pressed only indicted in a general way: how we had to lead our life.

27. The applicant submits that when viewed fairly the Tribunal’s finding of inconsistencies in the applicant’s evidence regarding the major differences between the Sunni and Ahmadiyya religions could not be said to constitute inconsistencies of substance, if at all.
28. The applicant submits that the Tribunal drew the inference that the applicant lacked knowledge of significant Ahmadiyya beliefs from the applicant’s answers to questions asked of him relating to the differences between the Ahmadiyya and Sunni religions. The applicant submits that such inference was ‘inappropriate and unsupportable’ as the Tribunal had no probative evidence before it ‘expounding significant Ahmadiya beliefs’. Rather, the Tribunal only had evidence before it relating to the differences between the Sunni and Ahmadiyya religions. The applicant submits that the Tribunal’s assessment of the applicant’s knowledge of Ahmadiyya beliefs should not be accepted because the Tribunal failed to ‘clearly and carefully express how it could draw such a conclusion based on the information and material before it’.
29. The Tribunal had before it independent country information which showed that the other main differences between the two religions related to the crucifixion of Jesus Christ; the Ahmadiyya belief that Jesus Christ survived and travelled to India; and the identity of a promised Messiah. The Tribunal found:

The applicant’s lack of knowledge of major differences in beliefs between the Sunni and Ahmadiyya religions showed he had no particular interest in the Ahmadiyya beliefs and do not support his claims to have taken a course and to have developed an ongoing interest over several years.

30. Given that the applicant stated to the Tribunal that he was a Sunni before he became interested in the Ahmadiyya faith, it was not unreasonable of the Tribunal to test the applicant’s knowledge of the Ahmadiyya religion in comparison to the Sunni religion because the applicant should have had knowledge of both. The Court also considers that it was open to the Tribunal to find that the applicant did not have a significant knowledge of Ahmadiyya beliefs because of his inability to identify differences between the Ahmadiyya and the Sunni religions.
31. Based upon the foregoing the Tribunal concluded that the applicant was not a genuine Ahmadiyya follower. Such conclusion is a matter of fact, and the Tribunal was entitled to draw such conclusion on the material before it. Its finding is one with which the Court cannot interfere: see Minister for Immigration for Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10].
32. As a second particular to the first ground of appeal the applicant relies upon the fact that the Tribunal found that the applicant ‘fabricated the claim to have personally witnessed’ the incident.
33. The applicant claimed that on 7 November 2004 he witnessed an incident at a high school, the name of which he could not remember, when approximately five to six assailants murdered the politician. The applicant stated that about 50 witnesses observed the incident and that the injured politician was taken to Mohakhali and then to Cantonment Hospital.
34. The Tribunal found that the incident occurred on 7 May 2004; was witnessed by about 400 persons; and that the applicant’s account of the hospitalisation of the politician was erroneous. The Tribunal observed:

The differences in details, and the inconsistency, when considered cumulatively lead the Tribunal to conclude that the applicant was not present at the incident and that his account was not based upon personal observations. The Tribunal finds that the applicant fabricated the claim to have personally witnessed the incident for the purposes of his refugee application.

35. The applicant submits that the inconsistencies regarding the incident taken cumulatively were insufficient to lead to the conclusion that the applicant had fabricated his evidence. As a result it is submitted that the Tribunal failed to discharge its statutory function.
36. The applicant relies upon the decision of this Court in SZLGP and SZLGQ v Minister for Immigration and Citizenship and Refugee Review Tribunal [2008] FCA 1198 in which Gordon J found that the Tribunal’s fact finding did not justify its decision and that the Tribunal had not ‘provided fully and carefully expressed reasons for decision’: see SZLGP at [24].
37. Unlike the circumstances considered in SZLGP, the Tribunal based its factual findings upon numerous inconsistencies in the applicant’s testimony. The Tribunal fully explained its logic in reaching its decision to reject such testimony based upon those inconsistencies. Any challenge to the Tribunal’s finding on this issue would be a challenge to the merits which is not permissible, as has already been stated in the authorities referred to. The Court accordingly rejects the applicant’s submission.
38. The applicant also submits that any inconsistencies in the applicant’s evidence regarding the assassination of the politician resulted from delay in the review process. The applicant relies upon the decision of this Court in SZIIF v Minister for Immigration and Citizenship and Another (2008) 102 ALD 366. In such decision Weinberg J concluded that many of the inconsistencies between the various accounts of the applicant could be explained by the fact that ‘he was obliged over the next four years to recall repeatedly the details of events that must have become more difficult to remember with the passage of time’ and thus ‘the Tribunal was obliged to take that aspect of the delay into account when considering any possible inconsistencies between the various statements that he made regarding these events.’ [89-90]. Weinberg J referred to the decision of the High Court of Australia in NAIS and others v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 in which there had been a prolonged delay by the Tribunal, it having conducted oral hearings on 6 May 1998 and again on 19 December 2001 before delivering its judgment on 14 January 2003. Weinberg J observed at paragraph 83 that such decision was authority for the proposition that a lengthy delay ‘unacknowledged by the Tribunal in its reasons for decision’ could give rise to jurisdictional error.
39. The question of delay and the issue now sought to be raised concerning the consequences of delay was not raised before the Federal Magistrate. Accordingly leave is required for such question to be determined: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]- [24]. Leave may be granted if it is ‘expedient in the interests of justice to allow the new ground to be argued and determined’: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; (2003) 129 FCR 168 at [26]. Such consideration requires the Court to consider the merits of the ground sought to be raised: see Iyer at [24]; VAAC at [26].
40. While there may be problematic factual distinctions between SZIIF and NAIS and the present circumstances, this Court is required only to decide on the present application whether there is at least an arguable claim for determination if leave were granted. The applicant has been required to state his account of the incident on two occasions. The first Tribunal hearing took place on 21 July 2005 and the second hearing took place on 29 August 2007. The Tribunal has drawn inferences from inconsistencies in his account but has not acknowledged whether such delay might have contributed to the inconsistencies.
41. In view of the High Court’s observations in NAIS and those of Weinberg J in SZIIF, it is appropriate that the extent to which any relief might be required in the present appeal should be clarified. The applicant’s claim is arguable, and the interests of justice require that this question be determined. Accordingly the Court will grant leave to rely upon such evidence even though the Federal Magistrate has not erred in his determination of the issues before him.

Ground 2: Breach of s 424A of the Act

42. The applicant submits that a reason relied upon by the Tribunal to affirm the decision of the delegate ‘involved information it had disputing the appellant’s representative’s claim at the hearing on 20 July 2005 that he had only literally been instructed to appear on behalf of the appellant while waiting outside for the hearing to commence’. The relevant information was that the applicant’s representative had in fact been involved in the matter since at least 30 May 2005.
43. The applicant submits that the Tribunal was obliged to provide the applicant with written notice of the particulars of the factual information under s 424A of the Act before it could rely upon such matter to undermine the applicant’s credibility and claims. The applicant also submits that the Tribunal failed to state explicitly the relevance of the information to the review. The applicant relies upon the observations of the Full Court in Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138.
44. In its findings the Tribunal stated:

The applicant’s Protection visa application only concerned a claim to be an Ahmadi and the Tribunal finds that the applicant fabricated this claim to establish a basis for refugee status. However, after the application was refused new claims concerning political involvement in Bangladesh were made to the Tribunal. The review application was lodged on 20 April 2005, the applicant was invited to a hearing by letter dated 12 May 2005, a representative Mr Sirajul Haque was advised to be a representative on 30 May 2005, and on 7 July 2005 the applicant first provided his claims to have been involved with the Awami league. At T1’s hearing on 20 July 2005 the representative stated that he had just received instructions that morning and had only looked at the papers and application just before the hearing. However, the representative had been involved in the case from at least 30 May 2005.

45. The Court observes that the applicant appointed his representative by way of a notice required under s 312B of the Act. The date of such appointment, 30 May 2005, was written on the form and was accordingly provided by the applicant. As s 424A(3)(b) of the Act excludes from the operation of s 424A(1) any information provided to the Tribunal by the applicant, the Tribunal was not required to put to the applicant the information concerning the date of the representative’s appointment.
46. The Court is unable to find that there is any arguable ground that there has been a breach of s 424A of the Act.

ORDERS

47. It follows from the findings of the Court that the application demonstrates merit as to one issue. This issue is whether any inconsistency in the evidence of the applicant was attributable to delay caused by successive hearings in the Tribunal, and whether the Tribunal was required to consider any effect of delay. The Court therefore grants leave to file a Notice of Appeal confined to such issue.
    

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 18 February 2009

Counsel for the Applicant:	Mr Azzi
Counsel for the First Respondent:	Mr Knackstredt
Solicitor for the First Respondent:	Ms Markovic

Date of Hearing:	20 November 2008
Date of Judgment:	18 February 2008