SZCKZ v Minister for Immigration
[2007] FMCA 3
•22 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCKZ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 3 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – whether the Tribunal breached s.424A of the Migration Act 1958 (Cth), overlooked relevant material or otherwise fell into jurisdictional error considered. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.414, 422, 424A |
| Fernando v Minister for Immigration (2000) 97 FCR 407 Minister for Immigration v Bhardwaj (2002) 209 CLR 597 Minister for Immigration v Yusuf (2001) 206 CLR 323 Re Minister for Immigration; ex parte S20 of 2002 (2003) 198 ALR 59 SZBQS v Minister for Immigration [2005] FMCA 1066 SZDMO v Minister for Immigration [2006] FCA 989 SZEPZ v Minister for Immigration [2005] FMCA 1614 SZGNY v Minister for Immigration [2006] FMCA 1142 SZHUI v Minister for Immigration & Anor [2006] FMCA 1042 VEAN of 2002 v Minister for Immigration (2003) 133 FCR 570 WAIJ v Minister for Immigration (2004) 80 ALD 568 |
| Applicant: | SZCKZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 179 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 26 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr K Oliver |
| Counsel for the Respondents: | Mr G Kennett |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The Court directs that the name of the first respondent be amended to the “Minister for Immigration and Citizenship”.
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 179 of 2006
| SZCKZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 22 December 2005. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and had made claims of political persecution. He arrived in Australia on 4 October 2001. On 2 November 2001 he lodged an application for a protection visa with the Minister’s Department. On 2 October 2002 a delegate of the Minister refused that application and on 28 October 2002 the applicant applied for review of that decision. On 17 November 2003 a differently constituted Tribunal affirmed that decision. On 12 January 2004 the applicant sought judicial review of that decision in this Court. Consent orders were made on 22 September 2005 remitting the review application to the Tribunal for redetermination and setting aside the decision of the first Tribunal.
The applicant attended a hearing before the second Tribunal on 30 November 2005. He gave oral evidence about his protection visa claims. He also sought the opportunity to submit more documents. Prior to that hearing, on 25 November 2005 the Tribunal received a submission from the applicant’s adviser which attached a number of documents. These included what the presiding member described as an “undated letter” from the Bangladesh Awami League[1]. The Tribunal notes[2] that this letter states that the applicant was involved in student politics and was:
elected cultural secretary of students union at 1996 nominated by Bangladesh Chatraleague. Then he was elected general secretary of students union at 98 nominated by Chatraleague and he was also elected president of internee doctors association.
[1] The letter is in fact dated 31 October 2005 and is reproduced on page 143 of the court book.
[2] court book, page 265
The presiding member sets out on pages 9 to 14 of the Tribunal’s reasons[3] a summary of what occurred at the hearing conducted on 30 November 2005. It is apparent from that discussion that the presiding member had credibility concerns about the applicant’s claims and discussed those concerns with the applicant at the hearing. Among other things, the presiding member records:
The Tribunal then put to him that from the documents he had provided it appeared that he, along with a number of others, was pursuing the best interests of Homeopathic medicine and of internee Doctors in particular, rather than a political party. The Applicant claimed in reply that he was active for the Awami League and attended all the rallies and meetings in the centre of Dhaka from his college between 1996 and 2001.[4]
[3] court book, pages 267-272
[4] court book, page 268
Under the heading “Findings and Reasons” the Tribunal:
a)accepted that the applicant is very well educated and a highly qualified doctor;
b)accepted that the applicant was “elected cultural secretary of students union at 1996 nominated by Bangladesh Chatraleague. Then he was elected general secretary of students union at 98 nominated by Chatraleague and he was also elected president of internee doctors association”;
c)accepted that the applicant was a member of the Hindu minority in Bangladesh but did not accept that the applicant suffered any disadvantage by reason of his religion;
d)accepted that the applicant was elected to the position of general secretary of the student union unopposed on 18 February 1999;
e)was not satisfied that the applicant was a leading Chatraleague activist while at college;
f)did not accept that the applicant is a renowned leader of the Chatraleague or that his political profile made him well known in the party;
g)did not accept the applicant’s claim made at the second Tribunal hearing that he tried to distribute a poster that he and several colleagues had prepared to “75 per cent of the population of Bangladesh”;
h)found that the applicant had “extremely limited interest and involvement in politics in Bangladesh, both previously, and at the time of the Tribunal decision, and for the foreseeable future should he return to Bangladesh”;
i)did not accept that the applicant was at risk of similar harm to the named vice president of the Chatraleague Dhaka College unit who was apparently shot on 17 June 2003;
j)found that the applicant had embellished his claims in order to enhance his application for a protection visa and found that he was not a credible witness;
k)was not satisfied that the applicant had well-founded fear of serious harm as a victim of the “enemy property law” of Bangladesh;
l)was not satisfied that there was a real chance that the applicant would be specifically targeted or would otherwise be subjected to serious harm amounting to persecution for a Convention reason because of his immunity and political profile as an activist;
m)did not accept that the applicant has a well-founded fear of serious harm on the basis of action he had taken against ten members of the “Shibir” in late 1999 and early 2000;
n)was not satisfied that the applicant has political opponents who would lodge false charges against him for a Convention related reason or that he would be subjected under the Special Powers Act of Bangladesh by the BNP government; and
o)considering the applicant’s claims individually and cumulatively, was not satisfied that because of any and all of his claims, there was a real chance of him experiencing serious harm amounting to persecution for a Convention reason.
The application and evidence
The present proceeding began with a show cause application filed on 18 January 2006. It is not disputed that that application was filed within time. I conducted a hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) in relation to that application on 22 May 2006. On that day, I gave leave for an amended application to be filed in court and ordered that the Minister show cause why relief should not be granted in relation to the grounds set out in that application. Those grounds are:
1.In the course of the hearing the Tribunal put to the applicant, and the applicant adopted, information that the applicant had at a previous hearing claimed that he was "wanted by the police for a Convention related reason or that false or other Convention related charges have been have been made against him". The information that the applicant had previously made this claim was a potential reason for the Tribunal affirming the decision that was under review, and was not information that the applicant gave for the purpose of the application to the Tribunal. The Tribunal's omission to comply with s.424A(2) in respect of it therefore constituted jurisdictional error.
2.The Tribunal rejected factual claims made by the applicant without adverting to, or considering, the tendency of a letter written by ex-MP Narayon Chandra Chando on behalf of the Awami League (CB 143) to corroborate those claims. This omission of the Tribunal to consider relevant corroborative information amounted to jurisdictional error.
3.The Tribunal inferred that the applicant had no well-founded fear of persecution at the time of making his application on 2 November 2001 on the basis of the applicant's omission to allege facts consistent with his having had such a fear prior to the election of the current Bangladeshi government on 1 October 2001 (CB 280). In so doing the Tribunal misconceived the factual basis of the applicant's claim to refugee status, asked itself a wrong question, had regard to irrelevant considerations and thereby fell into jurisdictional error.
The only evidence I have before me is the court book filed on 7 April 2006. An affidavit by the applicant filed in support of his original show cause application on 18 January 2006 was not read for the purposes of the trial of this matter and, in any event, was in the nature of submissions.
Submissions
Both the applicant and the Minister made oral and written submissions. In relation to the asserted non compliance with s.424A(1) of the Migration Act 1958 (Cth) (“the Migration Act”), the applicant submits:
a)the Tribunal conducted two hearings (the second being required after the first Tribunal decision was set aside by consent) and at the second Tribunal hearing the presiding member drew an adverse conclusion from the omission of the applicant to provide documentary corroboration of the false charges claims made by him and hence did not accept those claims[5];
b)the Tribunal knew that the false charges claims had been made at the first hearing and hence this prior hearing information formed “a part of the reason” for affirming the decision of the delegate;
c)information derived from the first Tribunal hearing was not information provided by the applicant for the purposes of his review application because the second review is a fresh “proceeding” on that application[6];
d)although the applicant accepted in the course of the second hearing that he had made the false charges claims in the course of the first hearing this was no more than “passive adoption” of those claims for the purposes of the reconsidered application;
e)there was no active “republication” of the information at the second hearing[7];
f)there are good policy reasons why, on the reconsideration of an application, applicants should be alerted to the adverse impact of prior information given at an initial consideration of an application and, in cases of doubt, s.424A(1) should be given a broad operation; and
g)applicants should be given the opportunity to confirm or retract such prior information.
[5] court book, pages 280-281
[6] The applicant relies on Minister for Immigration v Al Shamry (2001) 110 FCR 27 per Ryan and Conti JJ at [20].
[7] The applicant relies on SZDMJ v Minister for Immigration [2005] FCA 1034 per Gyles J.
In relation to the corroborative documentary evidence ground, the applicant contends that the document at page 143 of the court book (the Chando document) was accepted in part by the Tribunal but other corroborative elements of it were not considered. The applicant contends that the Chando memorandum corroborates, in addition to the favourable findings adopted by the Tribunal, other claims that the applicant made, namely:
a)that he was a member of the Chatraleague (being the student wing of the Awami League): court book, page 16.6;
b)that he actively campaigned in support of the Awami League in the 2001 election: court book, pages 18.1, 18.3, 18.5 and furthermore
c)that this 2001 support was carried out “all over the country”: court book, page 269.2;
d)(inasmuch as this may reasonably be inferred from ten years of consistent public appearances in the company of party leaders, and television publicity as a student leader) that his profile within the Chatraleague was renowned and/or familiar both within both Awami League party circles and the wider Bangladeshi community: court book, page 110.1; and
e)that he has had past clashes with BNP and Chatra shibir students: court book, page 272.1.
The applicant notes that the Tribunal incorrectly described the Chando memorandum as “undated” and appeared to adopt an ambivalent attitude to it. The Tribunal does not specifically address the credibility of the Chando document or express any view on its authenticity. Neither does it articulate any reasons for dismissing its contents which have a corroborative effect. The applicant relies upon WAIJ v Minister for Immigration (2004) 80 ALD 568 and SZDYI v Minister for Immigration [2005] FMCA 971 at [27]. The applicant contends that it was not open to the Tribunal to make no finding on the authenticity of the Chando document, to implicitly accept its authenticity for some purposes but then to ignore it while making an adverse credibility finding about the applicant’s evidence[8].
[8] court book, page 278
In relation to ground 3, the applicant contends that the Tribunal dwelt unduly on the risk of the applicant being killed because of his political activities and failed completely to consider the risk that the applicant faced as a result of his political enemies being successful in the 2001 Bangladesh elections. The applicant contends in particular that the Tribunal fell into error in considering the threat posed by the ten members of the shibir group who the applicant arranged to be put in gaol in 1999/2000. At court book page 280 the Tribunal placed significance on the fact that the applicant was not harmed prior to his leaving Bangladesh, did not report any threat to the police and did not demonstrate any fear of harm. The applicant contends that the Tribunal misunderstood the applicant’s claim and failed to ask itself the correct question. The applicant contends that it was an inherent part of his claim that he had no reason to fear harm prior to the 2001 election which took place at the same time as he came to Australia. He did not come to Australia with the intention of fleeing persecution but only developed his fear after he arrived here as a result of the outcome of the election.
Finally, the applicant submits that there is no independent and unimpeachable basis upon which the decision of the Tribunal could be affirmed, notwithstanding the jurisdictional errors that have been asserted.
The Minister relevantly submits as follows:
Ground 1 – section 424A
The Applicant’s argument on ground 1 appears to be limited to the Tribunal’s conclusion of “non-satisfaction” in respect of what is referred to as “the false charges claim”. It is said to vitiate only that part of the Tribunal’s reasoning.[9] It is apparently not contended that the rejection of the false charges claim had any broader implication for the Applicant’s credibility.[10]
[9] Applicant’s outline para.42.
[10] See applicant’s outline paras 3-4.
The Applicant’s contention therefore appears to be that the making of a claim by the Applicant is relevantly “part of the reason” for rejecting that claim, so that the Tribunal is required by s.424A(1) to inform the Applicant in writing that the claim has been made. Such an argument only needs to be stated to be rejected.
An issue would arise if the Tribunal, in addition to rejecting the false charges claim, had drawn some inference against the Applicant from the fact that he had made it (e.g., if it contradicted another claim). However, even then, no obligation under s.424A(1) would arise. The relevant “information” is within the scope of s.424A(3)(b).
As the Applicant’s submissions note, the false charges claims had been put to the Tribunal by the Applicant in its first hearing.[11] The decision which followed that hearing[12] was set aside by this Court on 22 September 2005[13] – an order which, given the nature of this Court’s jurisdiction, could only have been made on the footing that that decision was vitiated by jurisdictional error. It follows that that decision was without legal effect; the Tribunal’s duty to review the decision of the delegate remained unperformed; and the process which followed, leading to the decision handed down on 22 December 2005, was a continuation of the same review.[14] Information given to the Tribunal by the Applicant in the course of the first hearing was therefore given “for the purpose of the application” – i.e., the only application for review that the Applicant has made. In any event, it is clear that the claims were elaborated upon, and not merely passively adopted, by the Applicant in the second hearing.[15] That brought the claims within s.424A(3)(b), if they were not already within it.[16]
Ground 2 – corroborating document
The Tribunal recorded its acceptance that the Applicant had been elected to three positions in student and professional organisations.[17] In doing so, as the Applicant’s submissions note,[18] it adopted the words of a document that had been submitted by the Applicant.[19] The document (which the Applicant’s submissions refer to as “the Chando memorandum”) was a one page reference, headed “To whom it may concern”, and apparently signed by the President of a local branch of the Awami League.[20]
Although the Tribunal does not say so in terms, it may well be that the Chando memorandum was part of the evidence on which the Tribunal based its acceptance that the Applicant had been elected to those positions. It is safe to assume that the Tribunal accepted the Chando memorandum as an authentic document; certainly there is no finding to the contrary.
The Applicant’s complaint appears to be that the Tribunal declined to accept certain other claims, even though the Chando memorandum provided support for them, and did not refer to the Chando memorandum in reaching those conclusions.
It may be noted that the Chando memorandum’s support for the Applicant’s claims was real, but scarcely overwhelming. In one short paragraph the memorandum asserted that the Applicant had “campaigned” in support of the Awami League, had come into contact with Ministers in the government, had been seen on the television news as a student leader, and had “some clashes” with political opponents. It gave no details about the nature and extent of these activities or how Mr Chando knew about them.
Acceptance that the document was authentic (i.e., that it was a memorandum from the President of a branch of the Awami League) did not, of course, entail an obligation to accept that everything in it was true and correct or that the Applicant’s claims were thereby made out. Each assertion in the memorandum had to be weighed against contrary evidence or inferences – a process that lay at the heart of the Tribunal’s fact finding role. No jurisdictional error lay in accepting some of those assertions (especially if they were supported by “posters, conference programs and pamphlets”)[21] and rejecting others.
The Tribunal set out in some detail its reasons for rejecting the Applicant’s claim that he had been a well known or prominent Chattra League activist.[22] It is well settled that, in doing so, the Tribunal was not obliged to refer to every item of evidence that it found irrelevant or unconvincing.[23] The omission of any reference to the Chando memorandum in the course of rejecting the Applicant’s claim to prominence does not, therefore, provide any basis for an inference that the Tribunal ignored the document, or excluded it from consideration on some impermissible basis.
The presiding member’s failure to notice the handwritten date on the document is not a sufficient basis for concluding that his scrutiny of it was in some relevant sense too “superficial”.[24] The presiding member clearly read the document sufficiently closely to refer to it and quote it in the course of his reasons. The proper inference is that he read the whole of its contents (which amount, as noted above, to a single page) and was not persuaded by the parts of the document which the Applicant seeks to emphasise. In any event, even if the Tribunal had overlooked the document entirely, that would amount to no more than a factual error and would not invalidate any aspect of its reasoning.[25]
[11] court book, pages 92-93, 270.1, 280.7
[12] court book, pages 88.
[13] court book, page 99.
[14] SZEPZ v Minister for Immigration [2006] FCAFC 107 at [39].
[15] court book, pages 280.8-.9; cf. applicant’s outline para.7.
[16] SZDMJ v Minister for Immigration [2005] FCA 1034; SZDPY v Minister for Immigration [2006] FCA 627 at [35]. See also VWBF v Minister for Immigration [2006] FCA 851 at [31]-[51].
[17] court book, page 272.9.
[18] At para.18.
[19] The source of the quotation is noted at court book, page 265.5.
[20] court book, page 143.
[21] see court book, page 272.8.
[22] court book, page 275-276.
[23] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407, 422-423 [65]; Applicant WAEE v Minister for Immigration (2003) 75 ALD 630, 641 [46].
[24] Cf. applicant’s outline paras 22, 25.
[25] Applicant WAEE 75 ALD at 641 [46]; Minister for Immigration v Yusuf (2001) 206 CLR 323, 348 [74].
Ground 3 – irrelevant considerations
The Applicant’s submissions on this ground first criticise the Tribunal for what is termed a “somewhat lurid preoccupation with death threats”.[26] The reason this is significant is, apparently, that it lies behind a logical flaw said to be found in a passage of the Tribunal’s reasons.
In that passage[27] the Tribunal declined to accept a claim that the Applicant had a well founded fear of serious harm on a particular basis. The claim was that members of the Shibir were angry with him and threatened to kill him, because he had arranged for them to be imprisoned following a violent confrontation in late 1999 or early 2000. The reasons the Tribunal gave were that, according to the Applicant’s own evidence:
· the threat had never been acted upon; and
· he had not taken various steps that might be expected of someone who was in fear of such a threat.
The Applicant’s submission is apparently that this reasoning misunderstood his claims, and “the inquiry that the Convention requires”, because it failed to take account of the fact that the Awami League (which the Applicant claimed to support) was in power at the relevant time, whereas its opponents were in power by the time the Applicant sought protection.[28] The “irrelevant considerations” referred to in the ground of review are apparently the past events (or perhaps non-events) which led the Tribunal to its finding that the Applicant did not have a well founded fear of harm – “irrelevant”, it would seem, because they were not probative.
It can be accepted that a different decision-maker might have thought the reasons given by the Tribunal for rejecting this claim were less than compelling, for the reason the Applicant points out. However, it does not follow that the past events referred to by the Tribunal were not rationally probative as to what might or might not happen in the future. If the threat had not been made seriously (or at all), that was clearly relevant to whether the Applicant was likely to come to harm in the future. The weight to be given to these matters was, of course, a matter for the Tribunal.
Even if the past events relied on by the Tribunal were not capable of bearing any probative weight at all, it would not follow that they amounted to “irrelevant considerations” in any relevant sense. The “considerations” grounds are not directed at the making of particular findings of fact.[29] The flaw would be illogical fact-finding, which does not in itself amount to error of law or jurisdictional error.[30]
The Applicant’s argument, at its highest, is that the Tribunal did not see the significance of the fact that the persons from whom he feared harm had changed from being supporters of an opposition party (with, one might assume, limited capacity to harm him) to supporters of the governing party (with, one might assume, greater capacity to harm him); and that failure affected its analysis of the probability that the Applicant would come to harm in Bangladesh. If the Tribunal erred in that way, that was a failure “to advert to evidence which, if accepted, might have led it to make a different finding of fact”; it was not “a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason”.[31] The relevant contention – as to who the Applicant feared would harm him, and why – was clearly understood and dealt with.
[26] applicant’s outline para.34.
[27] court book, page 280.1-.4.
[28] applicant’s outline paras 37-41.
[29] Yusuf 206 CLR at 348 [74].
[30] NACB v Minister for Immigration [2003] FCAFC 235 at [29]; VWST v Minister for Immigration [2004] FCAFC 286; WAJQ v Minister for Immigration [2005] FCAFC 79 at [24]. See also NABE v Minister for Immigration (2004) 144 FCR 1, 16-17 [52]-[54].
[31] Applicant WAEE 75 ALD at 641 [46].
I explored with counsel during argument my reasoning in SZHUI v Minister for Immigration & Anor [2006] FMCA 1042 which appeared to have some relevance to the first and second grounds of review. I also explored with counsel during argument the proposition that the third ground of review simply put could be seen as an argument that the applicant’s claim was that in 1999/2000 he had given his political opponents the motive to harm him and that, as a result of the 2001 election, they now had the means to do so. It is arguable that in dealing with that claim, the Tribunal dealt with the motive, but overlooked the means.
Reasoning
The s.424A issue
I dealt with the same issue as arises in this case in SZHUI v Minister for Immigration & Anor [2006] FMCA 1042. At [61]-[63] I said:
These issues arise in relation to grounds 3 and 4 in the second further amended application. First, the applicant asserts that the RRT based its conclusion that the applicant was tardy in seeking a protection visa on the information contained in his evidence of the first Tribunal hearing, which was required to be disclosed.
The Minister does not dispute that the second Tribunal gained the information supporting the adverse credibility conclusion (about the applicant’s tardiness in seeking protection) from the evidence given by the first applicant to the first Tribunal. However, the Minister submits that this was information falling within the exception in s.424A(3)(b) of the Migration Act. There is support for that proposition in the decisions of this Court in SZBQS v Minister for Immigration [2005] FMCA 1066 at [14] and SZGNY v Minister for Immigration [2006] FMCA 1142 at [21] where Smith FM said:
In SZEPZ v Minister for Immigration & Anor [2005] FMCA 1614 at [16]‑[20], I inferred in a situation such as the present that the Tribunal had been reconstituted under s.422, and that the record which could be addressed by the reconstituted Tribunal included a s.424A notice and the applicant’s response given before the setting aside of a previous decision. On appeal, the Full Court did not find it necessary to reach a conclusion whether I was correct in this reasoning, but it accepted my reasoning that the “review” which was being conducted by the reconstituted Tribunal was the review originally initiated by the application for review (see SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107). At [39] their Honours said:
Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.
I agree with Smith FM. Where the RRT conducts a lawful review of a delegate’s decision, the RRT becomes functus officio and a second review application cannot be made[32]. Where the RRT commits a jurisdictional error, so that the review process must be repeated, there remains only one review application: the obligation on the RRT is to reconsider that application. A second review application could not be made because it would be out of time[33]. Where an applicant puts information to a review tribunal for the purposes of his or her review application, that information is not withdrawn where the tribunal falls into jurisdictional error. Unless the information is specifically retracted by the applicant, it remains available to the tribunal on a reconsideration of the review application. Further, it does not lose its character as information presented to the tribunal for the purpose of “the [review] application”: s.424A(3)(b).
[32] Minister for Immigration v Bhardwaj (2002) 209 CLR 597; SZDMO v Minister for Immigration [2006] FCA 989 at [6] and [8]
[33] Fernando v Minister for Immigration (2000) 97 FCR 407 at [31]; VEAN of 2002 v Minister for Immigration (2003) 133 FCR 570 at [33]
I have not changed the views I expressed in SZHUI. It follows that I reject the first ground of review.
The corroborative evidence ground
I also dealt with this ground of review in SZHUI. At [57] I referred to the following extract of the Full Federal Court decision in WAIJ (which is relied upon by the applicant) at [26] and [27]:
The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents "do not overcome the problems I have with the applicant’s evidence".
Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).
As in SZHUI it cannot be said in this case that the Tribunal made comprehensive findings of dishonesty or untruthfulness against the applicant so as to negate allegedly corroborative material. Rather, the Tribunal had credibility concerns about aspects of the applicant’s claims which prevented the Tribunal from accepting them as true and, even if important parts of the claims were true, the Tribunal was not satisfied that the applicant had a well-founded fear of political persecution should he return to Bangladesh. In those circumstances, and on the basis of the reasoning of the Full Court in WAIJ, it was not open to the Tribunal to fail to have regard to the corroborative material (the Chando memorandum) before reaching conclusions on the applicant’s credibility.
The real question is whether the Tribunal did “have regard to” the Chando memorandum which was presented for its corroborative value. It is apparent from the Tribunal’s reasons that it did, although not to the extent that the applicant would have liked. The Tribunal considered the Chando memorandum and implicitly accepted it as an authentic document. The Tribunal expressly referred to the Chando memorandum in accepting certain of the applicant’s factual claims. In substance, the applicant’s complaint is that the Tribunal did not refer to the Chando memorandum in rejecting other claims made by the applicant in circumstances when it might have done so.
I accept the Minister’s submission that Mr Chando’s statement provided less than compelling support for the applicant’s claims that he was a renowned leader of the Chattra League or that his political profile made him well known in the Party. Mr Chando supported the proposition that the applicant had campaigned in support of the Awami League and had had contact with Ministers in the government and had some profile as a student leader and had had some clashes with political opponents. Mr Chando did not provide details about the basis of his knowledge or the precise nature and extent of the applicant’s activities. On the basis of the Tribunal’s reasons read as a whole, I accept that the Tribunal had regard to the Chando memorandum and gave weight to it to the extent that the Tribunal accepted that the memorandum corroborated the applicant’s claims. In my view, the Tribunal was entitled to limit its references to the Chando memorandum in its reasons to those parts of it which provided specific corroborative support to the applicant’s factual claims, rather than vague or generalised support. I see no significance in the error made by the presiding member in overlooking the date of the document.
I reject the second ground of review.
The relevant/irrelevant considerations issue
As is noted in the Minister’s submissions, this ground of review centres upon the asserted misunderstanding by the Tribunal of the applicant’s claims and its failure to take into account the fact that the Awami League was in power up to the time the applicant left Bangladesh but that its political opponents then gained power, giving rise to the applicant’s fear of return.
At pages 263 and 264 of the court book the presiding member records a discussion at the hearing conducted by the Tribunal about the applicant’s fears of returning to Bangladesh. It is apparent from the record of that discussion that the applicant’s fears centred upon the harm he fears might come to him at the hands of the BNP government in Bangladesh. That government was elected at about the time the applicant came to Australia. On page 265 of the court book, the presiding member notes a submission received from the applicant’s adviser in which it was asserted that life for Awami League activists had not been secure since the 2001 election. On pages 269-272 of the court book the presiding member records the discussion that occurred at the second Tribunal hearing, including an assertion that while the Awami League was in power, the BNP could not harm him by bringing false cases against him.
The presiding member dealt with this issue in relation to the applicant’s claims in the following terms[34]:
The Applicant claims in his protection visa application that immediately after the 1 October 2001 election the BNP and JI sought revenge against the Chattra and Awami League [supporters] and the police were aware of his involvement during the parliamentary election October 1, 2001 and went to his house with a warrant for his arrest and he was to be arrested for a “number of offences” that could result in his being sentenced to at least 5 years imprisonment and the Tribunal discussed this claim with him at the second hearing. In response, the Applicant claims he came to Australia 2 days after the election and prior to this he had been renting a place in Dhaka and a friend told him that the police came to arrest him. Asked why, the Applicant claimed that the police did not say but he claims that his friend also said that people from the Shabir and BNP came looking for him. The Tribunal also put to the Applicant at the second hearing that at the first Tribunal hearing held on 19 August 2003, he claimed that false cases had been made against him when the Awami League was in power. The Applicant claims that he was the General Secretary of the College Union at the time (1996-1999) and was involved in some clashes and some false cases were made against him including that he took money from the student union fund. Asked what happened about these cases, the Applicant claimed that the Awami League was in [power] then, so the BNP could not bring the case against him and [later] in the hearing the Applicant claimed that if he returns to Bangladesh he may be arrested on false charges and may harm him more physically than officially and while the general country information says everything is alright, he is scared they will attack him personally. However, the Applicant while having provided a large amount of documentation to support his case [has] not provided any evidence that the police have tried to arrest him (such as an arrest warrant or a letter [from] his friends to this [effect], or even state that he knows the reason the police wanted him, let alone that it was Convention related). And while claiming at the second hearing that some false cases were made against him for the clashes that occurred in 1996-1999, the Applicant [has] not provided any evidence of this such as a copy of the charge sheet or an arrest warrant. Nor was he even able to provide a detailed account of what these charges were other than to say he was charged with having taken money from the student union fund. However, given its earlier findings about the Applicant’s extremely limited political profile in his college in 1995, the Tribunal has not been able to satisfy itself that the Applicant’s … political opponents would lodge false charges against him for a Convention related reason or that he would be subjected to private harm and uses the Special Powers Act by the BNP government for a Convention related reason as they would see him as a threat or fear he may become a famous political leader who could convert other people to the Awami League or that the police interest in him (if any) is Convention related. In short, and given all the above, the Tribunal has not been able to satisfy itself that the Applicant is wanted by the police for a Convention related reason or that false or other Convention related charges have been made against him, and does not accept these claims.
[34] amended by me as indicated to remove numerous typographical errors
The Tribunal’s reasoning is clear enough. This is not a case of the Tribunal misunderstanding the applicant’s claims or failing to consider them or of it taking into account an irrelevant consideration. It is true that the Tribunal did not dwell on the significance of the outcome of the 2001 election but it did not need to do so because it had not accepted the applicant’s claims of a high political profile that might have placed him at risk in consequence of the outcome of the election. The fact that that applicant’s asserted political opponents had the means to harm him following the 2001 election was ultimately not relevant because the Tribunal did not accept that the applicant had given the BNP cause to harm him prior to the election. The Tribunal had rejected key elements of the applicant’s claims that went to the establishment of a political motive for such harm. I have not found any error in the Tribunal’s findings rejecting those aspects of the applicant’s claims that went to the extent of his political profile. In the absence of acceptance of those claims, ground 3 of the judicial review application falls away. I therefore reject that ground of review.
I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 February 2007
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