SZDCE v Minister for Immigration
[2007] FMCA 76
•19 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDCE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 76 |
| MIGRATION – RRT decision – Bangladeshi woman claiming persecution by Muslim extremists – disbelieved by Tribunal – no jurisdictional error found. |
Migration Act 1958 (Cth), ss.422B(1), 424A, 424A(1), 424A(3)(b), 425, 474, 476
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592, [2006] HCA 63
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
| Applicant: | SZDCE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1743 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 19 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms N Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1743 of 2006
| SZDCE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 20 June 2006 which has been set down for a final hearing on whether the applicant is entitled to relief under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 11 May 2006 and handed down on 1 June 2006. The Tribunal affirmed a decision of a delegate made on 10 October 2003 refusing to grant a protection visa to the applicant.
The delay between the delegate’s decision and the Tribunal’s decision is accounted for by a previous decision of the Tribunal, which was made on 29 January 2004 and was the subject of proceedings in this Court. An order that it be quashed was made on 13 January 2006. The material before me does not contain the first Tribunal’s decision, nor explain the reasons for the quashing, but neither party has submitted that these are relevant to the present application. I note that the reconstituted Tribunal said in its statement of reasons that the applicant did not attend a hearing appointed by the first Tribunal.
The Court’s jurisdiction under s.476 is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474 so that I do not have power to set aside the Tribunal’s decision and send the matter back to the Tribunal, unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia in August 2003. Her application for a protection visa was lodged on 23 September 2003 by a migration agent, Mr Mollah. The application briefly referred to reasons why the applicant sought protection in Australia so that she did not have to return to her country of nationality, Bangladesh.
The applicant claimed:
I was persecuted in Bangladesh. I was born in a politically oriented family. I was an activist of Bangladesh Awami League. Because of my political opinion I was tortured by present coalition government. I am a secularist.
After the last parliament election my party activist are persecuted by the present coalition government. I was the target of oppression. BNP and JAMAT men continuously oppression our family. I was hide in village from the capital city DHAKA. I was a most popular women politician of my area. My dedication in politics, my party, gave the honor. I was the organising secretary of Awami Mohila League [illegible] area committee. At that time an political rivalry conspiracy against me. I was detain once by the muslim terrorist.
I will provide more details later.
No details of these claims were ever provided to the Department of Immigration, although Mr Mollah submitted a bulky bundle of general material about Bangladesh. However, when the applicant appealed to the Tribunal, again assisted by Mr Mollah, she presented a statutory declaration giving more details of her claims. The contents of this declaration were summarised by the present Tribunal in its reasons, and in my opinion this is a sufficient summary:
In the statutory declaration the applicant stated, amongst other things, that:
•She was a “women activist and also a politician”.
•She became very active in “social works and cultural program” in school.
•She joined the Awami League youth group for women in college.
•She was a secretary of the Bangladesh Chattra League for 2000‑2001 and 2001‑2002.
•She spoke out about the violation of the basic rights of women which occurred in the name of Islam.
•She had a boyfriend who lived with her. This was not accepted by society and a fatwa was issued by muftis declaring their relationship illegal and that her boyfriend, who was of a different religion, had to convert to Islam and they would have to marry. She and her family received threats from local BNP and “Jamaat” workers calling her a prostitute and threatening to kidnap her and burn her face with acid, their house was attacked, and she was subjected to derogatory comments from everybody she met on the street.
•She was very active in organising political gatherings and meetings.
•On 21 April 2003 she was kidnapped by “workers” of the “Islami Chattra Shibir” and Chattra Dal and taken to the house of a local BNP leader. She was raped by several BNP “workers”, photographs of her in the nude were taken and the rapes videotaped. The following day she was rescued by the police but she was raped by a police officer before being released.
•It became impossible for her and her family to leave their home due to “social harassment”, her boyfriend disappeared, and her father died of a heart attack due to the shock.
•She explained why she could not relocate to another part of Bangladesh and could not seek protection from the “court” or the police.
•She would be persecuted, harassed and either killed or forced to commit suicide if she returned to Bangladesh.
Her appeal was lodged in November 2003. Mr Mollah forwarded to the Tribunal further internet and other records concerning the Human Rights situation in Bangladesh. No corroboration for the applicant’s own history was forwarded until after the quashing of the first Tribunal’s decision. At that time, the applicant informed the Tribunal that she no longer employed Mr Mollah.
Shortly before a hearing appointed for 16 March 2006, the applicant lodged a written submission in which she summarised her claim at its beginning:
I am a woman from Bangladesh. I have suffered severe physical and psychological abuse at the hands of Islamic fundamentalists and my political opponents Islamic Chattra Shibir and Chattra Dal.
As a victimized woman in Bangladesh with no political support from my own political party, I fear returning to Bangladesh. I am very much certain that I will suffer social ostracism, cruel treatment and torture at the hands of Islamic fundamentalists and my political opponents. In this respect I refer my earlier statutory declaration which explained details what I suffered in Bangladesh.
The applicant then explained her claim to fear persecution on the grounds of her political affiliation with the Awami League, her activities with disadvantaged women, and her history of being targeted by Islamic fundamentalists and the ensuing mistreatment which she had referred to in her statutory declaration. She referred the Tribunal to some further general information about Bangladesh. At the end of her submission, she said:
Now I had brought two documents from Bangladesh which proves my political affiliation and activities for women development in Bangladesh. Those are:
·A reference letter from Bangladesh Student’s League dated 25.02.2006; and
·A reference letter form Mohana dated 01.03.2006.
Please note that both of those documents have come to me by fax. The original copy is on the way by mail. If I receive before the hearing I will produce it before the Honourable Member.
Please also note that my documents are genuine which just reflect my activities during my days in Bangladesh. I submit that if the Tribunal has any doubt about the authenticity of these two documents I would request the Tribunal to make investigate or let me know so that I would get the opportunity to clarify my position.
The letter referred to by the applicant from Mohana appears to be signed by somebody who is described as “President”. It states:
To Whom It May Concern.
It is pleasure for me to give a reference for the above person, [the applicant] who was an active activist for this organization. According to our policy we act for poor and disadvantaged women in Bangladesh. We talk against the dowry system, the divorce system, domestic violence, acid crime, rape etc. [the applicant] was very much involved with these activities. Her duties were to make consciousness the women in the [district] local area.
We were notified by the above activist in the middle of year 2003 that to enforce her duties she faced a lot of pressure by the Islamic Fundamentalist Group in her area. We also came to know that the pressure was beyond of her control. Then suddenly she disappeared.
A few days ago we received a request from the above activist to give her a reference letter about her involvement and activities with this organization. The content of this letter is the reply of her request.
If anybody needs further information about [the applicant] we request to contact our office in the above address.
The letter referred to by the applicant from the Bangladesh Students’ League is signed by three officials of the Bangladesh Students’ League. It states:
To Whom It May Concern.
[Applicant’s Name]
[Applicant’s Date of Birth]
I confirm that the above named, [the applicant] was involved with the Awami Politics and being a secretary of Bangladesh Chattra League at the [district] Police Station for the year of 2000‑2001 and 2001‑2002. As a secretary she played a vital role in our area to make popular Bangladesh Awami League to the general public.
I also confirm that for the activities with the Bangladesh Awami League she became target by the Bangladesh Nationalist Party and Jamat‑e‑Islami activists. She faced a lot of pressure by the political opponent and also social group. At one stage she disappeared. In later she informed us that she is in Australia. She also informed us that the pressure by the Islamic fundamentalist was beyond of her control especially social pressure and it was the reason to leave Bangladesh.
Should you have any enquiries of the above person please do not hesitate to contact the underneath signatory of this office.
The applicant did attend the hearing of the Tribunal on 16 March 2006. The record indicates that it lasted from 1.40 pm until 4.50 pm, and suggests that the applicant was subsequently given the tape recording of the proceeding. However, neither party has tendered a transcript or record of the hearing.
The Tribunal’s statement of reasons does not contain a summary or account of the course of questioning at the hearing. It contains a brief summary of the heads or topics of discussion only, and some extensive reference to parts of the applicant’s evidence is made by the Tribunal in the course of explaining its findings and reasons. However, it is impossible to treat the Tribunal’s decision as containing evidence indicating in a complete fashion what was or was not said or discussed at the hearing.
I note that the applicant was put on notice in my directions at the first court date that, if she wished to rely upon allegations as to what occurred at the hearing, it would be necessary for her to present a transcript of the hearing to the Court. She has not taken that opportunity.
Under the heading “Findings and Reasons”, the Tribunal stated a conclusion:
After taking oral evidence from the applicant, the Tribunal has concluded that she was not a credible witness. Her oral evidence about her activism was vague, general, evasive and inconsistent. Further, she lacked knowledge about matters which the Tribunal expects she would have had if she was a women’s and political activist.
The Tribunal then gave a detailed explanation for those conclusions, referring to relevant parts of its questioning of the applicant. It is apparent that the Tribunal put weight not only on the contents of the applicant’s responses, but also the manner in which they were delivered.
One of the matters upon which the Tribunal questioned the applicant was her knowledge of women’s organisations in Bangladesh, and in particular of the largest organisation, the BMP, which country information indicated had nearly 50,000 members. The Tribunal’s account of its questioning of the applicant was:
The applicant told the Tribunal that she was aware that there were many other NGOs and groups working to assist women. She said she had heard about their activities but did not contact them nor did she work for them but most assisted women to earn a living and achieve independence. Asked the names of the other women’s NGOs the applicant named A and B. The Tribunal put to the applicant that according to information it had, the largest women’s organisation in Bangladesh was the BMP and questioned why, if she was a women’s activist as she claimed she was not aware of this organisation. The applicant then claimed, for the first time in the hearing and after having given a considerable amount of oral evidence, that since the incident (the alleged kidnapping and rapes in April 2003) she had become absent minded and could not recall things. The Tribunal has no medical evidence before it to support this assertion. Further, at the beginning of the hearing the applicant told the Tribunal that she had not sought any help since coming to Australia for the alleged trauma she had suffered in Bangladesh. Thus, the Tribunal does not accept that the applicant’s capacity to recall matters was impaired as she claimed and finds that if she had been a women’s activist since 1994, had contact with a women’s NGO since 1994 and was aware that there were many women’s NGOs in Bangladesh she would have been able to identify the largest women’s organisation in Bangladesh.
The Tribunal referred to other aspects of her evidence about her involvement in women’s organisations which explained why it was not persuaded by that aspect of her claims.
The Tribunal also referred to “much questioning” by the Tribunal concerning her involvement in politics as a student. It referred to the absence of knowledge on her part as to significant political events which the Tribunal expected her to have known about if she had been an active member of an Awami League organisation. She was unaware of significant reforms introduced by the Awami League when it was in power between 1996 and 2001, enhancing the rights of women in Bangladesh.
The Tribunal concluded, after referring to such matters:
The above matters individually would not have led the Tribunal to draw an adverse conclusion about the applicant’s credibility; however, cumulatively they have led the Tribunal to conclude that the applicant was not a truthful witness and that the claims she made that she was a women’s activist and was involved in politics were invented. The Tribunal thus gives no weight to the letters from Mohana and the Bangladesh Chattra League submitted by the applicant.
The Tribunal did not further explain how it had considered the letters from Mohana and the Chattra League submitted by the applicant. It is, however, in my opinion clear that it did consider their contents, since earlier in its reasons it expressly summarised their effect.
The Tribunal then turned to the applicant’s claimed history of mistreatment arising from an unmarried relationship. The Tribunal said:
In relation to her claim about her boyfriend, the applicant testified that she lived with her boyfriend at her parents’ home and that they had a sexual relationship. The Tribunal questioned that her parents would have permitted this given information it had about Bangladesh society indicated it would be rare for men and women to live together and have a sexual relationship outside of marriage. The applicant claimed that she was raised in an independent and free environment with no binding social or religious constraints, and whilst her parents did not support her she was stubborn and in the end they consented to the situation. The applicant also claimed that the situation was not very rare nowadays. Given the independent evidence referred to above about the repressive social attitudes towards sex, the expectations that sex should be within the confines of marriage, the importance placed on women’s sexual “purity” prior to marriage and not being publicly seen to breach these social mores, it is very hard to believe that, even if the applicant’s parents had liberal attitudes, they would have allowed those attitudes to be manifested publicly by permitting their daughter to live in their home with her boyfriend. Had the applicant been an otherwise credible witness the Tribunal might have been able to accept this rather unlikely scenario, however, given her complete lack of credibility in relation to her other claims, the Tribunal does not find this claim credible.
Its general conclusions were:
For the above reasons the Tribunal finds that the applicant was not a women’s activist or associated with Mohana, and was not politically active with the Awami League or Chattra League, nor did she hold a position with these or any other political group or party. Further, the Tribunal finds that the applicant did not live with a boyfriend in her parents’ home in Bangladesh. It thus follows that the Tribunal does not accept that the applicant was harmed or persecuted as a result of any women’s or political activities or her relationship with a boyfriend.
The applicant has not claimed to fear harm for any other reason. She referred to her father and members of her father’s family being involved in politics but did not claim that this alone gave rise to any persecution in the past. She also referred in writing and orally to the treatment of women and girls in Bangladesh but when asked at the hearing whether she faced any persecution because she was a woman she said that the only persecution she faced was due to her relationship with her boyfriend and activism for women and in politics. There is nothing on the face of the evidence before the Tribunal to indicate that the applicant has experienced serious harm amounting to persecution in the past because of her sex or any other Convention reason. Therefore, the Tribunal finds that there is not a real chance that she will be subjected to Convention-related persecution in the reasonably foreseeable future.
I have considered carefully the Tribunal’s reasons for its adverse conclusions, and am not persuaded that they were not open to the Tribunal on the evidence before it. I consider the Tribunal gave rational reasons for rejecting the credibility of the applicant’s sworn evidence and the letters presented in corroboration. I consider that it fully addressed the claims which were presented to it by the applicant. I can see no jurisdictional error affecting its procedures or reasoning.
The applicant has been unrepresented, but has presented relevant arguments criticising the Tribunal’s reasons. Four general grounds in her original application are better explained in an amended application, and in an outline of written legal submission which also raises some additional points. The grounds and particulars set out in the amended application are:
1.The Refugee Review Tribunal constructively failed to exercise its jurisdiction under the Act:
Particulars:
A. There was no evidence to support the Refugee Review Tribunal’s finding that:
i)my oral evidence about my activism was vague, general, evasive and inconsistent; and
ii)my oral evidence about whether I became a member of the Chattra League during college was vague and hesitant.
2.The Refugee Review Tribunal acted in excess of its jurisdiction:
Particulars:
A. The Refugee Review Tribunal acted in excess of its jurisdiction by making the following comment:
i)the Tribunal has not accepted that the applicant’s ability to recall past events was affected in any way; and
ii)asking irrelevant question like the Awami League flag.
3.The applicant was denied procedural fairness or natural justice by the Refugee Review Tribunal:
Particulars:
A. The Refugee Review Tribunal denied natural justice to me and/or ignored the procedural fairness for its following act that:
i)the Tribunal thus gives not weight to the letters from Mohana and the Bangladesh Chattra League submitted by the applicant.
In relation to Ground 1, I am not persuaded that it was not open to the Tribunal, as a matter of law, to make findings adverse to the acceptance of the applicant’s oral evidence. In particular, the absence of a transcript prevents substance being given to Ground 1.
In relation to Ground 2, I can see no jurisdictional error arising from the Tribunal’s declining to accept the excuse given by the applicant for her inability to respond to questions. The applicant did not present to the Tribunal, and has not presented to this Court, any evidence which would support the contention that she was medically incapacitated from answering the questions of the Tribunal in a manner which might have been more persuasive. I am not satisfied that she was not fully afforded the opportunity required by s.425 of the Migration Act in relation to participation at a hearing.
I do not accept that the Tribunal based any of its reasoning upon irrelevant matters or irrelevant questioning. It was, in my opinion, open to the Tribunal to test the applicant’s knowledge of the Awami League by reference to matters such as knowledge of its flag. I do not consider that the Tribunal has shown in its reasons that it adopted an irrational or capricious approach to such questioning, and there is no evidence that this happened at the hearing.
In relation to Ground 3, I have considered how the Tribunal dealt with the two letters of reference which were submitted by the applicant in corroboration of her history. As I have indicated above, I do not accept that the Tribunal did not consider the contents of those letters. Nor, in my opinion, does its reasoning indicate that it refused to take their contents into account when assessing the evidence as a whole.
The Tribunal’s statement that it “gives no weight” to the letters does not reveal, in my opinion, an error such as was found in WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [52] of deciding to disregard relevant evidence. Rather, in my opinion, the Tribunal adopted an approach, which has been supported in the Full Court, of assessing unsworn corroborative documents against its findings as to the credibility of the applicant’s sworn evidence (see, for example, WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [70], and the preceding discussion of authority in that judgment).
I am not persuaded that there was any denial of procedural fairness by reason of any failure by the Tribunal to warn the applicant that it might give the contents of the letters “no weight” as a result of disbelieving the applicant. The applicant herself in her written submission appears to have been aware that there was a possibility that the Tribunal might not accept that her documents were “genuine”. Although she requested the Tribunal to make investigations and to warn if it declined to rely upon them, I do not consider that the law required it to make investigations or to give any further warning that the documents might not be accepted (c.f. Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187], and WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]).
This is not, in my opinion, a case coming within the recent discussion of the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592, [2006] HCA 63 since, in my opinion, the applicant was probably fully alive to the possibility that the truth of her claims to have been an activist, and to have suffered mistreatment as a result of her activities and personal life, was in issue.
Moreover, even if breach of procedural fairness occurred under common law principles as a result of the Tribunal not inviting the applicant to comment on the possibility that it might give no weight to the contents of the two references, the provisions of s.422B(1) apply to the present proceeding. I accept the submission of the Minister that the weight of authority is that the provisions of s.424A are exhaustive of an applicant’s rights to have matters put to them for comment. In the present case, the Tribunal’s assessment of the weight which it might give to corroborative evidence given by the applicant to the Tribunal would not come within the concept of “information” covered by s.424A(1), and the evidence itself was excluded from the Tribunal’s duties under s.424A(1) by reason of s.424A(3)(b).
A further problem facing the applicant in her complaints of procedural fairness in relation to the Tribunal’s reasoning concerning the corroborative letters is that, in the absence of a transcript, I am not satisfied that they were not discussed at the hearing in a manner which should have put the applicant on notice that they might not be accepted by the Tribunal.
The applicant’s written submission addressed the grounds which I have dealt with above. It also contended that the Tribunal’s finding in relation to the defects in the applicant’s evidence was attended by a failure to comply with s.424A by reason of the absence of a written invitation to the applicant to comment upon the possibility that the Tribunal might make those findings. However, it is clear that the whole of the applicant’s evidence was “given to the Tribunal” within the exclusion of s.424A(3)(b), and that the Tribunal’s reasoning processes in relation to that evidence are not “information” within sub‑s.(1).
The written submission suggests that the Tribunal should have consulted a doctor as to the applicant’s fitness to give evidence, but in my opinion the weight of authority, including that cited above, is clearly to the contrary.
The written submission also contains a repeated assertion of the applicant’s refugee claims, but this is not a matter which the Court itself may enquire into and make findings upon.
I have carefully considered the applicant’s written submissions, but am not persuaded that they have established any jurisdictional error affecting the Tribunal’s decision.
The applicant attended the hearing today, but she asked the Court to consider her written submissions and had no further submissions to make.
For the above reasons I consider that the Tribunal’s decision is a privative clause decision, and I must dismiss the application.
I certify that the preceding thirty‑nine (39) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 9 February 2007
6
0