SZEID v Minister for Immigration - [2005] FMCA 1817

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEID v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1817

MIGRATION – Refugee – inconsistent and implausible claims – adverse findings of fact are a matter for the Tribunal – no error in law in making a wrong finding of fact – independent country information fell within the relevant exception – corroboration does not affect adverse credibility findings – application is dismissed.

Migration Act 1958 (Cth), ss.422B, 424A(1), 424A(3)(a), 424A(3)(b)
Federal Magistrates Court Rules 2001, r. 21.02(2)(a)

Minister for Immigration & Multicultural & Indigenous Affairs v Durairajasingham (2000) 168 ALR 487
Minister for Immigration & Multicultural & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259
Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs [1998] 86 FCR 547
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74
Abebe v Commonwealth (1999) 197 CLR 510
MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2000 CLR 323
Craigv State of South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte S20/2002 (2003) 198 ALR 59

Applicant:

SZEID

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2740 of 2004

Judgment of:

Nicholls FM

Hearing date:

29 November 2005

Date of Last Submission:

18 March 2005

Delivered at:

Sydney

Delivered on:

29 November 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr. R. A. Pepper

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The application is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $7000, pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2740 of 2004

SZEID

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex tempore, Revised from Transcript)

This is an application filed on 3 September 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
16 July 2004 and handed down on 10 August 2004 to affirm the decision of a delegate of the respondent Minister made on 23 April 2004 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.
The applicant is a national of Bangladesh who arrived in Australia on
6 April 2004 and lodged an application for a protection visa on
16 April 2004. His claims are set out in his application, reproduced at Court Book (“CB”) 1 to CB 26, particularly in a statement at CB 27 to CB 30, and in his application for review at CB 47 to CB 50. On
15 June 2004 the applicant’s then representative, Mr. Haque, wrote to the Tribunal enclosing a large bundle of documents for its consideration (CB 56 and following). He also forwarded copies of two letters in support of the applicant’s claims, one on 15 June 2004, and another on 21 June 2004, enclosing another letter in support of the applicant’s claims. The applicant gave oral evidence at a hearing on 22 June 2004, as did a witness on his behalf. The applicant submitted various documents in support of his claims at the hearing (CB 569). The Tribunal’s account of what occurred at the hearing is reproduced at CB 650 to CB 662. Following the hearing, on 29 June 2004, the applicant’s representative wrote to the Tribunal requesting time to make further submissions, and enclosing even further documents for the Tribunal’s consideration (CB 567). On 5 July 2004 the applicant’s representative wrote yet another letter to the Tribunal enclosing an opinion by Dr. Rafiqul Islam, Associate Professor of Law at Macquarie University, in support of the applicant’s claims (CB 641).
The applicant’s claimed persecution was based on his political opinion as an active member and supporter of the Awami League (“AL”) in Bangladesh. He claimed that he had been attacked by people associated with political opponents, Jamat-e-Islami (“JI”) and the Bangladesh National Party (“BNP”), and that this occurred in the past, and included supporters of the current BNP-led Bangladesh government. The applicant further claimed that he had been the subject of false politically motivated charges lodged against him, and that he has been active in Australia “against” the Bangladesh government. The applicant also claimed that he is a non-believer in Islam and that he would be harmed by religious fanatics as a result of this if he were to return to Bangladesh.
The Tribunal’s “Findings and Reasons” in its decision record are reproduced at CB 663 to CB 665. Relevantly the Tribunal made the following findings:
1)It accepted that the applicant was an active member of the AL in the local district of Munshigonj, but found that the applicant’s claims of harm were “inconsistent and implausible” (CB 663.9).
2)It did not believe that the applicant was a target of personal attacks or harassment by the government or people associated with the government as he claimed (CB 664.1). The Tribunal found that if the applicant was being targeted as he claimed, then:
a)He could not have continued to be active in politics as he claimed
b)He would not have been able to travel in and out of the country freely
c)He would not have been issued with a passport by the government
3)It accepted independent evidence that politics in Bangladesh “are violent”, but did not find that any harm that applicant may have suffered in demonstrations was as a result of any personal targeting of the applicant, but would rather be a result of the common inter-party violence that occurs in Bangladesh (CB 664.2).
4)It accepted that the applicant is committed to the AL cause and has continued his association with the party in Australia. But the Tribunal was not satisfied that there is a real chance the applicant would suffer serious harm for reason of his political opinion as he only held a “local” position in the party in Bangladesh and had a local profile only. It described his activities in Australia as “local activities” (CB 664.4).
5)The letters from Bangladesh purporting to support the applicant’s claims were not genuine (CB 664.5).
6)The evidence from the applicant’s witnesses in Australia was “acceptable”, but the Tribunal was not satisfied that the applicant would suffer harm if he returned to Bangladesh because his party is a legal entity and has many supporters and activists (CB 664.8).
7)It found the applicant’s claim to be a “non-believer in Islam” and an “atheist” to be a fabrication designed to strengthen his refugee claims, and did not accept it to be true (CB 664.9 to CB 665.1).
8)It also found that the applicant was not sought by Islamic extremists as he claimed because of the fact that he was able to continue running his business and travel repeatedly, and that he could have been easily “found” (CB 665.2).
9)Ultimately the Tribunal was not satisfied on the evidence before it that the applicant had a well founded fear of persecution in the reasonably foreseeable future for reasons of his political opinion, his religious belief or any other Convention reason if he returned to Bangladesh (CB 665.4).
The applicant’s originating application to the Court raises three grounds:
“1)The Tribunal (at page 17.9) found that the applicant’s claims concerning being targeted by political opponents were so inconsistent and implausible that it did not accept them. The Tribunal fell into jurisdictional error in making this finding.
2)The Tribunal (at page 18.7) did not accept that the applicant’s political activities in Australia would result in there being a real chance that he would suffer serious harm should be [sic: he] return to Bangladesh. The Tribunal fell into jurisdictional error in making this finding.
3)The Tribunal decision based on incorrect findings “particularly the Tribunal described that “in April 2004” the applicant made passport to come to Australia. The total decision of the Tribunal based on this incorrect information. The applicant handed passport to the Tribunal during the hearing and the Tribunal looked at it and the applicant’s passport was issued on 8 September 2003. The Tribunal made error in this regard.”
The applicant appeared before me unrepresented today. He was assisted by an interpreter in the Bengali language. Ms. Pepper appeared for the respondents. At first, when given the opportunity to address the Court, the applicant stated:
“I have submitted my application. That is what I am going to say, that is in there. I have nothing more to say.”
In addition to the submissions filed by the respondent on 18 March 2005, Ms. Pepper filed in Court written supplementary submissions on behalf of the respondents, a copy of which was provided to the applicant. Ms. Pepper took the Court through the supplementary submissions in some detail and the applicant had the benefit of hearing the argument through the interpreter.
A
fter hearing submissions from Ms. Pepper, the applicant complained that there had been an error made by the Tribunal as to the frequency and timing of his travel overseas and in relation to the date of the issuing of his passport. He claimed that even though he had provided a list of all his travel to the Tribunal it made an error in relation to the date of issue of his passport, and when it said he travelled frequently overseas. I note that this “travel list” is reproduced at CB 36, and appears to have been provided to the first respondent's Department. The applicant stated before me that after he last travelled to India on

21 August 2002 he did not visit “any other countries” and that once “the government made [false] charges against me in December”, he did not travel overseas after that.
The issues of the travel overseas and the date of issue of the passport, though related, can best be understood when considered separately. In relation to travel the applicant claimed before me that he had told the Tribunal that it was only after false charges were laid against him that he did not travel overseas. In relation to travel overseas however, it is clear that the Tribunal was properly and initially focussed on the applicant’s claims that his house was attacked in 2001 (CB 663.4), and that it was from that time that he claimed that he had to stay in Dhaka. The importance of this “time” in 2001 was that the BNP won a landslide election victory and were “hostile and revengeful” towards the Awami League (CB 655.3). The Tribunal’s finding was that in spite of the applicant’s claims that he had been attacked and was subject to harassment and harm by the BNP led government, he was still able to lead an active political life, continued to help run the family business and in this time (from the election in 2001) he “travelled frequently abroad” (CB 663.5). The applicant’s list of travel which he said he gave to the Tribunal (CB 36) confirms seven trips out of Bangladesh since the elections in 2001. In these circumstances it was clearly open to the Tribunal to find that he “travelled frequently” since the elections in 2001. (In relation to the date of issue of the applicant’s latest passport I will deal with this below).
All three grounds raised in the application to this Court take issue with findings of fact made by the Tribunal. I note generally that to the extent that the Tribunal made adverse findings as to the applicant’s credibility, this is of course a matter properly within the role of the primary decision maker: see Minister for Immigration & Multicultural & Indigenous Affairs v Durairajasingham (2000) 168 ALR 487. In this regard this complaint (which underlays at least the first two complaints and was echoed by the applicant at the hearing before me) would rise no higher than a request for impermissible merits review (Minister for Immigration & Multicultural & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259. The Tribunal weighed the evidence before it, and the claims made by the applicant, and made findings of fact that were open to it on the material before it. It was entitled to do so in the circumstances: Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs [1998] 86 FCR 547 at 558-559 and WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74.
The applicant's first specific complaint is that in its decision record at CB 663.9 the Tribunal found that the applicant's claims relating to his being targeted by political opponents were so “inconsistent and implausible” that it did not accept them. It is clear that the Tribunal’s finding in this regard was based in large part on the applicant's own evidence. The applicant had claimed, and this was reinforced by submissions made by his adviser, that he had been particularly subjected to harm since 2001 when the BNP and its allies won a landslide victory in parliamentary elections, and that from that time the BNP, and its alliance led government, and their supporters, had been “hostile and revengeful” and had “launched massive political violence and persecution against the leaders and activists of the Awami League”, of which the applicant claimed to have been an active member. Within this context, the Tribunal noted that the applicant claimed that in 2001 his house had been attacked, and that from that time he was also being actively pursued by authorities with regard to false cases and that claims were filed against him as a form of political harassment. The Tribunal noted, as against this, that the applicant's stated evidence was that he continued to lead an active political life by leading demonstrations, and also continued to help run the family publishing business in Dhaka, and further that he also travelled frequently abroad during this time, and was issued with a passport in his own name by the Bangladeshi authorities (the exact time of issue is discussed below as against the applicant's third complaint). It noted, that given his continued family business commitments and the fact that he repeatedly returned to his hometown of Munshigonj from Dhaka (to where he had gone in 2001), it found that his claims that he was being actively targeted by political opponents would have meant that he would have been easily found and harmed. In this regard the Tribunal found his claims to be implausible. The applicant does not say how the finding complained of shows jurisdictional error on the part of the Tribunal. From what the applicant said at the hearing before me it appears that the applicant's complaint does not go further than a disagreement with the Tribunal as to its findings. In any event it is clear that in regard to this specific complaint, that the findings by the Tribunal were open to it on the material before it.
The applicant's second specific complaint is that in its decision record (at CB 664.7) the Tribunal stated that it did not accept that the applicant’s political activities in Australia would result in there being a real chance that he would suffer serious harm should he return to Bangladesh. He claimed that this also shows jurisdictional error on the part of the Tribunal. Again the applicant was unable to say why this is so, and again his claim before me was clearly that he disputed the finding by the Tribunal. The Tribunal considered the evidence of the applicant's witnesses from Australia. It accepted that the applicant had been active in Australia as claimed, however the Tribunal did not accept that there was a real chance that such activity would lead to the applicant suffering serious harm for reason of his political opinion from his political opponents, or the government, should he return to Bangladesh. The Tribunal’s finding in this regard needs to be seen in the context of the Tribunal's earlier findings to which it made specific reference in the context of considering this particular complaint, that while it accepted that the applicant was committed to the Awami League cause, and continued this association with the party in Australia, the Tribunal noted that the Awami League is a functioning political party in Bangladesh with parliamentary representation and a flourishing network of branches of various political organisations. The Tribunal noted the applicant's own evidence that he only held a “local” position in the party, and that this local profile, and his “local” activities in Australia led the Tribunal to not being satisfied that there was a real chance that he would suffer serious harm for reasons of his political opinion should he return. The Tribunal specifically noted that the Awami League was a “legal” entity, and had many supporters and activists throughout Bangladesh of which the applicant “is but one”. It is clear that the Tribunal saw the applicant's specific claims to have a higher political profile, as being variously inconsistent and implausible. While it accepted that the applicant had some level of political activity, which to some extent he continued in Australia, this was not such as would raise him above the situation of many other supporters and activists of the Awami League throughout Bangladesh, such that there would be a real chance that this would lead to the applicant suffering serious harm for reason of his political opinion should he return to Bangladesh. Again on the material before it, this finding was open to the Tribunal.
The applicant's third specific complaint in his amended application is that the “total decision of the Tribunal” was based on the incorrect information that the applicant had obtained his passport in “April 2004” to come to Australia, when in fact the applicant's passport was issued on “8 September 2003”. The applicant emphasised before me that he gave his passport to the Tribunal during the hearing that the Tribunal conducted with him, and that the Tribunal looked at the passport, and could have seen that it was issued on 8 September 2003, not in April 2004, as subsequently stated by the Tribunal in its decision record (CB 663.6).
The Tribunal's decision record does not appear to make any specific reference to the applicant having provided a passport to the Tribunal. However this perhaps can be inferred (and supports the applicant's claim in this regard) from the Tribunal's account in its decision record at CB 657.3 where the Tribunal, as part of the report of what occurred at the hearing before it, stated:
“He said that his latest passport gave his address as in Savar, a part of Dhaka where he said he stayed since September 2003.”
I note further in support of the applicant's claim as to the date of the issue of the passport, that in documentation provided to the first respondent's Department, the applicant's passport, a copy of which appears at CB 31, shows the date of issue of his passport as “8 September 2003”. In any event Ms. Pepper for the respondents conceded that the relevant date of issue of the passport appeared to be
8 September 2003.
While the Tribunal may have made an error in relation to the date of issue of the passport, I note firstly that there is no error of law simply in making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137] (“Abebe”) and MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 at [28]. Further while some caution needs to be employed with an unrepresented applicant, I note that in relation to the two other specific instances of complaint referred to by the applicant in his application to this Court, the applicant claims the Tribunal fell into jurisdictional error in making those findings. Further, I note that this claim is not repeated in relation to this third complaint, where the applicant claims only that the Tribunal made “an error in this regard”. In any event, I note and accept submissions made by Ms. Pepper that the critical issue is whether this factual error, in light of relevant authorities, led to the Tribunal asking itself the wrong question, or caused it to fail to ask itself the right question: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2000 CLR 323 and Craigv State of South Australia (1995) 184 CLR 163.

I accept Ms. Pepper’s submissions that the error in relation to the date of issue of the passport did not, in the circumstances of this case, lead the Tribunal to ask itself the wrong question, or a failure to ask itself the right question. The part of the Tribunal’s decision record (“Findings and Reasons”) which contained the reference to the passport being issued “in April 2004” (CB 663.6) is focused on the inconsistency of some key aspects of the applicant's claims (as confirmed at the hearing before the Tribunal). The error in reference to the date of issue of the passport needs to be viewed in the total context of what the Tribunal was considering at this part of its decision record and what it subsequently and ultimately found. The applicant claimed that he was on active member of the Awami League in the local district of Munshigonj and since 2001 he was pursued and attacked by authorities, he had to stay in Dhaka (not his home district) and that “subsequently false cases” were filed against him. The inconsistency stems from this set of claims, and the other evidence provided by the applicant being that he continued to lead an active political life, leading demonstrations, and also continued to help run the family publishing business in Dhaka with frequent trips travelling abroad during this time.
The essence of the applicant’s claims were that while there were some historical issues, it was the parliamentary elections of October 2001 that led to the applicant’s claimed difficulties. The election results (a BNP victory) in the applicant’s words “shocked the nation” and the “Awami Leaguers” (of which the applicant was one) became “the victims of the circumstances”. The applicant described, in his claims, the general situation following the BNP victory, and that specifically in relation to himself on 7 October 2004 “BNP cadres looted” his house (CB 652.9) and beat members of his family. It was at this time that he claimed he left home and stayed in Dhaka. The applicant put forward a series of incidents which he claimed to have suffered since that time. Further, the applicant's adviser in a submission to the Tribunal dated 18 June 2004 also emphasised the 2001 election and the BNP “landslide victory” as the beginning of the difficulty for Awami League supporters and for the applicant (see in particular paragraphs 16 to 18 at CB 560.6 of his submissions). The Tribunal’s finding therefore at CB 663, which contains the reference to the passport issued in April 2004, needs to be seen in the context of the Tribunal dealing with the applicant’s claims that as against the general violent way in which politics in Bangladesh is conducted, his problems and the series of instances of harm that he claimed (house attacked, actively pursued by authorities, leading to his having to “hide” in Dhaka and “false cases” against him) all stem from the BNP landslide victory in October 2001, and the subsequent attacks on Awami Leaguers. It was in this context that the Tribunal found his claims to be unconvincing. One reason for this, according to the Tribunal’s decision record (CB 663), was that while the applicant claimed that he was subject to all this harassment, and had to go into hiding, at the same time he continued to lead an active political life, helped run the family business and travelled frequently abroad. Even if the Tribunal was wrong in stating the applicant obtained his passport in April 2003, when in fact it was in September 2003, this does not affect the incongruous and conflicting circumstances variously put forward by the applicant himself, which led the Tribunal to find his claims to be “unconvincing”. It was certainly open to the Tribunal in these circumstances to find that “the details of his claims so inconsistent and implausible that it does not accept them” (CB 663.8).
Further, while the applicant claimed that “matters” deteriorated after September 2003, forcing him to hide in the district of Savar in Dhaka, the Tribunal's comment and the critical aspect of its reasoning in relation to the passport, is that the applicant had been able to procure a new passport in his real name, despite claiming to be, in effect, a fugitive from the Bangladesh justice system. On the applicant's own evidence, reported by the Tribunal at CB 657.3, he stated that his latest passport gave his address as being in “Savar a part of Dhaka”, where he said he had stayed since September 2003. It is clear therefore that even if the Tribunal was wrong in regard to the exact date of the issuing of the new passport, the thrust of the Tribunal’s finding that he was able to obtain a passport from the Bangladeshi authorities in his own name, while at the same time claiming to have been in hiding and actively pursued by these same authorities, remains unaffected by this error. The applicant must have obtained his passport after he went into what he said was “hiding” given that the address on the passport (on his own claim) was “Savar”, and that he had also claimed that he had gone into hiding in Savar. (“He said that after September 2003 he had to hide in Savar in Dhaka” (CB 658.5)). Further, the issue of the date of the passport also needs to be seen in the context that what flowed from his being able to obtain the passport was only one part of the Tribunal's findings in relation to the inconsistency of the applicant’s claims which stretched back to the period following the landslide election obtained by the BNP in 2001. While the Tribunal may have made a factual error in this regard, it clearly does not amount to an error that affects the exercise of its jurisdiction. It was still focussed on the right question which was the real chance of a well founded fear of persecution in circumstances where inconsistent and implausible claims had been made.
In the context of having before me an unrepresented applicant I should also note that to the extent that the Tribunal relied on independent country information in making its decision, and in particular independent evidence relating to politics in Bangladesh (and in the context where s.422B of the Act applies), then clearly on the material before me this was either information given by the applicant himself (or his adviser on his behalf) for the purposes of the application to the Tribunal and therefore would fall within the exception provided in s.424A(3)(b) of the Migration Act 1958 (“the Act”) from the requirement for the Tribunal to provide such information to the applicant pursuant to s.424A(1) of the Act, or was information that fell within the exception from this requirement provided for in s.424A(3)(a): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 in that it was independent country information that was not about the applicant (or another person).
Further, the Tribunal found that it was not prepared to accept that the letters from Bangladesh purporting to support the applicant's claims were genuine. It is clear, as the Tribunal states, that it found that the applicant's claims in relation to his political activities were so “inconsistent and implausible” that it did not accept them. This was a credibility finding which was opened to the Tribunal on the material before it. While the Tribunal referred to independent information about the “easy availability” of false documentation from Bangladesh (CB 664.5), the Tribunal clearly rejected these letters on the basis that as corroborating evidence of the applicant's claims, the applicant's claims had already been rejected by the Tribunal on credibility grounds, and that no amount of corroboration could affect this finding. In Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte S20/2002 (2003) 198 ALR 59 and in particular per their Honours McHugh and Gummow at [49], in relation to the Tribunal’s approach to corroborative evidence and credibility, said:
"In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”
It is clear therefore that in the case before me the Tribunal placed no weight on the documents provided by the applicant in the context of its other findings on credibility in relation to the applicant claims.
The Tribunal looked at the applicant's claims in relation to his political activities and profile, and his claim based on religious grounds, and found that it could not be satisfied that the applicant had a well founded fear of persecution for a Convention reason should he return to Bangladesh. I can see no jurisdictional error in the Tribunal’s decision. This application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: Wagma Aziza

Date: 23 December 2005