SZFQJ v Minister for Immigration - [2007] FMCA 1527

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFQJ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1527

MIGRATION – RRT decision – Bangladeshi applicant claiming religious and political persecution – significant claims disbelieved – Tribunal not satisfied of real chance of persecution – no jurisdictional error found.

Migration Act 1958 (Cth), ss.424A, 425, 474, 476, Pt.7 Div.4

M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212
VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723

Applicant:

SZFQJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3076 of 2006

Judgment of:

Smith FM

Hearing date:

23 August 2007

Delivered at:

Sydney

Delivered on:

23 August 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr A Cox

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3076 of 2006

SZFQJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 23 October 2006, which has been set down for final hearing today under s.476 of the Migration Act 1958 (Cth), in relation to a decision of the Refugee Review Tribunal dated 11 September 2006 and handed down on 3 October 2006. The Tribunal affirmed a decision of a delegate made on 27 July 2004, refusing to grant a protection visa to the applicant.
An earlier decision of the Tribunal handed down on 5 January 2005 was set aside by consent order in this Court on 26 May 2006. The Tribunal’s first decision is in the material before me, and I suspect that the remitter arose from its reference to information taken from the visa application, which was not the subject of a s.424A letter.
Under s.476, the Court has “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 send the matter back to the Tribunal unless I am satisfied that the Tribunal’s 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 he qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia in April 2004, and on 10 May 2004 an application for a protection visa was lodged on his behalf by a person who was then an agent, Mr Mollah. The application was inadequately completed, and lacked any supporting details or material to explain why the applicant sought protection against return to Bangladesh. It said only:
I am a Hindu and Bangladesh Student League Leader. As a Hindu I am facing persecution in Bangladesh. My relatives are burnt alive in [location]. I am also under threat. I am afraid to get killed. That is why I fled from Bangladesh.
No better indication of the applicant’s claims was provided to the Department, and after two and a half months the delegate made a decision refusing the application. His reasons referred to the absence of any details or evidence supporting the claims, and noted that the applicant had been able to leave Bangladesh on a Bangladeshi passport in his own name.
On appeal, the applicant attended a hearing held by the Tribunal as first constituted on 1 December 2004. He presented to the Tribunal a letter of support signed by a member of parliament in Bangladesh, which stated that the applicant had been working “as a polling agent for the Bangladesh Awami League nominated candidate” in the October 2001 election, and that he had been a publicity secretary for a local chapter of the Bangladesh Awami Chattra League. The letter stated that the applicant’s life was in danger, and supported “his application for political asylum”.
The applicant told the Tribunal that he was unable to show his passport, because he had lost it in the train. A transcript of the hearing is not in evidence, but a full description was contained in the first Tribunal’s decision. The reconstituted Tribunal fully informed itself as to what was said. The applicant was questioned about his life before coming to Australia. He was questioned about where he had lived, and claimed that he had not lived at the address shown in his visa application, but had been forced to move around and could only visit his mailing address in disguise. He said that in 2000 he had become involved in college politics in a local branch of the Chattra League, and had been elected secretary for three consecutive terms. He was questioned about his knowledge of that political organisation and of the Awami League, and he gave a description of the harms which he had experienced in Bangladesh:
The Tribunal asked the Applicant what harm he had experienced in Bangladesh. The Applicant said he had been prevented by threats from sitting for his final examinations in 2001. After the elections the BNP and its alliance parties attacked minorities all over Bangladesh. Because of his strong role in the election and his vigorous protests against the persecution of minorities his opponents came after him strongly. They took all his property and threatened to kill him. When he was trying to arrange a meeting in [his college] he was chased by armed people. On a second occasion he was openly attacked and beaten in the market place in [location of college] and it was only because other people had been around that he was not killed. After he left he heard that false cases had been lodged against him and that the police had an arrest warrant for him. He said a distant relative was burned alive in Chittagong and others were killed. One of his friends had been tortured to death in police custody and the police claimed he had drowned while escaping. He mentioned killings of other Awami League or Chattra League figures. He said his attackers belonged to the BNP, Jamaat‑E‑Islami and Islami Oikko Jote. Asked how he knew these attackers the Applicant said they were mainly his political opponents, who would not allow Hindus to live in peace and were always threatening them.
The Tribunal asked the applicant whether he had been involved in any Hindu organisation. He referred to having belonged in Bangladesh to the International Krishna Consciousness Association, but he had not become a member of it in Sydney. He was asked about the claim that he had false cases against him, and he could not give any details of about this. Various aspects of independent country information were put to the applicant, including the possibility that forged or falsified documentation is easily obtained in Bangladesh and often used to support asylum claims. The applicant called a witness who was friend, who claimed to have known the applicant in Bangladesh and to have lived with him for six months. This witness purported to corroborate some of the applicant’s claims.
After the remitter of the matter, the applicant attended a second hearing held by the Tribunal as reconstituted on 14 August 2006. He presented three further letters of reference. One of them purported to be signed by the leader of the opposition and president of the Bangladesh Awami League. It “certified” that the applicant “was the publicity Secretary of the Bangladesh Awami Chattra League (Student wing of Bangladesh Awami League” in the Chapter claimed by him. It stated: “[the applicant] has been implicated in fabricated criminal cases out of vengeance. If he comes back in Bangladesh during four party alliance regime his life may be at risk. I wish him every success”.
A letter of reference, purported to be signed by two executives of the Bangladesh Students’ League, contained statements of a general nature consistent with the applicant’s claims. A letter of reference from the International Society for Krishna Consciousness certified that the applicant “was actively involve Iscon from 1995 to May, 2004”, but did not suggest that he was at any risk by reason of that involvement.
The applicant also presented to the Tribunal a certificate from the Red Crescent Society showing that he was a life member, and a computer disk. The Tribunal appears to have examined the contents of the disk, which contained various documents and a video recording of the local MP, also supporting the applicant.
A transcript of the second hearing is in evidence, and I consider that the Tribunal gave an accurate description of what was said in English at the hearing in its statement of reasons. The Tribunal questioned the applicant further about his claim to have lost his inherited property, and he gave responses which were obscure. The Tribunal also further explored his claims as to what he had been doing in Bangladesh. The Tribunal asked him questions concerning how he had obtained the letters of reference. The transcript, for example, includes the passage:
TRIBUNAL:       Well, I’ll consider what weight to give these letters, including this letter – how did you get this letter from [the opposition leader] herself?
INTERPRETER:         My friend T, he went to her to get this letter for me.
TRIBUNAL:       How does she know anything about you?
The applicant did not answer that question, and it was repeated. He then said:
INTERPRETER:         Well, the MP contacted her as well because he said that the authorities from Australia are not believing them those documents so he need some help. They also know that if I return to my country Bangladesh now I will get killed immediately - - -
In the course of this questioning, it appears to me that the applicant was alerted to the possibility that the Tribunal might not give the letters independent weight.
In its statement of reasons under the heading “Findings and Reasons”, the Tribunal gave a careful analysis of the applicant’s evidence to both hearings, and of the weight which could be gleaned in support of his evidence from the documents he had submitted. It referred to many areas of difficulty in accepting the total credibility of the applicant’s claims. In my opinion, it was open to it to have arrived at a general opinion that he was not a “reliable witness in the present matter”.
The Tribunal was ready to accept parts of the applicant’s claims, including that he was a Hindu, and that he had, as a young man, helped his local MP in the 2001 election, and had been involved in student politics at his college until ceasing to be a student in 2001. The Tribunal accepted that his father had died, and that he had inherited property.
However, it did not accept that he had been involved in politics to any significant extent after the 2001 election, nor that he had encountered any significant difficulty at college or subsequently due to political activity, nor that he had been “endangered” due to his political activity. The Tribunal thought that these claims “are inconsistent with the profile he claims to have maintained around that time in the local bazaar, and inconsistent with the attestations he submitted about having been his local candidate’s polling agent”.
The Tribunal found that the applicant’s claim that his property had been appropriated by political opponents was “a fabrication”, and that his claim that he did not have a settled place of residence and had been forced to pick up mail in disguise was “far‑fetched”.
Taking into account the letters of support, the Tribunal said:
On the evidence before it, the Tribunal is overwhelmingly confident that the Applicant has fabricated both the nature and degree of his interest and activities in politics and religious issues, and fabricated the impact and implications of the latter, engaging “witnesses” to state in writing what he has asked them directly or indirectly to write.
The Tribunal carefully analysed the contents of the letters of reference to explain this conclusion. It said:
The Tribunal is not satisfied on the evidence before it that the alleged harassment of the Applicant, referred to in letters that he openly claims to have solicited from Bangladesh after lodging his protection visa application, has been independently researched or verified by the authors of the letters, not even by [the opposition leader]. The information about the mistreatment of the Applicant is as vague and unsupported in the various letters as the Applicant’s own evidence on these facts. Insofar as they purport to attest to relevant harm towards the Applicant, or the risk or danger of it, the Tribunal gives these letters no weight.
In relation to the applicant’s claimed involvement in the Hindu organisation, it accepted that the applicant had “some involvement … but is not satisfied on the evidence before it that this has attracted or would attract serious harassment in his case”. The Tribunal gave reasons for that conclusion which, I consider, were open on the evidence.
The Tribunal noted that, although there was some evidence of “mistreatment of members of Bangladesh’s ethnic and religious minorities”, the applicant’s personal circumstances showed him coming from a different background. It said: “there is no credible evidence before the Tribunal to suggest that the Applicant faces a real chance of persecution in Bangladesh for reasons of being a Hindu”.
The Tribunal, therefore, was not satisfied that the applicant faced a real chance of Convention related persecution in Bangladesh.
I have considered the Tribunal’s reasoning and its procedures, and have not been able to identify jurisdictional error affecting its decision.
The applicant has not been legally represented, but has set out in an amended application a series of particulars of claimed jurisdictional errors. Many of these are taken from a general precedent, and are in language which cannot meaningfully be applied to the present decision. I have considered the general heads of jurisdictional error raised by these grounds, but am unable to give them application to the present case.
I reject the unparticularised allegations of bias and bad faith, and have found no support for these grounds in the material before me.
Many of the applicant’s other arguments seek to challenge the merits of findings of the Tribunal, including by reference to general political events in Bangladesh. I have considered these arguments, but they do not cause me to conclude that the Tribunal did not give a genuine consideration of the applicant’s own evidence and circumstances, nor that its conclusions were not open to it on the evidence.
I can find no element of procedural unfairness in the procedures followed by the Tribunal, insofar as such requirements are now to be located within the statutory procedural provisions of Division 4 of Part 7 of the Migration Act 1958 (Cth).
Some grounds in the amended application, and in the applicant’s own submissions today, criticise the Tribunal’s failure to accept and give full corroborative effect to the contents of the letters of reference presented by the applicant. However, I consider that the Tribunal’s reasoning in relation to this evidence does not reveal any jurisdictional error.
In the context of criticising the Tribunal’s assessment of the letters of reference, the applicant argued that there was a failure of communication with the Tribunal at the hearing, due to faulty interpretation. He pointed to the fact that, after the Tribunal’s hearing, he made a general written complaint to the Tribunal: “I think the interpreter was unable to explain couple of things. So my request could you check them. I think he didn’t explain properly what I said”. The Tribunal in its statements of reasons referred to considering this complaint, and it said: “the Tribunal is not satisfied that there is any evidence to suggest that any characteristics of the Applicant’s evidence can be attributed to interpreter error. The Applicant is not a reliable witness in the present matter”.
Before me today, the only particular point in the transcript where the applicant suggested a failure of translation had occurred, concerned the Tribunal’s questions about the derivation of the letter of reference from the opposition leader. However, the transcript shows responses by the applicant which suggest that he understood the questions. He has presented no expert evidence to establish any failure by the interpreter to reach required standards of competence, nor of any mistranslation causing any material prejudice to the applicant (cf. VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723, and M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212 at [34]‑[39], [48]‑[51]). I therefore do not accept that jurisdictional error under s.425 arises from this complaint.
The applicant’s other submissions to me today repeated his refugee claims, and his desire for a further hearing by the Tribunal where he could present more evidence. However, as I have explained to him, I do not have power to send his case back to the Tribunal, in the absence of any jurisdictional error.
For the reasons above, I have not been satisfied that the Tribunal’s decision was affected by jurisdictional error. It was therefore a privative clause decision, and I must dismiss the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 28 September 2007