SZGDD v Minister for Immigration and Anor (No.2)

[2008] FMCA 868

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDGG v MINISTER FOR IMMIGRATION & ANOR (No.2) [2008] FMCA 868

MIGRATION – Visa – Protection visa – application for review of decision of Refugee Review Tribunal refusing to grant a protection visa – citizen of Bangladesh claiming fear of persecution for reason of political opinion – whether Tribunal decision was arbitrary, capricious and unreasonable so as to amount to jurisdictional error – whether the Tribunal failed to address a distinct aspect of the applicant’s case – whether the Tribunal fell into jurisdictional error by failing to address the question of internal relocation – credibility – jurisdictional error established – relocation finding establishes separate and independent basis for affirming delegate’s decision – application dismissed.  

Migration Act 1958 (Cth), s.476

SZDGG v Minister for Immigration & Anor [2008] FMCA 313 cited
Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1998-1999) 197 CLR 611 cited
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002[2003] HCA 30; (2003) 198 ALR 59; 77 ALJR 1165 cited
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 cited.
SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 81 ALJR 1659 cited.
Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 cited.
W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 cited.
NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 cited.
NABE v Minister for immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263 cited.
Minister for Immigration and Multicultural and Indigenous Affairs v NBDS (2006) 90 ALD 614; [2006] FCA 265 followed.
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; 201 ALR 327; 76 ALD 1; [2003] HCA 56 cited.
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 followed.
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 followed.
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; 203 ALR 112; 78 ALD 8; [2003] HCA 71 followed.

Applicant: SZDGG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 675 of 2007

Delivered on: 27 June 2008

Delivered at: Sydney

Hearing date: 7 May 2008

Judgment of: Scarlett FM

REPRESENTATION

Counsel for the Applicant: Mr Karp

Counsel for the Respondent: Ms Wong

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $7,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 675 of 2007

SZDGG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant, a citizen of Bangladesh, asks the Court to review a decision of the Refugee Review Tribunal affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant him a protection visa.

2. In his amended application filed in Court on the day of the hearing, he asks the Court to issue writs of certiorari, prohibition and mandamus. He also seeks an order for costs.

3. He relies on three grounds alleging jurisdictional error:

   ·The Tribunal’s reasoning was arbitrary, capricious and unreasonable so as to amount to jurisdictional error.

   ·The Tribunal failed to address a distinct aspect of the Applicant’s case.

   ·The Tribunal failed to address the question of internal relocation according to law.

Background

1. The Applicant arrived in Australia on 17^th September 2002. He applied for a Protection (Class XA) visa on 18^th October 2002, claiming to have been a member of the Bangladesh Chattra League, the student wing of the Awami League Party, since 1985. He claimed that in 2001 some supporters of the opposing BNP killed his nephew. He further claimed that BNP supporters threatened him and attacked his house with a bomb. He claimed that several false cases had been lodged against him. He claimed that his life was not safe in Bangladesh so he left the country on a false passport and Visitor visa. 

2. A delegate of the Minister, then the Minister for Immigration and Multicultural Affairs, refused the application for a visa on 15^th April 2003. The delegate did not give any weight to his claims due to the absence of supporting evidence, saying “The application submitted is notable for lack of required information contained therein, and the claims provided are so general and lacking in relevant detail that I am unable to establish the relevant facts”[1]

   [1] Court Book at 60

3. The delegate also considered the question of relocation within Bangladesh and, noting that his claims of persecution related to his locality, found that it is not unreasonable for the Applicant to relocate to another part of Bangladesh[2].

   [2] See Court Book at 64

4. The Applicant then applied to the Refugee Review Tribunal for review of the delegate’s decision.

Application to the Refugee Review Tribunal

1. The Tribunal received an application for review from the Applicant on 26^th April 2003. The Applicant nominated his migration agent as his authorised recipient for correspondence.

2. The Tribunal invited the Applicant to attend a hearing on

   
   23^rd November 2003

   . The Tribunal, in a decision handed down on

   
   17^th March 2004

   , affirmed the decision not to grant the Applicant a protection visa.

3. The Applicant sought judicial review of that decision from the Federal Magistrates Court. On 9^th May 2006 Barnes FM made orders by consent quashing the Tribunal decision and remitting the Applicant’s application to the Tribunal for determination according to law.

4. The Tribunal invited the Applicant to attend a hearing on 11^th January 2007. The Applicant and his migration adviser provided a number of documents to the Tribunal for the purposes of the hearing, including the Applicants’ passport and a number of photographs.

5. The Applicant attended the hearing on 11^th January 2007 and gave evidence. He called three witnesses, all of whom gave evidence on his behalf.

6. The Tribunal signed its decision on 17^th January 2007 and handed the decision down on 30^th January. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.

The Refugee Review Tribunal Decision

1. A copy of the Tribunal Decision Record appears at pages 505 to 527 of the Court Book. The Tribunal noted the Applicant’s statement that his political affiliation with the Bangladesh Awami League and its leadership position compelled him to leave the country to save his life. The Tribunal summarised the Applicant’s evidence and that of his three witnesses.

The Tribunal’s Findings and Reasons

1. The Tribunal accepted that the Applicant is a national of the People’s Republic of Bangladesh, that his ethnic group is Bengali and his religion is Islam. The Tribunal also accepted “the applicant’s claims made at the second hearing that he entered Australia on another passport which was not his own and that he lied to the Australian Government about who he was and his reason for coming here. The Tribunal finds that this goes to the matter of his credibility and finds that he is not a credible witness”[3]

   [3] Court Book at 523

2. The Tribunal then set out the reasons why it did not accept the Applicant’s credibility.

Application for Judicial Review

1. The Applicant commenced proceedings for judicial review on

   
   27^th February 2007

   . The application has been set down for final hearing previously, but the Applicant experienced a number of difficulties with his legal representation. On 28^th February 2008 he was granted an adjournment in order to obtain representation by counsel, which he believed to be forthcoming. I granted the adjournment but made an order that he should pay the First Respondent’s costs of the day (see SZDGG v Minister for Immigration & Anor[4] ).

   [4] [2008] FMCA 313

2. The Applicant’s counsel, Mr Karp, obtained leave to file in Court an amended application, which sets out three grounds for review:

   a)Ground 1 - claims that the Tribunal’s reasoning was arbitrary, capricious and unreasonable so as to amount to jurisdictional error.

   b)Ground 2 - claims that the Tribunal failed to address a distinct aspect of the Applicant’s case.

   c)Ground 3 - claims that the Tribunal failed to address the question of internal relocation according to law.

Ground 1

1. The Applicant claims that the Tribunal’s reasoning was arbitrary, capricious and unreasonable. Particulars of that claim are that the Tribunal found that as the Applicant had used a false passport and given untrue reasons for wanting to come to Australia he had lied to Australian authorities and so was not a credible witness. The Applicant claims that this was arbitrary, capricious and unreasonable because the Applicant would not have received a visa to travel to and enter Australia (at least in anything like a timely manner) if he had given the correct reason for wanting to come to Australia.

Ground 2

1. The Applicant claims that the Tribunal failed to address a distinct aspect of his case by failing to address a claim that may clearly be inferred from the materials before the Tribunal that the Applicant feared persecution because he belonged to a family involved in Awami League politics in Bangladesh.

Ground 3

1. The Applicant claims that the Tribunal failed to address the question of internal relocation by failing to consider whether relocation would be reasonable in all the Applicant’s circumstances.

Submissions

1. Counsel for the Applicant, Mr Karp, submitted that the only reason why the Tribunal rejected the Applicant’s factual claims was that he gave false information (including using a false passport) to come to Australia, so the Tribunal reasoned that he was not a credible witness. This, he submitted, was not simply a case of illogical reasoning.

   
   

   It would have been well nigh impossible for an applicant to have received any visa to visit or migrate to Australia on the basis that he feared persecution in his country of nationality.

2. Thus, the Tribunal drew adverse conclusions on the Applicant’s credit because he told an untruth to save himself from persecution in circumstances where telling the truth would not have brought him the safety he sought. He sought to tender an affidavit by one Kerry Daniel Murphy, solicitor in support of this point. The affidavit was the subject of an objection by counsel for the Minister and I declined to admit it into evidence.

3. Mr Karp submitted that the Tribunal’s finding was unreasonable and comes within the description of “arbitrary” or “capricious” (see Minister for Immigration v Eshetu[5]). It would be unsupported on logical grounds (see Eshetu at 656-7 [145]; Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002[6]). It was submitted that this constitutes jurisdictional error.

   [5] [1999] HCA 212;(1997) 197 CLR 611 at 652 [133];

   [6] [2003] HCA 30; (2003) 198 ALR 59; 77 ALJR 1165 at 1171 [34]

4. Turning to the Applicant’s second ground, Mr Karp submitted that the Applicant had claimed that he belonged to a political family involved with the Awami League and that one member of his family, his nephew, had been murdered as a result. This claim, being in danger for reason of his membership of his family, was not addressed by the Tribunal. This failure amounts to a jurisdictional error (see Htun v Minister for Immigration and Multicultural Affairs[7] ).

   [7] (2001) 194 ALR 244 at [42]

5. The Applicant’s third ground is that the Tribunal failed to consider whether relocation was reasonable in the particular circumstances of the Applicant (SZATV v Minister for Immigration and Citizenship[8] ; Randhawa v Minister for Immigration[9] ).

   [8] [2007] HCA 40; (2007) 81 ALJR 1659 at [24]

   [9] (1994) 52 FCR 437, 442

6. Counsel for the Minister, Ms Wong, submitted that it was not apparent that there was any unreasonableness in the Tribunal’s determination, having regard to the evidence before it. The Tribunal Member had given the Applicant multiple opportunities to explain his conduct, but the only explanation he gave was that he was in a “bad situation”. There was no evidence before the Tribunal to demonstrate that the Applicant’s only option for leaving Bangladesh was to lie to the Australian authorities or that it was the best option.

7. In addition, Ms Wong submitted that the Tribunal’s finding about the Applicant’s credibility was not solely founded on the Applicant having lied to the Australian government.

8. The Tribunal expressed itself not to be satisfied that the Applicant had ever been persecuted in the past because of his association with the Awami League. The Tribunal also found that the Applicant had not provided any evidence that Bangladesh citizens living overseas who had been politically active and critical of the BNP government had been subject to serious harm when they returned to Bangladesh. The Tribunal found that the Applicant had “embellished his claims” and that “this goes to the matter of his credibility and again finds that he is not a credible witness”[10].

   [10] Court Book at 524

9. Thus, Ms Wong submitted, the Tribunal’s findings about the Applicant’s credibility were founded on a number of factors, of which the Applicant’s conduct in lying to the Australian government was only one. She submitted that the Applicant had failed to demonstrate that the Tribunal’s reasoning was arbitrary or capricious, nor that it was unsupported on logical grounds. In any event, even if the Tribunal’s reasoning was not illogical, this is not a ground of judicial review (see W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[11]; NATC v Minister for Immigration and Multicultural and Indigenous Affairs[12]).

   [11] [2003] FCAFC 255 at [35]

   [12] [2004] FCAFC 52 at [25]

10. As to the Applicant’s second ground, that the Tribunal had not considered his claim that he had a well founded fear of persecution because of his membership of a political family, Ms Wong submitted that the Tribunal did consider this claim. She referred the Court to the Tribunal’s Findings and reasons at pages 524 and 525 of the Court Book, where the Tribunal considered the Applicant’s claim to fear persecution as a result of his political activities. Ms Wong described the Applicant’s submission as “The issue that the Applicant asks this Court to consider is whether he made a claim to fear persecution not by reason of his own political activities, but solely by reason of his membership in a family that engaged in political activities and whether the RRT failed to consider this claim”[13].

    [13] First Respondent’s Supplementary Outline of Submissions at [14]

11. Referring to the Applicant’s claim that his nephew was murdered by BNP leaders and activists, Ms Wong submitted that the evidence showed that the Applicant was not suggesting that the only reason his nephew was attacked was because he was part of the Applicant’s family but because he himself was engaging in politics which resulted in his being targeted by BNP leaders and activists “Because within a very short time he became a renowned student leader”[14].

    [14] Court Book at 410

12. Ms Wong submitted that the Applicant did not provide any evidence to suggest that he or others in his family had suffered harm solely by reason of their association with his family. She further submitted that he was not making a separate claim to fear persecution solely by reason of his family’s political activities. Thus, any claim to fear persecution on the grounds of membership in a family engaging in political activities was not expressly articulated by the Applicant and did not clearly arise from the materials before the Tribunal (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2))[15].

    [15] (2004) 144 FCR 1; [2004] FCAFC 263 at [60]

13. Turning to the Applicant’s third ground, that the Tribunal failed to consider whether relocation was reasonable in the particular circumstances of the Applicant, Ms Wong submitted that the Tribunal correctly stated the test for relocation, as clarified by the High Court in SZATV v Minister for Immigration and Citizenship. The fact that the Tribunal did not provide any further reasoning than it did at page 525 of the Court Book is not, of itself, grounds for establishing jurisdictional error (see Minister for Immigration and Multicultural and Indigenous Affairs v NBDS[16], citing Re Minister for Immigration and Citizenship; Ex parte Palme[17]).

    [16] (2006) 90 ALD 614; [2006] FCA 265 at [21]

    [17] (2003) 216 CLR 212; 201 ALR 327; 76 ALD 1; [2003] HCA 56 at [48],[55]

14. Ms Wong submitted that the Tribunal’s relocation finding provides a separate and independent basis for affirming the decision under review (see SZBYR v Minister for Immigration and Citizenship[18]). If the Court were to find that the Tribunal’s relocation finding was subject to jurisdictional error, Ms Wong submitted that the Tribunal’s other findings would be a sufficient basis for the application to be dismissed.

    [18] (2007) 235 ALR 600; [2007] HCA 26

Conclusions

1. The Applicant’s first ground claims that the Tribunal’s reasoning was arbitrary, capricious an unreasonable so as to amount to jurisdictional error when it found that the Applicant was not a credible witness because he used a false passport and had given untrue reasons for wanting to come to Australia. I am not satisfied that this ground makes out a jurisdictional error on the part of the Tribunal.

2. True it is that the Tribunal commented unfavourably on the fact that the Applicant entered Australia on a passport which was not his own and that “he lied to the Australian government about who he was and his reason for coming here”[19]. The Tribunal found that this went to the matter of the Applicant’s credibility and found that he was not a credible witness. The Tribunal noted the Applicant’s explanation for his actions, as having been “in a bad situation in Bangladesh” and “in bad circumstances”[20].

   [19] Court Book at 523

   [20] Court Book at 518

3. However, the Tribunal gave other reasons for not accepting the Applicant as a credible witness. The Tribunal did not accept the Applicant’s “core claim”[21] that he would be persecuted because of his political opinion and that he had been targeted in the past because of his political opinion and activities. The Tribunal found it was unable to be satisfied that the Applicant had ever been persecuted for these reasons in the past and noted that he had not provided any evidence that citizens of Bangladesh living overseas who remain politically active and critical of the BNP government had been subject to serious harm on their return to Bangladesh. The Tribunal did not accept these claims and found that they had been “embellished” to enhance his application for a protection visa. Thus, the Tribunal stated that “This goes to the matter of his credibility and again finds that he is not a credible witness”[22].

   [21] Court Book at 524

   [22] Ibid.

4. This is neither arbitrary nor capricious. It is no more than an assessment of the Applicant’s own evidence. It is well established that the assessment of a witness’s credibility is a matter for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[23] ).

   [23] (2000) 168 ALR 407; [2000] HCA 1 at [66] – [67]

5. With respect, I see no illogicality in the Tribunal’s finding about the Applicant’s credibility. It is a finding that is open on the evidence.

6. The Applicant’s first ground of review fails.

7. The Applicant’s second ground claims that the Tribunal failed to address a claim that may clearly be inferred, that he feared persecution because he belonged to a family heavily involved in Awami League politics in Bangladesh. Counsel for the Minister characterises this claim to fear persecution “not by reason of his own political activities, but solely (emphasis added) by reason of his membership in a family that engaged in political activities”. She submitted that the Applicant’s claim to fear persecution on this basis was not expressly articulated by the Applicant and did not clearly arise from the materials before the Tribunal[24].

   [24] First Respondent’s Supplementary Outline of Submissions at [14] and [19]

1. I am not satisfied that this is a correct description of the Applicant’s claim. The Applicant’s claim was set out in his statutory declaration accompanying his application for a protection visa. The Applicant stated “I was born in a political family of Jajira, Syedpur, Munshiganj Bangladesh in 31-12-1972…My family was strongly against the politics of BNP”[25]. He also claimed “Because of our family involvement with the Awami League, some terrorists from BNP attacked my nephew (Abdul Khadir Titu) and killed him openly on 7 March 2001”[26].

   [25] Court Book at 26

   [26] Court Book at 27

2. The Applicant’s claims about his family’s involvement were noted by the Tribunal in its Decision Record. The Tribunal said “He states that his family became important ‘in the eye’ of the opponent political leaders”[27]. Again, the Tribunal noted “He stated that because of his family’s involvement in politics, his life has been ‘damaged’”[28] .

   [27] Court Book at 510

   [28] Court Book at 516

3. The Applicant’s claim is twofold. He claims to fear persecution not only because of his own political involvement but also because of his family’s political profile in Bangladesh. It was not necessary for him to elect to claim either one or the other. He asserted both claims.

4. I am satisfied that the claim of fear of persecution because of being a member of a political family was clearly before the Tribunal but the Tribunal did not deal with it. The Tribunal certainly dealt with the Applicant’s claims to fear persecution because of his own political activities, both in Bangladesh and in Australia, but not the other claim. It may well be true that the claim of fear of persecution because of his membership of a political family was subsidiary to his main claim, but it is a separate claim that the Tribunal appears not to have considered.

5. In not dealing with this claim, the Tribunal; has fallen into jurisdictional error. The Applicant’s second ground has been made out.

6. The Applicant’s third ground claims that the Tribunal failed to address the question of internal relocation according to law, by failing to consider whether relocation would be reasonable in all the Applicant’s circumstances.

7. The Tribunal considered the question of internal relocation in its decision, saying “Further the Tribunal is satisfied that if for any reason the Applicant does not wish to return to his home village or immediate area in the Munshigonj district then it would be reasonable for him to return and live elsewhere in Dhaka or indeed in Bangladesh (and) he would be able to continue his political activities without there being a real chance that he would be subject serious harm amounting to persecution for a Convention reason”[29].

   [29] Court Book at 525

8. The Tribunal had asked the Applicant about why, if he did not want to return to his suburb, it would not be reasonable for him to live elsewhere in Bangladesh, a country of over 144 million people. “In reply, the Applicant claimed he could live somewhere else that asked how long he could live there as a human being as they will find out about him and people were against independence for Bangladesh”[30].

   [30] Court Book at 520

9. The High Court of Australia has considered the question of reasonableness of relocation in SZATV v Minister for Immigration and Citizenship (supra). In allowing the application, Gummow, Hayne and Crennan JJ considered the issue “as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”[31]. Their Honours said that “What is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality”[32].

   [31] [2007] 237 ALD at [23]

   [32] at [24]

10. The Tribunal in the case under review had asked the Applicant about the reasonableness of relocating to another part of Bangladesh and had been met with the reply that “they” would find out about him. The Tribunal determined that relocation to another part of Bangladesh would be reasonable in that it would allow the Applicant to continue his political activities without there being a real chance that he would be subject to serious harm amounting to persecution.

11. It should be noted that the Tribunal’s finding did not require the Applicant to modify his behaviour or live “discreetly” (see Appellant S395/2002 v Minister for Immigration and Multicultural Affairs[33] ) or obtain other work not involving the expression to the public of his political opinions (like the appellant in SZATV).

    [33] (2003) 216 CLR 473; 203 ALR 112; 78 ALD 8; [2003] HCA 71

12. The Tribunal expressly considered that the Applicant could relocate within his country of nationality without having to cease his political activities. I am also of the view that the Tribunal did not fall into jurisdictional error by not going into greater depth in its reasoning for arriving at that decision (Minister for Immigration and Multicultural and Indigenous Affairs v NBDS[34]). In NBDS, Allsop J said at [21] that “The failure to deal with particular pieces of evidence or elaborate upon why they are not accepted is not of itself a jurisdictional error. It may reveal a failure to undertake or complete the jurisdictional task of ‘reviewing the decision’ for the purposes of s.414. However, the Tribunal is not obliged to refer to every piece of evidence or to give a line by line refutation of evidence”.

    [34] at [21]

13. I am satisfied that Counsel for the Minister is correct when she submits that the Tribunal did not fall into jurisdictional error when arriving at its decision that the Applicant could reasonably relocate within Bangladesh. The Applicant’s third ground fails.

14. Significantly, although I am of the view that the Tribunal fell into jurisdictional error when it failed to consider an aspect of the Applicant’s claim, the Tribunal’s relocation finding does provide a separate and independent basis for affirming the decision under review (SZBYR v Minister for Immigration and Citizenship). It follows that it is not appropriate to grant the application for writs of certiorari, prohibition and mandamus.

15. The application will be dismissed with costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  25 June 2008