SZHDY v Minister for Immigration
[2007] FMCA 526
•13 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHDY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 526 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – status – refugee status – refusal – visa – protection visa – independent country information alleged to be out of date – reasonableness of relocation. |
| Migration Act 1958, ss.91X, 424A |
| NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VTAG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 91 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 SZJBE v Minister for Immigration & Citizenship [2007] FCA 190 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 SZBJI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 216 |
| Applicant: | SZHDY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2667 of 2005 |
| Judgment of: | Cameron FM |
| Hearing date: | 14 March 2007 |
| Date of Last Submission: | 14 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Kumar |
| Solicitors for the Applicant: | AAT Legal; NSW Legal Exchange |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2667 of 2005
| SZHDY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By a further amended application dated 14 March 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) dated 9 August 2005 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 14 November 1997 refusing the applicant’s application for a protection visa.
The decision the subject of these proceedings was not the first review of the applicant’s protection visa application undertaken by the Tribunal. An earlier determination had been set aside by the Federal Court (Bundle of Relevant Documents (“RD”) pages 83, 85).
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
The Applicant claims his citizenship at birth was Bangladesh, his ethnicity is Bangladeshi, and his religion is Islam.
…
He claims he has a B.A. in political science, Islam history, Bangla and English, but he did not complete his honours, and graduated in 1995. He claims that from January 1991 until September 1997 he worked as a chef for a day or two a week at Hotel Time, and did not have any other jobs in Bangladesh. Asked if he was born and lived all his life in Dhaka, the Applicant replied in the affirmative, and claimed he owned his own home and lived with his parents about 30 minutes drive from CBD Dhaka. … He claims he speaks, reads and writes Bengali and English. (RD 121 and 126-127)
The applicant claims to have been persecuted and to fear future persecution in Bangladesh because of political beliefs.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-16 of the Tribunal’s decision (RD 121-133). His application to the Tribunal included a submission in the following terms (RD 122-125):
· The Applicant claims he comes from a conservative Muslim family and joined the Chatra Sibir which is the student wing of the Jamati Islami in class 9 in 1988 and became the secretary of the school committee, and claims there were 500 members who were “devout Muslim children, inspired by me”;
· He claims that President Ershad was in power at the time and conditions in Bangladesh were terrible with political chaos, nepotism and corruption the daily feature and all the political parties were united to oust him;
· The Applicant claims that on 6 December 1990 Ershad was forced to resign and power was transferred to a caretaker Government and in February 1996 a new election was held and Jamate-Islami obtained 18 parliamentary seats and helped the BNP form government;
· He claim [sic] in 1991 he completed his secondary school and was admitted to Donia college which he claims “is one of the main political Centers [sic] of inner Dhaka City” and while there developed a close relationship with many Chatra Sibir workers and leaders. He claims as a sports person and leader of the Chatra Sibir he was “well known all over the college and local area”;
· The Applicant claims that the BNP and Jamat Islami coalition lasted two and a half years but Jamat-Islami withdrew their support from the BNP and this prompted the non-alliance movement to move against the BNP;
· The Applicant claims that as he was the General Secretary of the Demra Thana Chatra Sibir, he did a lot of work, and claims he was arrested a few times and “threatened by the local BNP armed personnel”;
· The Applicant, returning to his earlier claims, claims that in 1993 he was arrested and placed in custody where he was tortured but was released after 10 days and as a result he became physically and mentally ill;
· He claims that when the Awami League won the 1996 election with the support of the Jatiyo party, “they started violent activities, revenge, and disregarded the laws”;
· He claims his residence was looted, doors were broken and his family “were threatened to leave the country”;
· He claims that he was accused of being a “Rajakar” and not wanting independence and within 13 months of the Awami League assuming power claims he was attacked twice;
· The Applicant claims that on 3 February 1997 when returning home from his college he was attacked by a group of Awami thugs who beat him severely and stepped on his right arm and left him beside the road but someone took him to hospital where he remained for 15 days;
· The Applicant claims that even now there is no democracy, human rights or press freedom in Bangladesh with political clashes continuing and, as a victim, he claims he was fortunate to escape the country;
· He claims if he returns to Bangladesh “the Awami League leaders and workers will kill me” and “a number of false cases have been filed against me” and he will be persecuted if he returns to Bangladesh.
In a supplementary submission the applicant claimed:
· He became the general secretary of the Islamic Chatra Sibbir at school and was “inspired by the ideology of the Islamic Sibbir, whose dream that ‘Bangladesh will be a Islamic state’ in light of Quranic Rules” and he was heavily influenced by the organisation;
· … he was elected as the general secretary of the Demra Thana Chatral Sibbir and was arrested on a number of occasions and was tortured in 1993;
· On 20 June 1997 he led a procession against the Awami League government which was attacked by the police and he was arrested and a case was filed against him “alleging me destruction of properties and conspiracy against the then government” and this compelled him to leave the country, and claims that he obtained a visa and bribed someone at the airport in order to get to Australia;
· He has been convicted and sentenced to jail for 20 … years;
· Since leaving Bangladesh there has been a political change and the applicant’s party is in the coalition government but this “has not affected my situation” and … he will be jailed and persecuted because the current government “has made a Lawless country and destroyed all”. [RD 125-126]
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
Political violence
a)The Tribunal was satisfied that there was not a real chance that the applicant would be subjected to serious harm amounting to persecution for a Convention reason as a worker for the Chatra Sibir, now or in the foreseeable future, on the basis that although it accepted that violence can be directed against political leaders of the Chatra Sibir of Bangladesh it has not been claimed by the applicant that there had been any members of the Chatra Sibir killed since 2000 or since the government, in office at the time of the Tribunal hearing, took office in 2001;
Applicant’s political involvement
b)the Tribunal was not able to satisfy itself that the applicant had been a leader or even a worker for the Chatra Sibir on the basis that:
i)he showed no depth of understanding about its goals and objectives; and
ii)gave simplistic public knowledge answers but revealed no inside or in-depth knowledge or understanding about what the Chatra Sibir was trying to achieve, how it worked and how it was going about doing this, or even a detailed articulation of its core principles and platforms;
c)the Tribunal did not accept that the applicant’s simplistic and general answers were those of a person with an insider’s knowledge about the workings of the Chatra Sibir or of a person who was even an election worker for the Chatra Sibir and the Tribunal did not accept his claims;
d)it followed that the Tribunal did not accept that the applicant held a political or other profile of any sort such that either the Awami League or BNP members or indeed any other political party or group would feel the need to threaten him or want to kill him or bring false charges against him for a Convention related reason or that he has a well-founded fear of serious harm on this basis;
e)since arriving in Australia almost eight years before the hearing the applicant had not undertaken any activities to support Jamat-e-Islami and the Tribunal was satisfied that if the applicant was an activist or even a dedicated member or worker of the Chatra Sibir he would have continued to pursue his interest and involvement with it and its objectives and he would have developed associations with the Chatra Sibir both in Australia and Bangladesh on his arrival in Australia, as well as continuing to stay in touch with it and supporting its activities from afar;
f)the Tribunal was satisfied that the applicant’s extremely limited and uninformed responses were because he was not a leader, activist or worker for the Chatra Sibir who was “well known all over the college and local area” but rather because he had little if anything to do with the Chatra Sibir and the Tribunal did not accept these claims;
Credibility
g)it followed that the Tribunal found that the applicant had embellished his claims in order to enhance his claim for a protection visa and it further found that he was not a credible witness with the result that it did not accept his associated claims such as in 1993 he was arrested by the police at the instigation or with the collusion of the Awami League and placed in custody where he was tortured but released after 10 days and after this he became physically and mentally ill because of his political activities or for another Convention related reason;
h)the Tribunal was satisfied that if the applicant had been held in custody for 10 days during which he was brutally tortured he would have sought international protection in India, where he travelled between 9 and 17 October 1996, rather than return to Bangladesh after just eight days, even if he planned to go into hiding on his return. Accordingly, the Tribunal did not accept that the applicant was held in custody in 1993 during which he was tortured;
1996 looting and threats
i)the Tribunal did not accept the applicant’s claim that after the Awami League won the 1996 election the applicant’s home was looted and his family threatened and accusations of being a “Rajakar” were made against him;
False documents
j)in relation to a number of documents which were submitted by the applicant in support of his application the Tribunal accepted the evaluation of the Department’s Document Examination Unit and accepted that the documents were all written on the same typewriter. Given that various documents were meant to be from different organisations and people in different parts of Dhaka, the Tribunal did not accept the explanation provided by the applicant and submitted by his adviser but rather was satisfied that the documents were written on the same typewriter and were created fraudulently. Consequently, the Tribunal attached no weight to them and did not accept that they supported the applicant’s claims that he was a Chatra Sibir activist and the subject of false charges. Further, given that the applicant continued to maintain the genuineness of the documents, the Tribunal found that this was an additional matter going to his credibility and again found he was not a credible witness;
Police charges and criminal conviction
k)the applicant submitted that on June 1997 he had led a procession against the Awami League government which was attacked by the police and he was arrested and a case filed against him alleging destruction of property and conspiracy against the government which compelled him to leave the country, subsequent to which he was convicted and sentenced to prison. In relation to such fears as the applicant had about returning to Bangladesh and the consequences of the sentence pronounced against him the Tribunal was satisfied that should the applicant return to Bangladesh he could turn to the Chatra Sibir and other people and organisations to support him if he experienced any difficulties and, accordingly, it did not accept his claim that he would not obtain appropriate support if he experienced difficulties upon his return;
l)moreover, a document submitted to the Tribunal by the applicant indicated that the applicant had a lawyer acting for him in Bangladesh and the Tribunal was satisfied, based on independent country information, that convictions such as his are overthrown by the courts;
m)the Tribunal concluded that if he had been sentenced to 10 years imprisonment as he alleged, then he would be able to turn to the party and the government which he claimed he supported as well as being able to turn to the courts to seek to have his conviction quashed with the assistance of his lawyer;
1997 attack
n)
the Tribunal while accepting that the applicant was attacked on
3 February 1997 was not able to satisfy itself that the essential and significant reason for this attack was for a Convention related reason, in part based on the absence of a police report confirming who attacked him, why and in what circumstances, partly based on the Tribunal’s conclusion that the applicant was not a leader, political activist or worker for the Chatra Sibir and partly based on his lack of credibility;
o)in relation to the applicant’s claims that even now under the BNP/Jamat-e-Islami coalition government there was no democracy, human rights or press freedom in Bangladesh and that he would be gaoled and persecuted even under the current government, the Tribunal did not accept such claims on the basis that:
… the Tribunal has not been able to satisfy itself that he has a political profile of any sort, or that a false case has been made against him, or that he is a credible witness [or that he has] been sentenced to 10 years jail and a fine because of it. (RD 144);
Relocation
p)the Tribunal was satisfied that if for any reason the applicant did not wish to return to that part of Dhaka where he had previously lived, it would be reasonable for him to live elsewhere in Dhaka or indeed Bangladesh in safety; and
q)the Tribunal was also satisfied that if for any reason the applicant did not wish to return to his home, or if his family felt they might be subjected to serious harm amounting to persecution for a Convention reason there, then it would be reasonable for him and his family to move elsewhere in Dhaka or elsewhere in Bangladesh.
Proceedings in this Court
The grounds of the further amended application can be summarised as follows:
a)the Tribunal relied on outdated independent country information and failed to have regard to more relevant, correct and up-to-date information;
b)the Tribunal was in breach of its obligations under s.424A of the Act;
c)the Tribunal erred when considering the question of whether the applicant could relocate elsewhere in Dhaka or Bangladesh.
Dealing with each of these grounds in turn:
The Tribunal relied on outdated independent country information and failed to have regard to more relevant, correct and up-to-date information
The applicant submitted that it amounts to jurisdictional error for the Tribunal to use outdated information and further submitted that the Tribunal had ignored what was contained in the more recent country information available to it.
However, the respondent correctly submitted that the choice of country information is a factual matter for the Tribunal alone. As the Full Court of the Federal Court said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]:
… It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
More recently, the Full Court has said in VTAG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 91 at [41]:
… In any event, the choice of country information available was a matter for the Tribunal. The Tribunal was not required by law to accept more recent information even if it had been supplied. Such information might for example have come from a less reliable source than the old information. There was in the circumstances no obligation on the Tribunal to make enquiries: see VAO v Minister for Immigration & Multicultural Affairs [2002] FCAFC 31 at [25].
The fact that there was more recent country information than that which the Tribunal expressly relied upon is revealed by the fact that the Tribunal expressly refers to it at RD 144. If the Tribunal had ignored the relevant material then a jurisdictional error would have been committed: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at 351 [82]. However, it is apparent from the fact that the Tribunal made reference to the later country information that it had not been ignored. Given that the information was not ignored, the appropriate inference to draw is that the Tribunal preferred the information which it quoted at pages 24 and 25 of its decision (RD 141 – 142). That is a matter for the Tribunal and even if it had a view different from that reached by the Tribunal the Court cannot substitute its own view of the material: NAHI’s case at [13].
Jurisdictional error is not demonstrated in respect of this asserted ground of review.
The Tribunal was in breach of its obligations under s.424A of the Act
Two of the paragraphs in the further amended application filed in Court at the hearing allege breaches of s.424A. In submissions, the issue resolved itself into a question of whether the Tribunal had complied with the section in relation to the conclusions arrived at by the Document Examination Unit of the Minister’s Department in relation to documents submitted by the applicant in support of his claim for a protection visa.
The passage in the Tribunal’s decision to which this relates is as follows:
However, not withstanding [sic] these claims and submissions, the Tribunal accepts the written evaluation by the Department’s DEU and accepts that they were all written on the same typewriter, not just the same or similar type of typewriter. Given that various separate documents were meant to be from different organisations and people in different parts of Dhaka, the Tribunal does not accept the explanations provided by the Applicant and submitted by the adviser but rather is satisfied that they were written on the same typewriter and were created fraudulently. The Tribunal therefore attaches no weight to them and does not accept that these documents they [sic] support his claims that he was a Chatra Sibir activist who was [sic] has been the subject of false charges. Moreover, in view of the evidence provided by the DEU and in view of this finding, and as the Applicant has continued to maintain that they are genuine documents, the Tribunal further finds that this again goes to the matter of his credibility and again finds that he is not a credible witness. (RD 139 – 140).
A consideration of that passage reveals that the information which the Tribunal used as the reason or part of the reason for affirming the delegate’s decision was that the documents in question were all written on the same typewriter, not just the same or similar type of typewriter. This is the information which s.424A(1) required be given to the applicant. Further, the section requires that the Tribunal ensure, as far as is reasonably practicable, that the applicant understand why the information is relevant to the review and invite his comment on it.
A consideration of the quoted passage shows that the information was relevant to the Tribunal because it led the Tribunal to the conclusion that the documents were created fraudulently and reflected on the applicant’s credibility.
By letter dated 24 January 2000 (RD 80 – 81), the Tribunal wrote to the applicant in relation to the advice it had received from the Document Examination Unit and, in that letter, it said:
The Tribunal reviewing your clients [sic] application has now received advice from the Document Examination Unit of the Department which confirms the Tribunal’s view expressed at the hearing of the matter that the documents presented by your client are fraudulent.
In particular the Tribunal notes that the Unit have advised that the letter from the Jamayte Islami dated 8 October 1997, the letter from Md. Shahi Zuddin dated 8 October 1999, and the seven pages of documents claiming to be charge sheet and warrant and dated 10 August 1997 are all typed on the one typewriter.
As discussed at the hearing of this matter, the Tribunal has serious concerns as to the credibility of the applicant, and now requires his comment in relation to the above. The Tribunal notes that as each document claims to come from from [sic] different offices and from different parts of Dhaka that it is considered impossible for them to be genuine documents in the circumstances of them being typed on the same typewriter.
The Tribunal requests that you provide a response to the above and any other comment you may wish to make within 14 days of the date of this letter. If the applicant does not wish to comment please advise the Tribunal as soon as possible.
This letter satisfies the criteria set out in s.424A(1) in that it particularises the information the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision, it explained why the information was relevant to the review and invited the applicant’s comments on it.
The fact that this letter was sent to the applicant as part of the process leading up to the first Tribunal decision which was subsequently set aside does not affect its significance: SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 at [37] – [44]; SZJBE v Minister for Immigration & Citizenship [2007] FCA 190 at [16] and [17].
The applicant has also asserted that the Tribunal had an obligation under s.424A to include:
a statement to the affect [sic] that the information could be the reason or part of the reason, for affirming the decision made [sic] review. (paragraph 3(a), further amended application)
Contrary to the applicant’s assertion, the section does not require that such a statement be included in its communication to the applicant.
For these reasons, this asserted ground of review has not been made out.
The Tribunal erred when considering the question of whether the applicant could relocate elsewhere in Dhaka or Bangladesh
The final ground advanced by the applicant was that the Tribunal had not correctly approached the task of determining whether the applicant could relocate within Bangladesh.
The applicant submitted that, in determining that the applicant could relocate within Bangladesh, the Tribunal had not considered whether, in the circumstances, it was reasonable to expect the applicant to do so: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37; SZBJI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 216.
Although my conclusions in relation to the first two grounds of appeal make it unnecessary to consider this ground of review asserted by the applicant, in the event that either of those findings is incorrect, I will do so, noting that both parties agree that the findings of the Tribunal as to relocation were an independent basis of its decision.
The Tribunal considered the question of relocation principally in the context of its conclusion that the applicant did not have a well-founded fear of persecution for a Convention reason and expressed itself as being satisfied that, in the absence of such a fear, if he did not wish to return to that part of Dhaka where he came from, it would be reasonable for him to live elsewhere in Dhaka or indeed Bangladesh in safety (see RD 145). All the Tribunal is saying is that the applicant is, in reality, no different from any other citizen of Bangladesh and can live where he likes.
Because the Tribunal’s conclusion on the relocation issue is dependent on its finding on the persecution claim, if its finding on the latter issue is affected by jurisdictional error as a result of either of the other two grounds raised in these proceedings, then the relocation finding cannot stand because the factual basis on which it is erected will have been compromised.
However, as my findings on the first two grounds of appeal are that jurisdictional error has not been demonstrated then the Tribunal’s decision in relation to the relocation ground is not affected by jurisdictional error either.
Conclusion
The applicant has not demonstrated that the decision of the Tribunal is affected by jurisdictional error.
Consequently, the application will be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate: Angela Chong
Date: 13 April 2007
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