SZJON v Minister for Immigration
[2007] FMCA 1228
•18 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJON v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1228 |
| MIGRATION – RRT decision – Bangladeshi claiming political persecution – significant claims disbelieved – credibility finding did not fail to take into account the Tribunal’s acceptance of other claims – application dismissed. |
Migration Act 1958 (Cth), ss.36(2), 424A, 474(1), 476, 476(1)
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, [2003] HCA 30
| Applicant: | SZJON |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3101 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 18 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the First Respondent: | Mr G Kennett |
| Solicitors for the Respondents: | Australian Government Solicitor |
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 |
SYG3101 of 2006
| SZJON |
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 24 October 2006, which has been set down for a final hearing under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 5 September 2006 and handed down on 26 September 2006. The Tribunal affirmed a decision of a delegate made on 4 May 2006, refusing to grant a protection visa to the applicant.
Under s.476(1) 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(1) so that I do not have power to send the matter back to the Tribunal unless I am satisfied that its 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.
The applicant arrived in Australia in March 2006 as a member of a cricket club touring South Australia. On 13 April 2006 a solicitor, Mr Haque, lodged an application for a protection visa on behalf of the applicant. It attached a statement explaining why the applicant sought protection in Australia against return to his country of nationality, Bangladesh.
In the statement, the applicant claimed to have come from a family which supported the Awami League. While he was at college, he became involved in student politics under the banner of the Bangladesh Chatra League, the student wing of the Bangladesh Awami League. He claimed to have been elected to various committees in his college and in his locality for the student wing, and also subsequently for the party itself. He claimed to have supported a local candidate in a 1996 election, after which the Awami League formed government, and again in a 2001 election where it lost government.
The applicant claimed that immediately after the BNP party took government in 2001, his house was “ransacked and looted by the BNP cadres and my two brothers and my only sister were assaulted and beaten by the BNP cadres”. He said members of his family then left the country. However, he remained in positions in the Awami League, and “I became even more active”.
He said that in March 2003 he was leading a procession which was attacked by a group of BNP cadres. He said: “I was beaten by them mercilessly, as a result, was taken to a local clinic for treatment for about a week and then released”. He said the local police did not help him. He claimed:
15.In 2004 I was elected as the executive member of the [location] District Awami League. Due to this position I became one of the renowned leaders of the young society in the region and increasingly targeted by the BNP administration. As a result I heard that my name was given to RAB by the BNP people. With the help of my family and others I left home on 18 December 2004 for UAE where I stayed a number of months. I obtained an employment visa but I worked there at a digital Printing shop.
The applicant claimed that on a return visit to Bangladesh in March 2006, he visited his home and “a group of police came to the gate of my house”. He escaped through the back door, but “the next day I received information from a reliable source that a number of false cases were filed against me. I became very scared …”, and he therefore left for the United Arab Emirates, and then Australia.
No supporting evidence for these claims was presented to the Department of Immigration, and a delegate refused the application on the grounds that his claims were “sparse and unsubstantiated”. The delegate did not accept “that he has been involved with the Awami League or any other political party to the extent he has claimed or that he has been targeted by political opponents”. The delegate also considered country information as to the level of protection offered in Bangladesh against political violence.
On appeal to the Tribunal, the applicant was again represented by Mr Haque. Shortly before a hearing on 9 August 2006, two documents were forwarded to the Tribunal purporting to corroborate the applicant’s involvement in political activities. A further document was subsequently forwarded, also of the same character. It is unnecessary for me to discuss their contents. A submission was also presented repeating the applicant’s claims made in his original statement accompanying the visa application.
The Tribunal recounted the evidence given at the hearing, in the course of which the applicant referred for the first time to his having been jailed for two months “in late 1995”.
Subsequent to the hearing, the Tribunal served an invitation for comment under s.424A, inviting the applicant to comment on the absence of such a claim in his original statement, and also upon what were perceived to be inconsistencies in the corroborative letters. A response was given which sought to correct the date of the alleged jailing, which was now said to have occurred “in late 1997”.
In its statement of reasons the Tribunal summarised the applicant’s claims at the start of its “Findings and Reasons”:
The applicant’s claims are based on the Convention ground of political opinion. His case is essentially that he was an active member of the BCL and Awami League and that as a result he was harmed by his political opponents from BNP and false cases were registered against him.
The Tribunal then stated:
The applicant did not impress the Tribunal as a credible witness. In reaching this view the Tribunal has had regard to his belated revelation at the hearing that he was detained for two months in 1995 because of his BCL related activities. Notwithstanding that the applicant had the benefit of a legal adviser who speaks his language at the time that he submitted his original application for a protection visa, he did not raise this claim in the statement made in support of that application, in his application for review or in the supporting statement his adviser submitted at the hearing. The applicant’s written claims were detailed and referred to specific dates and events. In the Tribunal’s view, the applicant would not have failed to mention this significant claim prior to the hearing and, indeed, his legal adviser would not have left it out if in fact it had occurred. In response to the Tribunal’s 424A letter, the applicant’s adviser explained that the applicant did not mention this claim in his application for a protection visa because his main concern was the incident in 2001 and the false cases against him. The Tribunal finds this explanation completely unsatisfactory. Moreover, in his written response the applicant’s adviser stated that the applicant was detained in 1997 and not 1995. The explanation provided for the shift in the date was the applicant’s nervousness at the hearing. The Tribunal is not persuaded by this explanation. In addition, the Tribunal does not consider it plausible or credible that the applicant would have been detained for two months for the reason of his Awami League or BCL related activities in 1997 when, in fact, Awami League was in power in Bangladesh. The Tribunal, therefore, is not satisfied that the applicant was detained by the authorities in 1995, 1997 or any other time.
This paragraph provides the focus of the ground of review which I shall address below.
The Tribunal then addressed the applicant’s claim to have been the subject of two false cases in 2006. It said:
Having regard to the applicant’s overall credibility, the Tribunal is not satisfied that he was the subject of two false cases against him in 2006. The Tribunal does not consider it plausible that false cases would have been registered against him some five years after BNP came to power in Bangladesh and more than a year after he had departed Bangladesh for the UAE and had not carried out any political activities in his area. There is no reason to assume that his opponents had any intimate knowledge of his intentions to return to Bangladesh from the UAE and participate in future election campaigns. The Tribunal finds his explanation that the cases were designed to prevent him from working for the incumbent Member of Parliament in his area implausible. Moreover, whilst he has insisted that two cases were registered against him, the letters he has provided in support of his case differ in their account of these cases by referring to “a false case” or “a number of false cases” being registered against him. The Tribunal considers it reasonable to expect that if any false cases had been registered against an active member of the party, senior party officials would have known the details of such cases against him. The inconsistency between the applicant’s own evidence in this regard and the letters he has provided in support of his case cast doubt on the truth of this claim. More importantly, the applicant did not appear to be genuinely concerned about false cases at the hearing as he stated that the two cases against him were not important because he could minimise their effect by bribing the authorities. For all these reasons, the Tribunal is not satisfied that the applicant was the subject of any false cases in Bangladesh.
The Tribunal then addressed the applicant’s claim to have been a member and office‑holder of organs of the Awami League. Its reasoning concerning this was:
The Tribunal is prepared to accept that the applicant is a member of Awami League and held a number of party related positions in his local area of [town]. However, based on the impression the Tribunal has formed of the applicant’s credibility, it is not satisfied that the applicant held any positions at the district level. In reaching this view the Tribunal has had regard to the inconsistencies between his own evidence and the evidence he has provided from other sources. The applicant has claimed to have been the executive member of the “[location] district committee of Awami League”. A letter purportedly from the President of Bangladesh Awami League [location] Committee reiterated this claim. However, this was contradicted in the letter from Mr A submitted in support of his application for review which stated that the applicant was elected as the “executive member of the [location] district committee of the Students League”. The letter makes no mention of the applicant’s membership of Awamil [sic] League district committee. At the hearing the applicant was unable to explain this inconsistency. His adviser explained that those who are Thana Presidents automatically become the executive members of the district committee. The applicant was the Thana President in 1997 and 2000, but did not claim to have been the executive member of the district committee on those occasions. When the matter was put to him in writing, his adviser responded that the applicant was an executive member of both the [location] District Committee of the Awami League and the District Committee of the Students Chatra League and that he was eligible for both positions. However, [sic: the applicant] had listed all his positions in some detail and at no point he had claimed to have been a member of or eligible for the membership of “the District Committee of the Students Chatra League”. The Tribunal, therefore, is not satisfied that the applicant was the executive member of any committees at the district level. In the Tribunal’s opinion the applicant has attempted to exaggerate his position and bolster his status in the party in order to strengthen his claims. The Tribunal is of the view that the applicant’s activities were confined to his locality or Thana and that he was not engaged in political activities at a level that gave him a significant political profile in Bangladesh. In reaching this view the Tribunal has had regard to the applicant’s evidence at the hearing that he had no party related activities in the period of time that he lived in the UAE and has not been politically active in Australia as would have been reasonably expected of a party member with the applicant’s claimed profile.
The Tribunal then indicated that it did accept that the applicant’s house had been attacked in 2001. It framed this finding as follows:
As the Tribunal has accepted that the applicant was a locally active member of Awami League, it is prepared to give him the benefit of the doubt and accept that in 2001 his house was attacked by his opponents and although he managed to flee his family members suffered injuries.
The Tribunal said that it was satisfied that “the applicant’s house became an unfortunate target during this volatile period which was marred by political violence”, and it was satisfied that “the applicant’s risk of experiencing a similar incident is remote and insubstantial”.
The Tribunal also said that it was “prepared to accept that the applicant was seriously injured in the course of leading a procession during a general strike in 2003”. However, it referred to country information about violence among political parties in Bangladesh, and noted that “the sources do not indicate ordinary members or supporters of the Awami League are generally at risk of being exposed to serious harm”.
The Tribunal also addressed the applicant’s claim to be fearful of RAB, a security agency of the government of Bangladesh. The Tribunal noted that the applicant did not claim to have come to the attention of that agency before departing Bangladesh in 2004, nor during the period of his visit in 2006. It said:
The Tribunal has rejected the applicant’s claim of false charges being filed against him and has found that he did not have a significant political profile in Bangladesh and that his activities were confined to his locality of [town]. Based on the evidence before it, the Tribunal is not satisfied that the applicant would be targeted and harmed by RAB if he were to return to Bangladesh.
The Tribunal’s conclusion generally was:
Overall, having regard to the totality of the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will be harmed in Bangladesh for a Convention reason in the reasonably foreseeable future. The Tribunal is not satisfied that if he returned to Bangladesh and continued to engage in political activity at the same level as he has in the past there is a real chance that he would face Convention related harm as a result. In reaching this view, the Tribunal has had regard to the independent evidence before it which shows that political activists who engage only in legitimate political activities and advocacy usually have little or nothing to fear from rival political groups (US Department of State, Bureau of Democracy, Human Rights and Labor Bangladesh: Profile of Asylum Claims and Country Conditions, February 1998, CX31417). The Tribunal, therefore, is not satisfied that the applicant has a well‑founded fear of persecution for reasons of his political opinion in Bangladesh.
The Tribunal also suggested that the applicant could relocate in Bangladesh, but its reasoning in this respect seems to follow from its reasoning which rejected the significant elements in the applicant’s refugee claims.
The applicant commenced the proceedings in this Court without disclosing a legal representative. However, Mr Haque appeared at the first court date on 21 November 2006 and subsequently filed an appearance. On that date, I set the matter down for hearing today, and it is clear that the applicant and his solicitor were aware of that. Mr Haque filed a notice of ceasing to act on 4 July 2007, without having filed any amended application or submissions.
In their written submission, the Minister’s representatives addressed the application as originally filed, which contained allegations of jurisdictional error in relation to the Tribunal’s relocation findings, that the Tribunal had failed to comply with s.424A, and that the Tribunal had taken into account an irrelevant consideration. None of these grounds, however, were relied upon today by the applicant’s counsel, who appeared having been instructed very shortly before the hearing.
Counsel for the applicant relied only upon the ground set out in an amended application which was filed at the hearing. This contended that the Tribunal “in making the adverse credibility finding and rejecting claims by the applicant based on his credibility, failed to have regard to claims of the applicant which it accepted”.
Counsel’s argument was explained in his written submissions:
11.There are cases where a decision‑maker:
a)finds that an applicant is not telling the truth about claim A;
b)makes an adverse credibility finding about the applicant; and
c)then relies in part on the adverse credibility finding in deciding that the applicant is not telling the truth about claim B.
12.A converse proposition is that where a decision‑maker finds that an applicant is telling the truth about claim A and the decision‑maker is considering whether claim B is true, there may be circumstances in which the decision‑maker is required to take into account the fact that the applicant was truthful about claim A in deciding whether the applicant is truthful about claim B.
13.In the present case, the Tribunal reasoned in the following way in its reasons for decision:
a)The Tribunal found that “the applicant did not impress the Tribunal as a credible witness”. (RD 104.4) The Tribunal set out the matters to which it had regard in making this finding, specifically the fact that the applicant made a new claim at the hearing before the Tribunal that he was detained for two months in 1995.
b)The Tribunal then found that it was “not satisfied that [the applicant] was the subject of two false cases against him in 2006”. (RD 104.8) One basis for this finding was “the applicant’s overall credibility”. (RD 104.8)
c)The Tribunal then accepted that “the applicant is a member of Awami League and held a number of party related positions in his local area of [town]”. (RD 105.2)
d)However, the Tribunal was “not satisfied that the applicant held any positions at the district level”. (RD 105.2) One basis for this finding was “the impression the Tribunal has formed of the applicant’s credibility”. (RD 105.2)
e)The Tribunal then “accepted that in 2001 [the applicant’s] house was attacked by his opponents and … his family suffered injuries”. (RD 105.9)
f)The Tribunal then “accepted that the applicant was seriously injured in the course of leading a procession during a general strike in 2003”. (RD 106.2)
14.The applicant’s complaint about the Tribunal’s reasoning process is as follows:
a)The Tribunal made an adverse credibility finding against the applicant on the basis of one matter, being a “belated revelation at the hearing that he was detained for two months in 1995”.
b)The Tribunal then used the adverse credibility finding as a basis for rejecting the applicant’s claims concerning “two false cases against him in 2006” (RD 104.8) and the applicant’s claims concerning involvement in the Awami League at the district level. (RD 105.2)
c)The Tribunal then accepted a number of claims made by the applicant, such that “in 2001 his house was attacked by his opponents and … his family members suffered injury” (RD 105.8) and “the applicant was seriously injured in the course of leading a procession during a general strike in 2003” (RD 106.1) and “the applicant is a member of the Awami League and held a number of party related positions in his local area of [town]”. (RD 105.2)
d)In circumstances where the Tribunal uses an adverse credibility finding to reject claims made by an applicant, the applicant contends in these Federal Magistrates Court proceedings that the Tribunal, in the course of making the adverse credibility finding, is bound to take into account or have regard to (in the manner considered in Minister v Peko Wallsend (1986) 162 CLR 24 at 39‑40) claims of the applicant which it accepts. If the Tribunal fails to have regard to claims of the applicant which it accepts, there is jurisdictional error.
I am inclined to think that the invocation of Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 in conjunction with this argument is misconceived. There is no doubt in the present case that the Tribunal did address the relevant issues required to be addressed under s.36(2) of the Migration Act and the definition of “refugee” in the Convention. It did address all the claims made by the applicant to come within that definition. In that sense, there is no relevant consideration which it has failed to address and make findings about.
The complaint which is now made might appear more to be a challenge to the rationality or reasonableness of the Tribunal’s reasoning processes in relation to those claims. Essentially, the argument might appear to go essentially to the merits of the Tribunal’s reasoning. However, there is authority that irrationality in reasoning and perverseness in its findings might reveal a failure to perform a jurisdictional obligation (see Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, [2003] HCA 30 at [9], [36], [81], [126]).
It is unnecessary for me further to explore the relevant principles of judicial review in this judgment. In my opinion, the argument presented for the applicant fails upon a proper reading of the statement of reasons of the Tribunal.
As Gleeson CJ said in Applicant S20 (supra):
[14]Decision‑makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.
It is common, if not usual, to find statements of reason of this Tribunal which commence under the heading “Findings and Reasons” with a general finding about credibility, which is then explained in subsequent reasoning of the Tribunal addressing particular elements in the claims made by an applicant and particular aspects of the evidence presented.
In my opinion, the present statement of reasons of the Tribunal should be so read. I therefore consider that the Tribunal’s opening sentence in the passage first quoted above at [13]: “the applicant did not impress the Tribunal as a credible witness”, should be understood in the light of all its subsequent reasoning. The Tribunal there provides rational reasons for having doubts about the applicant’s credibility in relation to his claimed period of jail, his claim to be the subject of false cases, and his claim to have held positions in the Awami League going beyond being merely a locally active member. I am not persuaded that the Tribunal made its credibility finding without considering all of the applicant’s evidence, including such parts of it as it was prepared to accept.
Overall, the Tribunal’s reasons show that it has carefully evaluated each element in the applicant’s claim. It has accepted some and rejected other elements, but its conclusions about these elements are logically consistent, and indicate that the Tribunal arrived at a coherent overall view of the applicant’s past activities in Bangladesh. It might have been wrong in its evaluation of his evidence, but any error, in my opinion, cannot be shown to go beyond the merits of the matter.
In my opinion, the argument presented by counsel for the applicant fails at its first base. It requires the Court to read the first paragraph quoted above at [13] as providing a single reason for the Tribunal’s opening adverse credibility finding. However, the very next sentence shows that the Tribunal did not confine its conclusion in that respect to its view of the applicant’s evidence concerning his claimed arrest in 1995 or 1997. It said: “in reaching this view the Tribunal has had regard to his belated revelation at the hearing that he was detained for two months in 1995 because of his BCL related activities”. This sentence indicates that the Tribunal was not suggesting that its opinions about that particular claim were exhaustive of its reasons for not being impressed by the applicant “as a credible witness”. The stated matter to which the Tribunal first “had regard”, appears as only the first of several reasons for not finding the applicant to be a credible witness. Its other reasons emerge from its subsequent discussion.
For the above reasons, I therefore would not read the Tribunal’s reasoning as falling into the pattern suggested by the applicant’s counsel. The contended jurisdictional error, therefore, is not made out, however it is classified.
No other ground of jurisdictional error has been argued before me, and I must therefore dismiss the application.
I certify that the preceding thirty‑six (36) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 6 August 2007