SZJON v Minister for Immigration and Citizenship

[2007] FCA 1993

FEDERAL COURT OF AUSTRALIA

SZJON v Minister for Immigration and Citizenship [2007] FCA 1993

SZJON v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1532 OF 2007

LINDGREN J
14 DECEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1532 OF 2007

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJON
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE OF ORDER:	14 DECEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1532 OF 2007

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJON
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE:	14 DECEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The appellant appeals from orders made in the Federal Magistrates Court of Australia.  That Court dismissed his application for a review of the decision of the Refugee Review Tribunal (the Tribunal).  The Tribunal had affirmed a decision of a delegate of the first respondent (respectively, the Delegate and the Minister) not to grant a protection visa to the appellant.

2. The second respondent, the Tribunal, has submitted to such order the Court might make save as to costs.

   PROCEDURAL BACKGROUND

3. The appellant is a national of Bangladesh.  He arrived in Australia on 28 March 2006 and applied for a protection (Class XA) visa on 13 April 2006.

4. On 4 May 2006 the Delegate refused to grant the visa.  By an application received by the Tribunal on 25 May 2006, the appellant applied to the Tribunal for review of the Delegate’s decision.

5. The Tribunal conducted a hearing on 9 August 2006.  The appellant attended the hearing and was questioned by the presiding member. 

6. Following the hearing, the Tribunal wrote a letter to the appellant dated 10 August 2006 pursuant to s 424A of the Migration Act 1958 (Cth) (respectively, the s 424A letter and the Act) setting out certain information which, the letter stated, would, subject to any comments made by the appellant, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The letter invited the appellant to comment on the information.

7. By letter dated 25 August 2006, the appellant, through his solicitor, commented on the information, and by a separate letter of the same date his solicitor forwarded a copy of a certain letter (discussed below) to the Tribunal relating to the relevant issue that had been raised by the s 424A letter.

8. On 26 September 2006 the Tribunal handed down its statement of decision and reasons which had been signed on 5 September 2006.

9. On 24 October 2006 the appellant applied for review of the Tribunal’s decision to the Federal Magistrates Court of Australia.  That Court conducted a hearing on 18 July 2007 at which the appellant, as well as the Minister, was represented by counsel.  On the same day, the Federal Magistrate dismissed the application for review.

10. By a notice of appeal filed in this Court on 6 August 2007, the appellant appealed to this Court.

    GENERAL BACKGROUND FACTS

11. The appellant’s claims before the Tribunal in relation to his political activities were to the following effect.  He said he initially joined the Bangladesh Chattra (also spelt “Chatra” and “Chhatro”) League (the BCL) in early 1995.  He said that he then joined the Jubo League and later the Awami League.  Independent country information showed that BCL was the student wing of the Awami League and that the Jubo League was its youth wing.

12. The appellant claimed that in 1996 he became general secretary of the Shibchar Thana College Committee.  Apparently Shibchar is a specific place or locality.  I assume that “Thana” means something like “City” or “Town” or “local place”.

13. The appellant claimed that in 1997 he became the president of the BCL Shibchar Thana Committee and in 1999 the vice president of the Shibchar Thana College Committee.  He claimed that in 2000 he again became the president of the BCL Shibchar Thana Committee and in 2002 the organising secretary of the Jubo League in Shibchar Thana. 

14. According to the appellant, in February 2004 he was elected as the executive member of the Madaripur District Committee of the Awami League.  Madaripur is a district and therefore covers a larger area than Shibchar.

15. The Tribunal said that the appellant did not impress it as a credible witness.  It referred to several matters as supporting that impression.  A general criticism made by the appellant of the Tribunal’s reasons is that the Tribunal invoked its general impression of him as not credible in support of the rejection of his evidence on particular matters as implausible rather than forming the impression that he was not credible on the basis of his having given implausible evidence on particular matters.

16. The application to the Federal Magistrates Court and the appeal to this Court largely concerned two letters which the appellant provided to the Tribunal and the Tribunal’s finding that they were inconsistent.  The first letter was from Ashaduzzaman Durjoy who signed as “President Bangladesh Chatra League Madaripur District Committee”.  I will call this letter “the Durjoy letter”.  The Durjoy letter was undated and was addressed “To Whom It May Concern”.  It is the first paragraph of that letter that was in question.  That paragraph was as follows:

    This is to certify that [the appellant] was a reputed leader of the Chatra League who generated a noteworthy contribution to make a strong foundation for the party at Shibchar Thana.  Since he was elected as the organizing president of Shibcher Thana Chatra League, he conditioned his strong attachment with this party and finally he was elected as the executive member of Madaripur district committee of the Students League. He experiences a number of brutal attacks and also experienced a false case.
    (My emphasis.)

    Although the letter was not dated, it had been translated by 2 August 2006.

17. Following the hearing on 9 August 2006, the Tribunal wrote the s 424A letter to the appellant’s solicitor the following day. That letter invited the appellant to comment on three separate matters that had arisen at the hearing. A paragraph relating to the Durjoy letter was as follows:

    The letter from Mr Ashaduzzam Durjoy submitted in support of your application for review states that you were elected as the “executive member of the Madaripur district committee of the Students League”.  However you have consistently stated that you were the executive member of the Madaripur district committee of [the] Awami League.

    The point being made by the Tribunal seems to have been that there was an inconsistency between the two offices of executive member of the Madaripur district committee: one of the Awami League itself and the other of the Chattra League.

18. The appellant’s solicitor replied on 25 August 2006 stating that his client had in fact held both positions.

19. By a second letter to the Tribunal of 25 August 2006, the appellant’s solicitor forwarded to the Tribunal a letter that purported to come from “Alhaj Fardos Jamader, President Bangladesh Awami League Madaripur District Committee”.  This letter was dated 17 August 2006 and was also addressed “To Whom It May Concern”.  It stated as follows:

    This is to certify that [the appellant] in the district of Madaripur, Bangladesh.  I have know[n] [the appellant] for many years, he is one of our most dedicated members of the district committee Awami League.  Most of his family members left the country including [the appellant] to avoid persecution.  After arrival of this government many Awami League leaders and activists left the country to save their lives.  [The appellant] was one of them who was fortunate to leave the country.  (My emphasis.)

    [The appellant] personally was attacked on a number of occasions by the BNP cadres and became subject to a number of false cases, which compelled him to leave the country.

    I will call this letter “the Jamader letter”.

    THE TRIBUNAL’S REASONS FOR DECISION

20. In its reasons for decision the Tribunal stated as follows:

    The Tribunal is prepared to accept that the applicant is a member of the Awami League and held a number of party related positions in his local area of Shibchar.  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 “Maridipur district committee of Awami League”.  A letter purportedly from the President of Bangladesh Awami League Mardipur Committee reiterated this claim.  However, this was contradicted in the letter from Mr Ashaduzzam Durjoy submitted in support of his application for review which stated that the applicant was elected as the “executive member of the Madaripur 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 Madaripur District Committee of the Awami League and the District Committee of the Students Chatra League and that he was eligible for both positions.  However, [he] 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.

21. The Tribunal also said that in view of its conclusion that the appellant was not a credible witness and had attempted to exaggerate his position and bolster his status in the Awami League in order to strengthen his claims, it was not necessary for the Tribunal to consider the issue of relocation.  Nonetheless, the Tribunal expressed itself as satisfied that it was reasonable for the appellant to relocate to a different part of Bangladesh.

22. The Tribunal said that the appellant’s claims made it clear that all of his political activities were “highly localised and his locality and district [sic]”.  The Tribunal observed that Bangladesh has a population of 130 million people and 64 districts and that the appellant had provided no acceptable reason as to why he was unable to relocate internally.  The Tribunal did not accept that he would be pursued by “his old political opponents” anywhere in a densely populated country like Bangladesh.  Nor was the Tribunal satisfied that if the appellant were to re-engage in politics at the same level as he had done before elsewhere in the country, he would be a target of persecution.

    THE PROCEEDING BEFORE THE FEDERAL MAGISTRATES COURT

23. The learned Federal Magistrate noted that the complaint that was made before that Court appeared to be a challenge to the rationality of the Tribunal’s reasoning processes.  His Honour rejected a submission that the Tribunal had used its impression that the appellant was not a credible witness as a reason for doubting particular claims that he made.  His Honour was not persuaded that the Tribunal had made its credibility finding without considering all of the appellant’s evidence, including such parts of it as it was prepared to accept.

    CONSIDERATION OF THE PRESENT APPEAL

24. The grounds of appeal are not well expressed in the notice of appeal.  They are as follows:

    1.The Honourable trial judge failed to consider that the Tribunal accepted that “the applicant is a member of Awami League and held a number of party related positions in his local area of Shibchar”, in considering this matter trial judge made an error.

    2.The Honourable trial judge made error in considering the totality of this case.

    3.The Tribunal made an error in considering credibility findings against the applicant.

    4.The Tribunal failed to comply with the notice of 424A of the Migration Act and the trial judge erred in considering this argument.

25. The appellant’s counsel’s submissions concentrated on the question of inconsistency between the Durjoy letter and the Jamader letter.

26. In order to understand the passage in the Tribunal’s reasons set out at [20] above, it is important to have regard to a letter dated 8 August 2006 written by the appellant’s solicitor to the Tribunal. That letter set out a “chronology” relating to the appellant’s claims. Paragraphs 6-11 in that chronology were as follows:

    6.In 1996 the Applicant was elected as the general secretary of the Barhamgonj Government College.

    7.In 1997 the applicant became the president of Bangladesh Chatra League Shibchar Thana Unit.

    8.In 1999 I was elected the vice president of the Barhamgonj Government College Chatra League.

    9.In 2000 the Applicant was elected the President of the Shibchar Thana Chatra League.

    10.In 2002 the Applicant was elected the organizing secretary of the Shibchar Thana Awami Jubo League.

    11.In 2004 the applicant was elected as the executive member of the Madaripur district committee Awami League.  (My emphasis.)

27. It will be noted that down to and including para 10, the appellant made no claim of having any status in the Madaripur district.  In para 11, however, the claim was made that he was elected as the executive member of the Madaripur district committee of the Awami League itself.

28. Apparently in oral evidence also the only claim made by the appellant in relation to the Madaripur district level was that in February 2004 he was elected as the executive member of the Madaripur District Committee of the Awami League.

29. It was because the presiding member understood the claim made in the chronology and in oral evidence to be inconsistent with the Durjoy letter that the Tribunal wrote the s 424A letter to the appellant’s solicitor on 10 August 2006 (see [17] above). It seemed to the presiding member that the Durjoy letter was inconsistent with the claim that the appellant had made in the written chronology and in his oral evidence. In neither did he claim to have been elected as “the executive member of Madaripur district committee of the Students League as stated in the Durjoy letter

30. The Jamader letter simply corroborated the claim made in the chronology and in the appellant’s oral evidence.  The question of inconsistency was dealt with only in the appellant’s solicitor’s letter’s assertion that the appellant had been in fact an executive member of both Madaripur district committees.

31. In its reasons, the Tribunal noted that the chronology had purported to be a listing of all of the political positions that the appellant was claiming to have held, and noted that he had not claimed to be a member of or eligible for the membership of the Madaripur district committee of the BCL.

32. I agree with counsel for the appellant that the two statements, one that a person was the executive member of the Madaripur district committee of the BCL and the other that he was an executive member of the Madaripur district committee of the Awami League itself, are not, on their face, necessarily inconsistent: the appellant may have occupied both positions.  However, it is not simply the texts of the two letters on which the Tribunal member was relying.  The member was relying on the appellant’s failure to refer in his chronology (or in his oral evidence) to any position on the Madaripur district committee of the Students League, his failure to explain the position at the hearing, and the rejection by the member of the explanation offered by the appellant’s adviser.

33. While I agree with counsel for the appellant that to speak of inconsistency between the texts of the two letters was wrong, I do not think that this establishes jurisdictional error.  As I have tried to explain above, the two letters and the Tribunal’s reasons are to be taken in the context of claims that the appellant had made and omitted to make.

34. For the above reasons, I do not accept the criticism made by the appellant of the Tribunal’s reasons on the inconsistency point.

35. It is not clear to me whether, on the hearing of the appeal, the appellant persists in his contention that the Tribunal had used its unfavourable impression of him as a basis for rejecting particular claims, but I should say that I do not think it did so.  It is true that the Tribunal commenced two paragraphs with references to the appellant as not being a credible witness, but it then proceeded to give supporting reasons.  The particular paragraph that drew the strongest criticism from counsel for the appellant is the one commencing:

    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.

    Taken in isolation, this sentence suggests that the reason why the Tribunal was not satisfied that the appellant was the subject of two false cases against him in 2006 was that the Tribunal had rejected the appellant’s overall credibility.  However, the remainder of the paragraph identifies particular reasons why the Tribunal found the “two false cases” claim to be not plausible.  Indeed, in the very next sentence following that quoted above, the Tribunal stated:

    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.

36. I also consider that the Tribunal did give as an alternative ground for its decision its finding that relocation within Bangladesh was reasonably open to the appellant, and it is not shown that it was not entitled to do so.

    CONCLUSION

37. For the above reasons, in my view the Tribunal did not commit any jurisdictional error and the Federal Magistrate’s Court’s decision was not infected by error.

38. The appeal to this Court should be dismissed with costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:          14 December 2007

Counsel for the Appellant:

Mr J R Young

Counsel for the First Respondent:

Mr G Kennett

Solicitor for the First  Respondent:

The Second Respondent did not appear.

Australian Government Solicitor

Date of Hearing:

13, 27 November 2007

Date of Judgment:

 14 December 2007