SZMRS v Minister for Immigration
[2009] FMCA 263
•31 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMRS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 263 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal failed to give weight to a document – whether the Refugee Review Tribunal made a positive finding about a document – whether the Refugee Review Tribunal was obliged to put to the applicant its concerns about a document provided by the applicant to the Refugee Review Tribunal post-hearing. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2 |
| WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597 |
| Applicant: | SZMRS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2198 of 2008 |
| Judgment of: | Emmett FM |
| Hearing dates: | 12 February 2009, 23 March 2009 |
| Date of last submission: | 23 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Bellingham, Jack Rigg Solicitors |
| Counsel for the Respondent: | Mr H. Bevan |
| Solicitors for the Respondent: | Ms B. Anniwell, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2198 of 2008
| SZMRS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 23 July 2008 and handed down on 31 July 2008.
The applicant claims to be a Bangladeshi citizen and a supporter of the Awami League (“the Applicant”).
The Applicant arrived in Australia on 25 June 2003 having departed legally from Dhaka on a passport issued in his own name and a student (subclass 572) visa issued on 27 May 2003.
On 28 December 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 27 March 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 28 April 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 23 July 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 25 August 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
In his protection visa application, the Applicant claimed that he feared persecution by “the ruling party” for his support of the Awami League. He stated he had been assaulted in Australia, resulting in hospital treatment, and that these assaults had been ordered by an unknown person in Bangladesh. He claimed the police would not protect him if he were to return to Bangladesh as they are controlled by the caretaker government.
The Delegate’s decision
On 27 March 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The Tribunal’s review and decision
On 28 April 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided the following documents in support of the review application:
a)His birth certificate and passport;
b)Letters from the Bangladesh Awami League, the Bangladesh Student League, the President of the Awami League and a translated letter from the Applicant’s father; and,
c)A statutory declaration by the Applicant dated 17 July 2008.
On 9 May 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing to give oral evidence and present arguments.
On 24 June 2008, the Applicant gave evidence at the hearing before the Tribunal at which the Applicant expanded on his previous claims and made the new claim that he had been set up on a fraud charge by a Bangladeshi man who was a supporter of the Bangladesh Nationalist Party. The Applicant claimed he informed the police that this man had been in Australia previously under another identity and the man was detained at Villawood. During his detention the Applicant said the man threatened him and, now that the man was back in Bangladesh he would take revenge on the Applicant if he returned.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for First Respondent in his written submissions as follows:
“16.While the Tribunal accepted that the Applicant’s family supports the Awami League, it did not accept that the Applicant, or his father, has any formal position in that party. In this regard, the Tribunal placed no weight on the letter submitted after the hearing, referring to several of the letter’s “dubious” features. The Tribunal also noted that the Applicant had not submitted any evidence of any relation with the Australian branch of the Awami League (RD 114 [36]).
17.The Tribunal did not accept that the Applicant would be pressured to re-enter political activity if he were to return to Bangladesh. The Tribunal referred to country information concerning a “very significant drop in political violence”. The Tribunal did not accept that the Applicant would suffer serious harm for reason of his family’s political activities. Nor did the Tribunal accept that the Applicant’s family had been threatened or the victim of violence (RD 114 [37]).
18.The Tribunal also accepted, but made no finding, that the Applicant had been the victim of an assault in Sydney. However, the Tribunal was not prepared to accept that the assault, if any, had been politically motivated, citing the Applicant’s lack of political activity in Australia and what may be described as his low political profile in Bangladesh (RD 114 [38]).
19.Finally, the Tribunal considered the new claim concerning “Ronnie”. No corroborating evidence was advanced by the Applicant. The Tribunal did not accept the Applicant’s claims as true (RD 114 [39]). As to the threats made from Villawood, the Tribunal was prepared to accept that they occurred, but found that the threats lacked a relevant Convention nexus and concluded that they were part of a personal matter between the two men (RD 115 [40]).
20.The Tribunal found that the Applicant does not have a well-founded fear of persecution in Bangladesh for a Convention reason (RD 115 [41]-[42]). The Tribunal accordingly affirmed the Minister’s delegate’s decision not to grant the Applicant a protection visa.”
The proceeding before this Court
The Applicant was represented before this Court by Mr Bellingham, solicitor.
On 11 November 2008, the Applicant filed an amended application and supporting affidavit, sworn by the Applicant on 11 November 2008. On 16 March 2009, the Applicant filed a further amended application.
At the commencement of the hearing, Mr Bellingham confirmed that he relied only on ground 10 of the further amended application and withdrew the other grounds of the further amended application. He confirmed this was the only ground the Applicant relied. Ground 10 is in the following terms:
“10.The Second Respondent made a jurisdictional error by failing to accord the applicant procedural fairness in that it rejected the letter from the Awani League tendered by the applicant on a positive basis, finding the letter “dubious” citing that it contained a blacked out banner on the top, at paragraph 36 of page 7 of the decision. This was a proposition that was never put to the applicant.
Particulars
(a)The applicant appeared before the Tribunal on 24 June 2008 to give and present evidence.
(b)At the hearing, the second respondent allowed the applicant leave to file further evidence by 21 July 2008.
(c)On 18 July 2008 the applicant provided the second respondent with a statutory declaration dated 17 July 2008 and a further letter from the Awami League dated 10 June 2008.
(d)The applicant sent a copy of these documents by facsimile and the original documents y post.
(e)The Tribunal recorded that the letter from the Awami League was “dubious” citing that it contained a “blacked out banner” on the top, at paragraph 36 of page 7 of the decision.
(f)The Tribunal in stating the letter is “dubious” and giving an explaination (sic) of the blacked out banner has made a positive finding and the Tribunal never put this proposition to the applicant.
(g)The “blacked out banner” was from the faxed copy of the letter. The Tribunal only considered the faxed copy of the letter. The original letter forwarded by post to the Tribunal had no such markings.
(h)The Tribunal in its decision at paragraph 36 on page 7 did not give the letter any weight.
(i)The letter from the Awami League was rejected by the Tribunal on a positive basis which has never been put to the applicant, and therefore preventing the corroborative material from being weighed in the balance of the general assessment of the applicants credibility.”
At the heart of Mr Bellingham’s submissions in support of Ground 10 is a submission that the Tribunal made a positive finding adverse to the Applicant in respect of a document, being a letter dated 10 June 2008 (“the June 2008 Letter”) provided by the Applicant following the conclusion of the Tribunal hearing.
In relation to the June 2008 Letter, the Tribunal said the following:
“As to the letter recently submitted purporting to attest to the applicant’s father’s position, I do not give it any weight. In addition to the factor discussed with the applicant at hearing about such documents generally, the one he submitted is dubious in other ways. The banner at the top has been blacked out and there are spelling mistakes within it, hardly likely in a document emanating from the office of a party President. I do not accept, that either the applicant or his father have any formal position in their party.”
In fact, the June 2008 Letter had been provided to the Tribunal as an original document that did not have the banner at the top blacked out. The Tribunal was incorrect in its statement that the June 2008 Letter that it received from the Applicant had the banner at the top blacked out.
Mr Bellingham submitted that the June 2008 Letter was corroborative evidence of the Applicant’s claims and was rejected on the basis of a positive finding by the Tribunal which was never put to the Applicant, thereby denying the Applicant procedural fairness. In support of that submission Mr Bellingham referred the Court to WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 (“WAGU”)at [36] where French J stated as follows:
“But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis [emphasis added] which has never been put to the tendering party there may be a failure of procedural fairness.”
Counsel for the First Respondent, Mr Bevan, submitted that, having regard to all the circumstances of the Tribunal’s review and read in context, the Tribunal’s did not make a finding of fraud or forgery or any positive finding about the authenticity of the June 2008 Letter. In support of his submission Mr Bevan referred the Court to WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597 where the Full Court of the Federal Court of Australia stated as follows at [56]:
“If, however, the RRT used the word “genuineness” in a loose sense intending to convey not that the document was a forgery but that the weight to be given to the content of the document provided no support to the “genuineness” of the appellant’s claim as to his degree of connection or involvement with Farahanipour, or the Marz-e-Porgohar group, then perhaps that was a conclusion available to the RRT, notwithstanding the inappropriate or infelicitous expression of that conclusion.”
Mr Bevan submitted that there had been no positive finding by the Tribunal that the June 2008 Letter was a forgery. Rather, Mr Bevan submitted that the June 2008 Letter “provided no support to the “genuineness”” of the Applicant’s claims. Mr Bevan submitted that the Tribunal’s consideration of the June 2008 Letter must be read particularly in the light a document provided by the Applicant prior to the Tribunal hearing that was substantially similar, save for an additional sentence. The earlier substantially similar document and a further similar document, provided by the Applicant prior to the hearing, are addressed below
Prior to the Tribunal hearing, the Applicant provided to the Tribunal the document that was substantially similar to the June 2008 Letter. The banner in that document was clear and legible. That document was dated 15 May 2003 and was in the following terms:
“To Whom it May Concern
This is to Certify that Mr. Nurul Islam Father of [the Applicant], Building No-02, Quarter No-32, Housing Staff Quarter, Section -14, Dhaka-1221.Word No-04 under Dhaka City Corporation is known to me. He is an active Political worker of Bangladesh Awamileague. At Present he is the Vice-President of Word – 04 Awzmileague.
I wish him his every Success in life.
Md. Alamgir Hossian
President
Bangladesh Awamileague”
The June 2008 Letter was in the following terms:
“To Whom it May Concern
This is to Certify that Mr. Nurul Islam Father of [the Applicant], Building No-02, Quarter No-32, Housing Staff Quarter, Section -14, Dhaka-1221.Word No-04 under Dhaka City Corporation. He is an active Political worker of Bangladesh Awamileague. At Present he is the Vice-President of Word – 04 Awamileague. At present time he is under pressur (sic) by the local community and by the law & Administration. [emphasis added]
I wish him his every Success in life.
Md Alamgir Hossaian [emphasis added]
President
Bangladesh Awamileague”
The differences in the 2 letters are the additional sentence at the end of the June 2008 Letter, “At present time he is under pressur (sic) by the local community and by the law & Administration”; the spelling mistake of “pressur”; and, the change in spelling of the name of the President, which has an additional “a” in the June 2008 Letter.
In respect of the letter dated 15 May 2003 and a similar letter in respect of the Applicant’s involvement with the student Awami League, the Tribunal made the following finding:
“With regard to the letters submitted from the Awami League, I informed the applicant that the Tribunal had been informed by the Awami League at a senior level via the Australian High Commission in Bangladesh that such letters were easy for party supporters overseas to obtain. Thus, while such letters may be genuine, the Tribunal put little weight on them.”
The context in which the June 2008 Letter was sent by the Applicant to the Tribunal is addressed below.
A fair reading of the Tribunal’s decision record makes clear that at the conclusion of the hearing, the Tribunal was not satisfied about the Applicant’s claims. In particular, the Tribunal noted that the Applicant made a new claim about a Bangladeshi man who was alleged to be a supporter of the Bangladesh Nationalist Party (“the BNP”) and allegedly had set up the Applicant to be charged with obtaining money by fraud. The Applicant said that he had told police that the man had been in Australia previously under another identity and had threatened the Applicant when both were detained in Villawood. The Applicant stated that this person was now back in Bangladesh and would take revenge if the Applicant returned.
Following this oral evidence by the Applicant of what the Tribunal described as a “new claim”, the Tribunal stated the following:
“I asked if he had any evidence of this new claim. He and his adviser said that there was evidence, although some of it would be in police files. I said that I would give the applicant time to obtain additional evidence on this matter [emphasis added] and on the question of his fear of harm in Bangladesh as a result of his or his family’s political activities. I said that, given my understanding of the situation in Bangladesh, nothing the applicant had told me regarding his family’s profile and activities in Bangladesh, including his past activities, had convinced me that he or his family would be at risk. Thus, if he wished to persuade me that this was wrong, I would need details and evidence. [emphasis added] Similarly, I would need details and evidence regarding his new claim of threats from “Roniie”. A date of 21 July was agreed as the time limit for the submission of additional material.”
Ultimately, the Tribunal did not accept that the Applicant’s claims in respect of the BNP supporter were made out. The Tribunal found the claims to be “vague” and otherwise uncorroborated.
There was no transcript of the Tribunal hearing filed by the Applicant, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and its exchanges with the Applicant during the hearing.
In relation to any threat made to the Applicant by the BNP supporter whilst both were at Villawood, the Tribunal found that there was no evidence before it to satisfy it that any threat made was for a Convention reason and noted that the Applicant did not claim that the alleged threats were Convention based. The Tribunal found the matter to be personal between the Applicant and the BNP supporter. The Tribunal accepted that the threat may be renewed if the Applicant were to return to Bangladesh, however, found that it would not arise for a Convention related reason.
The June 2008 Letter in no way addressed the Applicant’s new claim. It was a letter substantially similar to letters received by the Tribunal prior to the hearing and to which the Tribunal had attributed “little weight”. The Tribunal did not make a finding that the documents were forgeries and, indeed, acknowledged that they may be genuine. The Tribunal’s concern was that such letters were easy for party supporters overseas to obtain.
The June 2008 Letter clearly contained a spelling mistake in its last sentence and the name of the author was spelt differently in the June 2008 Letter. Whilst the Tribunal stated that it did not give the June 2008 Letter any weight and stated that the June 2008 Letter was “dubious in other ways”, the Tribunal referred in particular to the blacked out banner and the spelling mistakes. Certainly, it was open to the Tribunal to have regard to the spelling mistakes in characterising the letter as “dubious”. The blacked out banner, whilst forming part of the Tribunal’s expression that the June 2008 Letter was “dubious”, did not cause the Tribunal to find that the June 2008 Letter was a forgery. Rather, the weight given by the Tribunal to the content of the June 2008 Letter provided no support to the “genuineness” of the Applicant’s claims that his father was a vice president of the local Awami League.
In the circumstances, I am satisfied that the consideration by the Tribunal of the June 2008 Letter did not reflect a positive finding that the document was not genuine. Rather, the June 2008 Letter was simply a document that the Tribunal did not find provided any further corroborative evidence in respect of the Applicant’s claims.
A fair reading of the Tribunal’s decision makes clear, that the Applicant was made aware at the hearing that the Tribunal was of the view that it was not satisfied of the Applicant’s claims in respect of his father’s profile within the Awami League. It was an issue in respect of which the Tribunal invited the Applicant to provide additional evidence.
Moreover, I accept the submission of Mr Bevan that the June 2008 Letter was sent to the Tribunal under cover letter of the Applicant. The covering letter was in the following terms:
“Dear Sir,
RE: [the Applicant] – RRT File NO 0802527
Please find attached Statutory Declaration dated 17th July, 2008.
Also please find attached letter dated 10th June, 2008 from Mr. Alamgir Hossaian.
Yours faithfully,
MICHAEL BELLINGHAM”
It is plain from the solicitor’s letter that the June 2008 Letter was not supported by any submission by either the Applicant or the Applicant’s adviser. In the case of WAGU, upon which the Applicant relies, the adviser sent a document which was supported by further submissions by the adviser and in respect of which the tribunal made a positive finding that the document was a forgery. That is not the position in the case before this Court.
I accept the submissions of Mr Bevan that there is no positive finding in this case of forgery or of a lack of authenticity of the June 2008 Letter. A fair reading of the Tribunal’s decision record makes clear that the Tribunal made clear to the Applicant the concerns that it had about his claims and evidence and extended to the Applicant a further opportunity to provide corroborative material. The only document sent to the Tribunal in response to that opportunity was the June 2008 Letter.
Conclusion
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. At the conclusion of the hearing, the Tribunal invited the Applicant to provide further evidence in support of his claims. The Tribunal had regard to the further document, being the June 2008 Letter, sent to the Tribunal post-hearing. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 31 March 2009
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