SZMSW v Minister for Immigration
[2009] FMCA 248
•19 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMSW v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 248 |
| MIGRATION – RRT decision – Bangladeshi fearing persecution for political activities – disbelieved by Tribunal – no error in discounting of corroborative letters – conclusion on credibility not manifestly unreasonable nor based on illogical foundation – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth) |
| A v Minister for Immigration & Multicultural Affairs(1999) 53 ALD 545 Minister for Immigration & Citizenship v Le (2007) 164 FCR 151 Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 SZIAI v Minister for Immigration & Citizenship [2008] FCA 1372 SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 SZJBA v Minister for Immigration & Citizenship (2007) 164 FCR 14 SZMDS v Minister for Immigration & Citizenship [2009] FCA 210 WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 Wrecker v Secretary, DEST (2008) 168 FCR 272 |
| Applicant: | SZMSW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2369 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 19 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Mr J Mitchell |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2369 of 2008
| SZMSW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant last arrived in Australia in January 2008, as a seaman on a ship which had visited Australia several months earlier. On this occasion he deserted ship, and within about one week he lodged an application for a protection visa assisted by a migration agent.
A statement attached to the application made vague claims that the applicant feared persecution by the “caretaker” government of Bangladesh, which had taken power about one year earlier, due to the fact that the applicant was “a member of Awami League in my district”. He said that he was “an authority of Awami League and I am a worker of Jubo League and I am connected with politicians and their workers”. He said that if he went back he would be arrested without reason and illegally tortured. He said “I came to know from my family a false case has been filed in my name and without getting me they threat the family members they should find me out searching and will put me to crossfire”.
No details or corroboration of these claims was presented with the visa application, and a delegate refused the application on 28 March 2008.
The applicant appealed to the Tribunal, without appointing an agent, and presented an eight page typed statement. In this, he recounted his history as a seaman since 2001, and gave dates for his engagements at sea for periods of six months and up to a year. He claimed that before taking up this occupation, and while he was a student, he had supported his parents in their political involvement in the Awami League, and that he had been severely beaten by the police in 1995 when participating in a protest rally against the then BNP Government.
The applicant claimed to have closely worked with the Awami League in his district at elections in 1996, which were won by the Awami League. After becoming a seaman, he again participated in an election in January 2001, which was lost by the Awami League, although the applicant’s candidate retained his seat in parliament. He then returned to sea.
On his return, he participated in Awami League meetings in August 2004 where he escaped being harmed by a grenade explosion. He was injured with his father in another incident at a rally in January 2005. He said that in February 2005, he was assaulted by a group of BNP supporters, and was afraid to complain to the police. He then avoided political activities, and again went to sea.
On his return, he claimed that in September 2006 he was involved in a rally in Dakar where “we all got beaten by the police”. He referred to the January 2007 elections which were boycotted by the Awami League, and said: “because of my heavy involvement with Awami League, I became a target of opposition. I have been attacked once by BNP supporters and threatened to kill. Yet I haven't stopped my political activities with Awami League”. He said that the BNP party had given misleading information to the caretaker government, and claimed that as a result of being falsely accused of “involvement of illegal arms” he was arrested by police in August 2007. He claimed that he was tortured, but that his father paid a bribe to the chief police officer to get him released. He was released, and arranged to be sent overseas.
He referred to his first visit to Australia in September 2007, when he did not have an intention to claim refuge, and explained his January 2008 application on the basis that his father and wife had telephoned him, and told him not to come back home because security forces “has entered my home searching me as they were explaining as they want to interrogate me in order to carry out investigation”.
The applicant attended a rescheduled hearing by the Tribunal which was held on 7 July 2008. Before attending, he presented to the Tribunal two typed reference letters, on letterhead of the Bangladesh Awami Jubo League from two branches in the applicant's home district. They are typed in identical terms, and have the signatures of four different people on them, stating that the applicant “is not safe to be in Bangladesh” and that the applicant “is a member of freedom fighter family. Already police file number member of false cases for him getting instruction from BNP and Jamatie-Islam because of his political activities”.
A transcript of the hearing is in evidence, and the Tribunal's detailed description of the hearing in its ‘Statement of Reasons’ appears to be accurate. The applicant did not depart from his detailed statement in significant respects.
The Tribunal tested his claims of political activism, by questioning him about the results of the 2001 election in the applicant's district, which the Tribunal obtained from an official source on the internet. The Tribunal also questioned the applicant about his travels as a seaman, and raised its concerns that he had never previously claimed to fear return to Bangladesh, and had not claimed refugee status anywhere, including Australia. The Tribunal put to the applicant other concerns it had with his claims and his evidence, and gave him an opportunity to comment. This included information suggesting that it was common for letters, such as those the applicant had produced, to be signed even if the information in them was incorrect.
On 19 August 2008, the Tribunal handed down a decision which affirmed the delegate's decision. In its findings and reasons, it said that it had concluded “that there are good reasons not to accept the applicant's evidence regarding his own and his father's involvement in the Awami League and the Jubo League and the persecution he claims to have suffered as a result.”
The Tribunal gave two general reasons for its disbelief of the applicant. It said “First, as I put to the applicant, I found his evidence regarding his involvement in political activities to be very unconvincing”. The Tribunal said his answers about what he had done, and how he had convinced people to vote for the Awami League in the two elections he participated in, were unsatisfactory, and “He did not seem to be able to tell me much beyond saying he had been involved in organising things”.
The Tribunal said in relation to his evidence about the 2001 election: “He did not seem to know what had happened in the seat in which he claimed he had been involved in campaigning”. The Tribunal said that the applicant had said there had been four candidates when, in fact, there had been five. It appears to have rejected the applicant's explanations that one of the stated candidates had been expelled or was not well known. The Tribunal said that he had identified one candidate wrongly by name, and that when asked the number of votes upon which his candidate had won the election, he had said "136,000 plus votes", whereas in fact the candidate is recorded as receiving 150,000 votes.
The second general reason for the Tribunal disbelieving the applicant's claims was that he had never applied for refugee status in the course of his previous travel. The Tribunal said “it does not appear from his evidence that anything had changed”, particularly between the two visits to Australia in 2007 and 2008.
The Tribunal referred to the two letters produced by the applicant to the Tribunal, to the fact that they were in identical terms, and to general information which suggested they might be unreliable. It said: “I do not consider that the corroboration afforded by these letters outweighs the problems I have with the applicant's own evidence”. It concluded:
71. As I put to the applicant, having regard to the problems which I identified with his evidence regarding his involvement in political activities in Bangladesh and the fact that he did not seek refugee status earlier despite having numerous opportunities to do so, I do not accept that he genuinely fears being persecuted because of his claimed involvement in the Awami League or the Jubo League if he returns to Bangladesh now. I do not accept that he was persecuted by the BNP because of his own or his relative’s involvement in politics, nor that a false case was filed against him accusing him of being involved in the illegal arms trade and of trying to overthrow the government, nor that he genuinely fears that if he returns to Bangladesh now he will be arrested, tortured As I put to the applicant, the fact that the two letters are in identical terms suggests that someone else drafted the two letters and that the signatories merely signed them. The applicant said that both the letters had been composed on the same computer. He said that it could be the case that someone had drafted both letters and had then put them in front of these people to sign them. As I put to the applicant, the information available to the Tribunal suggests that it is common for letters such as these to be issued even if the information in them is incorrect (Research Directorate, Immigration and Refugee Board of Canada, ‘Bangladesh: Prevalence of fraudulent, forged or fake documents and genuine documents obtained by fraudulent means, including the degree of difficulty involved in obtaining such documents or through such means; the challenges and level of difficulty involved in verifying the authenticity of documents (August 2003 - August 2005)’, 8 August 2005, BGD100388.E).
72. The applicant said that the letters he had produced were all correct. However, having regard to the information available to the Tribunal suggesting that it is common for letters such as these to be issued even if the information in them is incorrect and the fact that the two letters are in identical terms, I do not consider that the corroboration afforded by these letters outweighs the problems I have with the applicant’s own evidence
73. As I put to the applicant, having regard to the problems which I identified with his evidence regarding his involvement in political activities in Bangladesh and the fact that he did not seek refugee status earlier despite having numerous opportunities to do so, I do not accept that he genuinely fears being persecuted because of his claimed involvement in the Awami League or the Jubo League if he returns to Bangladesh now. I do not accept that he was persecuted by the BNP because of his own or his relative’s involvement in politics, nor that a false case was filed against him accusing him of being involved in the illegal arms trade and of trying to overthrow the government, nor that he genuinely fears that if he returns to Bangladesh now he will be arrested, tortured or killed by a law enforcement agency.
74. Having regard to the problems which I identified with the applicant’s evidence regarding his involvement in political activities in Bangladesh and the fact that he did not seek refugee status earlier despite having numerous opportunities to do so, I do not accept that the applicant or a relative were involved in the Awami League or the Jubo League as he claims nor that the applicant, his relative or his family more generally suffered the problems he claims as a result of his own or his relative’s involvement in politics. I do not accept in particular that the applicant donated lots of money to the Awami League, nor that he genuinely fears that his life is under threat as a result, nor that the police are now harassing his family in Bangladesh because he left Bangladesh without informing the police. Having regard to my findings of fact above, I do not accept that there is a real chance that the applicant will be involved in political activity if he returns to Bangladesh now or in the reasonably foreseeable future. I do not accept that there is a real chance that the applicant will be persecuted for one or more of the five Convention reasons if he returns to Bangladesh now or in the reasonably foreseeable future.
The applicant now asks the Court to set aside the Tribunal's decision, and to remit the matter for further consideration by the Tribunal. I can only make these orders if I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant's original application contains four grounds. These assert, in unparticularised terms, failures by the Tribunal in relation to natural justice, “error of law being jurisdictional error in that it did not put any weight to the relevant facts and/or of the document”, “reliance on the irrelevant materials and/or questioned with unnecessary matters”, and excess of jurisdiction.
The applicant did not seek to explain these grounds to me, beyond relying upon arguments in an outline of submissions which he has filed. I do not consider that his application raises any meaningful contention of jurisdictional error beyond the arguments set out in his outline of submissions.
The outline contends three errors. The first challenges the Tribunal's conclusion that it would not give weight to the two letters of support. It is argued:
Unfortunately the Tribunal did not put any weight to the above documents when considering my claim. The Tribunal considered those documents were not genuine. However, the Tribunal did not make any investigation through Australian High Commission Dakar about its authenticity.
I have above extracted how the Tribunal expressed its conclusion as to the corroborative weight to be given to the two letters. This is not a case where the Tribunal rejected corroboration as forged or fraudulent. It discounted the letters purely on grounds of weight, based on inherent difficulties in accepting that all four purported witnesses had actual knowledge of the matters asserted in the letters, and on general information that such letters of support were readily available without the signatories having actual knowledge of what was asserted.
In my opinion, the present Tribunal's dealing with the letters of support falls within the line of authorities which finds no failure of procedural fairness or other jurisdictional error in a Tribunal's reasoning which found that corroborative evidence did not outweigh credibility concerns in an applicant’s own evidence. These authorities were recently discussed and applied by Moore J in SZMDS v Minister for Immigration & Citizenship [2009] FCA 210 (see also WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [70], distinguishing WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511).
In relation to the Tribunal’s failure to initiate inquiries in Bangladesh, I can identify no basis for bringing the present situation within the exceptional cases where a duty can arise (compare Minister for Immigration & Citizenship v Le (2007) 164 FCR 151 at [77], SZJBA v Minister for Immigration & Citizenship (2007) 164 FCR 14 at [59]-[60], and SZIAI v Minister for Immigration & Citizenship [2008] FCA 1372 [Special leave granted 13-2-09], with SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 at [29], and Wrecker v Secretary, DEST (2008) 168 FCR 272 at [110])
For these reasons, I do not consider that any of the applicant’s arguments in the first contention in his written submissions establishes jurisdictional error.
The second contention in the written submissions attacks the Tribunal's adverse view of the applicant's credibility, insofar as it was based upon its opinion that he had not shown adequate knowledge of what happened in the 2001 election. It is argued:
I submit I could not answer a few questions according to the Tribunal's satisfaction, for example, the candidate attended in general election. The reason was that the election was held a long time ago. However the Tribunal took a view I could not response properly. And then the Tribunal raised question about my credibility. ...
It is submitted that in my case, on the cumulative weight of the evidence it was not open to the Refugee Review Tribunal to its conclusion as to credibility.
Reading the transcript of the Tribunal's questioning of the applicant concerning his knowledge of the 2001 election, I was conscious that other decision-makers might not have taken such a severe view of the imperfections in the applicant's knowledge and responses as was taken by this Tribunal. Indeed, it is conceivable that a different Tribunal might have regarded his imperfect evidence as pointing towards an actual, and understandably imperfect, memory of details concerning such a long distant event.
There is nothing in the Tribunal's reasons to show that it also relied upon the applicant's demeanour when answering the Tribunal's questions, and the Tribunal appears purely to have based this part of its reasoning upon the content of his responses which is recorded. Had other parts of the Tribunal's reasoning concerning the applicant's credibility been based upon foundations as weak as this, I might have considered characterising the Tribunal's present ‘Statement of Reasons’, and the decision which it explains, as being “based squarely on an illogical process of reasoning” within authorities recently applied by Moore J in SZMDS (see above at [29]).
However, in my opinion, it cannot be so characterised when considered in its entirety. The Tribunal's general conclusion which disbelieved the applicant’s evidence about his political activities was based on a number of matters, which clearly involved evaluation of the material before it, and may have been partly based on the Tribunal's experience in similar matters (compare A v Minister for Immigration & Multicultural Affairs(1999) 53 ALD 545 at 555, Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [32], and Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 at [263]). I am not persuaded to characterise the Tribunal's conclusion, that the applicant's present knowledge was so imperfect as to allow adverse conclusions on his credibility to be drawn, nor that its expectation that he would have given responses giving more details of political activities, as being perverse or capricious or manifestly untenable.
Moreover, the Tribunal's second general reason for disbelieving the applicant, based on his history of travel overseas without a fear of return and without making refugee claims, was, in my opinion, a rational and logical basis upon which to assess credibility. Overall, the material before the Tribunal allowed it to form an adverse opinion about the applicant's credibility. In my opinion, the Tribunal made a genuine attempt to assess that material, and I would not characterise its conclusion on credibility as being affected by any jurisdictional error.
I therefore do not accept the second contention made by the applicant's written submissions, which seeks to characterise the Tribunal's conclusion on credibility otherwise.
The applicant's third argument in his written submissions is as follows:
Future Persecution
The Tribunal made a comment that there was not a real chance that I would be involved in political activity if I return to Bangladesh in the foreseeable future.
It is submitted that I was seriously assaulted by a group of political opponents in February 2005. The police arrested me and put into custody. After my father paid bribery I was released. I strongly believe that if I was force to return to Bangladesh I would be persecuted in the same way or harder as I had the bitter experience in the past.
I submit that the Tribunal misunderstood the reality of my future persecution in Bangladesh.
I submit to this Honourable Court that the Tribunal did a wrong assumption that there was not a real chance that I would be involved in political activity if I returned to Bangladesh in the foreseeable future.
I accept the submission of counsel for the Minister that this argument essentially does not rise higher than an invitation to the Court to assess for itself “the reality of my future persecution in Bangladesh”. The Tribunal undoubtedly addressed the refugee claims which were before it. As I have indicated, it arrived at a conclusion on the credibility of the claimed history giving rise to the applicant's claim that he feared to return. The possibility that other Tribunals might have arrived at different opinions about that issue, or that the Court itself might arrive at a different conclusion if it investigated the truth of the applicant's claims, does not show that this Tribunal made a decision affected by jurisdictional error.
I am not persuaded that the outcome arrived at by the Tribunal in this case is itself evidentiary of any jurisdictional error.
For the above reasons, I am not persuaded by any of the arguments presented by the applicant to establish jurisdictional error. I must therefore dismiss the application.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 1 April 2009
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