SZMTA v Minister for Immigration
[2009] FMCA 110
•18 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMTA v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 110 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Bangladesh – applicant not believed – whether the Tribunal gave meaningful consideration to corroborative evidence of the applicant having reported his fear of harm whilst in South Korea but having been advised not to claim protection there, considered – no reviewable error found – application dismissed. |
| Evidence Act 1995 (Cth), s.59 Federal Magistrates Court Rules 2001 (Cth) |
| Minister for Aboriginal Affairs v Peko-Wallsend (1985) 162 CLR 24 SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 Tickner v Chapman (1995) 57 FCR 451 |
| Applicant: | SZMTA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2386 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 18 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 February 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondents: | Mr P Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2386 of 2008
| SZMTA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 19 August 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The background to the applicant’s claims and the Tribunal’s decision on them is summarised in the parties’ submissions. I incorporate in this judgment as background, with necessary amendments, paragraphs 2 through to 9 of the applicant’s submissions filed on 10 February 2009, and paragraph 1, second appearing, through to 16 of the Minister’s submissions filed on 11 February 2009:
On 26 January 2008 the applicant arrived in Australia from Bangladesh[1].
[1] court book (“CB”) 100
On 6 March 2008 the applicant applied for a protection visa[2]. The application included a seven page statement by the applicant in which he set out his claims[3].
[2] CB1-45
[3] CB 29-35
On 16 April 2008 a delegate of the Minister made a decision refusing to grant the applicant a protection visa[4].
[4] CB49-62
On 12 May 2008, the applicant applied to the Tribunal for review of the delegate’s decision.[5]
[5] CB63-71
On 23 May 2008, the Tribunal wrote to the applicant, inviting him to attend a hearing before it,[6] which he attended on 1 and 19 July 2008 and at which he gave evidence. Documents in support of the application were also provided to the Tribunal prior to the hearing on 10 June 2008,[7] at the hearing[8] and after the hearing.[9]
[6] CB74-79
[7] CB80-88
[8] CB90-112
[9] CB135-139
On 23 July 2008 the applicant provided to the Tribunal:
a) a letter from the applicant to the Tribunal dated 23 July 2008 (CB 135-138); and
b) a letter from Koo In Chook in South Korea (CB 139).
On 19 August 2008, the Tribunal handed down its decision affirming the decision of the delegate to refuse the applicant a protection visa.[10]
[10] CB143-172
The applicant’s claims
The applicant’s claims were set out in a statement accompanying the protection visa application.[11] In essence, he claimed that he faced a well founded fear of persecution in Bangladesh by reason of his religion (Buddhist). Specifically:
[11] CB29-35
a)in 2001, the coalition government came to power in Bangladesh. They targeted members of minority religious groups, including Buddhists, as they believed that minority religious groups voted in favour of their political opponents, the Awami League. Accordingly, he was the victim of systematic harassment and intimidation by “BNP-Jamat hooligans”;
b)his real name is … – he took the name … after being ordained as a Monk. He obtained his passport in his new name, which allowed him to travel overseas. He was also able to return for short trips on a few occasions without the knowledge of his opponents;
c)his father was a successful businessman, who was killed by local Muslims who were jealous of him. His killers had not been “brought to justice” because “they are powerful and we are Buddhists”;
d)after his father’s death, he suffered severe financial hardship and was discriminated against “in every sphere of our lives”. His maternal uncle, however, helped him in relation to his university education;
e)in 1985, he became a member of the Buddhist Students’ Union of the Alaol College, which promoted the rights of Buddhists and to protect them from discrimination;
f)in 1986, after completion of his High School Certificate, he enrolled in the Satkania Government College for a Bachelor of Commerce;
g)in 1987, he became the General Secretary of the Satkania College Buddhist Students’ Union and he organised movements to establish Buddhist rights in his college. He also liaised with leaders of the Awami League and became a member of the Chattra League (the student body associated with the Awami League). He established relationships with leaders of his community and various political organisations and became well known in his area;
h)after completing his Bachelor of Commerce, he enrolled in the University of Chittagong for a Masters degree. He became a resident of Atish Dipankar Buddhist Student Hostel managed by Purnachar International Bouddah Bihar, which was adjacent to two fundamentalist Islamic colleges. He organised protests against their “illegal activities”, consulted with a parliamentary member (Mr Abdullah Al Noman) and tried to raise the “awareness” of local residents. In 1991, they (referred to as “Shibir activists”) attacked his hostel with firearms in order to occupy their land, but they resisted, resulting in a number of resident students including himself being injured. Subsequently, the Islamists set fire to the hostel twice and, in 1992, the authorities closed the hostel. On 15 August 1992 he was attacked by the “Shibir activists”;
i)while he was in Chittagong he became a “frontline” activist and Organising Secretary of the Chittagong University Buddhist Students’ Union and, in 1991, supported the Awami League in the elections. This attracted the ire of the BNP and, after they won power in the elections, he “was experiencing risk of my life everyday and kept me way from all kind of political and community activities for a while (sic)”;
j)in 1991, he applied to be a member of the police force, but was not appointed by virtue of his religion. He took the matter to Court and won, but the BNP government refused to follow the verdict of the Court;
k)in March 1998, members of his village, were celebrating the religious festival, “Oyak”. He was delivering a lecture there also. Fundamentalist Muslims showed up and assaulted every attendee, resulting in many people including him being injured and his maternal uncle being killed. The authorities did not take any action in relation to the incident;
l)after he failed to obtain a job in the police force, he completed his degree and subsequently enrolled in a religious studies course, which he completed in 1995;
m)between 1996 and 2001, he worked in a private company owned by one of his community’s members. However, after the BNP came to power, the organisation was forced to close down. He was ordained as a monk and, from 2001 to 2004, helped members of his community;
n)following a killing of a Hindu family in a village adjacent to his on 18 November 2003, he organised a protest in different areas of Chittagong. This attracted the attention of one “main” killer, Mr Arminul Islam Chowdhury and, on 3 December 2003, he was assaulted by a group of people and stabbed in the stomach. Later, after the group found out he was alive, his family members were threatened, the applicant left the village and has been in hiding since then; and
o)in April 2004, he left Bangladesh for South Korea and lived at the Bong Jeong Buddhist Temple, although he returned to Bangladesh on a few occasions in disguise. On his last visit in December 2007, his “opponents” came to know of his return and he left immediately.
The applicant elaborated upon the above claims at the hearing before the Tribunal[12] and in a submission sent after the Tribunal hearing.[13]
[12] CB153-159
[13] CB135-138
The Tribunal decision
The Tribunal’s reasoning is found at paragraphs [75] to [91] of its decision.[14]
[14] CB164-170
The Tribunal accepted that the applicant was a Buddhist and that he had worked for certain periods as a Buddhist monk.[15] However, the Tribunal found that the applicant was a witness of low credibility. He tried to associate himself with particular groups or incidents in order to establish the profile of a refugee, gave misleading accounts of the nature and circumstances of past incidents, and deliberately blurred the distinction between Barua and tribal Buddhists.[16]
[15] At CB165[80]
[16] At CB165[79]
Specifically, it did not accept that the applicant had suffered Convention-related persecution or had a subjective fear of such persecution for the following reasons:
a)although the applicant lived in South Korea from July 2004 to December 2007, he did not inquire about or seek refugee protection there. The Tribunal did not accept the applicant’s explanation as to his failure to do so (that his temple advised him against it), because it found it unconvincing that the temple would have declined to explore options for his protection or to otherwise avoid serious harm;[17]
[17] At CB165[81]
b)secondly, the applicant’s return trips to Bangladesh on three occasions, each for several months, were compelling evidence that he did not fear persecution there. The Tribunal rejected the applicant’s claims to have remained in hiding during the visits given that his express purpose was to visit his family. Further, it did not accept that the applicant took any other steps to reduce the risk of persecution;[18]
[18] At CB165[81]
c)thirdly, the Tribunal did not accept that he and his family suffered hardship due to sustained discrimination in areas such as education, employment and legal protection. His personal circumstances (tertiary education, financial resources and land ownership) contradicted this claim. Although it was credible that they had a difficult time after his father’s death in 1975, it was ameliorated when the applicant’s male relatives helped the family and did not amount to Convention related persecution;[19] and
[19] At CB166[81]
d)fourthly, the applicant’s claimed experiences and fears were inconsistent with country information, as there was no independent information that suggested that all Buddhists including non-tribal Buddhists experienced systematic persecution.[20]
[20] At CB166[81]
Further, the Tribunal also rejected the claimed incidents of harm prior to 2003 for the following reasons:
a)whilst it accepted that the applicant’s father was murdered in 1975 by a rival Muslim businessman, the Tribunal did not have sufficient information to make findings as to what happened and the passage of time and the applicant’s experiences since 1975 indicated that the murder did not put to applicant at risk of Convention related persecution now or in the reasonably foreseeable future;[21]
[21] CB167[83]
b)although the applicant may have experienced low level discrimination, it was not of a serious nature;[22]
[22] CB167[83]
c)the Tribunal accepted that the applicant favoured the Awami League and that Islamic students targeted a Buddhist hostel in 1991 and 1992, but it did not accept that they assaulted the applicant and threatened to kill him. Further, it did not accept that BNP “thugs” targeted him in 1991 due to his support of an Awami League candidate because of its adverse view as to the applicant’s credibility (although he could have been at the periphery of such incidents). Further, his presence at college, Buddhist practice and activities, and low profile support for the Awami League did not give rise to a well founded fear of persecution given the lack of persecutory harm then and the passage of time;[23]
[23] CB167[83]
d)the Tribunal did not accept that he applied for recruitment as a police officer in 1991, only to be refused in the final stages on religious grounds. It also did not accept that this was successfully challenged in Court, only for the government to ignore the Court’s decision;[24]
[24] CB167[83]
e)the Tribunal did not accept the account concerning the attack on the applicant’s village in 1998 during a festival. It found the linking of it with the uncle’s death by way of heart attack the following day problematic and found it implausible that the authorities failed to address the attack given that the Awami League was in power at the time;[25] and
[25] CB164[83]
f)having regard to the country information, the Tribunal rejected the applicant’s claims concerning the failure by the authorities to provide him with protection and the claim that they actively discriminated against him.[26]
[26] CB164[83]
Further, the Tribunal rejected the claim that the applicant was attacked on 3 December 2003 by Islamic fundamentalists for Convention related reasons because:
a)the Tribunal did not accept that the applicant played a pivotal or any role in the demonstrations and considered it implausible that the attackers involved in the killing of 11 Hindus on 18 November 2003 took time to monitor protestors rather than simply seek to evade arrest;[27]
b)it rejected the applicant’s supporting documents due to (i) the similarity in appearance in 3 documents from three different sources and (ii) country information indicating that document fraud was prevalent in Bangladesh.[28] Additionally, the hospital certificate taken at face value was inconclusive;
c)the applicant’s 5 month delay in leaving Bangladesh after the attack suggested that he did not fear harm;[29] and
d)even if the applicant was attacked it was a criminal or similar act unrelated to the Convention.[30]
The Tribunal also rejected the claims concerning the applicant being in hiding after December 2003. The account was sparse, appeared improvised, and lacked credibility.[31]
The Tribunal accepted that Buddhists and other minorities sometimes associated themselves with the Awami League and that this might reinforce perceptions that they had a political agenda. However, it did not accept that the applicant had worked for the advancement of minority rights, that he organised or participated in any related representations, or that he had gained any religious or political profile for any reason.[32]
The Tribunal also found that the applicant would, upon return to Bangladesh, resume work as a Buddhist monk or seek employment in a field related to his education and past employment, and that there was no real chance that fundamentalists or any other group, or State agents, would take an adverse interest in him for any Convention related reason It accepted that there was some discrimination against religious minorities, including Buddhists, but did not accept that this amounted to serious harm as defined by section 91R(1)(b) of the Act. Further, the authorities would not withhold protection on a selective and discriminatory basis that would in itself amount to Convention related persecution.[33]
[27] CB164[84]
[28] CB164[85]
[29] CB169[86]
[30] CB169[86]
[31] CB169[87]
[32] CB169[88]
[33] CB170[90]
The applicant seeks leave to rely upon an amended application which was not filed within time in accordance with procedural orders earlier made by me. Leave is opposed by the Minister both in relation to the timeliness of its presentation and in relation to its prospects. There are three grounds in the proposed amended application:
1. Koo In Chook gave corroborative evidence of the applicant’s claim that “Muslim fundamentalists attempted to kill him” in Bangladesh. The Tribunal failed to have regard to the corroborative evidence in considering whether the applicant’s claim was true, giving rise to jurisdictional error.
2.Koo In Chook gave corroborative evidence of the applicant’s explanation as to why he did not apply for a refugee visa in South Korea. The Tribunal erred in dealing with the corroborative evidence, giving rise to jurisdictional error.
3. The Tribunal fell into jurisdictional error in finding that “the applicant’s return trips to Bangladesh on three occasions … is compelling evidence that he did not fear persecution there”.
The third ground was not pressed. The first two grounds can be seen as an elaboration, or clarification, of ground two in the original show cause application filed on 15 September 2008:
The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness in that the Tribunal failed to consider the documents including a letter from the one of the official of the temple I lived in Korea which I provided in support of my claims for a protection visa. The Tribunal even failed to consider that I worked for the advancement of minority rights and I gained any political and religious profile that contributed to my persecution in Bangladesh in spite of providing adequate documents and constituted errors of jurisdiction.
While the proposed amended application has been presented late, the Court would still need to deal with the issues raised by ground 2 in the original application if leave was refused. The applicant has restricted the issues in dispute by not pressing ground 3 in the proposed amended application and by indicating that the grounds, other than ground 2 in the original application, would not be pressed if the applicant were to be restricted to that application. The Minister would suffer no prejudice from the granting of leave, as the issues raised in the proposed amended application and the supporting submissions are dealt with in the Minister’s written submissions. In the circumstances, I grant leave for the proposed amended application to be filed and relied upon. It has been filed.
The grounds which are pressed in the amended application relate to a letter from a lady in Korea, which the applicant presented in support of his claims. The letter was presented as corroborative evidence. The applicant’s submissions in relation to the issues arising in relation to that evidence are set out in paragraphs 11 through to 23 of the applicant’s written submissions which I incorporate in this judgment:
South Korean evidence issue - I
11.The applicant claimed in his protection visa application (see CB 32) and in oral evidence before the Tribunal (see CB 153, 156) that Muslim militants attacked him in December 2003 and attempted to kill him, and subsequently “his family had received numerous threats directed at finding out his whereabouts” (CB158.5).
12. The applicant provided to the Tribunal various documents to support or corroborate the claim, such as:
a) a hospital discharge certificate;
b)some statements from people in Bangladesh; and
c) a statement from Koo In Chook in South Korea (CB 139).
13. The Tribunal, at CB 168.5-169.6, considered whether to accept the applicant’s claim concerning the December 200 attack. Specifically:
a) at CB 168.5 the Tribunal commenced:
The applicant claims that he was seriously assaulted on 3 December 2003 …
b) at CB 168.9 the Tribunal considered “the supporting statements” from people in Bangladesh and “places no weight on them” (CB 169.2).
c) at CB 169.2 the Tribunal considered “the purported hospital discharge certificate and concluded that, even if the document was genuine, it did not “shed light on who stabbed the applicant or why”.
d) at CB 169.5 the Tribunal concluded:
The Tribunal rejects the applicant’s claim that Islamic fundamentalists attacked him on 3 December 200 for any religious, political or other Convention-related reasons. The Tribunal has some doubts as to whether the applicant was stabbed on that day at all, but finds that in any event it was a criminal or similar act unrelated to the applicant’s refugee claims or any other Convention-related matter.
14. Importantly, Koo In Chook also gave corroborative evidence in support of the applicant’s claim in Bangladesh. Specifically, Ms Chook stated: (CB 139.4)
He informed me of his problems in Bangladesh after his arrival [in South Korea in July 2004]. He stated that the Muslim fundamentalists attempted to kill him for his involvement in activities for establishing the rights of minorities in Bangladesh.
15. When a decision-maker must determine whether an event occurred or a claim is true, a contemporaneous or prior consistent complaint is often persuasive evidence that the event occurred or the claim is true. Ms Chook’s evidence, if true, that the applicant, shortly after his arrival in South Korea told her “that the Muslim fundamentalists attempted to kill him for his involvement in activities for establishing the rights of minorities in Bangladesh” is a contemporaneous or prior consistent complaint.
16. Yet the Tribunal, in the section of its reasons for decision in which it considered whether to accept the applicant’s claim that he was seriously assaulted on 3 December 2003 (CB 168.5-169.6) makes no reference to Ms Chook’s evidence.
17. In the circumstances, the applicant has the following complaints about the Tribunal’s decision.
18. First, the Tribunal ignored Ms Chook’s corroborative evidence in considering whether to accept the applicant’s claim that he was seriously assaulted on 3 December 2003 and/or his associated claims that Muslim fundamentalists were targeting him in Bangladesh. Where a decision-maker ignores or overlooks evidence, there is jurisdictional error. Relevant cases are:
a) Minister v Peko Wallsend (1985) 162 CLR 24;
b) NAJT v MIMA (2005) 147 FCR 51 at [205]-[213];
c) Singh v MIMA (2001) 109 FCR 152.
19. The Tribunal appeared to accept that the letter from Ms Chook was genuine. Specifically:
a) Although the Tribunal was concerned about “the prevalence of document fraud in Bangladesh” (CB 158.1), the letter from Ms Chook was from South Korea.
b) The Tribunal made findings concerning the letter from Ms Chook at CB 165.6-165.8. The Tribunal appears to have accepted the letter was genuinely from Ms Chook.
20. Factors which support a conclusion that the Tribunal ignored Ms Chook’s corroborative evidence include the following:
a) Whether the December 2003 assault occurred was central to the applicant’s claim, as was the applicant’s associated claims that Muslim fundamentalists were targeting him in Bangladesh.
b) Ms Chook’s evidence of a contemporaneous or prior consistent complaint by the applicant was clearly relevant to whether the applicant’s claims were true. Ms Cook’s evidence had high probative value.
c) In the circumstances, one would have expected to see reference to Ms Chook’s evidence on this point in the part of the Tribunal’s decision which dealt with the issue.
South Korean evidence issue – II
21. As noted by the Tribunal, “the applicant lived in South Korea from July 2004 until December 2007”. The Tribunal was concerned that the applicant did not apply for a refugee visa in South Korea. The applicant gave the following evidence as to why he did not apply for a refugee visa in South Korea:
a) The applicant gave an explanation at the Tribunal hearing. As recorded by the Tribunal (CB 156.10-157.2):
The Tribunal asked the applicant whether … he had explored the options for refugee protection in South Korea. The applicant relied that he had not. Expanding on this, he said that the Korean monks had arranged his visa, and it was not possible for him to stay in Korea permanently … The applicant replied that the local monks were aware of his problems in Bangladesh, but had advised him not to disclose these to the authorities. At the second session, the applicant mentioned a female administrative assistant at the temple who could confirm her knowledge of this situation … The applicant thought that they were concerned about their reputation and/or their financial interests. In any event, they had left it up to the applicant to deal with this issue and had dissuaded him from any prospect of permanent residency in [South Korea].
b) The applicant gave a further explanation in a letter to the Tribunal at CB 136-137.
c) The applicant also submitted a letter from Koo In Chook, who appears to be the female administrative assistant at the temple in South Korea. Ms Chook stated:
[The applicant] informed me of his problems in Bangladesh after his arrival. He stated that the Muslim fundamentalists attempted to kill him for his involvement in activities for establishing the rights of minorities in Bangladesh … I advised him not to take any attempt to apply for refugee visa because it would affect the reputation and credibility of the temple. [The applicant] was very worried for this status in Korea after the expiry of his visa in June 2008. it was difficult for me to advise him whether his visa would be extended or not afterwards. The extension of the visa completely depends on the approval from temple authorities.
22. The Tribunal considered the matter at CB 165.5-165.8. The Tribunal, after considering the applicant’s explanation and Ms Chook’s letter, stated:
The Tribunal … finds it difficult to believe that temple authorities or employees knew that he feared persecution, yet declined to explore options for protection or to otherwise avoid serious harm. Ms Chook’s statement – to the effect that she placed the temple’s reputation and credibility over the applicant’s welfare – does not displace this concern. The Tribunal finds the applicant’s explanations unconvincing. In its opinion, his failure to seek refugee protection in Korea is inadequately explained, and is strong evidence that he did not fear persecution in Bangladesh.
23. The applicant has a complaint about the Tribunal’s findings in the above paragraph as follows:
a) The Tribunal expressed doubt about the applicant’s claim “that temple authorities or employees knew that he feared persecution, yet declined to explore options for protection or to otherwise avoid serious harm”.
b) The applicant provided corroborative evidence from Ms Chook which confirmed the applicant’s claim. Specifically, Ms Chook gave evidence that the applicant, following his arrival in South Korea, told her that he feared persecution, yet she dissuaded him from apply for a protection visa.
c) The Tribunal appears to have accepted that the statement from ms Chook is genuine. Further, the Tribunal does not make a finding rejecting Ms Chook’s evidence as untruthful or unreliable. Accordingly, the Tribunal should be taken to have accepted the evidence as truthful and reliable: see STCB v MIMIA (2006) 231 ALR 556 at [23] (High Court) (“The failure of the Tribunal to criticise this account … suggest that the Tribunal made implicit findings that this account was correct.”).
d) In the circumstances, there was no evidence on which the Tribunal could find that the applicant’s explanation was unconvincing or that his failure to seek refugee protection in Korea was inadequately explained. Where a decision-maker makes a finding and “that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error”: see SFGB v MIMA [2003] FCAFC 231 AT [19].
The Minister’s submissions in relation to those issues are set out in paragraphs 21 through to 32 of the Minister’s written submissions which I also incorporate:
21.The first proposed ground is that “Koo In Chook gave corroborative evidence of the applicant’s claim that “Muslim fundamentalists attempted to kill him” in Bangladesh. The Tribunal failed to have regard to the corroborative evidence in considering whether the applicant’s claim was true, giving rise to jurisdictional error.”
22.This assertion is elaborated on at paragraphs 11 to 20 of the Applicant’s submissions. However, this ground cannot be sustained for the reason that it is plain from the Tribunal’s reasons that it considered, but placed no weight upon, Ms Chook’s statement. It is trite law that the weight to be placed upon a piece of evidence is a matter for the Tribunal.
23.At CB160[61], the Tribunal refers to the fact of receiving Ms Chook’s statement and summarises the letter, including that portion that the Applicant asserts was not considered.
24.Then, at CB165[81], the Tribunal explicitly addresses the letter as follows:
He stated, however, that [the temple] knew that he feared persecution from Bangladesh. The letter from Ms Chook, a former temple employee, supports this claim. The Tribunal, whilst mindful that the applicant may have faced some language problems in Korea and been reluctant to impose on the temple, finds it difficult to believe that temple authorities or employees knew that he feared persecution, yet declined to explore options for protection or to otherwise avoid serious harm. Ms Chook’s statement – to the effect that she placed the temple’s ‘reputation and credibility’ over the applicant’s welfare – does not displace this concern.
25. Thus the Tribunal:
a)clearly knew that Ms Chook’s statement supported the Applicant’s claim (i.e. was corroborative);
b)stated that it did not believe that the temple would have behaved in the manner contended for by the Applicant had it known that he faced persecution; and
c)was not satisfied with Ms Chook’s evidence in this regard.
26.It therefore cannot be said that it ignored or overlooked evidence.[34]
27.The above addresses the complaint raised by the Applicant. However, for completeness, a number of related matters raised by the Applicant are collected and dealt with below:
a)the Applicant complains that the Tribunal did not refer to Ms Chook’s evidence at CB168.5 to 169.6.[35] However, it had already dealt with her evidence by this point. Having indicated that it did not consider her evidence satisfactory at CB165[81], it was not required to repeat this view later on;
b)Ms Chook’s statement is referred to as a contemporaneous or prior consistent complaint and it is asserted that such evidence is often persuasive evidence that the event occurred or the claim is true.[36] Emphasis is also placed on the fact that the Applicant informed Ms Chook of the events shortly after his arrival in South Korea.[37] This appears to be another way of saying that the evidence ought to have been believed because it was very good; i.e. it seeks merits review. Further, there is no evidence as to when the Applicant told Ms Chook of his circumstances in Bangladesh; all she says is that he told her of his circumstances “after his arrival” (CB138). Further, whilst it is a prior consistent statement, it is doubtful whether a comment after July 2004 to describe an event in December 2003 can be described as “contemporaneous”. Finally, no authority has been identified to support the proposition that such evidence is “often persuasive evidence”. Indeed, it would ordinarily be inadmissible in proceedings as hearsay;[38]
c)the Applicant also asserts that where a decision-maker ignores or overlooks evidence, there is jurisdictional error.[39] However, the correct principle is that where a decision-maker ignores or overlooks a relevant consideration, there may be jurisdictional error. See in particular Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 per Mason J at [39]-[42]). To overlook evidence per se does not amount to jurisdictional error.
[34] Contrary to the applicant’s submissions at [18]
[35] applicant’s submissions at [16]
[36] applicant’s submissions at [15]
[37] applicant’s submissions at [15]
[38] Section 59 of the Evidence Act 1995 (Cth)
[39] applicant’s submissions at [18]
Proposed ground 2
28.The second proposed ground of review asserts that “Koo In Chook gave corroborative evidence of the applicant’s explanation as to why he did not apply for a refugee visa in South Korea. The Tribunal erred in dealing with the corroborative evidence, giving rise to jurisdictional error.”
29.This is expanded upon at paragraph 21 to 23 of his written submissions. The complaint appears to be that (i) the Tribunal accepted that the letter from Ms Chook was genuine, (ii) it did not make a finding rejecting her evidence as untruthful or unreliable, and (iii) therefore it should be taken to have accepted the evidence as truthful and reliable.
30.The flaw in the analysis is to be found in proposition (ii). Correctly read, the Tribunal found that her statement was to be given no weight. As noted above, the Tribunal stated:
He stated, however, that they [the temple] knew that he feared persecution from Bangladesh. The letter from Ms Chook, a former temple employee, supports this claim. The Tribunal, whilst mindful that the applicant may have faced some language problems in Korea and been reluctant to impose on the temple, finds it difficult to believe that temple authorities or employees knew that he feared persecution, yet declined to explore options for protection or to otherwise avoid serious harm. Ms Chook’s statement – to the effect that she placed the temple’s ‘reputation and credibility’ over the applicant’s welfare – does not displace this concern.” (Emphasis added)
31.The [bold] portion clearly amounts to a rejection of Ms Chook’s evidence. The Tribunal was stating that it found it difficult to accept that the temple would have ignored the Applicant’s plight and, although Ms Chook’s evidence supported the Applicant’s claim, it did not accept it. Alternatively, a rejection of her evidence was clearly implicit in the reasoning.
32.In any event the Court is to give a beneficial reading to the Tribunal’s decision and, read beneficially, the evidence of Ms Chook was rejected. This ground of review can only be sustained if one construes the decision minutely and finely with an eye keenly attuned to the perception of error, which is impermissible.[40]
[40] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
I prefer the Minister’s submissions. I accept that, leaving aside cases where an applicant’s credibility has been so comprehensively destroyed that a decision maker need not pay any regard to otherwise corroborative evidence, which is necessarily a restricted class of cases, the Tribunal needs to grapple with corroborative evidence presented before reaching an adverse credibility conclusion[41]. I also accept that in doing so the Tribunal needs to grapple with the relevant issues in an active intellectual process[42]. The Tribunal dealt with Ms Chook’s letter at paragraph 81 of its reasons (CB 165):
First, the applicant lived in South Korea from July 2004 until December 2007, and did not enquire about or seek refugee protection in that country. The applicant explained that he lived in a Buddhist temple. He was not initially aware of the availability of refugee protection in Korea, generally. He did not know until the Tribunal hearing that the Korean Government had granted refugee protection to tribal Buddhists from Bangladesh. The applicant also indicated (particularly in his post-hearing submission) that the Korean temple’s management could not continue to employ him, and had either been ill-equipped or unprepared to explore other options for permanent visas, in case it brought them into disrepute. He stated, however, that they knew that he feared persecution in Bangladesh. The letter from Ms Chook, a former temple employee, supports this claim. The Tribunal, whilst mindful that the applicant may have faced some language problems in Korea and been reluctant to impose on the temple, finds it difficult to believe that temple authorities or employees knew that he feared persecution, yet declined to explore options for protection or to otherwise avoid serious harm. Ms Chook’s statement – to the effect that she placed the temple’s ‘reputation and credibility’ over the applicant’s welfare – does not displace this concern. The Tribunal finds the applicant’s explanations unconvincing. In its opinion, his failure to seek refugee protection in Korea is inadequately explained, and is strong evidence that he did not fear persecution in Bangladesh.
[41] SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 at [23]-[27]
[42] Tickner v Chapman (1995) 57 FCR 451 at 462
In my view the Tribunal’s consideration of Ms Chook’s evidence was adequate and does not point to jurisdictional error. The Tribunal formed an overall view that the applicant did not genuinely fear persecution as he claimed. The letter from Ms Chook was taken into account and considered in reaching that adverse credibility conclusion. The letter from Ms Chook supported the applicant’s claim to have made a prior consistent statement in Korea of a fear of persecution in Bangladesh. The Tribunal acknowledged that support. However, merely making a statement does not make the statement true.
The letter was also presented as supporting the applicant’s assertion that he was dissuaded from seeking protection in Korea by the temple authorities where he was then located. The Tribunal’s conclusion in relation to the letter in that regard was that Ms Chook’s statement did not displace the Tribunal’s concern about the applicant’s failure to claim protection in Korea.
On its face Ms Chook’s statement that she placed the temple’s reputation and credibility over the applicant’s welfare was inexplicable. Her statement is open to several interpretations. Her statement that she dissuaded the applicant from seeking protection may have been untruthful and the Minister’s submission is that that is the preferable interpretation of the Tribunal’s reasons. In other words, the statement was rejected to that extent.
However, the Tribunal does not clearly say that. It simply says that Ms Chook’s statement does not displace the Tribunal’s concern. That concern was related to the failure by the applicant to claim protection in Korea, but at a broader level, the Tribunal’s concern was with the genuineness of the applicant’s claimed fear of persecution. Ms Chook’s statement is also open to the interpretation that, while she may have expressed some view to the applicant herself as a personal view, there was no corroboration of the applicant’s claim that the “temple authorities” dissuaded him from seeking protection. A further possible interpretation is that the applicant was simply not believed either by Ms Chook or by the temple authorities. It is hard to understand why the temple authorities would not support a claim for protection if they believed what the applicant was saying. It is explicable that they would seek to avoid embarrassment if they did not believe him. Whichever interpretation one prefers, Ms Chook’s statement did not assist the applicant to overcome the Tribunal’s concern about the genuineness of his claimed fear.
I conclude therefore that the Tribunal’s consideration of the evidence in Ms Chook’s statement does not demonstrate any jurisdictional error.
I find that the Tribunal decision is free from jurisdictional error. I will order that the application be dismissed.
Costs should follow the event in this case. The Minister seeks scale costs of $5,000, the applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 20 February 2009
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