SZMUV v Minister for Immigration
[2008] FMCA 1644
•8 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMUV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1644 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A |
| Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 Kopalapillai v Minister for Immigration [1998] FCA 1126 Minister for Immigration v NAMW (2004) 140 FCR 572 Prasad v Minister for Immigration (1985) 6 FCR 155 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 Randhawa v Minister for Immigration (1994) 52 FCR 437 SZDGC v Minister for Immigration [2008] FCA 1638 VJAF v Minister for Immigration [2005] FCAFC 178 WAJW v Minister for Immigration [2004] FCAFC 330 |
| Applicant: | SZMUV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2551 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 8 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 December 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms E Warner Knight Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2551 of 2008
| SZMUV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on 11 September 2008. The Tribunal affirmed a decision of a delegate of a Minister not to grant the applicant a protection visa.
The applicant is from Bangladesh and had made claims of political persecution. The background facts relating to the applicant's claims and the Tribunal decision on them are conveniently summarised in the Minister's written submissions filed on 1 December 2008. I adopt as background for the purposes of this judgment paragraphs 3 through to 15 of those written submissions:
The applicant is a citizen of Bangladesh. He lived in Singapore from March 2007 to January 2008 and returned to Bangladesh several times during that period. Most recently he visited Bangladesh for approximately three weeks in December 2007, before arriving in Australia on 11 January 2008. He entered Australia on a temporary business visa obtained in Singapore. The applicant lodged a protection visa application ("PVA") on 4 February 2008. A delegate refused the visa on 24 April 2008 and the applicant applied to the Tribunal for review on 19 May 2008.
In his PVA the applicant claimed to fear harm from local BNP activists in his area because of his involvement in the Awami League ("AL"), firstly as a member of the Chatra League and Jubo League (student wings of the AL) and later, as a successful political figure in his area. He claimed to have been attacked and injured by BNP members on 16 August 2006. He claimed BNP members had filed a false case against him. He went into hiding to save his life. A family member in Singapore arranged a visa for him there. He fears return to Bangladesh because the Bangladesh authorities do not protect political leaders and activists and the police and Courts listen to the government.
The delegate rejected the applicant's claims on credit, noting, in particular, that the applicant's return visit to Bangladesh prior to his travel to Australia was inconsistent with his alleged fear of harm there, as were some of the details provided by the applicant in his business visa application, as compared to information provided in his PVA. The delegate also relied upon the absence of documentary support for the claims.
On the day that the delegate's decision was posted, the applicant attended the counter of DIAC and lodged supporting documents. The delegate marked the documents as having been received by him personally after the decision had been sent out, and that therefore he did not take them into consideration.
The Tribunal considered those documents. They included a letter from the President of the Awami Jubo League, a letter from a Dr Alam and medical report relating to an injury of 16 August 2006 and a First Information Report (FIR) relating to the alleged false charges against the applicant.
The Tribunal’s decision
The Tribunal accepted that the applicant is a citizen of Bangladesh and that his wife and child live in Bangladesh. However, it did not find the applicant a credible or reliable witness. It found his evidence on the material aspects of his claim to be vague and confusing.
The Tribunal did not accept that the applicant was a member or office holder of the Chatra League or the AL. It found his vague and generalised answers to questions about how he came to join the party, the nature of his activities and his role as office holder to be inconsistent with his claim to have been General Secretary (or any office holder) of his branch. Nor did the applicant appear to have an understanding of the organisation of the AL and how it operated in his area consistent with his claimed involvement.
It accepted that the applicant may have been an AL supporter and may have attended some meetings, but did not accept that he was a member or office holder or had any political profile which would have involved him in organised political activities on behalf of the party.
The Tribunal gave no weight to the letter, purportedly written by the President of the Awami Jubo League, which alleged that the applicant was the General Secretary of AL and that he was at grave risk because of the false case lodged against him. It noted that independent country information suggests that such letters are easy to obtain and often quite inaccurate. Furthermore, it preferred independent country information regarding the caretaker government's attitude to false charges.
Although it accepted that the applicant was injured in August 2006, having rejected the applicant's claims to have been a member or office holder of the AL, the Tribunal did not accept that his injury was due to a politically motivated attack. The Tribunal further noted that the applicant gave inconsistent evidence about the length of time spent in hospital as a result of his injury.
The Tribunal did not accept that a false case had been filed against him in October 2006 as claimed due to his political activities. It noted that the applicant had returned to Bangladesh several times during his period of residence in Singapore, yet by his own account, the government had made no attempt to arrest him or otherwise pursue him. As to the purported FIR provided by the applicant, the Tribunal gave this no weight in light of independent country information about the prevalence of document fraud in Bangladesh. Furthermore, even if there were a false case filed against him, which the Tribunal did not believe, independent country information indicated that the judicial system in Bangladesh would deal fairly with the case and the applicant would be able to successfully defend himself from a false charge.
The Tribunal also considered the applicant's position as a mere supporter of the AL and a person who may have attended some meetings. It found there was no evidence to satisfy it that the applicant would face a real chance of persecution for reason of his political opinion as a supporter of the AL if he returned to Bangladesh now or in the foreseeable future.
In conclusion the Tribunal was not satisfied that the applicant has a well founded fear of persecution for reason of his political opinion or any other Convention reason.
These proceedings began with a show cause application filed on 2 October 2008. The applicant now relies upon an amended application filed on 28 November 2008. The grounds of that amended application are:
1.The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that the Tribunal did not find the applicant to be a credible or reliable witness, being conclusions that were no obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
2.The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:
a. it failed to properly apply the consideration that applicant’s for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claims are plausible, which was the case here.
3. The Tribunal did not give to the applicant before the hearing the information that it had about the political history and it did not give to the applicant the country information it had about Bangladesh. The Tribunal used this information while making the decision. This was against section 424A of the Migration Act 1958.
4.The decision of the second respondent was effected by jurisdiction error in that the second respondent failed to consider the applicant’s claim that he feared persecution on the basis of his membership with Bangladesh Awami League.
5.The Tribunal member failed to consider all the material readily available and/or accessible and the Member continued an erroneous approach to my claims and failed to address my mind to the material questions arising out of those materials.
6. My appeal is that [t]he Refugee Review Tribunal exceeded its jurisdiction or constructively failed to take in to account relevant consideration of my well founded fear of persecution for being an Awami League member and opposition to BNP. The Tribunal accepted that I was a member of the Awami League and supported the party’s objectives, but has failed to take into account the well-founded fear of my persecution I experienced prior to departure from Bangladesh.
7. The Tribunal has failed to investigate my claims, specially the grounds of persecution in Bangladesh. Therefore, the Tribunal’s decision dated 19 August 2008 was effected by actual bas constituting jurisdictional error.
I have before me as evidence the book of relevant documents filed on 11 November 2008. The applicant also relies upon an affidavit filed with his original application which I accepted as a submission. In that affidavit the applicant asserts a denial of natural justice and other jurisdictional error in general terms.
The applicant failed before the Tribunal because he was not believed. The adverse credibility findings made by the Tribunal were open to it on the material before it. The Tribunal met its obligations in the Migration Act 1958 (Cth) (“the Migration Act”) to afford the applicant procedural fairness. The applicant was invited to attend a hearing before the Tribunal. He did attend and gave evidence. The hearing opportunity afforded him was a real one.
There was nothing upon which the Tribunal decision was likely to turn which required the disclosure of information pursuant to s.424A of the Migration Act. The Tribunal considered all of the applicant's claims. The Tribunal also had regard to documents submitted by the applicant immediately after the decision of the delegate.
There is no evidence of bias, whether actual or apprehended. The Tribunal was under no duty to investigate the applicant's claims. It was entitled to base its decision on the material the applicant had submitted. The Tribunal deals with the documents submitted by the applicant in paragraph 91 of its decision reproduced on page 115 of the court book:
I have considered the documents submitted by the applicant however as put to the applicant at hearing there is an extremely high prevalence of false documentation in Bangladesh and such documents are easily obtainable. His evidence was that the documents were obtained by his family for the purpose of supporting his application and have been prepared in English rather than Bengali. The date on the complaint (pg 6) is 15 October 2008. These anomalies on their own do not necessarily lead me to the conclusion that the documents are not genuine, when considering all the evidence before me I have not given these documents any weight in supporting the applicant’s claim that a false charge has been laid against him.
The last sentence in the paragraph is somewhat clumsily expressed, but I take the Tribunal to be saying that it gave the documents no weight having regard to both the issue of document fraud in Bangladesh and the applicant's general lack of credibility.
I have considered whether any arguable case of error arises in the light of the Federal Court decision in SZDGC v Minister for Immigration [2008] FCA 1638 at paragraphs 21, 23 and 24. I consider this case is distinguishable from SZDGC on the basis that it was not simply a prior adverse finding on credibility that led the Tribunal to give the documents no weight. In addition, the Tribunal decision is supported by the alternative conclusion that the somewhat euphemistically named “caretaker government” of Bangladesh would be unlikely to pursue politically motivated false cases that had previously been made.
I otherwise agree with the Minister's submissions and adopt for the purposes of this judgment, with minor amendments, paragraphs 17 to 23 of the Minister's written submissions:
Ground 1 - denial of procedural fairness
The particulars of this ground are that the Tribunal's adverse credit findings against the applicant were not "obviously open to it" and that (therefore) it did not give the applicant an opportunity to be heard on those matters. There is no substance in this complaint. The applicant was on notice from the delegate's decision that his credit was in issue. Furthermore, contrary to the applicant's assertion, the adverse credit findings of the Tribunal were obvious inferences from the evidence before it.
Ground 2 - failure to give the benefit of the doubt
The applicant contends that, as it would have been open to the Tribunal on the evidence to find that the applicant is a refugee, it should have done so, because the applicant should have been given the "benefit of the doubt". This complaint is misconceived. It is well established that:
there is not a rule that a decision maker may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (S Taylor (1994) 13 UTLR 43). Nor is there a rule that a decision maker must hold a "positive state of disbelief" before making an adverse credibility assessment in a refugee case[1]
[1] Kopalapillai v Minister for Immigration [1998] FCA 1126 per O'Connor, Branson and Marshall JJ. See also Randhawa v Minister for Immigration (1994) 52 FCR 437 at 451; 124 ALR 265 at 278 per Beaumont J.
Ground 3 - breach of s.424A
The particulars of this ground are that the Tribunal failed to give the applicant country information about Bangladesh before the hearing which it relied upon. However, it is well established that s.424A does not apply to country information, as such information falls within s.424A(3)(a).[2] There is no arguable substance to this ground.
[2] Minister for Immigrationv NAMW (2004) 140 FCR 572 (FC) at [64-74], [112-138]; WAJW v Minister for Immigration [2004] FCAFC 330 at [44-46]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7-30]; VJAF v Minister for Immigration [2005] FCAFC 178 at [11-16]
Ground 4 - failed to consider claim that applicant feared persecution and member of AL
This ground is without arguable substance. Contrary to the applicant's assertion, the Tribunal plainly considered the applicant's claim to fear persecution as an AL member, and rejected this claim on credibility grounds. It then went on to consider whether the applicant faced a real chance of persecution as a mere supporter of AL and found he did not.
Ground 5 - failure to consider all the materials
This ground complains that the Tribunal failed to consider all the materials that were "readily available or accessible" and then that it failed to address its mind to questions arising from such materials. Insofar as this ground contends that the Tribunal should have obtained further information to assist the applicant to make out his claims, the ground is misconceived. It is no part of the duty of the decision maker to make the applicant's case for him: Prasad v Minister for Immigration (1985) 6 FCR 155 at 169-170. Nor could it be an error to fail to address or consider material that was not before it. There is no arguable substance to this ground.
Ground 6- failure to take into account relevant considerations
The particulars of this ground allege that the Tribunal found that the applicant was a member and supporter of the AL and failed to take into account his well founded fear of persecution before leaving Bangladesh. This ground misstates the Tribunal's findings. As discussed above the Tribunal rejected the applicant's claim to be a member of the AL. It accepted that he may have been a supporter and may have attended some meetings. It considered whether being a supporter of the AL might give rise to real chance of persecution and found it would not. There is no arguable substance to this ground.
Ground 7 - failure to investigate my claims, actual bias
The complaint of actual bias on the part of the Tribunal appears to based on a mistaken belief that the Tribunal should have investigated the applicant's factual claims. There is no arguable substance to this ground. It is not the duty of the Tribunal to make out the applicant's case for him. This point was further elaborated by the Full Court of the Federal Court of Australia in Applicant S214/2003 v Refugee Review Tribunal :
In a case such as that brought by the appellant under his application for review to the Tribunal, it was for him to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim that he was a refugee, within the meaning of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (‘the Refugees Convention’) had been made out. The Tribunal was not obliged to prompt and stimulate an elaboration which the appellant may have chosen not to embark upon. [3]
[3] [2006] FCAFC 166 at [26] per Allsop, Jacobson and Graham JJ
I find that there is no arguable case of jurisdictional error in this decision of the Tribunal. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
Costs should follow the event in this case. The Minister seeks scale costs fixed in the amount of $2,500. The applicant asserts impecuniosity, but that is not a reason for the Court to refrain from making a costs order. 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 $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 December 2008
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