SZMXP v Minister for Immigration and Citizenship

[2009] FCA 938

FEDERAL COURT OF AUSTRALIA

SZMXP v Minister for Immigration and Citizenship [2009] FCA 938

Migration Act 1958 (Cth), s 424(3)(a) and s 424B

SZMXP v Minister for Immigration and Citizenship [2009] FMCA 495 affirmed
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 followed
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 followed
Prasad v Minister for Immigration and Citizenship (1985) 6 FCR 155 followed
SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407 followed
SZNEC v Ministerfor Immigration and Citizenship [2009] FMCA 432 cited

SZMXP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 556 of 2009

FOSTER J
21 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 556 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMXP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	21 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of and incidental to the appeal. 

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 556 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMXP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE:	21 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate delivered on 21 May 2009 (SZMXP v Minister for Immigration and Citizenship [2009] FMCA 495) in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal), made on 24 September 2008 and handed down on 16 October 2008.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant. 

2. The appellant is a citizen of Bangladesh, who arrived in Australia on 21 February 2008.  On 3 March 2008 the appellant lodged an Application for a Protection (Class XA) visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the appellant’s Application for a Protection visa on 30 May 2008. 

3. On 23 June 2008, the appellant applied to the Tribunal for a review of that decision.  Before the Tribunal, the appellant claimed to have a well-founded fear of persecution because of his involvement with the Awami League in Bangladesh.  The appellant claimed that he joined the student wing of the Awami League in 1989 while still at school, was elected president of the first year committee of the Bangladesh Chattra League at his college in 1991, and was elected General Secretary of the Janjira Thana Awami League Committee in 1994.  He claimed that in 1996 he was elected an Executive Member and President of the Shariatpur District Awami League Committee.

4. The appellant also claimed that in 2001 the BNP and other Muslim fundamentalists declared him a stranger in the area where he lived and threatened that he would be killed by a bomb blast if he did not cease to act on behalf of the Awami League.  He stated that he went to the police in light of these threats, but that the police were reluctant to help him because of his Awami League involvement.  He claimed that the police advised him that, if he did not leave the area, they would arrest him as they had received a complaint against him.  He claimed that he fled to Dhaka, where a senior party figure organised work for him in Singapore.  He claimed that, after he fled his home, BNP-Jammat activists destroyed his house and threatened his family members and that the police came to his house on a number of occasions to arrest him.

5. He stated that he returned to Bangladesh on 3 February 2008 following the appointment of a caretaker government there.  He claimed that, upon his return on that occasion, the police went to his home to arrest him and that, on 18 February 2008, he again fled to Singapore, from where he then travelled to Australia. 

6. The Tribunal accepted that the appellant might have been a member of the Awami League and might have been involved with that organisation and with its activities at school and at college, as he had claimed.  However, it rejected the balance of his claims on the basis of an adverse credibility finding. 

7. In making its decision, the Tribunal noted that the appellant’s testimony relating to his leadership role and involvement with the Awami League and the difficulties which he said he had encountered in 2001 and again in 2008 as a result of that involvement, were inconsistent with independent country information, internally inconsistent, and implausible.  The Tribunal found that the appellant’s claims in respect of the charges said to have been laid against him were fabricated.  The Tribunal found that, on the basis of a report obtained from the Department of Foreign Affairs and Trade (DFAT), the documents submitted by the appellant in support of his claims were not authentic.

8. The Tribunal did not accept the appellant’s claims about the extent of his political involvement in the Awami League because of the inconsistency between his evidence and the independent country information as to its structure and because of the appellant’s varying evidence as to whether he was an executive or general member.  In this regard, the Tribunal also relied upon the appellant’s apparent inability to inform the Tribunal accurately of the number of Vice-Presidents in the organisation or of how the District Committee worked.  The Tribunal also pointed to his lack of knowledge concerning the identity of various office bearers. 

9. The Tribunal did not accept that the documents submitted by the appellant in support of his claims regarding his political involvement were genuine, in view of the country information which it held concerning the prevalence of document fraud and the internal inconsistencies in the documents themselves.

10. In addition, the Tribunal did not accept that, were the appellant to return to Bangladesh, he would again become involved in politics and in particular in the Awami League.  This was because of the appellant’s evidence that he had not been in contact with the Awami League very often since 2001, because of his inability to name the current Mayor of Shariatpur who is an Awami League member, and because of his lack of involvement with the party in Australia. 

11. The Tribunal gave lengthy and detailed reasons based upon careful consideration of many facts and circumstances in support of its ultimate finding that the appellant was not a credible witness and in support of its ultimate finding that he had fabricated important evidence regarding his involvement with the Awami League and the difficulties which he had faced as a result.

12. The Tribunal rejected all of the core claims of the appellant and rejected his claims that he had suffered harm.  Ultimately, for these reasons, the Tribunal found that he did not have a well-founded fear of persecution for a Convention-related reason. 

13. Before the Federal Magistrate, the appellant claimed that the Tribunal had erred because it had failed to comply with s 424(3)(a) and s 424B of the Migration Act 1958 (Cth) (the Act).  The Federal Magistrate took the view that these points were covered by the decision of the Full Court of this Court in SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407. The Federal Magistrate also relied upon a decision of his own in SZNEC v Ministerfor Immigration and Citizenship [2009] FMCA 432.

14. The Federal Magistrate held that the issues in the present case were indistinguishable from those in SZNEC [2009] FMCA 432. The Federal Magistrate said (SZMXP [2009] FMCA 495 at [7]):

    In my view, it is clear that the outcome in this case is determined by the decision of the Full Court in SZLPO.  Based upon the reasoning of the Full Court, and my own analysis of that reasoning in SZNEC, there was no breach of s.424 or s.424B in this case. Section 424(2) does not apply because the Tribunal was not seeking additional information from a natural person. Neither, on the facts of this case, was DFAT acting as the agent of the Tribunal. Because s.424(2) does not apply, neither does s.424B. It follows that no jurisdictional error in the decision of the Tribunal has been established and the application must be dismissed as a privative clause decision. I will so order.

15. For those reasons, the Federal Magistrate ultimately held that there had been no jurisdictional error on the part of the Tribunal and dismissed the application before him. 

16. The appellant filed his Notice of Appeal in this Court on 11 June 2009.  The Grounds of Appeal set out in the Notice of Appeal were that:

    (1)The Tribunal erred in that it failed to comply with the requirements of s 424(3)(a) of the Act.

    (2)The Tribunal acted in excess of jurisdiction by stating that it did not accept that the appellant would be targeted if he returned to Bangladesh in the reasonably foreseeable future.

    (3)The Tribunal erred in that it failed to comply with the requirements of s 424B of the Act.

17. The appellant has appeared in person before me.  He did not make any oral submissions in support of his appeal, although he had previously filed a Written Submission in which he sought to support the grounds to which I have referred. 

18. In support of Ground 1, the appellant submitted that the Tribunal should have made further investigation of the claims which he had made concerning the conduct of the police at the Jagira Police Station.  This submission is slightly different from the substance of Ground 1 relied upon by the appellant in his Notice of Appeal.  I propose to deal first with the ground as articulated in the Notice of Appeal and then to address this submission. 

19. Section 424 of the Act is in the following terms:

    424     Tribunal may seek information

    (1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

    (2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

    (3)A written invitation under subsection (2) must be given to the person:

    (a)except where paragraph (b) applies—by one of the methods specified in section 441A; or

    (b)if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

20. The Federal Magistrate, in my view, correctly applied the principles to be found in SZLPO 255 ALR 407. In substance, the following can be gleaned from SZLPO 255 ALR 407:

    (1)Information captured by s 424(2) of the Act must be information additional to information previously given to the Tribunal by the invitee (SZLPO 255 ALR 407 at [99]–[100]);

    (2)The word “person” in s 424(2) means a “natural person” (SZLPO 255 ALR 407 at [103]–[108]);

    (3)The word “person” in s 424(2) is limited by reference to a person whose identity is known at the time of the extending of the invitation (SZLPO 255 ALR 407 at [109]); and

    (4)A document is not “information,” although it may contain information, and therefore s 424(2) does not apply to an invitation to a person to supply a document to the Tribunal (SZLPO 255 ALR 407 at [110]–[114]).

21. In SZLPO 255 ALR 407, the Full Court noted that in some circumstances, DFAT could be treated as an agent of the Tribunal. The Court noted (at [118]) that, where the invitation from the Tribunal leaves it to the recipient of the invitation to determine who to approach, it could not be said that the recipient of the invitation was the agent of the Tribunal. However, at [119]–[120], the Full Court went on to say that, where the invitation from the Tribunal requests the recipient to contact a particular person, this circumstance might well suggest that the recipient was the Tribunal’s agent.

22. In the present matter, the Tribunal wrote to DFAT and requested that DFAT provide advice on the authenticity of various documents. DFAT replied, advising the Tribunal that it was highly unlikely that a judge would issue one of the letters under consideration and that it was easy in Bangladesh for someone to hire an advocate to issue letters such as the letter submitted by the appellant. DFAT further advised that the officer in charge of the Jagira Police Station in Shariatpur had described the First Information Report and charge sheet as fraudulent and had confirmed that those papers could not be found in the official record kept at that police station. The Tribunal then wrote to the appellant, pursuant to s 424A(1) of the Act, advising him of the content of the DFAT report and putting a series of matters to him that might influence the Tribunal’s decision when it was ultimately called upon to decide his application.

23. The appellant had an opportunity to respond to the letter and he did so.  His response was that the documents which he had submitted were genuine. 

24. In the end, as I have already mentioned, the Tribunal did not accept a great deal of what the appellant had to say in support of his claims.  These were all essentially findings of fact. 

25. The Federal Magistrate found that, because of the binding nature of SZLPO 255 ALR 407, he was bound to conclude that the Tribunal had not breached s 424 or s 424B of the Act. His Honour also held that s 424(2) of the Act did not apply because the Tribunal was not seeking additional information from a natural person. His Honour also found that DFAT was not acting as the agent of the Tribunal.

26. In my view, the conclusions reached by the Federal Magistrate were correct. In my view, s 424 does not apply in the circumstances of the present case, for the reasons which the Federal Magistrate gave. In addition, the substance of the DFAT report and the sources of the information contained in that report were disclosed to the appellant in the letter which the Tribunal wrote to him and he was given appropriate particulars of those matters.

27. Accordingly, for these reasons, I do not think that the appellant has made out Ground 1. 

28. The additional matter raised in the appellant’s Written Submission is also a matter which I think the appellant has failed to make good.  The Tribunal used appropriate means to contact the officer in charge at the Jagira Police Station and received a communication from that person to the effect that the alleged charges were not genuine.  I do not think that this is a case where further investigation on the part of the Tribunal was required (see Prasad v Minister for Immigration and Citizenship (1985) 6 FCR 155 at 169–170).

29. Ground 2 raises considerations on the merits and questions of fact.  The conclusion which the Tribunal reached, it seems to me, was open to it.  The appellant has submitted that the Tribunal did not consider the reality of the chance of his persecution because of his political opinions and social activities.  However, a fair reading of the Tribunal’s reasons makes clear that these matters were considered, and considered in detail.  At the heart of the Tribunal’s conclusion in this respect, as I have already mentioned, are questions of fact and credibility, which are matters for the Tribunal alone (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547; and NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10).

30. Ground 3 is intimately connected with Ground 1.  For the reasons which I have given in respect of Ground 1, I do not think that Ground 3 has been made out.

31. For these reasons, I propose to dismiss the appeal with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:        24 August 2009

The Appellant appeared in person
Counsel for the First Respondent:	Mr P Reynolds
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The Second Respondent submitted save as to costs

Date of Hearing:	21 August 2009
Date of Judgment:	21 August 2009