SZNHJ v Minister for Immigration and Citizenship

[2012] FCA 1349

FEDERAL COURT OF AUSTRALIA

SZNHJ v Minister for Immigration and Citizenship [2012] FCA 1349

Citation:		SZNHJ v Minister for Immigration and Citizenship [2012] FCA 1349
Appeal from:		SZNHJ v Minister for Immigration & Anor (No 2) [2012] FMCA 809
Parties:		SZNHJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1495 of 2012
Judge:		BESANKO J
Date of judgment:		29 November 2012
Date of hearing:	28 November 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	31
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Ms L Buchanan
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD1495 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNHJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	29 NOVEMBER 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD1495 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNHJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	29 NOVEMBER 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from an order made by the Federal Magistrates Court. On 14 September 2012, that Court made an order that the appellant’s application for constitutional writs directed to the Refugee Review Tribunal be dismissed (SZNHJ v Minister for Immigration and Anor (No 2) [2012] FMCA 809). The first respondent is the Minister for Immigration and Citizenship. The second respondent is the Tribunal, and it has filed a Submitting notice.

2. The appellant is a citizen of Bangladesh. He arrived in Australia in July 2008 and he applied for a Protection (Class XA) visa on 24 July 2008. A delegate of the Minister refused his application on 16 October 2008. The appellant made an application for review by the Tribunal on 12 November 2008. The Tribunal affirmed the decision not to grant the appellant a Protection visa on 4 February 2009.

3. The appellant made an application in the Federal Magistrates Court for constitutional writs directed to the Tribunal. He was unsuccessful in that Court, but he succeeded on an appeal to this Court. A Judge of this Court allowed his appeal and set aside the decision of the Federal Magistrates Court. An order was made setting aside the decision of the Tribunal and remitting the matter to the Tribunal for hearing and determination in accordance with law (SZNHJ v Minister for Immigration and Citizenship [2010] FCA 132). Where it is necessary to distinguish between this decision of the Tribunal and the decision of the Tribunal in issue on this appeal, I will refer to the former as the first Tribunal and the latter as the second Tribunal. Otherwise, the Tribunal means the decision in issue on this appeal.

4. The appellant’s application for review was considered by a differently constituted Tribunal. The second Tribunal also decided to affirm the decision not to grant the appellant a Protection visa. The appellant made an application in the Federal Magistrates Court for constitutional writs directed to the Tribunal in relation to this decision. As I have said, his application was dismissed and it is this order of dismissal which is the subject of the appeal to this Court.

   THE APPELLANT’S CLAIMS AND THE TRIBUNAL’S REASONS

5. The appellant lodged an eight-page statement dated July 2008 with his application for a Protection visa. The Federal Magistrate summarised the appellant’s claims for protection as revealed in that statement (at [3]). For the purposes of this appeal the Federal Magistrate’s summary is sufficient to describe the nature of the appellant’s claims. It is as follows:

   1)He had become involved in student politics in 1980. In 1982, as a result of that involvement and following a successful “military coup”, he was arrested by the police and held in custody for one month. During that time he was “tortured inhumanely” ([10] at CB 29).

   2)The applicant continued to be involved in politics. Specifically, as an “active member” of the student wing of the Bangladesh National Party (“BNP”) (known as the “Jatiyatabadi Jubo Dal”) ([14] at CB 29).

   3)In 1991 or 1992 the applicant joined the BNP. As a result of his involvement with that party, he became a “popular leader” in his local area ([12] at CB 30). The applicant often spoke out in public against the BNP’s opposition, the Awami League. Consequently, he became a “target” and was threatened on several occasions ([15] at CB 30 to CB 31). In addition, he had his business ransacked and extorted ([15] at CB 30 to CB 31 and [20] at CB 31) and was kidnapped and physically assaulted ([16] at CB 31). The applicant reported these various incidents to the police, but nothing was done.

   4)As a result of these incidents, the applicant “organized a procession to protect against the misdeeds of the Awami League activists as well as the inactiveness of the police” ([21] at CB 32). As a result of that procession, on 14 May 2000, the applicant’s poultry farm was “burnt” by “Awami League goons”. The police refused to allow the applicant to file a complaint ([22] at CB 32). 

   5)On 20 May 2000, the applicant addressed a protest rally. In his speech he “… vehemently criticized about the nasty role of the police” and “… accused that police were protecting the Awami League goons” ([24] at CB 32). That evening, the applicant’s home was raided by the police. The applicant escaped, but his wife and children were “mistreated” ([25] at CB 32).

   6)The following evening several “goons” visited the applicant’s home and threatened to burn him to death. As a result, his wife and children moved to his “in law’s house” and he “started [his] hiding life” ([26] at CB 34).

   7)The applicant was subsequently informed that the Police and the Awami League “goons” were looking for him ([28] at CB 34). In addition, that the police wished to arrest him ([27] at CB 34).

   8)In January 2002 the applicant was elected as “executive member of the Tangail district committee BNP”. He continued to be involved in politics and spent a year in the USA. He returned to Bangladesh in 2003 and started a poultry business.

   9)On 11 January [2007] a caretaker government was established. That government “ruined the democratic situation in Bangladesh” ([22] at CB 34 to [23] at CB 35). A number of “plainclothes police forces” visited the applicant’s residence and told him “not to proceed further”. He was allowed to go in and out of Bangladesh and, after his wife was informed of “two cases against [him]”, he “managed to come to Australia” ([33] – [34] at CB 35).

6. The Tribunal member rejected the appellant’s claims primarily on the basis that it rejected much of his evidence on credibility grounds. The Tribunal member said that he considered it clear that the appellant lied at the hearing before the first Tribunal on 14 January 2009 with regard to whether he had applied to the Bangladesh High Commission for the issue of a new passport at the time of the hearing. The Tribunal member found that the appellant’s account of the occasions on which the police and the Rapid Action Battalion (“RAB”) came to his home in 2008 was contradictory and confused. The Tribunal member accepted that the events had taken place some time ago and that some discrepancies in the appellant’s recall of events was to be expected. The Tribunal member did not attribute any significance to discrepancies in dates. However, the Tribunal member considered that there were a number of matters that he would have expected the appellant to remember. The Tribunal member said that he found it difficult to accept that if the appellant had genuinely been of interest to the police or the RAB they would not have arrested him. The Tribunal member referred to country information and said that he found it difficult to accept the appellant’s claims that he had to flee Bangladesh due to politically-motivated persecution by the police and the RAB in 2008.

7. Before or at a hearing conducted by the first Tribunal, the appellant submitted to the Tribunal a letter from a Mr MB, who was said to be the general secretary of the Tangail District Branch of the BNP. That letter was referred to in the reasons of the first Tribunal. It was also put before the second Tribunal. The appellant also submitted to the second Tribunal three further letters which he claimed were relevant to his case. Those letters were as follows:

   1.A letter from Mr AS who was said to be the MP for Tangail from 1996 to 2001 and the unsuccessful BNP candidate for that seat at the 2001 and 2008 elections;

   2.A letter from Mr SR who was said to be the president of the Bangladesh Poultry Farm Owners Association;

   3.A letter from Mr UA who was said to be the joint convenor of BNP Australia.

8. The Tribunal member referred to the content of these four letters. He decided not to contact any of the authors of these letters. He said that he would accept that the various authors signed the letters and that “if they were contacted they would confirm what is said in those letters”. Nevertheless, the Tribunal member said that he gave greater weight to the problems he identified with the appellant’s evidence than he did to the letters.

9. The Tribunal member found that the appellant decided to leave Bangladesh at a time when his business had been devastated by bird flu, and that the devastation caused by the bird flu was the real reason he had come to Australia.

10. The Tribunal member said that he did not accept that the appellant was telling the truth about the events which he claimed prompted him to leave Bangladesh in 2008 and he did not accept that the appellant’s claims regarding his involvement in politics in Bangladesh were true. He referred to a number of matters about which the appellant had given evidence which he said he did not accept had taken place. The Tribunal member said that he did not accept that any cases had been lodged against the appellant or that the police or the RAB were now or had ever been looking for him.

11. The Tribunal member referred to the letter from Mr UA concerning the appellant’s involvement in the BNP in Australia. He accepted that the appellant had participated in programs and meetings conducted by BNP Australia since he arrived in this country. He referred to subs 91R(3) of the Migration Act 1958 (Cth) (“the Act”). He said that having regard to his earlier findings and his rejection of the appellant’s claims regarding his involvement in the BNP in Bangladesh, he was not satisfied that the appellant had engaged in his conduct in participating in the programs and meetings of the BNP Australia otherwise than for the sole purpose of strengthening his claim to be a refugee. The Tribunal member said that he considered that he was therefore required to disregard the appellant’s conduct in Australia in accordance with subs 91R(3) of the Act.

12. The Tribunal member said that he did not accept that the appellant had been involved in politics in Bangladesh in the past. He did not accept that there was a real chance that he would be involved in politics if he returned to Bangladesh, now or in the reasonably foreseeable future. He did not accept that there was a real chance that the appellant would be persecuted for reasons of his real or imputed political opinion if he returned to Bangladesh now or in the reasonably foreseeable future.

    THE FEDERAL MAGISTRATE’S REASONS

13. The grounds of the appellant’s application in the Federal Magistrates Court for constitutional writs directed to the Tribunal were as follows:

    1.The Refugee Review Tribunal assessed my credibility without taking into account my involvement with the politics and without making any contact with the referees who provided me supporting letters.

    Particulars:

    A.The Tribunal assessed my credibility without taking into account my involvement with the politics and without making any contact with the referees who provided me supporting letters.

    i)The Tribunal said that I consider that there are good reasons for rejecting much of his evidence on credibility grounds.

    ii)I requested the Tribunal to contact with the referees to verify my political persecution, but the Tribunal commented that the information available to me indicates that it is common in Bangladesh for letters to be issued purporting to verify membership of political parties even if the information is incorrect.

    2.The decision of the Refugee Review Tribunal was contradictory.

    Particulars:

    A.The decision between the first Tribunal’s decision and the second Tribunal’s decision was contradictory:

    i)The first Tribunal accepted that I was involved with the BNP politics in Bangladesh. However the second Tribunal made a comment that:

    I do not accept that his claims regarding his involvement in politics in Bangladesh are true.

    3.The Refugee Review Tribunal failed to consider my fear of persecution under s 91R of the Migration Act.

    Particulars:

    A.The Tribunal failed to consider my fear of persecution under s 91R of the Migration Act, rather the Tribunal made the following comment that:

    I am not satisfied that the applicant has engaged in his conduct in participating in the programmes and meeting of the BNP Australia otherwise than for the sole purpose of strengthening his claims to be a refugee.

14. With respect to ground one, Nicholls FM rejected the ground for a number of reasons. First, he said that the Tribunal did consider the appellant’s claims to be involved in politics in Bangladesh. Secondly, he said that only Mr SR had been nominated as a potential witness pursuant to subs 426(2) of the Act and he was not available. With respect to Mr SR and Mr MB and Mr AS, the Federal Magistrate said that the Tribunal did consider the appellant’s request that they be contacted but rejected it for the good reason that it was prepared to accept the letters as genuine and that if contacted the authors would confirm their contents. Thirdly, the Federal Magistrate said that the weight to be accorded to the letters was a matter for the Tribunal. Finally, his Honour said that any inquiry in the circumstances of the case would be an exercise in futility.

15. With respect to ground two, Nicholls FM held that the Tribunal had to make up its own mind about the merits of the appellant’s case. Furthermore, the appellant had not been denied procedural fairness because it would have been clear to the appellant that the Tribunal had concerns about the appellant’s “entire claims to be involved in politics” (at [65]).

16. With respect to ground three, Nicholls FM held the Tribunal had not misconstrued or misapplied subs 91R(3) of the Act. It had simply made a finding adverse to the appellant.

17. Nicholls FM rejected additional arguments raised by the appellant in his written submissions, but not in his application. He rejected the arguments that the Tribunal did not consider his claims as a whole and that it did not assess the circumstances in Bangladesh at the time of its decision.

18. Finally, Nicholls FM noticed the delay between the Tribunal hearing and the Tribunal decision. He referred to NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 223 ALR 171. He found that, having regard to the basis of the Tribunal’s decision, the delay did not vitiate the Tribunal’s decision.

    ISSUES ON THE APPEAL

19. The appellant’s grounds of appeal to this Court are the same as the grounds of his application in the Federal Magistrates Court. The appellant’s written submissions in this Court are substantially the same as the written submissions he relied on in the Federal Magistrates Court.

20. In his oral submissions to this Court, the appellant elaborated on and repeated the arguments he had put to the Federal Magistrates Court and the arguments in his written submissions.

21. With respect to ground 1, I think the Tribunal member did take into account the appellant’s claim that he was involved in politics. Although he rejected those claims, he did take them into account.

22. With respect to the alleged failure to contact the authors of the letters, the Tribunal member said that he accepted that they had signed the letters and that if they were contacted they would confirm what was said in the letters. The Tribunal had a duty to conduct a review, but there is no general duty to inquire: Minister for Immigration and Citizenship v SZIAIand Anor (2009) 259 ALR 429 at 436 [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. As far as s 426 of the Act is concerned, the only author who was the subject of a written notice to the Tribunal under subs 426A(2) was Mr SR. The Tribunal member noted that the appellant had said that Mr SR was in Germany. The appellant told the Tribunal member that as Mr SR was absent, the Tribunal member could talk to his assistant. The Tribunal member made no error in declining to do so. As far as the other authors were concerned, even if they had been the subject of a notice under subs 426A(2), the obligation on the Tribunal was to have regard to the appellant’s wishes. It seems clear to me that the Tribunal member complied with that obligation. He did not think it was necessary to contact the authors because, as I have said, he was prepared to accept that they had signed the letters which had been produced and that if they were contacted they would confirm what was said in those letters.

23. Nor did the Tribunal commit jurisdictional error in the weight it placed on the letters. The Tribunal member was entitled to give greater weight to the problems with the appellant’s evidence than to the letters: Minister for Immigration and Citizenship v SZNSP and Anor (2010) 184 FCR 485 at [33] per North and Lander JJ.

24. Finally, I do not think the appellant was denied procedural fairness in connection with the Tribunal’s approach to the letters. It was made clear to the appellant that the Tribunal member, in considering the weight to be placed on the letters, would or may have regard to country information to the effect (as described by the Tribunal member):

    … that it was common in Bangladesh for letters to be issued purporting to be verify membership of political parties even if the information was incorrect. People could be paid to provide such letters or they could provide incorrect information because it was considered normal to provide incorrect information to a third party to help a fellow Bangladeshi to migrate to a rich country.

25. With respect to the second ground, it was open to the Tribunal to reach the conclusions which it did. It seems that the first Tribunal was prepared to accept aspects of the appellant’s claims. The first Tribunal said (at 34):

    The applicant demonstrated sufficient knowledge of politics in his area to satisfy me that he had had some involvement in it, which may have included membership of party committees and active participation in election campaigns. To the extent that his claims include these matters I accept them.

26. By contrast, the second Tribunal said that it did not accept that the appellant’s claims regarding his involvement in politics in Bangladesh were true and it did not accept that the appellant had been involved in politics in Bangladesh in the past. It was open to the second Tribunal to reach the conclusions that it did based on the evidence and other material put before it and its assessment of the quality of that material (Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at [16] per Gleeson CJ). Nor can it be said that the appellant was denied procedural fairness because he was unaware of the extent to which his claims were in issue (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). It is apparent from the Tribunal’s reasons that it was made clear to the appellant that all aspects of his account were in issue.

1. With respect to the third ground, I reject the submission that the Tribunal failed to consider the appellant’s fear of persecution under s 91R of the Act. The Tribunal member said, at paragraph 134 of his reasons, the following:

   I accept that, as stated in the letter from Mr [A], the applicant has participated in the programmes and meetings of the BNP Australia since his arrival in this country. As I put to the applicant, however, I am required to disregard conduct engaged in by an applicant for refugee status in Australia unless I am satisfied that the person engaged in the conduct otherwise than for the purpose of strengthening their claim to be a refugee (see subsection 91R(3) of the Act). Having regard to my findings above and my rejection of the applicant’s claims regarding his involvement in the BNP in Bangladesh, I am not satisfied that the applicant has engaged in his conduct in participating in the programmes and meetings of the BNP Australia otherwise than for the sole purpose of strengthening his claim to be a refugee. I consider that I am therefore required to disregard this conduct in accordance with subsection 91R(3) of the Act.

2. There is no error in that approach.

3. The appellant’s written submissions seem to go further than his notice of appeal. To the extent that they do, I reject the additional matters raised in the submissions. I do not think that the Tribunal failed to consider the appellant’s claims as a whole, nor do I consider that the Tribunal member failed to consider the circumstances that prevailed in Bangladesh at the time of the decision.

4. Finally, I see no reason to disagree with the Federal Magistrate’s conclusion that the delay between the Tribunal hearing and that Tribunal decision did not vitiate the decision.

5. For these reasons, the appeal must be dismissed and the appellant must pay the first respondent’s costs of the appeal.

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

Associate:

Dated:       29 November 2012