SZNMJ v Minister for Immigration
[2009] FMCA 818
•18 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNMJ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 818 |
| MIGRATION – RRT decision – Bangladeshi claiming persecution for political activities – disbelieved by Tribunal – no jurisdictional error identified – application dismissed. |
| Migration Act 1958 (Cth), ss.424AA, 424A(1) |
| Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83 |
| Applicant: | SZNMJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG906 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 18 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG906 of 2009
| SZNMJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant arrived in Australia in July 2008 for World Youth Day. On 26 August 2008, he applied for a protection visa assisted by a registered migration agent. A statement attached to the application explained his claims to fear persecution if he returned to his country of nationality, Bangladesh.
The applicant said that his father had been a very strong supporter of the Bangladesh Nationalist Party (“the BNP”). When the applicant attended school, and then college, he was an active member of the “BNP wing student politics Jattaytabadi Chattra Dal (JCD)”. This was during the 1980’s, and the applicant claimed to have assisted the local member of parliament in his election campaigns. He said that he was also part of the “Christian minority” and suggested that this, with his support for the BNP, made his life difficult when that party was not in power. He had been assaulted with hockey sticks and other things on several occasions, and had been treated in hospital in 1996 after one such attack. In 1997 he was arrested by police, after returning from a political meeting, and was tortured by police. This happened after the success of the Awami League in elections in 1996.
The applicant referred to marrying, and moving to Chittagong and then to Dhaka. He said:
As a dedicated and enthusiastic and courageous active activist I started joining party meetings, rallies. In the rally I faced all terrible experience of political attack by opposite miscreants. I was in the police hot list for being participating all political demonstrations, rallies and strikes.
He referred to the success of the BNP in elections in 2001, and to the political crisis occurring in 2006, when a caretaker government took office. He claimed to have been assaulted by “AL cadres” following a demonstration in which he participated at the end of October 2006, requiring treatment in hospital. After he returned from hospital, “they came to my home at midnight and tried to break our door”, and he shifted his residence and escaped from the people seeking him.
He referred to arrests by the caretaker government in an anti‑corruption campaign, and said: “most of our big leaders are now in jail”. He claimed that in June 2008 “the joint forces came to my home and looked for me but fortunately I was not in my home”. He then decided to take the opportunity of World Youth Day to come to Australia. He said that his life was at risk if he returned to Bangladesh and was caught by the joint forces, and that his life was threatened by “the Present Caretaker Government and Awami League cadres”.
The applicant’s agent forwarded some general country information about Bangladesh, and also a letter of reference from a former MP, suggesting that “he has been arrested several times and remains in the custody and tortured by a gruesome police for his party activities and for false cases”. The letter of reference requested the government of Australia to give the applicant permission to stay. The applicant also presented two documents purporting to be a doctor’s reports of a physical assault in October 2006.
The applicant was interviewed by a delegate on 16 October 2008, and the delegate made a decision refusing the application on 24 November 2008. The delegate said that the evidence and
documents presented by the applicant contained merely “uncorroborated assertions”, and that his responses at interview added “little weight” in further establishing those claims. The delegate was not satisfied that the applicant had a well‑founded fear of persecution on the grounds of political opinion or religion.
The applicant appealed to the Refugee Review Tribunal, and was unrepresented in his appeal. He provided the Tribunal with letters of support from a Sydney Catholic priest and from a minister of the Presbyterian church, who made a submission concerning the general situation of Christians in Bangladesh. He also presented a second letter of reference, purporting to corroborate that the applicant “was targeted and suffered by his opposition political rivals and he faced much political violence”, and that the applicant was on a wanted list of the Awami League Party.
The applicant attended a hearing of the Tribunal on 16 February 2009. A transcript of the hearing is not in evidence, but the Tribunal gave a very full description in its statement of reasons, and I have no reason not to accept it. According to the Tribunal, it discussed with him in detail where he had lived, what his employment had been, his family history, and his claims to have been a supporter of the BNP. The applicant said that he had never been a member of the BNP, but had worked for both the JCD and the BNP.
According to the Tribunal, it discussed with him various concerns about inconsistencies or implausibilities in his claims, and explained to him the relevance of its various concerns. These procedures appear to comply with s.424AA of the Migration Act 1958 (Cth), assuming that this section might have application. The Tribunal allowed the applicant to make a further submission after the hearing and he did so, forwarding some additional documents.
The Tribunal made a decision on 22 March 2009, affirming the delegate’s decision.
In its “Findings and Reasons”, the Tribunal considered a psychologist’s report which had been given to the Department of Immigration, opining that the applicant displayed a range of symptoms associated with post‑traumatic stress and depression which rendered him incapable of undertaking paid employment. The Tribunal considered the implications of this report for the applicant’s ability to participate in the hearing, and took the view that he was “able to participate effectively in the hearing before the Tribunal”. There is no evidence before me suggesting that this was a conclusion which was not open to the Tribunal, nor that it was incorrect.
The Tribunal analysed the applicant’s evidence, and listed numerous reasons for coming to the conclusion:
I do not accept that the applicant is a witness of truth and I do not accept that he is telling the truth about his involvement in political activity in Bangladesh or the problems he claims to have experienced as a result of that involvement.
Some of the points made by the Tribunal concerned relatively minor inconsistencies in the applicant’s evidence, but other points had clear cogency in relation to his credibility. In my opinion, the Tribunal provided a rational explanation for its conclusion adverse to the applicant’s credibility, and the conclusion was well open to it on the evidence before it.
I also consider that it was open to the Tribunal to decide that it should give “greater weight to the view I have formed of the applicant’s credibility than I do to the documents he produced” (cf. Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83 at [59]‑[68], [74]). The contents of some of those documents was inconsistent with the applicant’s own evidence to the Tribunal about his political activities.
As a result of the Tribunal’s view of the applicant’s credibility, it specifically rejected every element in his claimed history concerning his involvement in political activities, assaults and other persecution encountered, and found that he was not the subject of search nor of interest by the government and other people in Bangladesh. The Tribunal did not accept that there was a real chance that the applicant would be persecuted for reasons of his real or imputed political opinion, or his membership of a particular social group constituted by his family if he returned to Bangladesh.
The Tribunal discussed the applicant’s religion, and accepted that he was a Catholic. It considered evidence about the position of Christians in Bangladesh, including the submission presented by the Presbyterian minister. The Tribunal considered the applicant’s claims that religion had been an element in his persecution when he was involved in political activities, but it said that, because it had not accepted his claims of involvement in political activities, it did not accept that he was “ever singled out, attacked or tortured in Bangladesh for reasons of his religion as a Christian”.
The Tribunal noted that the applicant had not claimed that he was threatened or attacked or otherwise persecuted for reasons of his activities for the Christian community in Bangladesh, and did not accept that there was a real chance that he would be prevented from practising his religion in Bangladesh, nor that he would otherwise be persecuted for reasons of his religion as a Christian in Bangladesh if he returned to that country.
I have carefully considered the procedures and reasoning of the Tribunal, and have not been able to identify any jurisdictional error affecting its decision.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant has been given an opportunity to obtain legal advice and to file an amended application and evidence. However, he relies on the grounds set out in his original application. These provide:
1.A significant jurisdictional error made by the “the tribunal” by failing to take in to account the fact that the appellant will suffer serious persecution as he was highly active in politics through one of the two major political party in Bangladesh.
2.The tribunal didn’t comply with 424A of the Migration Act thus have committed a jurisdictional error.
These grounds are framed without any particulars, showing the argument relied upon for their contentions of jurisdictional error. The applicant today said that he was not a lawyer and was not able to explain them.
The claim in the first ground, that the Tribunal failed to take into account the applicant’s claim that he would suffer serious persecution for his political activities, is plainly not made out. The Tribunal thoroughly identified and considered all the claims of the applicant. Essentially the applicant’s argument in Ground 1 is only that the Tribunal did not accept his claims. However, this is a contention going only to the merits of the Tribunal’s decision.
The second ground asserts failure to comply with s.424A(1) of the Migration Act. However, no information is identified coming within that section, and which was not the subject of the Tribunal’s procedures purporting to apply s.424AA. Unaided by any arguments, I am unable to identify any such information for myself.
The applicant today referred to his refugee claims, and affirmed that he was fearful of his life and of his family’s life and wellbeing in Bangladesh. He asked the Court to let him stay in Australia. However, as I have explained to him, it is not the function of the Court to address this desire.
For the above reasons, I am not satisfied that the Tribunal’s decision was affected by any jurisdictional error, and I must therefore dismiss the application.
I certify that the preceding twenty‑six (26) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 28 August 2009
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