SZNMM v Minister for Immigration - [2010] FMCA 324

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNMM & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 324

MIGRATION – Review of RRT decision – applicants husband and wife from Bangladesh claiming asylum on political grounds – where Tribunal accepted that applicants’ political activities in Australia had not been for purpose of strengthening claim – whether Tribunal considered documents provided by applicants – inaccurate fact finding alleged – whether Tribunal failed to consider applicants’ position should they return to Bangladesh – role of Court on review.

Migration Act 1958 (Cth), ss.91R(3), 424, 424A, 425

Minister for Immigration v SZIAI [2009] HCA 39
NARE v Ministerfor Immigration [2003] FCA 554
NAAH v Minister for Immigration [2002] FCAFC 354

First Applicant:

SZNMM

Second Applicant:

SZNMN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 256 of 2010

Judgment of:

Raphael FM

Hearing date:

6 May 2010

Date of Last Submission:

6 May 2010

Delivered at:

Sydney

Delivered on:

6 May 2010

REPRESENTATION

For the Applicants:

In person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Application dismissed.
Applicants to pay the First Respondent’s costs assessed in the sum of $5,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 256 of 2010

SZNMM

First Applicant

SZNMN

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants are a husband and wife, citizens of Bangladesh, who arrived in Australia on 17 August 2008 and applied to the Department of Immigration and Citizenship for protection (Class XA) visas on 30 September 2008. On 5 December 2008 a delegate of the Minister refused to grant them protection visas and the applicants thereafter applied for review of that decision from the Refugee Review Tribunal. Although a Tribunal on 23 March affirmed the decision of the delegate, that Tribunal’s decision was, by consent in this Court, remitted to the Tribunal to be determined according to law. The applicants attended a hearing before a second Tribunal which, on 14 January 2010, determined to affirm the decision under review.
Both applicants submitted claims to be persons to whom Australia owed protection obligations for the Convention reason of political opinion. They both claimed to be members of the BNP but during the course of the consideration of those claims by the Department and by the Tribunals, the second applicant’s claims, whilst remaining on foot, appear to have taken second place to those of the first applicant.
The first applicant claimed that he had been a member of the BNP since the 1980s. He claimed that in 1987, he had been arrested and detained for political activity. He claimed that he assisted the BNP in its election activities and had been active in BNP politics from his student days. In 1996 the first applicant went to Saudi Arabia and he remained there, save for some visits back to Bangladesh for several weeks at a time, until 2008. Whilst in Bangladesh he claims that he became active in the expatriate Bangladeshi BNP community and was an office holder in BNP political organisations.
The first applicant claimed that there were false cases filed against him in Bangladesh and that when he had travelled from Saudi Arabia to his home country, he had done so at considerable risk. He claimed that when he last returned to Bangladesh, on 23 June 2008, he remained there for some two months before departing for Australia in hiding in his sister-in-law’s house. The applicant had returned to Bangladesh just prior to that time in April 2008 when he got married to the second applicant. This appears to be a formalisation of a marriage which the applicants claim took place some years earlier.
The second applicant also claimed to be a BNP activist, commencing with her involvement in student politics. She said that she joined the party and became a member of the branch executive. Although she did not claim to have suffered any harm herself, she did fear to return to Bangladesh because she said that she had suffered a lot under the caretaker government and felt that she had been forced to leave Bangladesh in order to save her life.
The first applicant also claimed that upon arrival in Australia he became involved in BNP Party associations in Australia and that he had attended demonstrations and written articles for the press and had his photograph published in Bangladeshi expatriate newspapers, all of which information had got back to Bangladesh so that the current Awami League government was aware of his activities and he believed would seek to harm him and his wife should they return.
The second Tribunal listened to the recordings of the delegate’s interview with the applicants and that of the first Tribunal. At [CB 282 – 286] it sets out in detail the claims made by both applicants to the first Tribunal. It then deals with documentation submitted by the applicants to the second Tribunal before setting out, again in considerable detail, the applicants’ history given to it and the Tribunal’s questioning of them. The Tribunal explained to the applicants that it had some difficulty with the first applicant’s evidence because it believed that, in a number of areas, he had made very recent claims which did not appear consistent with those previously raised. At [83] [CB 300] the Tribunal gave its views about this evidence:
“The first named applicant proved to be a generally unsatisfactory witness at the hearing. His evidence was confused, inconsistent and implausible at a number of points and his responses appeared evasive and obfuscatory when some of these inconsistencies were put to him for comment. He showed a disconcerting readiness to advance new and significant claims (as, for example, the claimed threat from his uncles and the alleged incident in which his sister was badly beaten) which cast further doubt on the reliability of his account of his experiences in Bangladesh. I’m not satisfied that his explanation of the circumstances in which he and the second named applicant prepared their protection visa, with help from students in an internet café (and without the involvement of a professional migration agent) is at all plausible and I do not accept it as truthful.”
The Tribunal then reached conclusions about the first named applicant’s claims against that background. The Tribunal did accept the applicant’s political affiliations with the BNP, including his history of being involved with that party in the two expatriate communities of Saudi Arabia and Australia. But it was not prepared to accept that he had developed a sufficiently high profile to cause him any danger should he return. The Tribunal was assisted in coming to its conclusions about the current state of affairs in Bangladesh by independent country information. The Tribunal also made some critical comments about documentation provided by the applicant which it gave very little weight to because of the existence of independent country information pointing to the easy availability of fraudulent documents coming from Bangladesh and also because of the Tribunal’s own observations of some of the documents provided.
In relation to the second applicant, the Tribunal noted her assertions in her statutory declaration and a letter which she had submitted from the secretary of her local branch of the BNP and then said:
“In marked contrast to these assertions, the second named applicant’s evidence at both Tribunal hearings was that she had no claims to fear harm in Bangladesh on her own account and did not experience any harm herself. She was worried only about harm which she believed might befall her husband and the consequent effect it would have on her.” [115] [CB 306]
The Tribunal considered the first applicant’s activities in Australia against the provisions of s.91R of the Migration Act 1958 (Cth) (the “Act”). It concluded that the applicant had satisfied it that he had engaged in this conduct otherwise than for the purpose of strengthening his claim to be a refugee and thus it was not required to be disregarded pursuant to section 91R(3). However:
“I accept that the first named applicant has appeared in photographs of 3 events in Australia and that his presence at one event has been recorded in print. I also accept it is possible that these local Bengali language reports may, through some means, have been picked up by the media in Bangladesh. However, having considered the level of his involvement in these events, I’m not persuaded that it could reasonably be seen as giving him a significant political profile in Bangladesh as a BNP supporter.”
On the basis of the views expressed by the Tribunal, it affirmed the decision.
Both applicants sought review of the second Tribunal’s decision from this Court and on 15 April 2010 filed an amended application. On 4 May 2010 the applicant filed some written submissions. There are three grounds of the amended application. The first was:
“The Tribunal failed to consider my fear of persecution under section 91R of the Migration Act that:
i) The Tribunal failed to deal my political activities in Australia on behalf of BNP. The Tribunal failed to ask me any material question about how I would have been adversely affected by the political activities in Australia if I returned to my home country of Bangladesh.”
As noted above, the Tribunal did consider the applicant’s activities in Australia, specifically with reference to s.91R of the Act. It did consider whether he would be adversely affected as a result of his political activities in Australia should he return to Bangladesh and concluded that he would not. In his written submissions, the applicant expands on this ground, suggesting that the Tribunal “showed narrowness” and complains that the Tribunal did not pass comment on the documents that he had submitted, which are reproduced at [CB 94 – 127].
If the applicant is asserting that the Tribunal was biased in its consideration, then this assertion must be clearly made and specifically proved. It is not enough merely to assert it. The applicant makes a claim in the written submissions that the Tribunal did not consider the recent change of government in Bangladesh and the effect that that might have on the first applicant. That is also incorrect as there is a whole heading entitled “Political Situation in Bangladesh” which commences at [106] [CB 304] and concludes at [108] [CB 305].
The second ground of the amended application is that:
“The Tribunal failed to put any weight to the medical certificate and other documents that I lodged to the Tribunal.
i) The Tribunal indicated independent country information on the decision that forged or fraudulent documents readily available in Bangladesh. On this perception, the tribunal concluded that the documents I submitted to the tribunal were readily available. However, the Tribunal did not invite me to lodge for any written comment under s424 of the Migration Act.”
It is not correct to say that the Tribunal did not take the applicant’s documents into account. It did do so, but it did not give them any weight for the reasons that it explained at various stages within the decision record, for example at [103] [CB 304]. As already mentioned, the Tribunal did not rely solely on the independent country information about document fraud in Bangladesh. It also analysed the documents themselves. The Tribunal’s decision as to how much weight it should give to documentary evidence is one for the Tribunal itself (even if this Court disagreed with this Tribunal, it would not be within its power to change the decision which the Tribunal has made). As to the allegation relating to s.424, which I take to be a reference to s.424A, the Tribunal was not required to seek comment from the applicant upon a document which was a piece of independent country information (s.424A(3)(a)) to the extent that the applicant may have been referring to documents submitted by him, similarly, the Tribunal is not required to obtain comments from him about them, s.424A(3)(b).
The third ground of the application was:
“The [Tribunal] misread my evidences. However, its misreading lead the Tribunal to affirm the DIAC decision that adversely affected me that:
i)The Tribunal was completely confused about my arrest and detention in 1987. Subsequently, my political involvement at Kaliakair Degree College in 1986. The Tribunal mentioned that I was in detention in 1985 and tried to collaborate my involvement with the politics in Kaliakair Degree College in 1986. In fact I never claimed that I was in detention in 1985. In my statement lodged at DIAC on 30 September 2008, I mentioned that the police arrested and detained me in 1987.”
At [53] [CB 291] the Tribunal says:
“Asked what other harm he had suffered in Bangladesh, apart from his arrest and mistreatment in 1987 and the attack in 1996, the first named applicant said that he was arrested by Bangladesh Rifles during a procession and held for three days. Asked when it was that this happened. He said he thought it was in 1985 he agreed that he had never mentioned this incident previously. Asked if anything else had happened to him he said that these three were the main incidents.”
I have no reason to believe that the Tribunal was inaccurate in its recording of the applicant’s conversation with it, but if it was, then this was a matter for the applicant to prove. Current best evidence would seem to be the decision record itself. In any event, whilst it is true that the Tribunal rejected the claim that the applicant was detained in 1985, it accepted his claim that he was detained in 1987 [95] [CB 302]. In any event, a mistake of fact by the Tribunal on a matter such as this would not constitute a jurisdictional error, even if it constituted an error within jurisdiction.
Both applicants appeared before me today. The first applicant told me that he was associated with politics in his own country and in this country. He told me that he had been writing articles and attending demonstrations in Australia and that those articles and photographs had been sent to his home country so that if he returned, his life would be at risk and that this was not considered by the RRT. I am satisfied that the applicant’s activities within this country were considered by the RRT and that the decision the RRT made upon them was entirely one for it, with which this Court cannot interfere.
The applicant told me that the Tribunal did not give importance to his documents and that during the course of the hearing he asked the Tribunal to investigate the genuineness of those documents and that it had not done so. This would be a complaint that the Tribunal failed to make inquiries, which the High Court in Minister for Immigration v SZIAI [2009] HCA 39 confirmed there was no duty to undertake. Even if the failure to make an obvious inquiry about a critical fact, the existence of which could easily be ascertained, may constitute a failure to conduct a proper hearing pursuant to s.425, a request by an applicant for an independent investigation of documents that he has himself provided does not fall within this category. The applicant repeated his complaint about the Tribunal’s treatment of his arrests in 1985 and 1987 and asked for justice.
The second applicant told me that she would be placed at risk should she and her husband return to Bangladesh. She said there were problems with her husband’s writings because they had been sent back to Bangladesh. She said there was no protection in Bangladesh for her or her husband and reminded the Court that the first applicant claimed that two of his friends had been killed and that his brother had been threatened. The applicant interrupted to say that he had lost his brother, his father, and if he returned, he would lose his life.
The manner in which the applicants presented their case would be familiar to those who deal with this form of proceeding both at first instance and on appeal. It is difficult for a person from a foreign country whose first language is not English to understand the role of this Court. So, for the assistance of the applicant, I shall repeat the oft quoted remarks of Allsop J in NARE v Ministerfor Immigration [2003] FCA 554 that they may take them into account when considering any appeal they may wish to make against the decision that I am about to pronounce. At [10] his Honour said:
“What the applicant may well not appreciate, not being a lawyer, is that the process and purpose of review to this Court does not, and cannot, involve simple re-finding of facts found by the Tribunal. Rather the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully - for instance asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act 1958 (Cth) (the "Act") says must be dealt with, not dealing with matters extraneous to its task and correctly understanding the law to apply. It is not the Court's job to review the factual findings of the Tribunal unless their quality (or lack thereof) is such as to betray a failure to undertake properly the required task. This is why it was not open to the primary judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual error in those conclusions by the Tribunal.”
In NAAH v Minister for Immigration [2002] FCAFC 354, the Full Bench said at [27]:
“For a court to set aside a negative decision on the basis that a reasonable decision-maker ought to have achieved the requisite level of satisfaction on the material that was before the actual decision-maker would be to travel far beyond any of the well-established circumstances in which courts can set aside administrative decisions. In effect, it would be to substitute the court's view of the facts for that of the decision-maker, a course traditionally regarded as not open to courts.”
In all the circumstances, I am satisfied that the Tribunal did not fall into jurisdictional error in the manner in which it reached its decision in respect of either the first or second applicants. The application is dismissed. The applicants are to pay the first respondent’s costs assessed in the sum of $5,750.00.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 11 May 2010