SZNNU v Minister for Immigration
[2009] FMCA 1245
•15 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNNU v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1245 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZNNU”. |
| Migration Act 1958 (Cth), ss.424AA, 424A |
| Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 467 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 SZMCD v Minister for Immigration & Citizenship & Anor [2009] HCATrans 211 SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46 |
| Applicant: | SZNNU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1016 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 14 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2009 |
REPRESENTATION
| Solicitors for the Applicant: | The applicant appeared in person with the assistance of a Bengali interpreter |
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application filed on 29 April 2009 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1016 of 2009
| SZNNU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant is from Borlekha, Bangladesh. He claims protection in Australia because of the following events in Bangladesh. The applicant claims he followed his uncle, Samir Udin, into Bangladesh National Party (BNP) politics. At school he was the organising secretary of the BNP’s student wing locally. After he refused to join the opposing Awami League’s student wing, its leader planned to attack the applicant.
In 2000, the applicant became secretary of the Thana BNP youth wing, enabling its candidate to win a national election. He was threatened by the Awami League. After again rejecting an offer to join, the Awami League threatened the applicant’s life and he was attacked. His complaint to the police resulted in the Awami League attackers being contacted and telling him his political career would be destroyed. The applicant was again attacked in his shop in 2007.
His applicant went to Dubai on 30 January 2007. He was advised in late 2008 that his visa that expired the following year would not be renewed. The applicant explained to his employer the problems that he would face if he returned to Bangladesh so his employer helped him obtain an Australian visa.
The applicant arrived in Australia on 11 August 2008 and applied to the Department of Immigration for a Protection (Class XA) visa on 5 September 2008. On 3 December 2008 a delegate of the Minister refused to grant the visa and the applicant was advised of this and his review rights on the same date. On 23 December 2008 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision. On 31 March 2009, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa. On 29 April 2009, the applicant applied to the Federal Magistrates Court of Australia for judicial review of the Tribunal’s decision. It is the decision of Tribunal member Andrew Mullin (case number 0808999) which is under review by this Court.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors marked Exhibit “A”. This document is now evidence before the Court.
Tribunal decision
The applicant attended a hearing before the Tribunal on 18 March 2009. Prior to the hearing the applicant provided a number of additional documents to the Tribunal. Two were English translations of certificates regarding the applicant’s involvement in the BNP (CB 69-70), another was an English translation of a certificate about the applicant’s involvement in the bazaar management committee (CB 71). The final document was a copy of an undated medical certificate written in English attesting to the applicant’s visit to hospital on 15 January 2007 for treatment of multiple bruises and blood trauma to his forehead (CB 72). The applicant did not provide originals of these documents to the Tribunal.
The Tribunal wrote to the applicant on 1 April 2009 informing him that it had decided to affirm the decision under review (CB 84). It did not accept that the applicant was a credible witness and considered the evidence he gave about his activities with the BNP vague and unilluminating (CB 100 at [69]). The Tribunal accepted that the applicant may have supported the BNP but did not accept that he had a profile in the party, was a party leader or activist given his limited knowledge about the BNP (CB 100 at [70]-[71]). It did not accept that it was credible that a leader of the Awami League would ask a rival to join his party (CB 101 at [74]).
The Tribunal did not accept that the applicant could have arranged employment as a cook in Dubai in ten days as he had claimed (CB 101 at [75]-[76]). In respect of the documents provided by him, the Tribunal noted that four of them bore directly on his claim including the three documents from the BNP and the medical certificate (CB 89-90 at [22]-[23]). All four documents were submitted in English without accompanying original documents. The Tribunal stated, as it put to the applicant at the hearing, that country information was available indicating that fraudulent documents were widely available in Bangladesh and often used to support migration and refugee claims. Given this information, and its other doubts about the credibility of central aspects of his oral evidence about his political activism and the harm which ensued, the Tribunal was not satisfied that any evidentiary weight could be placed on the documents the applicant had submitted (CB 102 at [80]).
The Tribunal concluded:
As noted, I am not satisfied that the applicant was a political activist in Bangladesh or that he was ever harmed for such a reason. Nothing has changed in this regard and I am not satisfied there is a real chance that he would suffer harm for such a reason if he were to return to Bangladesh. He does not claim to fear harm in Bangladesh for any other reason and no other reason is apparent on the information before the Tribunal. I am not satisfied that he has a well founded fear of persecution because of his political opinion, real or imputed, or for any other convention reason should he return to Bangladesh now or in the reasonable foreseeable future and I am not satisfied that he is a refugee. (CB 120 at [81])
Grounds of review
The original Application filed by the applicant on 29 April 2009 contains the following grounds of review:
1. The applicant submits that the Tribunal made a jurisdictional error as the Tribunal was expecting unique information from the applicant.
Particulars
i. He was able to list a number of aims which, he claimed, were held by the party but these were highly generalised and did not appear to be in any way unique to the BNP (para-69)
ii. It would be reasonable to expect that a person in such circumstances would be able to explain his political role with some clarity and precision, and with a degree of insight into the inner workings of a major political party. (para-70)
iii. I am not satisfied that he did anything to develop a particular political profile for himself in Bangladesh. (para-71)
iv. I am not satisfied that a leader and political activist of the BNP such as the Applicant claims to be would not concern himself about such media coverage even if it appeared in the local press.
v. I am not satisfied that it is credible that a person in Uddin’s position would wish his bitter political rival to join his own party, or that he would seriously believe the applicant could make a contribution to his party if forced to join it under threat of death.
vi. I am not satisfied that his travel to Dubai was not planned significantly earlier than the date of the claimed attack on him and the declaration of emergency rule by the caretaker government on 26 January 2007.
vii. I am not satisfied that the applicant left Bangladesh because of he had suffered an attack at the hands of people sent to harm him by Anam Uddin or (sic)
2. The Tribunal made a jurisdictional error that the Tribunal did not ask the original document which is in Bengali language to produce before it. The information sheet given by the Tribunal advised that all document not in English must be translated in English. So the applicant translated all Bengali documents in English and submitted to the Tribunal and now the Tribunal has rejected the claim saying that I did not produce original Bengali language documents. The 2nd paragraph of the 2nd page of the Tribunal’s letter of 30 January 2009 does not support what the Tribunal claimed at paragraph 80 of its decision.
3. The Tribunal made a jurisdictional error that it did not give the applicant to explain the adverse information in paragraph 36 to 45 which the Tribunal considered to reject the genuine claim of the applicant for protection. The Tribunal also did not give time and opportunity what it found adverse information collected by Australian visa officials telephoning from other person.
At the first Court date of 3 June 2009, the applicant was granted leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon by 27 July 2009. The applicant complied with this order and filed additional grounds on that date in the following form:
1. In furtherance of ground 2 in the Application:
(a) The Tribunal failed to attach weight to copies of documents provided by the Applicant because originals were not before the Tribunal; and
(b) The Tribunal failed to enquire of the Applicant where the original documents were and failed to inform the Applicant that weight would not be attached to copies of the documents and that this would be a reason for the decision; and
(c) Although not expressed in the Tribunal’s decision it appears that the Tribunal in not attaching weight to those copies of documents and noting that documents are subject to fabrication in fact also considered them as part of making adverse findings as to credit;
(d) The Tribunal failed to comply with the provisions of section 424AA of the Migration Act.
2. In relation to the file note prepared by officials on the “Departmental file” (referred to at par.23 of the Reasons but not reproduced in the Court Book):
(a) The Tribunal failed to show the document to the Applicant or make it available to him contrary to the provisions of section 424A (1) and (2) of the Act;
(b) The Tribunal summarised part of the document only to the Applicant at the hearing (referred to at par.42 of the Reasons) but did not summarise the entire document contrary to the provisions of section 424A (1) of the Act;
(c) The Tribunal failed to give or offer to the Applicant the opportunity to consider and comment further on the document;
(d) The Tribunal apparently failed to have regard to the document in making its decision contrary to the provisions of section 424 (1) of the Act;
(e) Alternatively if in fact the Tribunal had regard to the document in making its decision then it failed to express in what way it considered the document;
(f) In making an adverse credit finding against the Applicant the Tribunal apparently failed to take into account the relevance of this document and the circumstances surrounding the Applicant’s entry into Australia.
Consideration
In accordance with orders made at the first Court date, the applicant filed written submissions prior to the final hearing. When invited to make oral submissions the applicant in effect repeated the contents of his written submissions.
Ground one
Ground one claims the Tribunal made a jurisdictional error by “expecting unique information from the applicant”. The seven particulars contained in this ground do not expand on this allegation but merely cite the findings made by the Tribunal about aspects of the applicant’s claims. The Tribunal formed the view that the details provided by the applicant about his involvement in the BNP were inconsistent with what one would expect from a person who was an active participant in a political party. That conclusion was one of fact which was open to the Tribunal to make on the evidence before it. I am satisfied that no jurisdictional error is identified or established in this pleaded ground of review.
Ground two
This ground is contained in the original Application with the particulars provided in the Amended Application. The Tribunal is accused of jurisdictional error in failing to ask for originals of the documents for which the applicant provided to him in translations. The Tribunal decided not to give weight to these documents, not because of the applicant’s failure to provide the originals but because of document fraud in Bangladesh and its doubts about his credibility on central aspects of his oral evidence at the hearing. The Tribunal put to the applicant during its hearing that it had information indicating that falsified documents were easily obtained in Bangladesh and were often used in migration and refugee cases (CB 97 at [56]).
The Tribunal recorded the applicant’s response to this proposition but ultimately decided not to give the documents any weight in light of its concern that about the strength of the applicant’s oral evidence. The decision record indicates contrary to the applicant’s contention that the documents did not influence the Tribunal’s consideration of his credit.
The applicant alleges a breach of s.424AA of the Migration Act 1958 (Cth) (“the Act”). This is not clearly articulated in the grounds of review but it is appropriate to assume that the claim is in relation to country information on which the Tribunal relied. Information held by the Tribunal about document fraud in Bangladesh is information of a kind that falls within s.424A(3)(a) of the Act. The “information” with which s.424AA is concerned is the same information as is dealt with in s.424A of the Act, see SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46 at [91]-[93] where Tracey and Foster JJ said:
91 In our view, the information covered by each section must be the same. Under s 424AA, country information simply need not be mentioned at all either because it is not information within the meaning of that term in s 424AA or because, if it is information within s 424AA, it:
(1) Will be the subject of appropriate particulars as contemplated by s 424AA(a) and the Tribunal will comply with s 424AA(b)(i) to (iv); or
(2) The Tribunal will not comply with some part of s 424AA.
92 Compliance with s 424AA will lead to the benefit afforded to the Tribunal by s 424A(2A). Non-compliance will cast the Tribunal back into s 424A. Upon being forced back into the s 424A requirements as a result of non-compliance with one or more of the requirements of s 424AA, the Tribunal will get the benefit of s 424A(3)(a) in respect of country information.
93 Thus, one way or another, in respect of country information, failure to comply with all of the conditions laid down in s 424AA will not constitute jurisdictional error.
This was confirmed in SZMCD v Minister for Immigration & Citizenship & Anor [2009] HCATrans 211 per French CJ:
During the hearing of an application for review of a delegate’s refusal of the grant to the applicant of a Protection visa, the Review Tribunal orally invited the applicant to comment upon information concerning his country of origin. The information suggests that he could return to his country, avoid apprehended persecution upon which he claims was based by relocation to another part of the country. The applicant claimed that the Tribunal failed to comply with the requirements under s.424AA of the Migration Act to give clear particulars of the information of which he was being invited to comment.
A Full Court of the Federal Court held that s.424AA which provides an oral procedural alternative to the procedure under s.424A has no application to information of the kind put to the applicant as it was not specifically about the applicant. It follows that an invitation under s.424AA to comment upon country information, even if put to the applicant without “clear particulars” of the information, would not constitute jurisdictional error. In our opinion, there is no reason to doubt the correctness of that conclusion.
Ground three
Ground three concerns information that was held on file by the Department of Immigration relating to the applicant’s visa application to Australia. The information is comprised of a file note of a telephone call between the Department and Yousif Banihammad, who was named in the visa application as the applicant’s employer , before the applicant arrived in Australia (CB 92 at [23]-[24]). Mr Banihammad advised the Department’s officer that he was the applicant’s employer and while the applicant was officially employed as a cook he also assisted with the care of Mr Banihammad’s son who was in a wheelchair. He said that his family was visiting Australia for 10 days on tourist visas. The Department’s movement records indicating that Mr Banihammad travelled to Australia on the same flight as the applicant and then left the country two days later.
During the hearing the Tribunal asked the applicant about
Mr Banihammad (CB 94 at [42]-[43]). Although the applicant’s evidence was that his employer went by a different name (Yousef Abdullah Sulaimanisa), other evidence he gave was inconsistent with the information Mr Banihammad had given and with Mr Banihammad’s movement records. The applicant was also able to explain why only Mr Banihammad had travelled to Australia rather than the entire family, as had been foreshadowed in the conversation recorded in the file note.
The information held by the Department to which the Tribunal referred in its decision did not constitute a rejection, denial or undermining of the applicant’s claim such as to enliven the obligation under s.424A to put it to the applicant in writing: SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609. The information supported the applicant’s original statement and his evidence to the Tribunal about how he came to be in Australia.
The applicant claims that the Tribunal should have put the information to him under s.424A of the Act. The basis of this is the assumption that the information was used adversely against him. Particular (d) contends that:
The Tribunal apparently failed to have regard to the document in making its decision contrary to the provisions of s.424(1) of the Act. This claim cannot be sustained as the information was not obtained by the Tribunal and accordingly s.424(1) did not require it to take the information into account.
In particulars (e) and (f), the applicant argues that the Tribunal failed to take information into account in reaching its decision or failed to express how it considered the documents. The applicant’s time in Dubai formed part of the factual matrix of how he came to be in Australia. It formed no part of his claim of fearing persecution. Those claims were confined to events that occurred in Bangladesh. It is the claims of persecution which the Tribunal is bound to consider. In the decision record, the Tribunal was obliged only to refer to the evidence on which the findings of facts relevant to its consideration of those claims were based: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 467 at [64] per McHugh J.
Conclusion
The applicant in these proceedings is a self-represented litigant who appeared with the assistance of a Bengali interpreter. I am satisfied that he has been provided with every opportunity available in the circumstances to present his application to the Court. The applicant has had the benefit of legal assistance under the Court-sponsored legal advice scheme and was provided with amendments and particulars for the grounds of review contained in the original application. However, the applicant’s written submissions are general in nature and do not specifically address the issue of jurisdictional error in the Tribunal’s review procedures.
However, it is clear that the applicant has no real understanding of the issues before the Court or how he may present his case. He appears to have relied upon an unidentified agent in the filing of the Court Application and the preparation of his Amended Application and submissions.
This places an obligation on the Court to independently consider whether any other argument based on the material, that is the Court Book and particularly the Tribunal decision, can support a claim of jurisdictional error. I am satisfied that all the issues identified in the Application have been satisfactorily addressed by Ms Mitchelmore, counsel for the first respondent, in her written and oral submissions. On a fair reading of the decision it is not apparent that any other ground of review exists which would suggest that the Tribunal made a jurisdictional error in its decision-making process. Consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 15 December 2009
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