SZNSJ v Minister for Immigration
[2009] FMCA 1115
•17 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNSJ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1115 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the applicant was denied procedural fairness – whether the Refugee Review Tribunal misunderstood the applicant’s evidence. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424AA; 427(1)(d); 474; pt.8 div.2 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 |
| Applicant: | SZNSJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1550 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 28 October 2009 |
| Date of Last Submission: | 28 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 17 November 2009 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Solicitors for the Respondent: | Ms A. Nanson, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1550 of 2009
| SZNSJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 May 2009 and handed down on 25 May 2009.
The applicant claims to be a citizen of Bangladesh a supporter of the Bangladesh Awami League and previously a resident of Tonga (“the Applicant”).
The Applicant arrived in Australia on 22 July 2008, having departed legally from Zia International Airport on a passport issued in his own name and a “transit” visa issued on 23 June 2008.
On 24 July 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 20 October 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 19 November 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 24 May 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa.
On 30 June 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
In a statement provided by the Applicant in support of his claims for a protection visa, the Applicant claimed to fear persecution and assassination in both Bangladesh and Tonga. The Applicant stated that in Bangladesh he may be killed by his political opponents and business rivals, and in Tonga he feared persecution from his previous employer.
The Applicant stated that he was the organising secretary of the Bangladesh student arm of Awami League, the Awami Jubo League.
The Applicant stated that, before the election in Bangladesh in 2001, the Applicant was the organising secretary of the Awami Jubo League, Kulaura branch. He stated that he worked with the candidate against the Bangladesh Nationalist Party (“the BNP”) and its coalition. The Applicant stated that his candidate lost the election, as a result of which the BNP started to confiscate and occupy his business and try to kill him. The Applicant stated that Jamaat-e-Islami, a hardcore fundamentalist party in Bangladesh and a terrorist organisation, has a serious interest in him and have been searching for him “with ulterior motives”. The Applicant stated that because of their presence in the government he was now in more danger and that the fundamentalists were waiting for his return.
The Applicant claimed that the first time his staff were harassed and beaten by fundamentalists was on 12 August 2004 when his distribution goods were stolen. The Applicant stated that the incident was reported to police but the police did not take any action because the persecutors were from the ruling party.
The Applicant stated that he sought to contact some of his persecutors via some friends in order to “settle the problem and try to fix the situation.” However, the Applicant stated that they became “crazy, threatened him and harassed him in front of other suppliers and contractors and tried to humiliate him as a businessman because his family’s business was the most successful.
The Applicant stated that further incidents occurred on 29 September 2004 and 2 November 2004 when his goods were again stolen and his employees beaten.
The Applicant stated that, after these incidents, the fundamentalists came to his house screaming and looking for him. He stated that when they were unable to find him they put false cases against him.
The Applicant stated that he tried to get visas from different countries. The Applicant stated that he had a friend in Tonga who arranged for him to work in Tonga on a working visa. However, the Applicant stated that when he arrived in Tonga he was essentially used as a slave in this person’s restaurant, was not paid wages and was locked in a house. The Applicant stated that he reported the incident to the Tonga police.
After the incident in Tonga, the Applicant received a business visa in Tonga and tried to live there. However, the Applicant stated that he was under continual threat from his ex-employer who had some Tongan men threaten him and beat him.
As a result, the Applicant returned to Bangladesh, however, said that “everybody told him that if he wanted to die he could live there.” For that reason, he returned to Tonga where he suffered the same difficulties with his ex-employer who was now “more organised and ferocious”.
Thereafter the Applicant obtained a visa for Australia as a transit passenger.
The Delegate’s decision
On 15 October 2008, the Applicant attended an interview with the Delegate.
On 20 October 2008, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Tribunal’s review and decision
On 19 November 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided a further statement, dated 21 November 2008, in support of his review application which substantially repeated his written claims made in support of his protection visa application. The Applicant also provided three documents in support of his claims. The first document purported to be a translation of a newspaper report, dated 3 November 2004, which referred to the attack on the Applicant on 12 August and on 29 September. It does not state the year in which the attacks occurred. The second document purported to be from the Bangladesh Awami Jubo League, dated 10 October 2008, and stated that the Applicant was organisation secretary of the Jubo League from 1994 to 2005. The third document purported to be a “First Information Report”, dated 30 April 2005, alleged by the Applicant to have been generated following a complaint by the Applicant in respect of various alleged offences.
On 11 December 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 13 January 2009 to give oral evidence and present arguments.
On 13 January 2009, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file relating to the Applicant.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in her written submissions as follows:
“5. On 24 May 2009, the RRT affirmed the delegate's decision.[1] The following factors led the RRT to conclude that the applicant's claims were not credible:
[1] RD 127
1) the applicant's history of attempts to enter Australia;
2) the applicant's inability to explain his claimed role in his father's business when interviewed in connection with his 2005 application for a transit visa; the applicant's claim that the above interview was conducted in English, when Departmental records indicated that an interpreter was present;[2]
3) significant similarities between the applicant's statement and that of a separate applicant;
4) the applicant's unsatisfactory responses when questioned about the objectives of the Awami League;[3]
5) inconsistencies in the applicant's account of his involvement with the Awami League;
6) the applicant's hesitant and incorrect responses when questioned about electoral campaigns in which he claimed to have played major roles;[4]
7) the applicant's return to his locality in Bangladesh in 2008;[5] and
8) inconsistencies between the applicant's claims and his supporting documents.[6]
6. Taking into account independent country information, the RRT concluded that the applicant's supporting documents were fabricated and gave them no weight.
7. For all of the above reasons, the Tribunal concluded the applicant was not telling the truth about his involvement in politics in Bangladesh and therefore did not accept he had a well-founded fear of persecution for a Convention related reason should he return now or in the reasonably foreseeable future.”
[2] See RD 139 at [52]
[3] See RD 139 at [53]
[4] See RD 139 at [54]
[5] See RD 139 at [55]
[6] See RD 140 at [56]
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Bengali interpreter.
On 4 August 2009, the Applicant attended a directions hearing before me and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. At that time the Applicant was directed to ensure that any transcript of the Tribunal hearing upon which he may wish to rely was verified by affidavit. On that occasion, I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice.
I also provided to the Applicant the contact details of legal services providers and interpreting and translation services, in documents headed in his own language.
On 10 September 2009, the Applicant filed an amended application and, on 14 October 2009, the Applicant filed an outline of submissions.
At the commencement of the hearing, the Applicant confirmed that he relied on the grounds contained in an amended application, filed on 10 September 2009, as follows:
“1. The Refugee Review Tribunal failed to maintain procedural fairness to exercise its jurisdiction under the Act:
Particulars:
A. The Tribunal did not consider and put weight on my documents that I provided.
i) I provided documents relating to false cases against me. The Tribunal did not put weight on them and rather indicated that forged and fraudulently obtained documents are readily available in Bangladesh.
2. The Refugee Review Tribunal misunderstood and over exercised it’s jurisdiction in considering my information.
Particulars:
A. The Tribunal failed to understand my information provided during the medical examination. I was taken to Hospital after an attack on my by enemies in the year 2004 which has been published on press report. But while I underwent health examination for protection visa I ticked “no” in the medical form that I had never been treated in hospital because I realized that the question was asked in the form if I was treated in the hospital due to any diseases. The tribunal did not act under the jurisdiction considering this information and did not believe the incident of attacking on me.
3. The Refugee Review Tribunal made jurisdictional error in assessing my credibility.
Particulars:
A. The Tribunal mentioned that I couldn’t explain properly the role of an account manager that I played in my father’s business. Failure to recollect this by me, the Tribunal questioned on my over all credibility of my all claims and evidence in deciding my case which led to jurisdictional error made by the Tribunal.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
Ground 1
Ground 1 contends that the Applicant was denied procedural fairness because the Tribunal did not consider and put weight on documents he gave to the Tribunal. Ground 1 particularised those documents as the documents relating to the “false cases” made against the Applicant. The substance of the particular asserts that the Tribunal did not put weight on those documents and preferred the country information before it that indicated that forged and fraudulently obtained documents are readily available in Bangladesh.
The Applicant did not make any meaningful submission in support of ground 1, other than to say that he had told the Tribunal the truth and that his documents were not false.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered the Applicant’s claim that a false case was pending against him in Bangladesh and had regard to the document provided by the Applicant in support of that assertion. However, the Tribunal put to the Applicant that it found it difficult to accept that, if the Applicant feared for his life in Bangladesh and if there was a false charge pending against him, he would have returned to Bangladesh in April 2008. The Tribunal noted the Applicant’s response that he had returned to Bangladesh but terrorists had threatened him and that he would now definitely be killed if he returned to Bangladesh.
The Tribunal put to the Applicant that information available to the Tribunal indicated that forged or fraudulently obtained documents are readily available in Bangladesh. It explained the relevance of the information to the Applicant that the Tribunal may conclude the documents were a fabrication and that the Tribunal may give them no weight. The Tribunal told the Applicant that, if it accepted the independent country information, it may conclude that the Applicant was not person to whom Australia had protection obligations under the Refugee’s Convention and was therefore not a person entitled to a protection visa.
The Tribunal noted that it informed the Applicant that he was entitled to seek additional time to comment on, or respond to, the information given to him and asked if the Applicant needed more time. The Tribunal noted that the Applicant responded “that he was under great pressure mentally and that his biggest fear was that if he were to go back to Bangladesh he would be killed.” The Tribunal noted that it explained to the Applicant that it was not asking him if he wished to stay in Australia for a longer period; rather, whether he reasonably needed additional time to respond to or comment on the information which had been given to him. The Tribunal then noted that the Applicant said he understood.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 4 August 2009 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing, however, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
In the circumstances, the Tribunal’s decision record makes clear that the Tribunal complied with s.424AA in putting information to the Applicant that formed part of its reason for affirming the decision under review. The Applicant does not contend that the Tribunal did not comply with s.424AA in his amended application.
The Tribunal’s finding that it preferred to rely on the country information in deciding to place no weight on the Applicant’s document, is a finding that was open to the Tribunal on the evidence and material before it and for the reasons it gave. The country information to which the Tribunal had regard and the weight it gave that information was a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per the Court Gray, Tamberlin and Lander JJ; VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 at [41] per Heerey, Finkelstein and Lander JJ).
Ultimately, the Tribunal did not accept that:
i)the Applicant was telling the truth about his involvement in politics in Bangladesh;
ii)the Applicant was ever involved in the Awami League or the Jubo League in Bangladesh;
iii)the Applicant was threatened or attacked by political opponents, business rivals, law enforcement agencies;
iv)that Applicant’s father’s business was discriminated against and contracts lost as a result; and
v)a false case had been brought against the Applicant.
The Tribunal found that there is not a real chance that the Applicant would be persecuted by political opponents, business rivals or law enforcement agencies if he were to return to Bangladesh now or in the reasonably foreseeable future.
Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
In the circumstances, the contention in ground 1, that the Tribunal denied the Applicant procedural fairness because it “did not consider or put weight on” the documents provided by the Applicant in relation to his allegation of false charges having been made against him, is not made out.
Accordingly, ground 1 is rejected.
Ground 2
At the heart of ground 2 appears to be a complaint by the Applicant that he had misunderstood the form in relation to the health examination that he undertook for a protection visa, when the form asked if he had been hospitalised and he answered “no”.
In its decision record, the Tribunal stated that the Applicant “denied that he had ever received hospital treatment for any reason”. The assertion in ground 2 is that the Applicant answered “No” to a medical form. The Applicant asserted to the Court that he believed the form was referring only to diseases. There is no evidence before this Court to suggest that the form was confined only to diseases as contended by the Applicant. The Applicant has not provided any evidence to this Court in support of that assertion.
The Tribunal relied on that denial by the Applicant in rejecting the Applicant’s claims to have been taken to the local hospital after an attack in November 2004 for injuries. The Tribunal found a press report to that effect to be forged or fabricated.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal was of the view that the form was not confined in the way contended for by the Applicant. The Tribunal stated that “when the applicant had undertaken the medical examination in connection with his application for a protection visa he had denied that he had ever received hospital treatment for any reason” [emphasis added].
In the circumstances, as stated above in these reasons, the Tribunal’s findings were open to it, for the reasons it gave. Subsumed in the findings rejecting the Applicant’s claims as identified in paragraph 47 above, is a rejection of the Applicant’s claim to have been hospitalised as a result of Convention related harm at the hands of his political opponents. For the reasons referred to above, the Tribunal rejected the Applicant’s claims of ever having been hospitalised as alleged. In the circumstances it was not necessary to make a determination of the reason for the alleged hospitalisation (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641 [46]).
In the circumstances, the Tribunal did not misunderstand the Applicant’s information about whether or not he had ever received hospitalisation. The Tribunal did not accept the Applicant’s explanation for the inconsistency in his evidence. As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Otherwise, ground 2 is no more than a disagreement with the Tribunal’s findings. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54, [194]; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 41 per Mason J).
Accordingly, ground 2 is not made out.
Ground 3
Ground 3 appears to assert that the Tribunal erred in rejecting the Applicant’s claims only because he could not properly explain his alleged role as accounts manager in his father’s business.
The Applicant made no accurate or meaningful submissions in support of ground 3. The Applicant did no more than repeat his claims about his role in his father’s business and his history of applying for visas to enter Australia. The Applicant also asserted that the documents he had provided in support of his application were not fraudulent and that the Tribunal could have investigated their authenticity.
The Tribunal found that, when the Applicant was interviewed in connection with his application for a transit visa in 2005, he appeared to know nothing about what an accounts manager did, although he claimed he had been responsible for the accounts in his father’s business. The Tribunal noted it raised this concern with the Applicant who responded that, at the time, he had very weak English and had not had the assistance of an interpreter. The Tribunal noted that it put to the Applicant that the notes made by the officer who interviewed him indicated that he was interviewed with the assistance of a Bengali speaker. The Tribunal noted that the Applicant denied that he had been offered the assistance of a Bengali speaker. However, the Tribunal preferred the contemporaneous note made by the officer to the Applicant’s recollection on this issue. The Tribunal found that the Applicant’s lack of knowledge of what an accounts manager did cast doubt on whether the Applicant was telling the truth about his claimed role in his father’s business and on his overall credibility.
Ultimately, the Tribunal did not accept the Applicant’s claims and, as stated above, comprehensively rejected his claims of past persecution for any Convention related reason. A fair reading of the Tribunal’s decision record makes clear that the Tribunal did not reject the Applicant’s claims only because the Applicant was unable to satisfactorily explain his role as accounts manager in his father’s business.
As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings.
To the extent that the Applicant complained that the Tribunal could have made enquiries about the Applicant’s documents, there is no positive duty to investigate claims imposed upon the Tribunal (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“SGLB”) at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing). As their Honours Gummow and Hayne JJ made clear in SGLB, whilst the Tribunal has the power to obtain further information, it does not have a duty to investigate an applicant’s claims, nor is it under a duty to consider utilising such permissive statutory powers which might enable it to do so; for example, see s.427(1)(d) of the Act. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Accordingly, ground 3 is rejected.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 17 November 2009
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