SZOKF v Minister for Immigration
[2010] FMCA 518
•19 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOKF v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 518 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 424A; 424A(3); 422B; 474; pt.7 div.4; pt.8 div.2 |
| SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 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 Citizenship v SZNVW [2010] FCAFC 41 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 |
| Applicant: | SZOKF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1046 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 19 July 2010 |
| Date of Last Submission: | 19 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 19 July 2010 |
REPRESENTATION
| Applicant appeared in person assisted by a Bengali interpreter |
| Counsel for the Respondent: | Mr Y. Shariff |
| Solicitors for the Respondent: | Ms S. Foley, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1046 of 2010
| SZOKF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
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 11 April 2010 and handed down on 12 April 2010.
The applicant claims to be a citizen of Bangladesh, previously a member of the Bangladesh Nationalist Party (“BNP”) and of Muslim faith (“the Applicant”).
The Applicant arrived in Australia on 27 November 2008 having departed legally from Bangladesh on a passport issued in his own name and a subclass 572 student visa issued on 20 November 2008.
On 7 August 2009, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 7 December 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 4 January 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 11 April 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 12 May 2010, 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 s.65(1)(b) mandates that 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”).
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 of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution in Bangladesh by members of the Awami League by reason of his political opinion or imputed political opinion as a supporter and activist of the BNP.
The Applicant claimed that he grew up in Dhaka city and that during his school life involved himself in theatre and politics.
The Applicant claimed that his father was a BNP supporter who became politically active after 1990. Following the forced resignation of President Ershad in 1990, the Applicant stated that he was approached by member of the Awami League to join them, which he declined.
The Applicant stated that at the local government election in February 1991 an Awami League supporter was elected commissioner. The Applicant stated that the commissioner demanded that anyone wishing to remain or run a business must obey his rules. The Applicant stated that his father’s grocery shop was raided by Awami League members and half the stock stolen. He said his father had been forced to pay money to the Awami League.
The Applicant stated that around this time he began participating in political protests in support of the BNP.
The Applicant stated that the Awami League formed a new government in June 1996 and commenced abusing the activists of the BNP.
The Applicant stated that, in 2001, the BNP formed a new government both nationally and locally in the Applicant’s area.
The Applicant claimed that, following the Awami League’s ascension to power, his family was threatened and shots were fired at his father. The Applicant stated he approached an Awami League leader who told him that he could not protect the Applicant.
The Applicant stated that, on 11 January 2007, many people were killed during opposing violence. Thereafter, the Applicant stated that Awami League members attacked BNP leaders and activists. The Applicant stated that the BNP backed commissioner from his local area was shot dead by Awami League activists.
The Applicant stated that, following this incident, he began receiving anonymous threatening telephone calls. The Applicant stated that his parents then arranged for his marriage in Australia. The Applicant said that before he left for Australia he was attacked several times by Awami League supporters and narrowly escaped. The Applicant then came to Australia and separated from his wife in June 2009.
The Applicant claimed that he feared being killed by Awami League members if he were to return to Bangladesh.
The Delegate’s decision
On 29 October 2009, the Applicant attended an interview with the Delegate.
On 7 December 2009, 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 Delegate was not satisfied that the Applicant had the political experience and profile claimed. However, the Delegate noted that even if it accepted that the Applicant was a member of the BNP who had been involved with politics at the local level, the available country information before it did not support a finding that the Applicant’s fear was well-founded.
The Delegate found that it was highly unlikely that low level political activists would be pursued outside their local area and that the law provided for freedom of movement and the government generally respects that right in practice. For that reason, the Delegate found the Applicant could reasonably locate within Bangladesh.
The Tribunal’s review and decision
On 4 January 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided further documents in support of his review application.
On 21 January 2010, 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 1 March 2010 to give oral evidence and present arguments.
On 1 March 2010, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by counsel/the solicitor for the First Respondent in his/her written submissions as follows:
“2.1 The Tribunal’s decision record sets out the applicant’s claims (AB 231[14]-233[20]), the evidence submitted by the applicant to the delegate (AB 233[21]-235[29]) and the evidence that the appellant gave at the Tribunal hearing (AB 235[30]-244[70]).
2.2 In the present case, the Tribunal did not accept the applicant’s claims on credibility grounds: CB 245[75]. The Tribunal concluded that the applicant was prepared to tell lies if he believed that it would assist his case: CB 246[77]. These findings were based on a number of inconsistencies in the applicant’s claims and evidence. For example, the Tribunal did not accept:
(a) The authenticity of certain photographs submitted by the applicant or the applicant’s explanations in relation to them: CB 246[77]. The Tribunal noted that the applicant admitted that his brother had submitted a fabricated document on his behalf: CB 246[78].
(b) The applicant’s explanations as to his identification of the relevant Election Commissioner for Ward 43, which contradicted independent country information: CB 247[81]. The Tribunal concluded that the applicant did not in fact know the true identity of the Commissioner (which was inconsistent with his alleged claims of persecution) and noted that the applicant did not even know that this Commissioner was in fact imprisoned: CB 247[81].
(c) The applicant’s explanations as to the time at which the Election Commissioner for Ward 44 was assassinated, which was also contradicted by independent country information: CB 247[82]-[83].
(d) Documentary evidence submitted by the applicant which suggested that “cases” had been filed against the applicant before he left Bangladesh as this information contradicted evidence given by the applicant that such cases had been filed after he had left Bangladesh: CB 247-248[84]-[86]. The Tribunal also rejected the veracity of another letter (located at CB 44) on the basis that it used identical wording to a later letter (located at CB 169): CB 248[87]. In doing so, the Tribunal relied upon independent country information about the veracity of letters produced in Bangladesh purporting to corroborate the political activities of its citizens: CB 248[88]. The Tribunal concluded that these letters and one other document purporting to show the applicant’s attendance at a meeting in 2003 should be given no weight: CB 248[89].
(e) The Applicant’s explanations about the problems he had confronted because of his involvement in politics: CB 249[90]-[91]. The Tribunal noted that the applicant’s evidence about two specific incidents was at odds with his own evidence that he continued to reside at his family home (without any fear of further attacks) and continued to operate his theatre business until he left Bangladesh in November 2008 for a period of 2 years after the initial attack: CB 249[90].
2.3 Having regard to these and other matters, the Tribunal was not satisfied that the applicant was a witness of truth: CB 249[92]. The Tribunal did not accept that the applicant was involved with the BNP as claimed by him, that he was attacked on several occasions, that he was verbally threatened or abducted, that his father was abducted, or that cases had been brought against him: CB 249[92]-[94].
2.4 The Tribunal was not satisfied that the applicant would face a real chance of persecution in Bangladesh: CB 250[95]. Accordingly, the Tribunal affirmed the delegate’s decision: CB 250[96].”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Bengali interpreter.
On 1 June 2010, the Applicant attended a directions hearing before me. 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 also explained to the Applicant that the grounds of his application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The Applicant confirmed that he wished to continue with his application. The Applicant 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, including any transcript of the Tribunal hearing.
At the directions hearing, the Applicant was referred 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. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents, headed in his own language.
At the commencement of the hearing, the Applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.
The Applicant confirmed that he relied on the grounds contained in an application filed on 12 May 2010 as follows:
“1. The Tribunal denied procedural fairness at the time of the assessment of applicant claim. (sic)
2. The Refugee Review Tribunal’s decision was unjust.
3. The decision was made without taking into account the full gravity of the applicant’s circumstances.”
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 is unsupported by particulars, evidence or written or oral submissions. I asked the Applicant in what way he said the Tribunal denied him procedural fairness. However, the Applicant declined to say anything in support of Ground 1.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised the Applicant’s written claims. The Tribunal also summarised the interview the Applicant had with the Delegate, including documents produced by the Applicant at the interview. The Tribunal also noted a post-interview letter received by the Department dated 6 November 2009 in which the Applicant stated that due to severe depression he may not have answered correctly questions at the interview. He asked that his mental health be taken into consideration.
The Tribunal then summarised the exchanges it had with the Applicant at the hearing on 1 March 2010.
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 1 June 2010 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. 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.
The Tribunal’s decision record makes clear that it explored the Applicant’s claims with him at the hearing and put to him matters of concern it had about his evidence, including internal inconsistencies in the Applicant’s evidence and inconsistencies with country information and with information given by the Applicant to the Department. The Tribunal also put to the Applicant concerns it had about particular documents provided by the Applicant. The Tribunal noted the Applicant’s responses to its concerns.
The Tribunal also noted that the Applicant said he was not mentally “OK” and that he was depressed and did not know what he had written in his statement. However, the Tribunal did not accept that the Applicant was suffering from depression or from problems with his concentration at the hearing. The Tribunal stated that “to the contrary he appeared alert and very ready to answer questions and even to invent new explanations”.
The Tribunal found that the Applicant was prepared to tell lies if he believed it would assist his case. For example, the Tribunal noted that the Applicant admitted that photographs he had given to the Department in support of his protection visa application were fabrications and created recently.
The Tribunal noted that after it had put to the Applicant certain concerns, the Applicant stated that “his concentration was not working one hundred percent”. The Tribunal then took a break before continuing with the hearing.
Ultimately, the Tribunal found the Applicant’s documents not to be genuine. The decision record makes clear that its concerns in respect of each of the documents was put to the Applicant clearly and the Applicant’s explanations noted. The Tribunal also put to the Applicant that documents similar to those of the Applicant’s were signed by people in Bangladesh without regard to whether the information contained in them was correct or not. The Tribunal noted the further explanations provided by the Applicant, however, was not persuaded by them.
As stated above, the Tribunal found that the Applicant was not a witness of truth and comprehensively rejected all the Applicant’s claims, including his involvement with the BNP. A fair reading of the Tribunal’s decision record makes clear that the issue of the Applicant’s membership and association with the BNP was put squarely to the Applicant at the Tribunal hearing. In the circumstances, although not necessarily an issue before the Delegate, the Tribunal’s concerns were raised squarely with the Applicant at the hearing and the Applicant’s comments and responses were noted by the Tribunal (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ at 600 – 602; [35], [37] and [47]).
The information to which the Tribunal had regard in affirming the decision under review was information given by the Applicant to the Tribunal for the purposes of its review, information that the Applicant gave to the Department or at interview and information that was not specifically about the Applicant or another person and was just about a class of persons of which the Applicant claims to be a member. Such information is excluded from the obligations of s.424A of the Act by reason of s.424A(3). The inconsistencies that the Tribunal found to exist are no more than the thought processes of the Tribunal and do not constitute “information” for the purposes of Part 7 Division 4 (SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon, and Crennan JJ in the majority).
The Tribunal had real doubts as to whether the Applicant had any subjective fear and put to him relevant evidence that it found cast doubt on his claims of having a genuine fear. Ultimately, the Tribunal did not accept that there was a real chance that the Applicant would be persecuted for the Convention reasons of political opinion or imputed political opinion if he were to return to Bangladesh now or in the reasonably foreseeable future.
In the circumstances, the Tribunal’s findings and conclusions were open to it on the 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).
The Tribunal conducted its review in accordance with Part 7 Division 4. Section 422B of the Act states that Division 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals. A fair reading of the Tribunal’s decision record and the bundle of relevant documents, marked Exhibit 1R, make clear that the Tribunal conducted its review in a way that is fair and just.
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 is unsupported by particulars, evidence or written or oral submissions.
As is clear from the Reasons above, the Tribunal’s decision was not “unjust”.
The Applicant declined to make any submission in support of Ground 2 and agreed that his complaint was his disagreement with the findings and conclusions of the Tribunal. Plainly, 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 is unsupported by particulars, evidence or written submissions.
I asked the Applicant what were the Applicant’s circumstances that the Tribunal had failed to take into account. The Applicant answered all the incidents and events in his statement and that the Tribunal had not investigated them properly.
I asked the Applicant if he gave the Tribunal the identity and contact details of any person in respect of whom the Tribunal should seek additional information and whether the Applicant identified any particular issue in respect of which in his view the Tribunal should have made investigations. The Applicant answered, No. I asked the Applicant how he expected the Tribunal to investigate the incidents and events beyond exploring them with the Applicant at a hearing. The Applicant answered that he expected the Tribunal to assess the risk on his life, plainly that answer is not responsive or relevant.
It is well established that a tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] per Keane CJ and at [49] per Emmett J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).
The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. There was no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which was easily ascertained and none was identified by the Applicant (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Further, in the Applicant’s response to hearing invitation, the Applicant indicated that he did not wish the Tribunal to take oral evidence from another person.
Otherwise, Ground 3 is no more than a disagreement with the findings of the Tribunal, thereby inviting merits review. As stated above, this Court has no power to undertake such a review.
Accordingly, Ground 3 is not made out.
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 sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate:
Date: 19 July 2010
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