SZOMB v Minister for Immigration
[2010] FMCA 742
•6 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOMB v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 742 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to comply with s.424A of the Migration Act – failed to give appropriate weight to certain evidence – wrongly took certain independent country information into account – erred in assessing the applicant’s credibility – failed to give a real and meaningful invitation to attend its hearing and failed to take some of the applicant’s evidence into account. |
| Migration Act 1958, ss.424, 424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507 Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489 |
| Applicant: | SZOMB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1340 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 21 September 2010 |
| Date of Last Submission: | 21 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 6 October 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Ms B. Tronson |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1340 of 2010
| SZOMB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh and claims to be a Hindu. He alleges that, while in Bangladesh, he married a Muslim girl without her parents’ knowledge or consent. He claims that after he came to Australia his wife’s parents learned of the marriage and have been threatening both him and his family. He also claims that he was an active member of the BNP in Bangladesh. He claims that his wife’s family and his political opponents have joined together to do him harm.
The applicant claims to fear persecution in Bangladesh because of his political opinion and because he is a Hindu married to a Muslim girl.
The applicant arrived in Australia on 10 March 2009 on a student visa which was cancelled on 14 September 2009. On 21 October 2009 he lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 30 January 2010. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-20 of the Tribunal’s decision.
Protection visa application
The applicant made the following claims in a statement attached to his protection visa application:
a)he is Hindu and therefore part of a religious minority in Bangladesh;
b)people from his religious background normally support the Awami League but he was one of a small group of Hindus who worked for the BNP. His political activities drew minority support to the party;
c)he took part in various political activities organised by the Jatiotabadi Chhatradal (the student wing of the BNP) and the Jatiotabadi Jubodal (the youth wing of the BNP). He held elected positions in 1998 and 2006;
d)he was not targeted by any individual or political opponent between 2001 and 2006 when the BNP was in power. However, when the caretaker government assumed authority in November 2007 many of his political opponents, who were Hindu, started threatening him because they were upset that he supported the BNP;
e)on 15 September 2008 he married a Muslim girl whom he had met while studying at college. They married without their parents’ knowledge or consent, having kept the relationship a secret because of their religious differences. They knew that they would be in “serious trouble” if people found out about the marriage so they made plans to leave the country. His wife was granted an Australian student visa in September 2008 and left within days;
f)the applicant subsequently lodged an application for a student dependent visa to come to Australia. His visa was granted in December 2008, however, due to employment and political commitments the applicant decided he would leave after a few months. He was also optimistic that the BNP would win the election and decided that he would campaign for his local party candidate;
g)when the Awami League won the election later that month, the applicant became the target of post-election attacks. In early January 2009 he was stopped by about ten people, slapped and told to leave the area otherwise he would be seriously attacked;
h)he left Bangladesh for Australia in March 2009 and initially lived with his wife. However, their relationship deteriorated and he found out that her parents had been aware of the marriage and were forcing her to leave him. After a few months, and at the urging of her parents and relatives, his wife told him that if he did not convert to Islam she would divorce him;
i)her father, who is a journalist and has connections with the ruling party in Bangladesh, has threatened to kill him if he returns. Some of the applicant’s political opponents have joined his wife’s father to cause him and his family harm; and
j)her parents have also threatened the applicant’s siblings in Bangladesh.
The applicant provided to the Minister’s department two statements, one purportedly issued by the Jatiatabadi Chhatradal and one by the Jatiatabadi Jubodal confirming his involvement in those groups.
The delegate subsequently received an allegation that the information contained in the applicant’s protection visa application was false. The person who made the allegation also provided a blank letterhead of the political organisation, noting that it could be collected from any office and that any information could be inserted.
Review application
On 16 April 2010 the applicant provided the Tribunal with a pre-hearing submission which enclosed, amongst other things, a letter from his brother stating that the opposition were looking for him and wished to kill him.
At a hearing before the Tribunal on 16 May 2010, the applicant made the following additional claims:
a)the documents which the applicant submitted to the Minister’s department from the Jatiatabadi Chhatradal and the Jatiatabadi Jubodal were genuine. He told his friend about the situation which he was facing in Australia and his friend then went to the BNP office, spoke to the secretary and collected the documents;
b)on one occasion he was threatened by a group of four or five people. They used bad language, slapped him and accused him (because he had been a cashier for the BNP) of false acquisitions. They also told him that the BNP’s time was coming. He could not recall when this incident occurred;
c)on another occasion, he saw armed people approaching him. He managed to run away;
d)he took no steps to leave the country until the end of 2008 because, variously:
i)his party told him that they would try to minimise the situation for him;
ii)he had political responsibilities;
iii)he wanted to take English lessons before coming to Australia;
iv)there were problems with his family properties; and
v)being from a middle class family, he could not leave the country whenever he wanted to. It took time to organise everything;
e)if he returns to Bangladesh he will be harassed or killed by the police because he was a BNP activist. All the senior leaders of the BNP are being harassed;
f)his wife’s parents learned of the marriage about a month after his arrival in Australia. They were not happy and threatened him indirectly by calling and abusing him or getting others to call;
g)he and his wife started living separately about two months prior to the lodgment of his protection visa application. After their separation, his wife told her family “wrong information” and “bad things” about him after which they started to threaten both him and his family;
h)his wife’s father and brothers rang the applicant’s brother in Bangladesh and used bad language. They told his brother that what he (the applicant) did was not suitable and that he should leave Bangladesh and go to India;
i)the applicant spoke to his mother-in-law once and she used bad language and accused him of destroying her life. He has never spoken to his father-in-law;
j)his wife went to Bangladesh a few days earlier and met with his elder brother and threatened and abused him;
k)his wife’s father and brothers are members of the Awami League and her uncle is an influential man. They have made contact with his political enemies to harm both him and his family. The Awami League is influencing his wife’s father and have turned the marriage into a political issue; and
l)inter-religious marriages are a very sensitive issue in Bangladesh. He will be harmed because he is a Hindu who has married a Muslim girl and her family is influential and of higher status.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found that the applicant’s evidence was vague, generalised and inconsistent and did not accept, contrary to his assertions, that this was attributable to his poor health and illness. In this regard the Tribunal noted that the applicant did not provide any medical evidence which suggested that his memory was affected by his health. The Tribunal concluded that the vagueness and inconsistencies in the applicant’s evidence was a reflection of his poor credibility and not on his state of mind;
b)the applicant’s limited knowledge of the BNP was inconsistent with the level of knowledge which one would expect from a person who had been actively involved with the party and its politics. For example, at the hearing the applicant could not refer to any specific BNP policies nor was he able to provide a meaningful explanation for why he was attracted to the party. In addition, he could not state when or by whom the youth wing of the BNP was formed or provide the names of the president and secretary of the 59th Ward despite his claimed involvement with that ward and despite the fact that he had presented statements signed by those officials. The limited knowledge displayed by the applicant at the hearing caused the Tribunal to question his claimed involvement with the BNP;
c)the applicant claimed in his written statement that in January 2009 he was threatened and slapped by a group of at least ten people. However, at the hearing before the Tribunal he could not recall when this incident occurred and said that it was four or five people who were involved. The applicant also claimed in his written statement that he was told to leave the area otherwise he would be attacked. In contrast, when the Tribunal questioned him about what he was threatened with, the applicant claimed that they used bad language, accused him of false acquisitions and told him that their time was coming. Given these inconsistencies, the Tribunal formed the view that the applicant had fabricated his claims about the harassment and threats he had experienced while in Bangladesh;
d)the two statements from the BNP Chhatradal and the BNP Jubodal were issued in English and contained spelling and linguistic errors. Most significantly, the Jubodal’s letterhead, as well as the stamps of the secretary and president, contained a spelling error in the reference to “59 word committee”. The Tribunal did not consider it plausible that a genuine letterhead of the organisation or its official stamps would contain spelling errors and thus formed the view that the applicant had fabricated the documents to support his claim for a protection visa;
e)the applicant claimed that he had been under constant threat since the BNP lost power but he took no action to leave the country. Even after his Australian visa was granted, he remained in Bangladesh for a further three months. In the Tribunal’s view, the applicant would have taken the first opportunity to leave the country had he feared persecution;
f)given the Tribunal’s concerns regarding the applicant’s credibility as well as his willingness to fabricate documents, the Tribunal decided to give no weight to the letter from the applicant’s brother;
g)the Tribunal found that the applicant had not been truthful in his evidence and rejected his claim to have had any political involvement while in Bangladesh. The Tribunal found that there was no real chance that the applicant would be persecuted for his political opinion if he were to return to Bangladesh;
h)the Tribunal accepted that the applicant was a Hindu and had married a Muslim girl in secret. It also accepted that his wife’s parents disapproved of the marriage when they learned of it. However, because of the applicant’s confused and inconsistent evidence concerning this aspect of his claims, the Tribunal did not accept that his wife’s family wished to harm him. In this connection the Tribunal noted that:
i)the applicant claimed that after their separation his wife said “wrong things” about him to her parents following which they started to threaten him. This suggested to the Tribunal that his wife’s parents were concerned with the breakdown of the relationship and not with the marriage itself;
ii)when asked about the nature of the threats, the applicant stated that his wife’s family had told his brother that what he (the applicant) did was not suitable and that he should leave Bangladesh and go to India. The Tribunal did not accept that such words would have been perceived as threats by the applicant or his family;
iii)the applicant was unable to state the precise nature of the threats made against him. He simply said that his mother-in-law used bad language to abuse him;
iv)the applicant could not explain to the satisfaction of the Tribunal why the threats only started when the relationship broke down; and
v)having rejected his claimed political involvement in Bangladesh, the Tribunal did not accept that the applicant’s politics would have any influence on the actions of his father-in-law.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
1.The Refugee Review Tribunal failed to maintain procedural fairness to exercise its jurisdiction under the Act.
2.The Refugee Review Tribunal misunderstood and over exercised it’s jurisdiction in considering my information.
3.The Refugee Review Tribunal made jurisdictional error in assessing my circumstances.
In his written submissions filed on 6 September 2010 the applicant raised two additional grounds, namely:
a)the Tribunal erred in assessing his credibility owing to his inability to adequately answer the Tribunal’s questions because of the serious fear and mental stress he was suffering; and
b)the Tribunal’s disbelief of his claim arose out of his inability to answer the Tribunal’s questions because he was so stressed and, further, the Tribunal did not take certain of his evidence into account.
Ground 1
The applicant’s first allegation was particularised as follows:
The Tribunal did not consider and put weight on my documents that I provided. I provided documents relating to my involvement with politics of the student and youth wing of Bangladesh Nationalist Party (BNP). Rather it affirmed the DIAC’s decision and DIAC assessed my documents receiving information from an unknown source, that those documents were fabricated. Although no detailed and specific information and name of sources were provided as where they received information that my documents were fraudulent. The Tribunal did not put weight on them and rather followed and supported the view of immigration department while affirming my case.
Additionally, in his written submissions the applicant stated that the Tribunal “did not give me any information as to how and where they received information that my documents were fraudulent” and thus breached s.424A of the Act.
In relation to the assertion that the Tribunal did not consider and put weight on certain documents which he had provided to it, at the hearing in these proceedings, he identified the relevant documents to be the party statements referred to above at [8]. The Tribunal’s decision record discloses at paras.52 and 54 that the documents in question were discussed at some length with the applicant in the course of the Tribunal’s hearing. Further, the Tribunal expressly stated in its reasons at para.88 that it had considered both of those documents and then proceeded to discuss their significance in the context of the applicant’s claims. Consequently, on the facts, this element of the first allegation in the amended application is not made out.
As to the applicant’s assertion that the Tribunal “followed and supported the view of immigration department” on those documents, the Tribunal’s decision record clearly demonstrates that it brought its own independent mind to the question of the credibility of those documents and the weight which would be accorded to them. Far from simply adopting the delegate’s views that they were not genuine, it arrived at its own independent conclusion in relation to them.
The applicant submitted that the Tribunal’s failure to give him information concerning the receipt of the informant information amounted to a breach of s.424A of the Act. That section relevantly provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
Section 424A only obliges the Tribunal to notify an applicant of information which the Tribunal considers would be the reason or part of the reason for affirming the decision under review. Although the s.424A notification dated 17 March 2010 which the Tribunal sent to the applicant demonstrates that the Tribunal was aware that the Minister’s department had received informant information suggesting that the two statements were false, its reasons disclose that this information did not form part of its decision to reject the genuineness of those documents. The Tribunal rejected their authenticity because they contained a number of spelling and linguistic errors, most particularly the spelling error “59 word committee”. It was the content and the appearance of the documents, not the fact that informant information had called their genuineness into question, which was the basis of the Tribunal’s decision in relation to them. That being so, the informant information was not information which s.424A(1) obliged the Tribunal to notify to the applicant.
Indeed, the Tribunal’s reasons do not suggest that it had any opinion about the informant information which required that information to be notified to the applicant: Minister for Immigration & Citizenship v SZLFX (2009) 238 CLR 507 at 514 [24].
But in any event, in its s.424A notice dated 17 March 2010 the Tribunal did expressly refer to the informant information, did identify its potential significance and did invite the applicant to comment or respond to it. In doing so in terms which referred only to the substance of the information, and which did not disclose details of its provenance, the Tribunal did not err. In the circumstances, it was only required to tell the applicant what the substance of the allegations made in the informant information was and to ask him to respond to it. How the allegations had been given to the department was not important: Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 at 100 [29].
For these reasons, the first ground of the amended application is not made out.
Ground 2
The applicant particularised his second allegation in the following terms:
The Tribunal did not put weight to the letter from my brother. It presumed the letter to be self serving. The Refugee Review Tribunal over exercised it’s jurisdiction by thinking my brother’s letter as self serving. Its presumption led it not giving any weight on the letter and thus made a jurisdictional error.
In his written submissions the applicant expanded on this particular by submitting that the Tribunal breached s.424 of the Act by not inviting him to comment on his brother’s letter.
The latter submission plainly intends to refer to s.424A. Section 424 imposes no obligation on the Tribunal to get any particular information, it being merely facultative: Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489 at 501 [37]. As to s.424A, because the letter in question was supplied by the applicant to the Tribunal for the purposes of its review it fell within the exception to the operation of s.424A(1) found in s.424A(3)(b) and thus did not need to be notified to the applicant pursuant to the section.
As to the Tribunal’s treatment of that letter, it said at para.90:
The Tribunal also gives no weight to the letter from the applicant’s brother as the Tribunal finds this document to be self-serving and given the applicant’s willingness to fabricate documents, as well as the Tribunal’s concerns about the applicant’s credibility, the Tribunal is concerned about the probative value of his brother’s statement.
The Tribunal’s conclusions regarding the letter from the applicant’s brother were logically open to it. That being so, the Tribunal’s decision to give it no weight does not disclose error on its part.
Ground 3
The third allegation in the amended application was particularised as follows:
The Tribunal referred to various information regarding inter religious marriage in Bangladesh. These are the information that the Tribunal relied on while assessing my circumstances. In para 81 of its decision the Tribunal referred to inter religious marriage between high profile celebrities in Bangladesh and relying on those it believes that, inter religious marriage is not a big problem in Bangladesh. The Tribunal is not aware that, inter religious marriage between celebrities and between I and my ex-wife is not same. No one will dare to tell them anything since they are very prominent and powerful in the country. But people like me have always been sufferer, always been subject to attack, persecution, threat who went through inter religious marriage especially when some one being a Hindu marries a Muslim girl.
The Tribunal took wrong test in assessing my situation of inter religious marriage not thinking practical aspect in Bangladesh, thus made jurisdictional error.
This allegation that the Tribunal erred in assessing the applicant’s circumstances was based on the applicant’s assertion that, when considering independent country information concerning mixed marriages in Bangladesh, the Tribunal was unduly influenced by the apparently uncontroversial nature of marriages between popular celebrities of different faiths and did not understand that the circumstances for people such as him and his wife were different.
The relevant independent country information was a report from the Department of Foreign Affairs & Trade (“DFAT”) and is reproduced in para.81 of the Tribunal’s decision. That part of the decision record is the recitation of the information before the Tribunal and is not part of its reasons for decision.
The Tribunal’s conclusion that the applicant would not be harmed by reason that he had married a Hindu woman was not based on what was contained in the DFAT report on interfaith marriages in Bangladesh. Rather, the Tribunal found that the applicant’s evidence associated with this issue was confused and devoid of detail in relation to specific threats. Further, the applicant had not explained to the Tribunal’s satisfaction why, although in his written statement he said that his wife’s father threatened to kill him if he did not break up with his wife, at the Tribunal hearing he said that the threats only started when the relationship broke down. By reference to these and other matters the Tribunal said:
While the Tribunal accepts that the applicant is married to a Muslim and that the marriage was in secret, the Tribunal rejects the applicant’s claims that his wife’s family have threatened him or his siblings because of the marriage or his political affiliations, because of their political or other connections, or because of the combination of these reasons. The Tribunal does not accept that his wife’s family wish to harm the applicant, even if they do not approve of the marriage. The Tribunal finds that there is no real chance of such harm being perpetrated. (para.96)
It is apparent that although the Tribunal had regard to the DFAT report, it did not rely on it in reaching its decision. For this reason, this ground of the application is misconceived and discloses no jurisdictional error on the Tribunal’s part.
Ground 4
In his written submissions the applicant said:
The Tribunal made jurisdictional error in assessing my credibility. The Tribunal mentioned that I couldn’t explain various information of my party such as when it was formed and objectives etc. Due to mental pressure and continuing threat by my ex wife and her parents I have always been in serious fear and mental stress. Thus I was not able to answer those questions exactly which Tribunal took to quantify my credibility with respect to my involvement with the party. Thus these amount error of made by the Tribunal.
The applicant challenged the Tribunal’s credibility findings. Such findings are matters par excellence for the Tribunal and were logically open to it on the evidence. As a result, this aspect of the fourth ground raised by the applicant does not point to jurisdictional error.
The other element of this ground is that because of the fear and stress he allegedly suffered the applicant was unable to answer the Tribunal’s questions properly. The Tribunal recorded that at its hearing the applicant said that:
… mentally he is very sick because in the last few weeks he got distressing news from Bangladesh. (para.51)
In response to the Tribunal’s query whether he had any medical evidence about being mentally sick the applicant said that he did not have time to go to the doctor because he had to work and look after himself. The applicant subsequently raised no issue with the Tribunal concerning any mental health problem which may have compromised his ability to give evidence at the Tribunal hearing. No medical evidence was supplied to the Tribunal touching on this issue, whether at its hearing or subsequently, and none has been supplied to the Court. In the circumstances, there is insufficient basis to conclude that the invitation which the applicant received to the Tribunal’s hearing was anything other than a real and a meaningful one.
For these reasons, the fourth ground relied upon by the applicant does not disclose a basis on which the Tribunal’s decision should be set aside.
Ground 5
In his written submissions the applicant said:
The Tribunal did not believe my claim that I had real fear of persecution being a Hindu as I have been on constant threat by my ex wife’s parents. I was so stressed and I could not answer Tribunal’s question. The Tribunal mentioned that the threat from my ex-wife’s family started after breaking up the relationship which is not true. The threat started soon after they found that their daughter married me who is a Hindu. I stated the same in my statement submitted to my protection visa application to the immigration department. The Tribunal did not take that into consideration rather made my confused asking all irrelevant questions and decided that I did not receive threat before breaking up my relationship.
As to the allegation of stress inhibiting the applicant’s ability to respond to the Tribunal’s questions, as already noted, no medical or other evidence was adduced by the applicant which would support a conclusion to this effect.
The applicant’s assertion that the Tribunal inaccurately stated that the threats from his ex-wife’s family started after the break-up of the relationship is, itself, inaccurate. At para.65 of the decision record, the Tribunal records this exchange:
The Tribunal asked the applicant when the threats started. He said that they were not threatening directly when they knew about the relationship. They were not happy at the time. As soon as the relationship broke down, they started to threaten his family.
And at para.66, this is recorded:
He said that as soon as they found out about the marriage, they threatened him but not directly. They were not happy. After they found out about the break up, they threatened them directly. The Tribunal asked him to explain what he meant by “indirect threats”. The applicant said that they were not happy and they used to call, or get other people to call, and abuse them but after they realised that the relationship broke down, there were threats.
The Tribunal’s reasons include references not only to this evidence but also the applicant’s conflicting evidence, contained in the statement accompanying his protection visa application, that the threats occurred before the break-up. In para.94 of its reasons the Tribunal said:
Significantly, the applicant claimed in his written statement that his wife’s father threatened to kill him if he did not break up with his wife.
Plainly, the Tribunal had regard to the applicant’s evidence on the point and referred to both versions, concluding that the evidence was confused. The allegation that the Tribunal did not take relevant evidence into account fails on the facts.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 6 October 2010
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