SZOMU v Minister for Immigration
[2010] FMCA 837
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOMU v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 837 |
| 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 the Tribunal failed to deal with an integer of the applicant’s claims, refused to receive evidence and had wrongly failed to consider that the applicant’s documents might not be false. |
| Migration Act 1958, ss.424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZOMU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1408 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 26 October 2010 |
| Date of Last Submission: | 26 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Litigation guardian 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 1408 of 2010
| SZOMU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant was born in Australia on 25 October 2008 but is a citizen of Bangladesh. On 12 November 2009 the applicant’s father, who is his litigation guardian in these proceedings, lodged an application for a protection visa on the applicant’s behalf. The application asserted that the applicant faced harm in Bangladesh by reason of his father’s political activities. On 16 February 2010 a delegate of the first respondent (“Minister”) refused the applicant’s application. 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 applicant’s parents, who are citizens of Bangladesh, arrived in Australia on 23 May 2008. On 20 June 2008 the applicant’s father lodged an application for a protection visa, claiming that he feared persecution in Bangladesh because of his political activities. The applicant’s mother was included in that application as a dependent. On 11 September 2008, shortly before the applicant in these proceedings was born, a delegate of the Minister refused their application for protection visas. Their subsequent applications for review were unsuccessful.
As already noted, on 12 November 2009 the applicant’s father lodged an application for a protection visa on the applicant’s behalf. That application was based on the claims made by the applicant’s father and was described by the Tribunal as being “essentially a re-run of his parents’ applications with minor adjustments and updates”. The “key” factual allegations relating to the applicant’s parents’ application for a protection visa were summarised by the Tribunal at pages 5-6 of its decision record. Those factual allegations were, relevantly, as follows:
a)the applicant’s father was a BNP activist at college. He was also active in the BNP branches in the Pabna area;
b)he was stabbed in March 1993 by Awami League activists. Although the BNP was in power at the time, he did not go to the police as his local BNP leader instructed him not to;
c)he decided to go abroad and in September 1994 went to live in Brunei. He made six return visits to Bangladesh at regular intervals, each visit usually lasting one and a half months. He kept up with his political contacts while in Brunei and, on his return visits to Bangladesh, met with political leaders, led demonstrations and inspired people. He was “renowned”. However, he also had to be careful on the occasions when he returned and spent some time in hiding;
d)he spent three months in the Pabna area in 2005 and was elected to a position on the district BNP. Terrorists/political people tried to extort money from him when he tried to build a house on some land. He abandoned the project and purchased another plot of land;
e)the Rapid Action Brigade (“RAB”) came looking for him at his wife’s family home during one of his return visits to Bangladesh in 2007;
f)a false “political case” was filed against him. In support of this claim, the applicant’s father presented a letter from the Pabna BNP office which stated that there was a number of false cases against him. The stamp on the letter was misspelt and the Tribunal later received another version of the letter with the correct spelling; and
g)as a BNP supporter and activist, he fears persecution at the hands of the (then) caretaker government. He is also concerned that opposition politicians or terrorists will assume that he is rich because he has lived abroad.
In his protection visa application form, the applicant claimed, amongst other things, that his father was an executive member of the Pabna district BNP. He claimed that his father was politically well-known and that the RAB were searching for him (his father) because they opposed his political opinions. He also claimed that he (the applicant) would be kidnapped if he returned to Bangladesh as a way to threaten his father.
The applicant’s father appeared at a Tribunal hearing on 6 May 2010 and made the following claims:
a)he is well-known in Bangladesh and continues his political engagement to this day, including through the internet and blogs. He cannot return to Bangladesh and keep silent or suppress his views in order to remain safe;
b)he left Bangladesh eighteen months after the March 1993 attack and spent this time making preparations to go abroad. There were no further incidents during this period;
c)he did not report the incident to the police because his party leaders instructed him not to; they told him that they would take care of matters;
d)he lived in Brunei for over fifteen years, from 1994 to 2007. His return visits to Bangladesh during this period only amounted to some twelve months. Even so, he was known to “everyone” as he kept in contact with party colleagues, visited them on his return visits and made donations;
e)he returned, without incident, to his home district of Pabna during his visits to Bangladesh;
f)the document he submitted from the Pabna BNP office was genuine. He did not know what the false claims were which were referred to in the Pabna BNP document;
g)the RAB incident occurred in early July 2007 but he did not leave Bangladesh until August 2007 because there was nothing for him to do in Brunei at the time and he wanted to have a holiday. In any event, he travelled secretly and with security;
h)his son, the applicant, was at risk of persecution because he (the applicant’s father) was involved and is still involved in “oppositional politics” in Bangladesh with the BNP. If his family returned to Bangladesh, the applicant would eventually suffer persecution as his son;
i)he is committed to the BNP and the current government can do anything at any time to seriously harm him and thus indirectly harm the applicant; and
j)the applicant was in danger of being kidnapped or otherwise harmed by his father’s political opponents.
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 was unable to find any recent reports which suggested that political activists in Bangladesh targeted the children or family members of their rivals for political or similar reasons. The Tribunal considered that incidents of this kind would be a new and significant development in Bangladeshi politics and would almost certainly provoke political and media concern. In the circumstances, the Tribunal found that the absence of such information was strong evidence that the targeting of political rivals’ children did not occur in Bangladesh;
b)the Tribunal accepted that the applicant’s father was a low level BNP supporter. However, it did not accept that he was, or was perceived to be, a BNP activist or that he had any political profile or influence anywhere in Bangladesh or that he was of adverse interest to anyone. In reaching this conclusion the Tribunal noted the following:
i)the significant gap between the alleged attack in March 1993 and the applicant’s father’s departure from Bangladesh in September 1994 suggested to the Tribunal that the latter left for reasons unrelated to any incident 18 months earlier. The applicant’s father claimed that he remained politically active throughout yet suffered no further harm and also said that he did not seek police assistance in relation to the alleged attack. All these factors combined indicated to the Tribunal that the applicant’s father was not subject to any attack in March 1993 and did not occupy any political role that put him at risk of serious harm;
ii)the applicant’s father’s prolonged absence from Bangladesh, and his mostly uneventful returns there, strongly suggested to the Tribunal that he did not place priority on any political activism in Bangladesh; that he could not in any event sustain any political profile or influence; and that he had neither a subjective nor well-founded fear of harm on the occasions he returned there. The Tribunal’s conclusions in this respect were reinforced by the weak and sometimes contradictory evidence of the applicant’s father concerning how he was able to sustain a political profile from such a distance;
iii)in relation to the alleged extortion attempt in 2005 associated with some property, there was nothing to suggest that the applicant’s father was being targeted for any reason related to politics;
iv)the Tribunal rejected the applicant’s father’s claim that he had been pursued by the RAB in 2007 and that false charges had been laid against him, noting in this connection that he had stayed in Bangladesh for almost two months after learning about the RAB’s interest in him and also gave evidence that he had not even enquired as to whether there was one or multiple false charges or what these were;
v)the Tribunal noted that according to country information there is a high level of document fraud in Bangladesh. The Tribunal noted that the letter from the Vice-President of the BNP in Pabna contained anomalies such as the incorrect spelling of the author’s title and a discrepancy with the evidence of the applicant’s father as to whether there were one or more false charges. The later submission of a revised letter, this time with corrections, together with the serious problems the Tribunal had with the father’s overall evidence, reinforced the Tribunal’s concerns about the authenticity and content of the letters. In light of these concerns, the Tribunal placed no weight on this letter as independent corroboration of the applicant’s father’s claim to be a BNP activist in whom the Bangladesh authorities or political opponents have an adverse interest;
c)the Tribunal did not accept, given its adverse view of the applicant’s father’s credibility and in light of his priorities and activities over more than 15 years, that he had any real interest in Bangladeshi politics other than following current affairs, or that he would be motivated to engage in BNP or other political activities if he returned to Bangladesh. It followed that he would also not have to refrain from any political or other activities simply to avoid persecution;
d)for these reasons, the Tribunal did not accept that there was a real chance that anyone would target the applicant because of his father’s political profile; and
e)the Tribunal noted at the hearing that there was an implied claim in the applicant’s application that he might be at risk of kidnapping or other harm because his family, having lived for many years abroad, might be perceived as being wealthy. However, the Tribunal found that there was no real chance of the applicant being subject to harm, whether Convention related or otherwise, for this reason, noting that:
i)in the context of Bangladesh, the circumstances of returnees varied so widely that, in the Tribunal’s opinion, there was no discernible particular social group of which the applicant could claim membership and thus his claims in this respect were not Convention-related; and
ii)the reported instances of child kidnapping and extortion related only to the families of wealthy businessmen and the applicant’s father’s claim that he was subject to an extortion attempt in 2005, even taken at face value, did not support a claim that the applicant himself might be kidnapped.
Proceedings in this Court
The amended application was pleaded as follows:
Errors relating to the consideration by the Tribunal of the Applicants’ claim in relation to extortion
1.The tribunal failed deal with an integer of the applicants’ parent’s claim, that they would be subject to extortion for a convention reason if they were to return to Bangladesh, constituting a jurisdictional error.
Particulars
A.The Applicants claimed, and or the evidence clearly raised, that they feared that:
(1) The applicant’s parents would be subject of extortion if they returned to Bangladesh.
(2) The applicant’s who is now just nearly two years, he is in high risk of being kidnapping if he returned to Bangladesh with his parents.
(3) The criminal activities targeted or to be targeted at the applicant’s parent were based on political reasons.
…
B.The tribunal then failed to consider at all the availability of state protection for the applicants.
C.The tribunal’s finding at [246] that “Document fraud in Bangladesh” … because of tribunal find some news from some source about document can made false in Bangladesh its does not mean that every document that delivered by the applicant will be false too. This fining too is accordingly infected with the error discussed above.
D.At the hearing the applicant was wanted to submit some new document was from some newspaper. the applicant was thinking may be those documents can support his application for protection visa. But the tribunal was denied to receive those documents. So, the tribunal made an error in these criteria.
Particular A
In the first particular of the allegation that the Tribunal failed to deal with the claim that the applicant’s parents would be subject to extortion were they to return to Bangladesh, it is not made clear whether the extortion to which the particular refers relates to the attempt by the applicant’s father to build a house in Bangladesh, which he gave up because of attempted extortion, or whether it relates solely to the assertion that the applicant might be kidnapped were the family to return to Bangladesh. It appears to be related to the latter issue but may involve the former and, consequently, these reasons will deal with both.
As to the question of extortion concerning the building of the house, this allegation is specifically referred to in the Tribunal’s recitation of the claims and evidence at para.25 of its decision record. In para.71 of its decision, the Tribunal said that it had detected nothing in that allegation to suggest that the applicant’s father was being targeted for any reason of any political interest, whether actual or perceived. Clearly, the Tribunal dealt with this aspect of the claim.
In relation to extortion by kidnapping, at para.22 of its decision the Tribunal refers to the claim made by the applicant in his protection visa application form that his father was affiliated with the BNP, being an executive member of the Pabna district BNP, and that the applicant would be kidnapped until his father paid a ransom and that by this means his father would be threatened. He said:
I fear extortion for political reasons which will result in my kidnap.
The same concern was repeated at the Tribunal hearing and at para.34 of its decision the Tribunal records that the applicant’s father confirmed the applicant’s claim to fear that the father’s political opponents would pursue the applicant by kidnapping or by otherwise harming him. In the context of this claim, the Tribunal records at para.37 that the applicant’s father stressed the extent of his involvement in Bangladeshi politics through the BNP. The Tribunal also noted references “at the primary stage” to the applicant also being at risk of persecution by way of kidnapping or extortion because his father and family were perceived to be rich. The Tribunal recorded that the applicant’s father did not pursue this point at the hearing “instead steering the discussion back towards his political profile”.
The Tribunal considered all of these issues. It identified them in the following terms as one of the two principal categories of harm alleged to be feared by the applicant:
Direct harm, because he is the child of a BNP activist or of a family returning to Bangladesh after many years abroad (and hence perceived to be wealthy).
At para.64 of its decision the Tribunal referred to its researches saying that it had been unable to find any recent reports to suggest that Bangladeshi political activists targeted the children or family members of their rivals for political or similar reasons. After a discussion of that evidence the Tribunal concluded that there was no real chance of anyone targeting the applicant because of his father’s political profile. Any such targeting plainly includes kidnapping. As the opening sentence of the paragraph in which that conclusion is found states:
The applicant claims to fear harm from his father’s political opponents, expressed in his protection visa application as ‘extortion for political reasons which will result in my kidnap’ …
Later in its reasons the Tribunal recorded that it had, at the hearing, noted that in the applicant’s protection visa application there was an implied claim that he might be at risk of kidnapping or other harm because of the fact that his family would be returning from many years abroad and would be perceived to be rich. At paras.67 and 68 of its decision the Tribunal discussed this issue, concluding not only that the claim was not Convention-related but also that the alleged risk was not made out on the facts.
Contrary to the applicant’s allegation, the Tribunal did consider the risks associated with extortion of the applicant’s parents and the possible kidnapping of the applicant himself but was unconvinced by them.
More generally, the first particular to the allegation asserts that “the criminal activities targeted or to be targeted at the applicant’s parent were based on political reasons” but the Tribunal rejected the assertion that the applicant’s father, to whom this allegation relates, had any real interest in Bangladeshi politics other than following current affairs or would be motivated to engage in BNP or other political activities were he to return to Bangladesh. It did not accept that he was or was perceived to be a BNP activist, had any political profile or influence in Pabna or anywhere else in Bangladesh or that he was a person of interest to anyone. Consequently, even if the Tribunal had, in fact, failed to consider the claims of fear of extortion and kidnapping, those allegations relevantly depend on being Convention-related and thus the basis of their relevance to the Tribunal’s considerations was removed by the Tribunal concluding that the applicant’s father lacked the political profile which would motivate third parties to act towards the applicant in the way he claims to fear they might.
For these reasons, the first particular to the allegation does not disclose jurisdictional error on the Tribunal’s part.
Particular B
In the second particular of the allegation the applicant alleges that the Tribunal failed to consider the availability to him of state protection. This allegation presupposes that the Tribunal found that the applicant had a well-founded fear of persecution for a Convention reason which would not be addressed by the authorities in his country of nationality. However, as the summary of the Tribunal’s reasons for decision appearing above at [8] makes clear, the Tribunal concluded that the applicant did not have a well-founded fear of that sort. In the circumstances, the Tribunal was therefore not required to consider any issues of state protection and the fact that it did not do so does not demonstrate error on its part.
Particular C
The third particular to the allegation is, in essence, an allegation that simply because the Tribunal found that document fraud was prevalent in Bangladesh, there was no reason to suppose that the documents he submitted were fake. In making this allegation, the applicant challenges a conclusion drawn by the Tribunal from the evidence before it. It was a conclusion reasonably open to the Tribunal and, as such, cannot be reviewed in these proceedings. The Court’s role is to ensure that the Tribunal properly applies the law in the procedures it adopts in conducting its review and in reaching its decision. Findings of fact are matters reserved for the Tribunal and, except in exceptional circumstances, cannot be reviewed by the Court. No such exceptional circumstances are present in this case.
Consequently, the third particular of the allegation does not disclose a basis upon which the Tribunal’s decision should be set aside.
Particular D
In the final particular to the allegation the applicant asserts that he wished to put further evidence before the Tribunal, in the form of a newspaper, but was denied this opportunity by the Tribunal.
The applicant’s father gave evidence and said that, at the Tribunal hearing, he wanted to give the Tribunal newspaper clippings about the situation in his area in Bangladesh and how, if he returned, he would be killed. He said that the Tribunal told him that it would look at the clippings later on but did not. When cross-examined on this evidence, the applicant’s father agreed that he had heard of news regarding child kidnapping but did not take documents relating to that to the Tribunal. He agreed that the Tribunal asked him whether he had those documents with him and that he had said that he did not. He agreed that he said to the Tribunal that he would get the documents and that the Tribunal said that it would consider such documents as he provided.
The applicant’s father said that, in any event, the Tribunal said to him that it did not believe the documents from Bangladesh were genuine and that it had expressed this view in its s.424A notice dated 11 May 2010. There reference is made to a discussion at the hearing concerning country information which indicated that there were high levels of document fraud in Bangladesh “including instances where a person will write a genuine letter, the contents of which have been tailored to help a person seeking refugee status abroad”. The applicant’s father also made reference to “annex B” to the s.424A notice where information sourced from the Canadian and British High Commissions in Dhaka and from the country information service of the Minister’s department, which discussed the availability in Bangladesh of fraudulent documents or genuine documents with fraudulent contents, was set out.
The applicant’s father agreed that he had not sent any documents to the Tribunal after the Tribunal hearing notwithstanding that the s.424A notice said, amongst other things:
[The applicant’s father] mentioned at the hearing that he is aware of instances where political rivals have targeted children. The Tribunal will of course consider any details or independent reports that support [the applicant’s father’s] statement. As noted at the hearing, it may also take into account in evaluating such material: (a) its assessment as to whether or not [the applicant’s father] is a BNP activist, as claimed; (b) his credibility as a witness; and (c) country information concerning the prevalence of document fraud in Bangladesh.
You are invited to give comments on or respond to the above information in writing.
An implication of the applicant’s father’s evidence was that as the Tribunal had said that it did not believe the documents he submitted there was no point in giving it any further documents.
In para.35 of its summary of its hearing, the Tribunal records that the applicant’s father had suggested to the Tribunal that he might be able to obtain evidence relating to infant abductions in Bangladesh “if granted more time”. The Tribunal summarised its response in the following terms:
The Tribunal expressed surprise that he had not already sought such information, and that he could try to obtain it from internet and similar sources. The Tribunal advised that it would, of course, consider any relevant material.
It is recorded that later at the hearing the Tribunal queried the applicant’s father concerning his continued involvement in the BNP and received the response that the applicant’s father contributed online, for instance, on Facebook, where he said he posted political comments. The Tribunal then recorded that it said:
The Tribunal advised that it would consider any evidence that [the applicant’s father] wished to submit to support this claim.
Most significantly, at para.52 of its decision record, the Tribunal sets out the following exchange at the conclusion of its hearing:
[The applicant’s father] said that he had presented all his claims and evidence, and reiterated his fears for the applicant’s safety because of his political interests and his commitment to future political activism. [The applicant’s migration agent] said that she did not wish to make any comments or propose any further questions.
The evidence discloses that the applicant’s father did not bring with him to the Tribunal’s hearing the newspaper clippings which he would have wished to be before the Tribunal and did not, at any later date, supply them to the Tribunal. It may well be that the applicant was dissuaded from submitting further documents because the Tribunal informed him of its concerns regarding the genuineness of documents sourced from Bangladesh. However, the Tribunal’s decision record does not support a conclusion that it had reached a concluded view on the issue; the Tribunal merely advised the applicant that the question of fraudulent documents was a matter of which it was aware and to which it might have regard. Section 425 of the Act required the Tribunal to identify this issue to the applicant in order that he could address it and the evidence does not satisfy me that the Tribunal did any more than discharge its obligations under that section. The fact that the Tribunal brought this information to the attention of the applicant’s father, together with the fact that the genuineness of the documents he had submitted to it might be an issue in the review, may have discouraged him from submitting further documents to it. However, I am not satisfied that the Tribunal expressed itself in such a way as to indicate that there was no point in the applicant submitting further Bangladeshi documents to it for consideration. Indeed, as noted above, on more than one occasion the Tribunal advised the applicant’s father that if he wished to submit further information, it would be considered. If further available documents were not provided to the Tribunal, this was because the applicant’s father decided not to submit them, not because the Tribunal refused to receive them.
The applicant’s case might also be interpreted to contain an implication that the Tribunal’s mind was closed to persuasion on the genuineness of documents submitted by the applicant, and perhaps any inferences which might be drawn from them, and it was for that reason that the Tribunal refused to receive further documents. For the reasons already given, I am not of the view that the Tribunal refused to receive further documents or that its references to the availability of false Bangladeshi documents was the expression of a mind which was already made up. Moreover, the documents whose genuineness was addressed by the independent country information referred to in the s.424A notice, as well as at the Tribunal hearing, related to Bangladeshi documents of an official or quasi-official nature, rather than to newspaper clippings. Even if the Tribunal had had a closed mind in relation to the reliability of such official or quasi-official documents, and I find it did not, it was newspaper clippings which the applicant’s father says he would have liked the Tribunal to have had. In such circumstances, even if a possible allegation of bias had been made out in relation to official or quasi-official documents from Bangladesh, it would have been of no significance in the context of this particular allegation.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 5 November 2010
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