SZQID v Minister for Immigration
[2011] FMCA 977
•23 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQID v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 977 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424AA, 424A, 425 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1 |
| Applicant: | SZQID |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1171 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 23 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2011 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,150.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1171 of 2011
| SZQID |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 10 May 2011. The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of Bangladesh, arrived in Australia in August 2010 and applied for a protection visa in September 2010. He claimed to fear persecution in Bangladesh in essence because of his claimed involvement with Jamaat-e-Islami. In particular he claimed to fear harm from the Awami League and the police because of his political opinion and involvement with Jamaat-e-Islami.
In his protection visa application the applicant detailed the extent and manner in which he claimed to have been involved in Jamaat-e-Islami in Bangladesh. He provided written statements in support of his application said to be from members of Jamaat-e-Islami and other supporting documentation and media reports in relation to the situation in Bangladesh.
The application was refused and the applicant sought review by the Tribunal. He attended a Tribunal hearing. The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal reasons for decision.
In its reasons for decision the Tribunal set out at length the applicant’s claims made in connection with his protection visa application. It detailed the supporting documentation he provided. The Tribunal summarised additional claims made by the applicant at a Departmental interview and referred to a further document from a medical clinic concerning the applicant’s mother. The Tribunal also set out at some length the evidence of the applicant at the Tribunal hearing and described issues it had raised with the applicant, concerns about his evidence and his response. In particular the Tribunal recorded that it put to the applicant evidence he had given in his interview with the Department, the conclusion that this might lead to and gave him an opportunity to comment or respond “in any way he wished, including at a later adjourned session of the hearing or in writing”. According to the Tribunal, the applicant “indicated that he wished to respond at once”. The Tribunal recorded his response.
In its findings and reasons the Tribunal summarised the applicant’s claims as a claim “to fear harm in Bangladesh from the ruling Awami League and the police because of his political opinion as an activist worker for the Jamaat-e-Islami party”. It set out that he claimed to have been “actively involved in student politics” while at college and to have been “Assistant Publications Secretary in a local branch of the Bangladesh Islamic Chhatra Shibir, the student wing of Jamaat-e-Islami”. Supporting letters said that he held this position from 1994 to 1996 although his evidence at hearing was described as confused and he appeared to claim that he later occupied an equivalent position in the Jamaat-e-Islami itself from 1998 to 2001.
The Tribunal recorded that the applicant claimed that “his political activities included encouraging others to join the party”, which he did “as part of religious instruction he [gave] people in a mosque, collecting money and, during the 2008 general election campaign”, what the Tribunal described as “miking” by which the applicant “meant that he would travel around the streets in his area in a taxi making speeches over a mobile public address system and handing out pamphlets”.
The Tribunal accepted that the applicant’s account of his experiences in Bangladesh had shown “some degree of consistency over time”. However it found that he had “proved to be a generally unimpressive witness at the hearing” and that “a number of his responses to questions gave a strong impression of evasiveness and improvisation when aspects of his claims were challenged”. The Tribunal gave as an example the applicant’s explanation for why he would have felt safe hiding in the houses of Jamaat-e-Islami party leaders when he had suggested first that he would only stay there late at night when he and they had finished working but, second, that he probably did this on only one occasion. It also had regard to the fact that, as was put to the applicant at the hearing, he had “provided starkly varying accounts of the number of times he returned to his home when he was, allegedly, fearful that doing so would expose him to the risk of death”. The Tribunal also found that the applicant’s “explanation of his political activities in Bangladesh and the harm he claim[ed] to have suffered as a result was notably vague and was supported by little circumstantial detail despite the importance which this aspect of his life in Bangladesh, if authentic, could reasonably be expected to have held for him”.
The Tribunal considered the documents submitted by the applicant attesting to his political activities in the Jamaat-e-Islami organisation in Bangladesh. It had earlier described these documents, including letters said to have been signed by a president of a branch of the organisation, the president of a particular police station branch and the president of a named branch of the Bangladesh Islami Chhatra Shibir. The Tribunal stated that, as it put to the applicant at the hearing, “independent country information…indicat[ed] that political leaders in Bangladesh [we]re often prepared to write supporting letters which contain[ed] untrue information about an applicant’s political activities, and that false or fraudulent documents [we]re readily available and often used to substantiate immigration and refugee claims”.
In its earlier description of the hearing the Tribunal had stated that after it asked the applicant how he obtained these documents it explained that country information indicated that such documents may be provided “for humanitarian reasons in order to help with immigration or refugee cases” and noted that while he claimed that there had been an incident which occurred with his wife that had been recorded by the court there was no court document to this effect.
The Tribunal also noted that two of the supporting letters bore “some similarities of style and format” which suggested to it that “they may have been written by the same hand”.
However the Tribunal went on to find that taking these things together it was “prepared to give the Applicant the benefit of the doubt to the extent of accepting that he was active in supporting the Chhatra Shibir when he was a student before 1999 and that he continued this involvement until 2001 in the capacity of Assistant Publicity Secretary of a local branch of Jamaat-e-Islami”. The Tribunal was also prepared to accept that the applicant “had some involvement in support of the…Jamaat-I-Islami-BNP coalition candidate in the 2008 general election, including by ‘miking’ from a taxi and handing out pamphlets” and that “he may have encouraged other people to join the party, possibly with some success”. However the Tribunal was “not satisfied as to the plausibility of [the applicant’s] claim” that he encouraged people to join the party “in a structured way, after prayers in his mosque, by giving religious instruction and introducing comments about his party”. Nor was it satisfied “that in this or any other way [the applicant had] formed a group of party members who were in any recognisable way ‘his’, owed any kind of allegiance to him or responded in any way to instructions he gave in such matters as opposing Awami League corruption or extortion demands made to local businesses”.
The Tribunal addressed the applicant’s claims about harm in Bangladesh on the basis of its findings. Given that it found that the applicant “occupied no position in Jamaat-e-Islami after 2001 and taking into account the scale and nature of his claimed political activities between that time and his departure from Bangladesh, including during the 2008 election campaign”, the Tribunal was “not satisfied that [the applicant had] ever created a significant profile for himself as a political leader or an important figure in the party”. Nor was it satisfied that it was “plausible that, at a time when the leaders of his party were not being harmed he would nevertheless attract harm from the Awami League to the extent that they wished to kill him”. It was “not satisfied that his claims at the hearing about this alleged harm were credible”. Nor did it “accept his account of having lived in hiding for some sixteen months, following the Awami League victory in December 2008” elections. The Tribunal found it “particularly implausible that [the applicant] would not have sought to leave Bangladesh if his life had been in direct danger, including by the simple expedient of travelling to India”, or that he would have “waited for over a year on the chance of finding work on a ship”. It also found implausible the applicant’s “claims about the harassment of his wife and family following his departure”. While the Tribunal was “prepared to accept that the medical certificate relating to [the applicant’s mother was] genuine”, it was “not satisfied that the injury to her leg was caused by anything other than an accident, as the certificate itself state[d]”. Finally, the Tribunal was not satisfied it was plausible that the police wished to arrest or otherwise harm the applicant “given that they did not harm him or issue a warrant for his arrest while he was in Bangladesh and ha[d] not done so since”.
The Tribunal accepted on the basis of the information the applicant submitted “that there ha[d] been a number of arrests of Jamaat-e-Islami leaders and workers in relatively recent times”. However it was “not satisfied this demonstrate[d] that the Applicant, who ha[d] been absent from Bangladesh for more than three years, would be at any risk of harm from the police”. Nor “having regard to the level of his involvement while he was in Bangladesh and the lack of any evidence that he ha[d] taken up the cause of Jamaat-e-Islami while…living in Australia”, was the Tribunal satisfied that the applicant “would involve himself in the political life of Bangladesh in a way which would cause him to be harmed in future”. The Tribunal concluded that the applicant “would refrain from such behaviour not because of any fear of the consequences but, simply, because it [wa]s not in his nature to do so”.
The Tribunal summarised that in light of these conclusions it was not satisfied there was anything in the information before it to demonstrate a real chance that because of his political opinion the applicant would suffer serious harm from the Awami League, the police or anyone else if he were to return to Bangladesh. It noted that he did not clam to fear harm in Bangladesh for any other reason and saw no other reason “apparent on the face of the information” before it. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason should he return to Bangladesh now or in the reasonably foreseeable future and affirmed the decision of the delegate.
The applicant sought review by application filed in this court on 8 June 2011. He filed an amended application on 28 July 2011 and subsequent written submissions. He confirmed in the hearing today that he wished to rely on the grounds in the amended application. He also raised a number of issues in oral submissions which overlap with the grounds in the amended application.
The first ground in the amended application is as follows:
The Refugee Review Tribunal did not put any weight to the supporting documents those attested to my political activities for Jammat-e-Islami.
Particulars:
A. The Tribunal did not put any weight to the supporting documents those attested to my political activities for Jammat-e-Islami. Further the Tribunal made the following comment that:
i)I also have concerns about the authenticity of the documents submitted by the Applicant which attest to his political activities in the Jammat-e-Islami interest while he was in Bangladesh.
ii)The independent country information before the Tribunal indicates that political leaders in Bangladesh are often prepared to write supporting letters which contain untrue information about an applicant’s political activities, and that false or fraudulent documents are readily available and often used to substantiate immigration and refugee claims.
In submissions the applicant referred to the fact that he had lodged various documents in support of his application, including three references from persons said to be associated with Jamaat-e-Islami or the Chhatra Shibir, a doctor’s report about his mother’s medical treatment allegedly after an attack by the opposition as well as newspaper reports in support of his claim. The applicant submitted that the Tribunal had not put any weight on these documents in considering whether there was a possibility of him being persecuted at the hands of the Awami League because of his involvement with the Jamaat-e-Islami.
He also submitted that the Tribunal “did not take into consideration that there was a chance of being persecuted” as he claimed and that the government could use police and the army to “harass” him because the Awami League was in power and that it did not consider “the reality of the chance of persecution” for him if the current regime of law and order in Bangladesh collapsed or if the old regime under which he claimed persecution and political violence was rife was reinstated as many of the party leaders were in jail. The applicant contended that the failure of the Tribunal to address this issue “prevented it from having the rational basis” for determining his chance of persecution in the future and resulted in the Tribunal “not considering an essential substantial” aspect of his claims.
In relation to the issue about the weight given to supporting documents, first it is not the case that the Tribunal gave no weight to any of the supporting documents. It accepted on the basis of the information submitted by the applicant (and this is presumably a reference to the newspaper reports), that there had been a number of arrests of Jamaat-e-Islami leaders and workers in recent times. It accepted that the medical certificate relating to his mother was genuine, but was not satisfied and did not accept his claim that the injury to her leg was caused by anything other than an accident, which the doctor’s report itself stated.
In relation to the three reference letters said to be provided by party officials, the Tribunal was entitled to have and express concerns about authenticity of such documents for the reasons which it gave and on that basis to give those documents little or no weight when assessing the applicant’s claims (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6). As Brennan CJ, Toohey, McHugh and Gummow JJ pointed out at [52], albeit in relation to decisions of delegates, but similarly for a Tribunal:
When it is remembered that the decisions for the delegates involved a question of "satisfaction" as to refugee status, the term "give greater weight to" appears even more innocuous. When it is a question of personal satisfaction, there can be nothing wrong with the attribution of weight. In that context, the attribution of weight may indicate no more than that some material has assisted the decision-maker more than other material in the ascertainment of whether the requisite satisfaction has been reached.
In oral submissions the applicant appeared to take issue first with the Tribunal’s failure to accept his claims in their entirety based on these supporting letters. This seeks impermissible merits review. He also seemed to suggest that the Tribunal had erred in some way in not putting to him independent country information about the readiness of political leaders to write untrue supporting letters and about the availability of false or fraudulent documents. Contrary to such claims the Tribunal recorded that in the Tribunal hearing it raised both issues with the applicant. Although not expressed in those terms, insofar as this may be intended to be a suggestion that such material should have been put to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) such a claim is not made out. Independent country information such as was referred to by the Tribunal is within the exception to s.424A(1) in sub-section 424A(3). Nor was the Tribunal obliged to put written material the applicant provided to the Department to him for comment under s.424A (see s.424A(3)(b)). It is well-established that the Tribunal is under no obligation to put its provisional reasoning to an applicant under s.424A of the Migration Act. The Tribunal did raise its concerns about the applicant’s oral evidence to the Department in the course of the Tribunal hearing (see s.424AA) and there is nothing in the evidence before the court to establish any failure to raise dispositive issues or to comply with s.425 of the Act.
As indicated, it cannot be said that the Tribunal “did not put any weight” to such documents. Rather it gave the applicant the benefit of the doubt in accepting his activities in supporting the Chhatra Shibir before 1999 and his continued involvement up to 2001 as Assistant Publicity Secretary of a branch of the Jamaat-e-Islami. It also accepted that he had some involvement in support of the candidate in the 2008 general election.
The claim that the applicant makes about not giving weight to the supporting documents is not made out and his concerns in that respect do not establish jurisdictional error.
In his written submissions the applicant contended generally that the Tribunal did not take into consideration there was a chance that he would be persecuted because the Awami League was in power. However it is clear from the Tribunal reasons for decision summarised above that the Tribunal accepted that there had been a number of arrests of Jamaat-e-Islami leaders and workers in recent times. It was not satisfied, for reasons which it gave, that this demonstrated that the applicant, who had been absent from Bangladesh for more than three years in circumstances where the police had not previously harmed him or at any time issued a warrant for his arrest, would be at any risk of harm from the police. It considered whether, but was not satisfied that, having regard to the level of the applicant’s past involvement and the lack of any evidence that he had taken up the cause of Jamaat-e-Islami in Australia, he would involve himself in the political life of Bangladesh in the future in a way that would cause him to be harmed. The claim that the Tribunal did not consider the future is not made out.
The applicant’s submissions referring to the possibility of regime change may be intended to assert that the Tribunal decision was in some way contradictory or irrational. These matters are considered under the other grounds relied on by the applicant but in any event the possibility of regime change does not have the impact that the applicant states on the Tribunal’s reasoning. The Tribunal was not satisfied that the applicant had faced the harm he claimed in Bangladesh. It found him not to be credible in relation to the extent of his claimed political activity. Its findings in relation to the future were open to it for the reasons that it gave on the basis of the claims that it accepted. Regime change in Bangladesh, even if imminent, was not a matter that the Tribunal needed to consider in circumstances where it concluded that the applicant would not involve himself in political life in Bangladesh in a way which would cause him to be harmed in the future. Ground one is not made out.
Ground two is that the “decision was contradictory”. The particulars are:
A. The Tribunal’s decision was contradictory itself and the Tribunal proved this contradiction by making the following comments that:
i) I am preparing to give the Applicant the benefit of the doubt to the extent of accepting that he was active in supporting the Chaatra Shibir…
ii) I am not satisfied as to the plausibility of his claims that he did this in a structured way.
In written submissions it was contended that the Tribunal failed to accord the applicant natural justice on the basis that on the one hand the Tribunal accepted that the applicant was active in supporting the Chhatra Shibir but on the other hand it was not satisfied as to the plausibility of his claims.
However, as set out above, that is not an entirely accurate account of the Tribunal reasoning. The Tribunal accepted certain aspects of the applicant’s claimed involvement with Jamaat-e-Islami, including that he was active in supporting the Chhatra Shibir before 1999 and that he continued this involvement up to 2001, that he had some involvement in the 2008 election campaign and that he may have encouraged other people to join the party. However the Tribunal was “not satisfied as to the plausibility of his claim that he did this in a structured way, after prayers in his mosque, by giving religious instruction and introducing comments about his party”. Such finding was not related to its acceptance that he was active in supporting the Chhatra Shibir when he was a student before 1999. The fact that the Tribunal accepted that the applicant had some level of involvement, but did not accept the degree of involvement claimed by him, in particular the formality and level of involvement, or that he had not created a significant profile for himself as a political leader or as an important figure in the party, is not illogical or contradictory and does not amount to a denial of natural justice. The applicant’s disagreement with the Tribunal’s findings, which he reiterated in oral submissions, seeks merits review. Merits review is not available in this court. Ground two is not made out.
Ground three in the amended application is that the Tribunal failed to assess the applicant’s credibility “as whole”. The particulars are:
A. The Tribunal failed to assess my credibility as whole. Further the Tribunal made the following comment that:
i) His explanation of his political activities in Bangladesh and the harm he claims to have suffered as a result was notably vague.
ii) I am not satisfied that his claims at the hearing about this alleged harm were credible.
As set out above, the Tribunal gave a number of reasons for its findings in relation to the applicant’s credibility and its failure to accept all of the claims he made about his level of involvement in Jamaat-e-Islami and its activities in Bangladesh. Its findings in that respect were open to it for the reasons that it gave on the material before it. Credibility findings are a function of the decision-maker par excellence, see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1. Insofar as this ground challenges the Tribunal’s findings and conclusions it seeks impermissible merits review. The Tribunal did not simply assess the applicant’s credibility based only on the vagueness of his explanation of his political activities in Bangladesh. As set out above, it had regard to a number of issues in reaching the conclusions that it reached about the level of his activities and consequently about his claims that he had suffered or feared harm in Bangladesh.
It has not been established that the Tribunal failed to assess the applicant’s credibility as a whole. It was open to the Tribunal to accept some aspects of the applicant’s claims, giving him the benefit of the doubt in that respect. It was also open to it to reject other claims on the basis that he was not, in respect of those claims, credible. There is no gap in the Tribunal’s assessment of credibility such as to demonstrate or constitute jurisdictional error, whether on the basis of illogicality, unreasonableness or otherwise.
In his outline of submissions the applicant headed his discussion of ground three “Breech S 424A of the Migration Act”. No particulars of any asserted breach of s.424A were provided, although in oral submissions the applicant appeared to contend that the independent country information should have been put to him. As indicated, independent country information is within the exception to s.424A(1) in s.424A(3) of the Act. The Tribunal chose to observe s.424AA of the Act with respect to the evidence given by the applicant to the Department during the departmental interview and in that way obviated the need to give written notice of such matters to the applicant pursuant to s.424A of the Act, (see s.424A(2A)). It has not been established that there was a failure by the Tribunal to comply with s.424A of the Act.
The applicant also submitted that the Tribunal did not consider his claims as a whole, but “only picked what was in favour of the Tribunal and overlooked what was in favour of [him]” and that he was “denied natural justice”. He repeated this claim in oral submissions in the context of asserting generally that the Tribunal did not consider all of his claims or did not consider them properly. It has not been established that the Tribunal failed to consider all the integers of the applicant’s claims in a sense constituting a failure to have regard to relevant considerations. Insofar as the applicant took issue with the Tribunal’s failure to accept his claims, he seeks impermissible merits review. Similarly, insofar as the applicant took issue with the Tribunal’s failure to accept his claims on the basis of the documentation he submitted, the findings in that respect were open to the Tribunal on the material before it for the reasons that it gave.
The applicant also claimed that he was asked many questions in the Tribunal hearing, but that without listening to him properly the Tribunal just gave its decision. There is nothing in the material before the court to support any contention of actual or apprehended bias, if this is what was intended by the applicant. On the contrary. The Tribunal’s account of the Tribunal hearing (which is the only evidence before the court of what occurred in the hearing) indicates that the Tribunal canvassed with the applicant aspects of his claims, raised issues of concern with him and gave him the opportunity to comment. It addressed his claims in its findings and reasons. It has not been established that there was a failure to comply with the procedural requirements of the Migration Act or to accord procedural fairness to the applicant.
As to the claim that the Tribunal did not consider what the applicant said about his political activities, this was not particularised. On the material before the court it has not been established. The Tribunal considered, but did not accept, all of the applicant’s claims about his political activities. Further, the fact that the delegate accepted that the applicant had in the interview demonstrated an excellent knowledge of the history of the Jamaat-e-Islami does not lead to a conclusion that the Tribunal fell into jurisdictional error. The Tribunal acknowledged that there was “some degree of consistency” in the applicant’s account of his experiences. It accepted that he was involved in the Chhatra Shibir and Jamaat-e-Islami, but having regard to a number of issues, including the vagueness of his explanation of his political activities in Bangladesh and the absence of circumstantial detail, was not satisfied that he had created a significant profile for himself as a political leader or an important figure in the party. The Tribunal’s findings in this respect do not demonstrate or give rise to jurisdictional error, whether arising out of irrationality or unreasonableness or otherwise.
The applicant reiterated that the Tribunal did not believe that political leaders were in jail. In fact, the Tribunal accepted this, but found, for reasons that it gave that this did not demonstrate that the applicant would be at any risk of harm. Ground three in the amended application is not made out either in the form in which it appears or as elaborated on in written and oral submissions.
Nor do the other issues raised by the applicant in oral submissions today establish jurisdictional error. In the course of his submissions the applicant reiterated some of his claims about involvement in Jamaat-e-Islami. As I endeavoured to explain to him, merits review is not available in this court and factual findings are a matter for the Tribunal.
As no jurisdictional error has been established the application must be dismissed. Before I make the order I will hear submissions in relation to costs.
The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate and reasonable in light of the nature of this and other similar matters.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 8 December 2011
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