SZQJE v Minister for Immigration
[2011] FMCA 728
•13 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQJE v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 728 |
| MIGRATION – VISA – Protection (Class XA) visa – Refugee Review Tribunal – application for judicial review of decision of Refugee Review Tribunal – citizen of Bangladesh claiming fear of persecution on the basis of political opinion – whether Tribunal failed to consider applicant’s fear of person – whether denial of natural justice – whether Tribunal took irrelevant considerations into account – credibility issues. |
| Migration Act 1958 (Cth), ss.91R, 474, 476 |
| Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 |
| Applicant: | SZQJE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1277 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 2 September 2011 |
| Date of Last Submission: | 2 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No Solicitor on the Record |
| Solicitor for the Respondents: | Mr Jones |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1277 of 2011
| SZQJE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal made on 26th May 2011, affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa.
The Applicant has filed an Application seeking the following:
a)a writ of mandamus;
b)a writ of certiorari; and
c)a writ of prohibition.
The Applicant filed an Amended Application on 15th August 2011 in which he relies on the following grounds of review:
a)The Tribunal failed to consider his fear of persecution under section 91R of the Migration Act;
b)The Tribunal failed to uphold his natural justice in respect of supporting documents that he submitted to the Tribunal in support of his claims; and
c)The Tribunal took into account irrelevant considerations in respect of his overall credibility.
The First Respondent, the Minister for Immigration and Citizenship, has filed a Response seeking that the Application be dismissed with costs. The Minister does not admit that there is any jurisdictional error in the decision of the Second Respondent, the Refugee Review Tribunal.
Background
The Applicant is a citizen of Bangladesh. On 5th October 2010 he applied for a Protection (Class XA) visa. In his application the Applicant claimed that he was a leader of the Bangladesh Nationalist Party (BNP) whilst he lived in Bangladesh. He stated that after the Awami League came to power on 29th December 2008 he was targeted because of his political beliefs and was physically attacked on three occasions.
The Applicant claimed:
On 11 June 2010 I was heavily injured by their attack and received treatment for 1 week. The Awami League not only attacked me they also sent police to my home. The police told my family that my name was on their warrant list. Police and RAB were continuously looking me after their attack in June 2010. To avoid arrest, detention and crossfire I went to hide. The police and RAB came to my house and threatened my family members that if I did not appear at police station they would arrest my family members.
From the fear of arrest, detention and crossfire I leave the country.[1]
[1] Court Book at page 17
The Applicant also claimed:
If I go back to Bangladesh, the activists of Awami League will harass me. They may kill me by crossfire by influence of Awami League. Please note that many extra judicial killing occurs in Bangladesh by the government authority.[2]
[2] Court Book 18
The Applicant further claimed:
This will happen to me because I was involved in BNP politics.[3]
[3] Court Book 19
On 26th November 2010 the Department of Immigration and Citizenship wrote to the Applicant and invited him to attend an interview to discuss his visa application and his claims for protection. The Applicant wrote to the Department on 14th December 2010, advising that he would attend the interview and enclosing copies of a number of documents.
On 17th December 2010 the Applicant attended the interview with a delegate of the Minister. He attended a second interview on
20th January 2011.
The Applicant’s application for a Protection visa was refused on
2nd February 2011. The Minister’s delegate was not satisfied about the credibility of his account due to adverse information about his relationship status and various items of false documentation.
Application to the Refugee Review Tribunal
On 28th February 2011 the Applicant applied to the Refugee Review Tribunal for a review of the Minister’s decision. He attended a hearing of the Tribunal on 27th April 2011, where he gave evidence with the assistance of an interpreter.
The Tribunal made its decision on 26th May 2011, affirming the decision not to grant the Applicant a Protection (Class XA) visa.
The Refugee Review Tribunal Decision
In its Decision Record, the Tribunal set out and summarised the Applicant’s Claims and Evidence, which consisted of:
a)
the Applicant’s original application, including the documents supplied to the Department under cover of his letter of
14th December 2010;
b)the Applicant’s evidence at the two Departmental interviews;
c)the material submitted to the Tribunal under cover of a letter dated 21st April 2011; and
d)the Applicant’s evidence at the Tribunal hearing.
In its Findings and Reasons, the Tribunal stated that it did not regard the Applicant as a witness of truth. The Tribunal put to the Applicant that there were several reasons why it had concluded that the claims he had made in support of his application for a protection visa were not true.
Those reasons were:
a)he had not told the truth about the assistance he had received in preparing his application, noting that his application contained “identical phrases to two other applications” before the Tribunal;[4]
b)the Applicant was “very vague” when asked about his responsibilities as personal secretary to one Mahfuzur Rahman Forhad;[5]
c)although the Applicant had claimed to have been personal secretary to Mr Mahfuzur Rahman Forhad who was in turn personal secretary to Mr Shamsul Islam, after the Tribunal referred to the fact that Mr Islam had been in gaol, the Applicant initially said that Mr Islam had been detained for three or four days before being released on bail and then that all he knew was that Mr Islam had been in gaol for only two days in March 2008, when in actual fact Mr Islam had been in gaol for two and a half months, which the Applicant should have known;[6]
d)it was difficult to accept the Applicant’s account of the problems he claimed to have had in Bangladesh as a result of his involvement in the BNP;[7]
e)the letters he produced in support of his claim did not appear to be genuine;[8] and
f)…the information available to the Tribunal indicates that forged or fraudulently obtained documents are readily available in Bangladesh and …it is common for political party membership confirmation letters to be issued even if the information is incorrect.[9]
[4] Court Book 132 at paragraph [105]
[5] Court Book 133 at [108]
[6] Court Book 133 at [109]
[7] Ibid at [110]
[8] Court Book 134 at [114]-[115]
[9] Court Book 135 at [116]
The Tribunal did not regard the Applicant as a witness of truth and did not accept his claims. The Tribunal did not accept that there was a real chance that the Applicant would be persecuted by Awami League activists or the police or the RAB for reasons of his political opinion if he returned to Bangladesh.
The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant’s three grounds of review are set out in his Amended Application filed on 15th August 2011.
First, he claims that the Refugee Review Tribunal failed to consider his fear of persecution under s.91R of the Migration Act.
The particulars of that claim are:
The Tribunal failed to deal my political activities in Australia as a political activist where as the leader of BNP Australia certified that I was a BNP member. The Tribunal failed to ask me any material question of how I would have been adversely affected by the Australian political activities if I return to country in Bangladesh.
The Applicant’s second ground is that the Tribunal failed to “uphold my natural justice” in respect of supporting documents which he submitted to the Tribunal in support of his claims.
The particulars of that claim are:
The Tribunal indicated that forged or fraudulent documents were readily available in Bangladesh. Accordingly the Tribunal assumed that I came from Bangladesh and the documents I submitted were also forged and fraudulent.
The Applicant’s third ground is that the Tribunal took into account irrelevant considerations in respect of his overall credibility.
The irrelevant considerations that he claims are:
i) From whom I received assistance to prepare this application.
ii) Why the newspaper reports …I lodged in support of my claims were identical with the other applicant’s.
Submissions
The Applicant had submitted a detailed written outline of submissions. He told the Court that he wished to rely on that document and did not wish to speak to that submission. Mr Jones, who appeared for the Minister, was also happy to rely on the First Respondent’s Outline of Submissions.
The Applicant submitted that the Tribunal had erred by not putting any weight on the various documents that he had submitted, commenting that forged or fraudulent documents were readily available in Bangladesh. He submitted that the Tribunal did not take into consideration that there was a chance of his being persecuted by Awami League activists because the Awami League is in power in Bangladesh at present.
The Applicant further submitted that the Tribunal made up its mind that all of his supporting documents were not genuine. Thus, the Tribunal made its decision on an assumption without having made any inquiry into the authenticity of his documents. Accordingly, he was denied natural justice.
The Applicant submitted that the Tribunal took irrelevant considerations into account when assessing his overall credibility, being from whom he received assistance in preparing his application and the fact that he had submitted identical newspaper reports to those submitted by other applicants. He noted that the Tribunal had said:
First, as I put to the applicant, I consider it relevant to his credibility that he has not told the truth about the assistance he received in preparing his application.[10]
[10] Court Book 132 at [105]
The Applicant submits that this shows a lack of procedural fairness on the part of the Tribunal:
I submit that who has assisted me that is not the only measurement to assess my credibility. However, the Tribunal focused on this issue again and again and made its mind that I was not a credible witness. I submit that the Tribunal focused on irrelevant issues to asses my credibility and its assessment procedures was (sic) completely deliberate and arrogant.
The Applicant claims that the Tribunal failed to consider s.91R of the Act when it stated:
I do not accept that the applicant has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Bangladesh now or in the reasonably foreseeable future.[11]
[11] Court Book 135 at [120]
The Applicant submits that he is actively involved with the BNP in Australia and he believes that his current activities in Australia for the BNP would affect him adversely if he were to return to Bangladesh.
He points out that he had submitted a letter of reference from the Ex President of the Bangladesh Nationalist Party Australia, Mr Monihul Hoque George, showing that he was actively involved with the BNP in Australia. He submitted that:
However the Tribunal did not take into consideration all of this issues that my activities in Australia would adversely affect me if I make myself available in Bangladesh. I also submit that the Tribunal failed to ask me any material questions that how I would have been adversely affected by the political activities in
Australiaif I return to my home country in Bangladesh.
The Minister submits that the Applicant’s claim that the Tribunal did not consider the likelihood of harm to the Applicant on returning to Bangladesh arising out of his political activities in Australia must fail, because:
a)The only reference to the Applicant’s involvement with the BNP in Australia comes from the letter from Monihul Hoque George, and it does not suggest that the Applicant’s membership of the BNP in Australia or his involvement with their activities would lead to harm in Bangladesh;
b)The Tribunal found that the letter was not genuine;
c)The Tribunal found the applicant not to be a witness of truth; and
d)The Applicant’s submission, stating that he was involved in BNP demonstrations against the Awami League in Australia, seeks to introduce fresh evidence that was not before the Tribunal.
The Minister submits that the Applicant’s claim that the Tribunal erred in not placing any weight on documents submitted by the Applicant on the basis that forged or fraudulently obtained documents are readily available in Bangladesh is without merit and factually incorrect.
The Tribunal did not place no weight on the documents but it gave greater weight to the view that it had formed of the credibility of the Applicant’s evidence. The Tribunal’s weighing of the evidence was both logical and open to it.
As to the Applicant’s third ground, that the Tribunal in taking into account for the purposes of assessing his credibility the assistance received in preparation of his application and the fact that other applicants had submitted identical newspaper reports, the Minister submits that this ground has not been made out.
The Minister submits that one of the reasons that the Tribunal made an adverse credibility finding was that it considered the Applicant had not been forthright about the assistance that he had received.
The Tribunal’s adverse credibility finding was based on ten reasons as set out in the Tribunal’s Findings and Reasons.
It is submitted on behalf of the Minister that there is no jurisdictional error manifest in the Tribunal decision and consequently it is a privative clause decision for the purposes of s.474 of the Migration Act.
Conclusions
The Tribunal’s decision is based on its adverse assessment of the credibility of the Applicant’s evidence. A credibility finding is a factual matter for the Tribunal (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham[12] at [67]). The Court does not conduct merits review of the Tribunal’s factual findings.
[12] (2000) 168 ALR 407; [2000] HCA 1
The Applicant’s first ground claims that the Tribunal failed to consider the Applicant’s fear of persecution under s.91R of the Act, referring specifically to his claim that he would be adversely affected if he were to return to Bangladesh by his political activities in Australia as a member of the BNP.
The Applicant did not make a specific claim that he would suffer as a result of his activities in Australia. All that he put to the Tribunal was a letter of reference from the ex president of the BNP in Australia.
His evidence to the Tribunal dealt with his fears as a result of his involvement with the BNP in Bangladesh. As was submitted on behalf of the Minister, there was no evidence presented that anyone in Bangladesh was aware of his political activities in Australia.
In any event, the Tribunal was not satisfied of the Applicant’s credibility, or of the veracity of his documents. The Tribunal noted the similarity between the two letters produced by the Applicant in support of his claims to have been involved in BNP activities in Australia and Bangladesh, saying:
Moreover, as I put to the applicant, I consider that the fact that both of these letters make the same claim – that the applicant was an Organising Secretary of the Tongibari Thana executive committee – in identical terms, although Mr Mallik is in Bangladesh whereas Mr George is the owner of the house where the applicant is living in Australia, suggests that they have a common source and that they are not genuine.[13]
[13] Court Book 134 at [114]
It was open to the Tribunal to make adverse credibility findings about the Applicant and to disbelieve the authenticity of the documents he produced.
The Applicant’s first ground of review has not been made out.
The Applicant’s second ground of review claims a denial of natural justice because the Tribunal did not place any weight on the documents that the Applicant submitted, stating that forged or fraudulent documents were readily available in Bangladesh.
The failure to place weight on documents is not a denial of natural justice per se, provided that the Tribunal had a basis for making this factual finding. Whilst the Minister submits that the Tribunal did not in fact put no weight on the documents but chose to give greater weight to the view that it had formed of the credibility of the Applicant’s own evidence, it is fair to say that the Tribunal placed very little weight at all on those documents.
However, the Tribunal set out in some detail the reasons why it placed very little weight on the documents. The fact that forged or fraudulently obtained documents are readily available in Bangladesh was only one of the reasons that the Tribunal gave. The Applicant in fact conceded that this was possible but denied that he had obtained forged or fraudulent documents.[14]
[14] Court Book 135 at [117]
The Tribunal took an adverse view of the fact that the Applicant had produced documents that were not true in support of his application for a tourist visa.[15]
[15] Ibid
It was open to the Tribunal, for the reasons it gave, to put greater weight on the adverse view it took of the Applicant’s credibility than on the letters he produced to corroboration of his claims.
The Applicant’s second ground of review has not been made out.
The Applicant’s third ground of review claims that the Tribunal took into account irrelevant considerations when assessing his credibility, being:
a)from whom the Applicant received assistance in preparing his application; and
b)why the newspaper reports that he provided were identical with those supplied by other applicants.
The thrust of the Applicant’s submission is that the Tribunal relied on these issues, and no others, to assess his credibility.
It is true that the Tribunal found that one of the reasons why it made an adverse finding about the Applicant’s credibility was that he had not told the truth about the assistance he received in preparing his application.[16]
[16] Court Book 132 at [105]
However, the Tribunal set out a number of reasons why it did not regard the Applicant as a witness of truth, at paragraphs [105] to [117] of the decision. It was for all of those reasons, cumulatively, that the Tribunal rejected the Applicant’s claims.
Credibility is a matter for the Tribunal and I am not satisfied that the Tribunal took any irrelevant matters into account when forming its view about the Applicant’s credibility. The Applicant’s third ground of review has not been made out.
The Applicant has not demonstrated any jurisdictional error on the part of the Tribunal. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision. Consequently, there are no grounds for issuing the writs of certiorari, mandamus and prohibition that the Applicant seeks.
It follows that the Application, as amended, will be dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 20 September 2011
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