SZQJE v Minister for Immigration and Citizenship
[2011] FCA 1311
•14 November 2011
FEDERAL COURT OF AUSTRALIA
SZQJE v Minister for Immigration and Citizenship [2011] FCA 1311
Citation: SZQJE v Minister for Immigration and Citizenship [2011] FCA 1311 Appeal from: SZQJE v Minister for Immigration & Anor [2011] FMCA 728 Parties: SZQJE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1700 of 2011 Judge: BENNETT J Date of judgment: 14 November 2011 Legislation: Migration Act 1958 (Cth) s 91R Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 applied
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 appliedDate of hearing: 14 November 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 15 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr A Wood of Clayton Utz Counsel for the Second Respondent: The Second Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1700 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQJE
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BENNETT J
DATE OF ORDER:
14 NOVEMBER 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.Leave be granted for the first respondent to file in Court the affidavit of Adam Wood affirmed 11 November 2011.
3.The appellant is to pay the first respondent’s costs fixed in the sum of $2,850.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1700 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQJE
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BENNETT J
DATE:
14 NOVEMBER 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a citizen of Bangladesh. He claims to fear persecution from the Awami League in that country by reason of his membership of and activities in the Bangladesh Nationalist Party or BNP. The appellant arrived in Australia in September 2010. He lodged an application for a protection visa, which was refused by a delegate of the first respondent (the delegate). He applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The Tribunal upheld the decision of the delegate. The appellant filed an application in the Federal Magistrates Court and the Federal Magistrate concluded that the Tribunal decision was not affected by jurisdictional error.
As the Federal Magistrate observed, the Tribunal stated that it did not regard the appellant as a witness of truth and did not accept his claims. The Tribunal put to the appellant that there were several reasons why it had concluded that the claims he made in support of his application were not true. The Tribunal did not accept that there was a real chance that the appellant would be persecuted for reasons of his political opinion if he returned to Bangladesh.
The notice of appeal in respect of the Federal Magistrate’s decision raises the same grounds as those in the application before the Federal Magistrate. Those grounds for asserting jurisdictional error by the Tribunal are:
1.The [Tribunal] failed to consider my fear of persecution under s 91R of the Migration Act that I actively involve with the Australian BNP and a leader of the Australian BNP certified my involvement with the BNP. The Tribunal did not asked me any material question that how I would have been adversely affected by the Bangladesh authority for my BNP involvement in Australia if I return to Bangladesh.
2.The [Tribunal] failed to uphold my natural justice in respect of my supporting documents by indication that forged or fraudulent documents were radily [sic] available in Bangladesh.
3.The [Tribunal] took into account irrelevant considerations in respect of my overall credibility that from whom I received assistance and why the newspaper reports were identical with the others applicants.
It is convenient to deal with the appellant’s first and second grounds together.
The Federal Magistrate observed that the appellant had not made a specific claim that he would suffer persecution in Bangladesh as a result of his activities in Australia. All that he had put to the Tribunal as the source of his claim of political involvement with the Australian BNP was a letter of reference from the ex-president of the BNP in Australia (the letter). The letter confirmed that the appellant had been an organising secretary within the BNP in Bangladesh, that the appellant had told him of threats for that reason and that the appellant had been attending meetings of the BNP in Australia. The letter did not, nor did the appellant, claim that he would face harm if he returned to Bangladesh because of his activities in Australia.
The Tribunal is not required to consider a claim not made nor one which cannot be said to arise clearly from the material before it (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1). The letter was considered by the Tribunal, which noted that the letter was in identical terms to that received from a person in Bangladesh. The Tribunal put to the appellant the fact that both letters made the same claim in identical terms, that they had a common source and that they were not genuine. The Tribunal did not accept the authenticity of the contents of the documents which concerned the appellant’s asserted activities in the BNP in Australia and in Bangladesh. The Tribunal did not accept the appellant’s claimed activity in Bangladesh.
The Federal Magistrate found that the adverse credibility finding was open to the Tribunal, as was its finding that the documents were not authentic. His Honour stated that a credibility finding was a matter for the Tribunal and that he could not entertain impermissible merits review.
In his written submissions the appellant complains that the Tribunal ‘put no weights to the documents’ from Bangladesh on which he had relied. He says that the Tribunal failed to take into consideration that there was a chance of him being persecuted by the Awami League because it is presently in power in Bangladesh. He also submits that the Tribunal concluded that his supporting documents were not genuine just because he came from Bangladesh, where fraudulent documents were readily available and that the Tribunal made no separate inquiry about the documents’ authenticity.
This characterisation by the appellant of the Tribunal’s reasoning is not correct. As the Federal Magistrate noted that:
·While it is fair to say that the Tribunal placed very little weight on those documents, the Tribunal set out in some detail the reasons why it placed very little weight on them.
·The fact that forged or fraudulently obtained documents are readily available in Bangladesh was only one of the reasons the Tribunal gave.
His Honour stated at [47] to [48] that the Tribunal took an adverse view of the fact that the appellant had produced documents that were not true in support of his application for a tourist visa. His Honour concluded that it was open to the Tribunal for the reasons it gave to put greater weight on the adverse view it took of the appellant’s credibility than on the documents he produced in corroboration of his claims.
The Tribunal provided reasons why it placed little weight on the appellant’s documents. The Tribunal had regard to independent country information which indicated that documents confirming membership of political parties were readily available in Bangladesh and would be issued even if the information was incorrect. However, this was only one of a number of factors which contributed to the Tribunal’s decision. I see no error on the part of the Federal Magistrate in his conclusion that there was no jurisdictional error on the part of the Tribunal in its consideration of the documentary evidence advanced by the appellant. That is, there is no error in the second ground.
I see no error in respect of the assertion that the Tribunal failed properly to consider
s 91R of the Migration Act 1958 (Cth). The Tribunal considered the claim in respect of the appellant’s activities in Australia, which was confined to and evidenced by the letter.
As to the third ground, the appellant submits that the Tribunal took into account irrelevant considerations, in particular by asking questions about the person from whom he received assistance to prepare his application and in asking why the newspaper reports that he submitted were identical to those submitted by other applicants. As the Federal Magistrate observed, these matters did form a reason for the Tribunal’s adverse credibility finding but there were a number of reasons given by the Tribunal for its finding that the appellant was not a witness of truth. It was for all of those reasons cumulatively that the Tribunal rejected the appellant’s claims. The nature and manner of the preparation of the appellant’s visa application was, in my view, capable of being relevant to the issue of his credibility. It was open to the Tribunal to have regard to such evidence.
The appellant has not demonstrated error by the Federal Magistrate or jurisdictional error by the Tribunal in his grounds of appeal. It follows that the appeal should be dismissed with costs.
The first respondent has filed in Court an affidavit setting out the basis for his claim for costs in the fixed sum of $2,850. I am satisfied that that represents the amount that the first respondent would recover upon taxation. I order the appellant to pay the first respondent’s costs in the sum of $2,850.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate:
Dated: 16 November 2011
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