SZQOC v Minister for Immigration
[2012] FMCA 69
•8 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQOC v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 69 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant disbelieved in certain respects – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.430 |
| Minister for Immigration v SGLB 92004) 207 ALR 12 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 ReMinister for Immigration; ex parte Duraiajasingham (2000) 168 ALR 407 |
| Applicant: | SZQOC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1832 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 8 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2012 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr O Jones Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $4,080.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1832 of 2011
| SZQOC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 July 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and had made claims of political persecution. The following statement of background facts relating to the applicant’s protection claims and the decision of the Tribunal on them is derived from the Minister’s written submissions filed on 3 February 2012.
The applicant is a citizen of Bangladesh who arrived in Australia on 13 November 2010.[1]
[1] Court Book [CB] at 13.
On 24 December 2010, the applicant applied for a protection (Class XA) visa (protection visa application).[2]
[2] CB at 1 to 28.
On 11 February 2011, the applicant attended an interview before a delegate of the Minister.[3] On 4 March 2011, a delegate of the Minister determined that the applicant was not someone to whom Australia has protection obligations and refused the protection visa application accordingly (Delegate's decision).[4]
[3] CB at 42.
[4] CB at 41 to 49.
On 28 March 2011, the Tribunal received the applicant's application for merits review of the Delegate's decision.[5]
[5] CB at 52 to 53.
On 2 May 2011, the Tribunal invited the applicant to appear before it to give evidence and present arguments.[6] On 2 June 2011, the applicant attended the hearing to which he had been invited.[7]
[6] CB at 55 to 56.
[7] CB at 76 [23].
On 22 July 2011, the Tribunal affirmed the delegate's decision.[8]
[8] CB at 71 to 100.
Applicant's claims
The applicant claimed to fear serious harm amounting to persecution in Bangladesh by reason of his political opinion. He claimed the risk of harm was the result of his prior involvement with the Bangladesh Nationalist Party (BNP), and in particular with the labourer wing of the party called Bangladesh Jatiotabadi Sromik Dall (BJSD).
The applicant claimed that:
a)he was involved in the BJSD campaign for the December 2008 election (which resulted in the Awami League, the opposing party to the BNP, coming into power);
b)that these activities raised the ire of a Mr Mutalib (a leader of the Shramik League, the Awami League's equivalent to the BJSD), who ordered the applicant to be killed;
c)that he was threatened with false criminal charges in the lead up to the election and again when he briefly returned to Bangladesh in October and November 2010 from Dubai to visit his sick mother;
d)that, whilst it was somewhat safe for him to return in late 2010, if he returns to Bangladesh now or in the future there is a real risk the Awami League will have him harmed or killed.
Tribunal's findings
Based on his knowledge of the BNP, the Tribunal accepted that the applicant could have been a BNP supporter or member, and quite possibly was a member of the BJSD wing as claimed.[9]
[9] CB at 92 [132].
However, the Tribunal was concerned by several key inconsistencies in the applicant's evidence[10] which led it to conclude that the applicant had not been completely truthful. It did not accept that:
a)the applicant was a treasurer for the BJSD;
b)before the 2008 election he was assaulted by Awami League supporters;
c)Mr Mutalib threatened him and sought to have him killed;
d)in April 2009 he left for work in Dubai in order to escape the Awami League;
e)he was falsely accused of criminal charges in October 2010; and
f)if he returns to Bangladesh there is a high risk that he will be harmed and killed by the Awami League or the police operating under their influence.[11]
[10] CB at 92-97.
[11] CB at 97 [170].
The Tribunal noted that even if the criminal charges were genuine, there was nothing before it to suggest that the enforcement of this general law would be applied to the applicant in a discriminatory or disproportionate manner.[12]
[12] CB at 98, [171].
When asked by the applicant to investigate and verify the authenticity of the criminal charges sheet and letter from the BJSD he submitted , the Tribunal refused to take such action because:
a)first, it was prepared to accept that the documents were genuine; and
b)secondly, it did not consider that further inquiries would reasonably assist in determining whether the applicant's claims were truthful on the basis that:
i)any further information from the writer of the BJSD letter would not be able to explain the inconsistency between the letter and the applicant's evidence;[13]
ii)it did not consider that the Sylhet police force would admit to the Tribunal that they recorded false charges (if they in fact did). Rather, the Tribunal considered that the police would not likely attest to anything more than that the charges were genuine.[14]
[13] CB at 98, [177]-[178].
[14] CB at 99, [179].
In light of its findings, the Tribunal was not satisfied that the applicant faced a real chance of serious harm, either now or in the reasonably foreseeable future, in relation to any political activities performed in the past in Bangladesh. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention and affirmed the decision under review accordingly.
These proceedings began with a show cause application filed on 19 August 2011. There are five grounds in the application:
1. The Refugee Review Tribunal (the Tribunal) made a procedural mistake that the Tribunal rejected the claim on the basis of that when the applicant’s passport was issued. The Tribunal wrongly made it an issue and rejected the applicant’s claim.
Particulars
(i) From the applicant’s passport, its date of issue was July 2008. The Tribunal considers it inconsistent and implausible that he should seek a passport prior to his claims of serious harm arising, which was not until early 2009 and after the election, without a plausible explanation.
(ii) The Tribunal suggested to him that most people would have a reason for apply for passport.
(iii) The Tribunal stated it found difficult to believe that a person would apply for a passport for no particular reason.
(iv) While the applicant said a person sometimes needs a passport in Bangladesh, he did not give any details or examples of why he needed a passport at that time. This seems an improvised to an inconsistency in the applicant’s claim. (paragraph-150-152 page 24 of the Tribunal decision).
2. The Tribunal made a jurisdictional error that the Tribunal rejected the applicant’s claim on the basis of the inconsistencies and implausibility. The Tribunal did not accept that the applicant was a Treasure[r] or Finance Secretary or any type of leader of the BJSD. That the applicant was assaulted by the Awami League (AL) or he was threatened by the AL. The Tribunal did not want to take into account that the applicant was threaten to harm and kill, he had fear for his life from AL. The Tribunal did not accept that the applicant was falsely implicated in criminal case and the case was politically motivated. If the applicant returns to Bangladesh he will face any fear for harm or killing. (Paragraph 170-page 27 of the Tribunal decision).
3. The Tribunal made a procedural mistake that the Tribunal did not make a very right decision. The Tribunal rejected the applicant’s claim. The Tribunal did not make any investigation to verify his claim and evidences. The Tribunal’s decision is not clear according to its reason given in paragraph 177 page 28 of its decision.
4. The Tribunal made a procedural mistake that the Tribunal mentioned in paragraph 182 page 29 of its decision that, [g]iven the Tribunal’s concern as to his credibility in regards what happened in Bangladesh, and specially its findings that was not the Treasure, and held no other office in the BJSD, or BNP, and that he does not hold such office while he remains here in Australia, and given the lack of any other evidence to support that these phone calls actually occurred, the Tribunal is not satisfied that the applicant called the BJSD party President as claimed.
5. The Tribunal made a jurisdictional error that the Tribunal rejected the applicant’s claim on the basis of wrong findings, because the decision made by the Tribunal is very unclear in some paragraphs and the decision was not made according to the section 430 of the Migration Act 1958.
I received as evidence an affidavit by the applicant, which accompanied his application, and the court book filed on 14 October 2011. I also received as an exhibit the originals of three documents appearing at CB [32]-[34].
Only the Minister prepared written submissions in these proceedings. In his oral submissions, the applicant repeatedly emphasised that he wants his claims further investigated. He stressed that his claims are genuine and that he is dissatisfied with the consideration of them by the Tribunal. I explained to the applicant the limited jurisdiction of the Court and the discretion conferred on the Minister to substitute a more favourable decision for that of the Tribunal.
The applicant’s first claim is the Tribunal erred in rejecting the applicant’s claims on the basis of the timing of the applicant’s application for a Bangladesh passport. The applicant’s first ground asserts that a procedural mistake was made by the Tribunal in rejecting his claim based upon when his passport was issued. The Tribunal dealt with that issue at [149]-[152] of its reasons[15]. The Tribunal’s reasoning appears to have been that the applicant’s asserted fear of harm followed his application for a passport, and the act of seeking a passport prior to experiencing any serious harm negatively affected his credibility. The logic of that analysis may be contestable.
[15] CB 94.
It appears probable that the applicant obtained a passport simply for the purpose of working overseas in Dubai. That action does not, of itself, exclude the possibility that he experienced harm, including in his absence when he was in Dubai. However, mere illogicality in reasoning is not the same thing as jurisdictional error.
I also take into account that the Tribunal made extensive adverse credibility findings against the applicant, which led to factual conclusions by the Tribunal at [170] of its reasons[16]. The applicant characterises the rejection of his claims “on the basis” of when the applicant's passport was issued. However, the Tribunal's findings concerning the date of issue of the applicant's passport was one factor in the Tribunal's decision, rather than the “basis” of the decision.
[16] CB 97.
The Tribunal considered that the applicant seeking a passport prior to 2009 was inconsistent with the time he claimed his fear of persecution to have arisen (namely early 2009). While other decision makers may have taken a different approach in relation to the question of the timing of the applicant obtaining a passport, that finding of inconsistency was open on the material and the Tribunal was entitled to make this finding as the arbiter of fact “par excellence”: ReMinister for Immigration; ex parte Duraiajasingham[17].
[17] (2000) 168 ALR 407 and 423
The second ground attacks the Tribunal’s other findings of inconsistency and implausibility. That assertion, together with ground 3, struggles to rise above a dispute over the merits of the Tribunal decision. Those grounds should be read together with ground 4.
To the extent that ground 3 complains that the Tribunal failed to investigate or verify the applicant's claims and evidence, the Tribunal was under no general obligation to do so: Minister for Immigration v SGLB[18]; Minister for Immigration v VSAF of 2003[19]. Whilst Minister for Immigration and Citizenship v SZIAI[20] provides authority for there being in limited circumstances a duty of inquiry on the Tribunal, those limited circumstances do not arise in these proceedings. In respect of the contention that the Tribunal failed to investigate the authenticity of the applicant's documents, the Tribunal was willing to accept those documents were genuine. The relevant finding of the Tribunal was that those documents were inconsistent with claims made by the applicant. As such, any failure to investigate the authenticity of the documents is immaterial to the Tribunal's finding in this respect.
[18] (2004) 207 ALR 12 at [43].
[19] [2005] FCAFC 73 at [20].
[20] (2009) 259 ALR 429.
Ground 4 attacks the Tribunal’s reasoning at [182][21]. The applicant’s contention appears to be that it was either not open to the Tribunal to make adverse credibility findings having accepted his documentary evidence or that the Tribunal should have made further inquiries. Three documents in particular were in issue. The originals of those documents are exhibit A1. The first is simply a reference from a former employer of the applicant. The applicant’s employment history was not in doubt before the Tribunal. The second document is a charge sheet detailing the criminal charge laid against the applicant. The Tribunal accepted that this was a genuine document. The Tribunal was also prepared to accept that the charge referred to in the document had been laid against the applicant.
[21] CB 99.
The Tribunal was not willing to accept that the charge laid was a false charge which was set up because of the applicant’s political activities. The Tribunal reasoned that there was no point in further investigating the charge document because, if there had been false charges, it was most unlikely that those responsible for making or recording the charges would admit to the falsity. The other document is a reference from the General Secretary (Mr Rahman) of the BJSD. The Tribunal was prepared to accept that this was a genuine document, however, the Tribunal found that Mr Rahman had exaggerated somewhat the applicant’s political role in order to assist him with his protection claims.
In my view, the conclusions reached by the Tribunal on these documents were open to it, as was the Tribunal’s reasoning in consequence of its view of the documents. There is no illogicality in this aspect of the Tribunal’s reasoning.
The final ground in the application is an assertion of jurisdictional error in relation to the asserted lack of clarity in the Tribunal’s reasoning. The Tribunal’s obligation under s.430 of the Migration Act 1958 (Cth) is to provide the reasons that the Tribunal thinks are relevant to its decision. I reject the contention that the Tribunal fell into jurisdictional error in relation to s.430. Even if a breach of that section could amount to a jurisdictional error, there was, in my view, no lack of clarity in the Tribunal’s reasons.
The Tribunal published its written reasons in accordance with s.430 of the Migration Act. To the extent that the ground complains about “wrong findings”, this is nothing more than an attempt to disturb the factual findings of the Tribunal, a complaint which this Court has no jurisdiction to entertain.
I conclude that the applicant has failed to establish any jurisdictional error by the Tribunal. It follows that the Tribunal’s decision is a privative clause decision, and the application must be dismissed. I so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $4,080. I accept that costs not less than that amount have been reasonably and properly incurred on behalf of the Minister on a party and party basis. The applicant expressed some doubt about his capacity to pay, however, impecuniosity is not a reason for the Court to refrain from making a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,080.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 13 February 2012
4
1