SZQPV v Minister for Immigration
[2011] FMCA 1024
•9 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQPV v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 1024 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424A, 425, 427 |
| Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 SZQLJ v Minister for Immigration & Anor [2011] FMCA 932 |
| Applicant: | SZQPV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2020 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 9 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 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 $3,575.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2020 of 2011
| SZQPV |
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 4 August 2011. The Tribunal affirmed a 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 April 2005 as the holder of a student visa which was subsequently cancelled. He became an unlawful non-citizen. He applied for a protection visa in March 2011.
The applicant attended an interview with a delegate of the first respondent. His application was refused and he sought review by the Tribunal. The Tribunal invited the applicant to attend a hearing, which was postponed and rescheduled. The applicant attended the hearing. The Tribunal wrote to the applicant, pursuant to s.424A of the Migration Act 1958 (Cth) by letter dated 27 July 2011, inviting him to comment on or respond to certain information. The applicant provided a response to the Tribunal on 3 August 2011. The Tribunal, as indicated, affirmed the decision of the delegate. The applicant sought review by application filed in this court on 8 September 2011.
In its reasons for decision the Tribunal detailed the applicant’s claims as made in connection with his protection visa application. It set out at length the evidence given by the applicant at the Departmental interview and also at the Tribunal hearing. In the course of describing what occurred at the hearing, the Tribunal referred to issues which it had raised with the applicant. It also referred to the s.424A letter and the applicant’s response and to independent country information.
The Tribunal summarised the applicant’s claims as, in essence, claims that in 1999, he was approached by older students and became involved in the Islami Chhatra Shibir (the ICS) political organisation, which is the student arm or sister organisation of Jamaat-e-Islami (JI) in Bangladesh. He claimed that he became a “supporter and worker” for the ICS in 2000. He claimed that “[h]is political career started in 2001 when he became involved in the [national] election campaign”, during which time he received “some threats” from the Chhatra League (CL) the student arm of the Awami League, although he was not physically hurt.
The applicant claimed that on 17 September 2003, on the way home from a meeting, he and others were attacked by members of the CL, that he was beaten, knocked unconscious, and hospitalised.
He claimed that the next day he learned that one of the attackers had been killed and that the CL had gone to the police and reported the applicant and a number of others for the murder. He claimed that the police issued an arrest warrant for him and came to his house, but he was out. His father paid a bribe to the police and the applicant went into hiding for some two weeks. He claimed that the police did not continue the search for him due to his father bribing them. He claimed that he feared he would be arrested if he returned to Bangladesh because the Awami League was now in power. He claimed that the case against him and his friends had been “reactivated” and that three of his friends had been gaoled pending a trial.
In its findings and reasons the Tribunal did not accept that the applicant had been charged with murder or that there was a warrant for his arrest. The Tribunal gave a number of reasons for that finding. It expressed concern in relation to “the applicant’s extensive delay in applying for a protection visa”. It had regard to the fact that the incident he claimed led to the arrest warrant had occurred nearly eight years earlier (in 2003) and the fact that while the applicant claimed that he had become fearful since the BNP lost power, and perhaps even earlier, notwithstanding that the caretaker government assumed power in October 2006, he did not apply for protection until March 2011, nearly six years after he came to Australia.
The Tribunal addressed the applicant’s explanations for the delay, including his intention to seek permanent residence, but was of the view that if he had been fearful of returning to Bangladesh since at least October 2006, he would have applied for protection prior to March 2011, rather than staying in Australia on a temporary visa or, indeed, unlawfully.
The Tribunal considered the applicant’s claim that “he was scared to approach the Department for fear he would be given to the Federal police and then to the Bangladeshi authorities”, but had regard to the fact he was now asking for a protection visa which indicated that he understood that the Australian authorities would give protection to a person who met the Convention definition of “refugee”. It found there was nothing to prevent the applicant “from approaching the Department to make enquiries before his student visa expired”.
It found that it appeared “nonsensical” that he would rather allow his visa to expire in 2010 and prefer to remain in Australia as an unlawful non‑citizen (facing a greater risk of removal) than to make inquiries about being able to remain in Australia before his visa expired.
The Tribunal also addressed the applicant’s claim that the fact that he had never returned to Bangladesh was indicative of his fear of persecution. It did not accept this explanation, being of the view that if he owed money to relatives in Bangladesh, as he had told the Department, “this may well be why he ha[d] not returned”. It also had regard to the fact that the applicant had renewed his passport in 2009. It found that this indicated that he “may have been considering travelling”. The Tribunal found none of these explanations justified the extensive delay in lodging the protection visa application which caused it to find that the applicant did not have a fear of persecution in Bangladesh and brought into question his claim that he had experienced past persecution in Bangladesh.
In this respect, the Tribunal had regard to the inconsistent evidence the applicant had given about when the case against him had been “reactivated and when his 3 friends were arrested”. He had told the Department that the friends were arrested in 2007 during the reign of the caretaker government, but told the Tribunal that the friends were arrested in mid‑2010, at a time when the Awami League had come into power.
The Tribunal did not accept the applicant’s explanation that this was because of nervousness during the interview with the Department, or a simple mistake. It was of the view there was “a significant difference” between the accounts that he had given not only in relation to the date but in relation to the government in power at the time of the arrests.
The Tribunal accepted that “applicants may be nervous at [an] interview or when they appear before the Tribunal” and also that “detention may have [had] a negative impact on an applicant’s health”. However it did not accept that “nerves or stress” accounted “for why the applicant gave significantly different dates” to it and to the Department about the reactivation of the case and the arrests, which were “major components of his claims”. It was of the view that both the delegate and the Tribunal had asked the applicant a number of questions about when these events occurred and that he had “had more than one opportunity to give a considered response”.
In these circumstances, having regard to the inconsistent evidence and the delay in lodging the protection visa application, the Tribunal did not accept that there was a “case against the applicant and others resulting from a conflict in 2003 between the members of the JI, including the applicant, and the CL, which resulted in the death of a CL member”. The Tribunal was supported in this finding by the absence of any independent reports in the material before it about such a claimed incident in 2003 and the applicant’s failure to respond to the Tribunal’s written invitation in this issue. It observed that initially the applicant had provided a number of reports to the Department, but not about his particular case, and when this was discussed at the hearing he retreated from his previous evidence that there were newspaper reports about this issue and rather said that the newspaper reports he had read were more general and did not refer to his case in particular.
The Tribunal did not find the applicant to be a witness of credit. It was of the view that he had fabricated his claims of past persecution after he was located and detained by the Department.
The Tribunal considered the applicant’s explanation that “he did not disclose his fears about returning to Bangladesh at his first interview after his location because the interview was conducted by telephone while he was at [a p]olice station”. However it was of the view that “even if he was frightened to give many details to the Department by telephone in front of the police, [he] could have indicated, in broad terms, that he had political problems or that he was a member of the ICS, when he was asked about the reasons he could not return to his own country”. However instead he had said he owed some debts to relatives and that this was why he could not return home.
The Tribunal found that the applicant’s failure when interviewed in March 2011 to say he was afraid to return because of political activities also led it not to accept that he was a member of the ICS in Bangladesh or involved in a clash and murder as claimed in 2003, that there was a warrant for his arrest resulting from such an incident, or that the police or authorities had been looking for him.
The Tribunal did not accept the applicant’s claims that he was involved in campaigning for the ICS or BNP or threatened over the phone when he was involved in campaigning. It considered his evidence about the ICS and how it operated in Bangladesh, but was of the view that this information was “commonly available” and was “not satisfied that the applicant’s knowledge of the ICS was learned because he was a member of the organisation”.
The Tribunal found “no real chance that the applicant [would] be persecuted for his political opinion, due to anything that [had] occurred prior to his departure from Bangladesh”. As it had rejected his claim that he had any involvement with the ICS in Bangladesh and found that he had not engaged in any political activities in Bangladesh and that he would be of no adverse interest to the authorities, including the AL, the police and the RAB, either as a result of his past conduct or his future conduct, the Tribunal found no real chance that the applicant would be persecuted for reasons of political opinion or for any other Convention reason if he were to return to Bangladesh now or in the reasonably foreseeable future. It affirmed the decision of the delegate.
In his application for review the applicant relied on two grounds. The first is as follows:
I denied a fair opportunity to present my case to the RRT, because I was suffering from mental impairment when I was interviewed.
The second ground, which is associated, is that the Tribunal:
…denied my procedural fairness by not considering my mental health before making an adverse credibility. (sic)
This is obviously intended to be a reference to the Tribunal’s adverse credibility finding.
The applicant did not file written submissions or evidence in support of his application. In oral submissions today, he indicated that he sought a mental health report but that he had chosen not to put such report before the court on the advice of the lawyer who provided advice to him under the free advice scheme operated for applicants seeking review of decisions of the Refugee Review Tribunal.
He reiterated, however, that he was not in a satisfactory medical condition when interviewed by the delegate and at the Tribunal hearing and that he was not mentally well. However, there is no evidence to support such a claim and no transcript of the Tribunal hearing in evidence. The Tribunal account of what occurred in the Tribunal hearing is the only evidence before the court of what occurred in the Tribunal hearing.
As to the interview by the delegate, the decision of the delegate refers briefly to the claims that the applicant made at interview. The Tribunal’s account is much more lengthy. Again this is the only evidence before the court of what occurred.
The Tribunal set out in detail an account of both hearings, which did not make any reference to any claim by the applicant that he was experiencing difficulty during that hearing, although he did later claim to be stressed although he may appear to be calm in the Tribunal hearings and in his response to the s.424A letter claimed he was excessively stressed and nervous during the Departmental interview in explanation for the inconsistency in his evidence.
There was no suggestion, during the Tribunal hearing that the applicant’s condition was such that he was not able to avail himself of the opportunity to participate in the hearing as required under s.425 of the Migration Act.
The applicant’s response to the s.424A letter suggested that the inconsistencies in his evidence drawn to his attention were a result of his “being under extreme stress” as he had “been in detention for many months” added to the thought of the possibility of losing his life if returned to Bangladesh. He claimed that this was taking “a heavy toll on [his] physical and mental well being”.
The Tribunal took such claims into account in its findings and reasons. It accepted that applicants may be nervous and that detention may have a negative impact on their health, but did not accept that nerves or stress accounted for the significantly different dates, having regard to the opportunities afforded to the applicant to give a considered response and to the significance and extent of the inconsistencies.
Insofar as it is now asserted that the Tribunal did not consider the applicant’s mental health before making an adverse credibility finding, on the contrary, it is apparent from the Tribunal reasons for decision that insofar as such matters were raised with the Tribunal, the Tribunal had regard to them in its findings in relation to credibility and as to whether or not such matters provided an explanation for the inconsistencies in the applicant’s evidence. Its findings in this respect were open to it on the material before it for the reasons which it gave.\
More generally, insofar as the applicant contended that he was denied a fair opportunity to present his case to the Tribunal, this appears to raise a contention that he was not afforded a meaningful opportunity to appear as required under s.425 of the Act. The first respondent brought to the attention of the court a relatively recent decision of Driver FM in SZQLJ v Minister for Immigration & Anor [2011] FMCA 932 in which his Honour considered a similar contention in relation to the competency of an applicant at a Tribunal hearing. The circumstances were a little different, in that his Honour recorded that when the Tribunal conducted its initial hearing, it appeared that the applicant was quite emotional and that the hearing was adjourned and resumed a month later. However, as his Honour pointed out by reference to the authority of the Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 1000; [2004] HCA 32, the Tribunal is not subject to competency requirements of which it has to be convinced before an applicant can take part in or continue to take part in proceedings before the Tribunal.
In this case there is nothing to suggest that the applicant raised any concern in relation to his mental state at the time of the Tribunal hearing, other than as set out above or that his behaviour or demeanour raised such concerns. The Tribunal clearly understood that he was suggesting that his nerves and tension may have had a negative impact, but there is nothing to indicate that the Tribunal conducted the hearing in a manner which failed to allow the applicant the opportunity to participate in the hearing. It was, as part of its inquisitorial function, required to test the evidence presented even if that involved vigorous testing of the evidence (as noted in SZQLJ at [20]).
There is no evidence before the court in support of the applicant’s contention that he was not in an adequate mental state at the time of the Tribunal hearing. This is not a case in which it is open to the court to make any finding about the lack of fitness of the applicant to participate in the Tribunal hearing. The assertion that the applicant makes does not establish that that was the case.
Insofar as the applicant may be suggesting that either the Tribunal or the court ought to obtain a medical assessment, it has not been established that the Tribunal was under an obligation to make inquiries or to obtain a medical assessment of the applicant pursuant to s.427(1)(d) of the Migration Act. There is no evidence that the applicant raised with the Tribunal issues such as to require such investigation (see Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1, SGLB and the remarks in SZQLJ at [31]). Nor is there any such obligation on the court, insofar as that may be intended to be suggested. There is nothing to indicate that the applicant’s mental state is such that any issue of the appointment of a litigation guardian arises.
In all the circumstances, on the evidence before the court the applicant has not established jurisdictional error on either basis contended for in the application. As no jurisdictional error has been established the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that an unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 20 December 2011
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