SZQPX v Minister for Immigration and Citizenship

[2012] FCA 983

FEDERAL COURT OF AUSTRALIA

SZQPX v Minister for Immigration and Citizenship [2012] FCA 983

Citation:		SZQPX v Minister for Immigration and Citizenship [2012] FCA 983
Appeal from:		SZQPX v Minister for Immigration and Citizenship & Anor [2012] FMCA 129
Parties:		SZQPX v MINISTER FOR IMMIGRATION AND CITIZENSHIP
File number:		NSD 426 of 2012
Judge:		COWDROY J
Date of judgment:		7 September 2012
Catchwords:		MIGRATION – appellant seeks protection visa on the basis of political activities in country of origin – appellant submits letter from political party in support of his claim – whether Refugee Review Tribunal obliged to contact author of letter to verify the letter – Tribunal not obliged to make any further enquiries – appeal dismissed
Legislation:		Convention relating to the status of Refugees 1951 Migration Act 1958 (Cth) ss 36(2)(a), 91R Protocol relating to the status of Refugees 1967
Cases cited:		Chan v Minister for Immigration (1989) 169 CLR 379 Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 Minister for Immigration v SZJSS (2010) 243 CLR 164 SZLPN v Minister for Immigration and Citizenship [2010] FCA 202 SZQPX v Minister for Immigration and Citizenship & Anor [2012] FMCA 129 University of Wollongong v Metwally (No 2) (1985) 60 ALR 68
Date of hearing:	30 July 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	37
Solicitor for the Appellant:	The Appellant appeared in person.
Solicitor for the First Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 426 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZQPX Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	7 SEPTEMBER 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the costs of the Respondent.

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 426 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZQPX Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	COWDROY J
DATE:	7 SEPTEMBER 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from the decision of Driver FM delivered in the Federal Magistrates Court of Australia on 28 February 2012: SZQPX v Minister for Immigration and Citizenship & Anor [2012] FMCA 129. Such decision dismissed an application for prerogative writs in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) delivered on 12 August 2011. The Tribunal found that the appellant was not a person to whom Australia owed protection obligations under the Convention relating to the status of Refugees 1951 and the Protocol relating to the status of Refugees 1967 and accordingly that the appellant did not satisfy the necessary criteria contained in s 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’) for a Protection (Class XA) visa.

   BACKGROUND

2. The appellant is a citizen of Bangladesh who arrived in Australia on 25 October 2010 holding a Subclass 309 (Partner) visa. As stated in the appellant’s application for a protection visa (‘the visa’) the appellant obtained a partner visa so that he could live with his wife.

3. In support of his application for the visa the appellant claimed that he would be persecuted or killed by the Bangladeshi Army (‘the Army’); or by the Director General of Forces Intelligence (‘DGFI’), which is the primary military intelligence agency of Bangladesh; or by Islamic fundamentalists because of his Chakma ethnicity, Buddhist religion and his membership of a political party, namely the Parbatya Chatiagram Jana Samhati Samiti (‘PCJSS’).

4. The appellant was born on 21 April 1980. His statement in support of his visa application claimed that after the defeat of the Pakistani Army in the Bangladesh Liberation War in 1971, his father moved the family to a village at Puchgang to avoid persecution at the hands of the Pakistani Forces in Rangamati. The appellant claimed that after the Pakistani Army was defeated, freedom fighters attacked his parent’s village and tried to kill his grandparents, uncles, aunts and cousins and that his mother and father fled. The appellant claimed that one of his uncles was killed in such attack.

5. The appellant claimed that following his birth in 1980 his father was tortured; that in 1985 his father and elder brother were stopped by the Army and were beaten and tortured; that in 1986 attacks took place by the Army against the Chakma people and that such attacks continued on various occasions in 2001. The appellant states that he resided in the Thakumbari Refugee Camp before 1990 and that the PCJSS worked to improve the conditions of the refugees at the camps. However, in 1990 the appellant, with his family except for his eldest brother, returned to Puchgang.

6. The appellant claimed that he studied at Rangamati College in 1996 and became actively involved with the PCJSS. In 1997 the PCJSS signed a peace treaty with the Bangladeshi government. However the appellant stated that in 1998, when he was proposing to distribute PCJSS newsletters, he was arrested and tortured by the Army for PCJSS connections. He stated that he became a part time student of the College of Leather Technology in Dakar (‘the College’) in January 1999 but took an active role in PCJSS activities; that he was detained in 1999; and that the Army continued its attacks in 2001 and 2003.

7. The appellant graduated from the College in 2006 and obtained a job as a casual sales person in a design and printing firm. The appellant remarked that due to his involvement in the PCJSS he often travelled between Dakar and the Chittagong Hill Tracts.

8. The appellant claimed that further attacks took place in February 2010 by Muslim settlers backed by the Army and that houses were burnt. Further, on 22 June 2010 the DGFI raided the house in which he was sleeping with the object of seizing the appellant. However, he escaped and lived in fear thereafter.

9. The appellant stated that in 2008 his relatives arranged a marriage with a Chakma woman who was an Australian resident and that such marriage occurred on 28 April 2008 when his wife was studying and living in Australia. The appellant applied for the Australian partner visa in October 2009.

10. The appellant stated that he was granted a visa on 6 July 2010 even though the relationship with his wife had deteriorated and states that he was more concerned to flee from Bangladesh than to reunite with his wife and that there is no place which is safe for him in Bangladesh.

11. On 18 March 2011 the Minister for Immigration and Citizenship’s delegate (‘the Minister’) found that the appellant did not meet the criteria to qualify him for the award of a protection visa. By Application for Review made on 21 April 2011 the appellant applied to the Tribunal for a review of the decision.

    TRIBUNAL’S FINDINGS

12. In its findings and reasons the Tribunal expressed ‘its extensive concerns’ regarding the credibility of the appellant’s claims and found that the appellant’s evidence was lacking in the type of detail and commentary that would reflect direct personal experience. Further the Tribunal found the fact that the appellant’s delayed application for a spouse visa and the fact of his delayed departure from Bangladesh after the grant of his visa was inconsistent with his claim of persecution. The Tribunal referred to numerous anomalies in the appellant’s evidence.

13. The Tribunal concluded that the appellant had never held any position as a political organiser and found that the appellant did not have any political or similar interests that would motivate him to become an activist if he retuned to Bangladesh nor that he would have to refrain from any activities only for the reason of avoiding persecution. The Tribunal accepted that the appellant may have experienced some discrimination as a member of a minority in Bangladesh but found that this discrimination did not amount to persecution and that there was no real chance of such persecution occurring in the reasonably foreseeable future. Accordingly, the Tribunal affirmed the Minister’s decision.

    APPLICATION TO FEDERAL MAGISTRATES COURT

14. By application filed on 9 September 2011 the appellant sought prerogative relief and raised four grounds of alleged error. The appellant claimed that the Tribunal should have contacted the president of the PCJSS, who was purportedly the author of a letter written in support of the appellant’s application for the visa (‘the letter’), which the appellant provided to the Tribunal.

15. Driver FM found that the Tribunal made substantial adverse credibility findings against the appellant in relation to his political claims and that the Tribunal was not obliged to make further inquiries in respect of the letter. The Federal Magistrate rejected the first ground.

16. The appellant secondly claimed that insufficient weight was given to the findings of discrimination made by the Tribunal. However the Federal Magistrate found that the Tribunal gave consideration to its finding that there had been discrimination against the appellant, but because of the Tribunal’s disbelief of the appellant’s principal contentions, the discrimination as found did not give rise to a well-founded fear of persecution. The Federal Magistrate rejected such claim.

17. Thirdly the appellant claimed that the Tribunal failed to consider the claims that the DGFI had targeted the appellant. The Federal Magistrate found that the Tribunal had considered such evidence but had rejected it and that there was no error in the Tribunal’s approach.

18. Fourthly, the appellant claimed that the Tribunal failed to consider the 1998 arrest of the appellant. However the Federal Magistrate found that such claim was based upon a false factual premise since the Tribunal found that the arrest did not occur. Accordingly the Federal Magistrate found that the Tribunal’s decision was free of jurisdictional error and dismissed the application.

    APPEAL TO THIS COURT

19. By Notice of Appeal filed on 16 March 2012 the appellant seeks writs of certiorari, mandamus and prohibition. The appellant relies upon three grounds of appeal which the Court will consider hereunder.

20. Shortly before the hearing the appellant provided written submissions in support of his Notice of Appeal. The appellant also attended the hearing unrepresented but assisted by an interpreter. The appellant was invited to make oral submissions but responded that he did not wish to add to the written submissions. The first respondent was also content to rely upon the written submissions provided by it.

    Ground 1: Failure to investigate letter

21. The appellant submits that the Tribunal erred by not requiring the author of the letter to give evidence or information to the Tribunal. The appellant submits that the Tribunal ‘assured the appellant that the contents of the letter will be accounted’ but that the Tribunal ‘without any investigations or telephone call assessed the letter negatively’ and thereby the Tribunal fell into jurisdictional error because it failed to consider an integer of the appellant’s claim. It is alleged that the Federal Magistrate failed to take such matter into account in his decision.

22. The appellant submits that the Minister failed to discharge his duty to ‘find out the applicant involvement in politics’. It was alleged that it was a ‘moral obligation and fundamental duties of the Second Respondent’ (i.e. the Tribunal) and that the second respondent failed to telephone the author of the letter and made an ‘unrealistic decision’.

23. It is also submitted that the Minister failed to pay ‘proper, genuine and realistic consideration’ to the appellant’s claims and jurisdictional error resulted. The Tribunal essentially found that the Minister was not satisfied that the appellant had ‘strong, personal religious convictions’ based on the Buddhist faith or that he was an active member of the PCJSS. The appellant submitted that these conclusions were illogical.

24. The letter was produced by the appellant to the Department of Immigration and Citizenship on 17 February 2011. The Federal Magistrate observed that the letter was apparently written in the form of a general reference and was purportedly signed by the President of the PCJSS. His Honour observed that the letter provided no corroboration of the appellant’s past allegedly resulting from his alleged political involvement.

25. His Honour observed that the Tribunal had discussed the letter with the appellant and raised the possibility of taking oral evidence from its author. His Honour continued at [23]:

    At the end of the hearing, the Tribunal raised the possibility of telephoning the author. The applicant doubted that the timing of a telephone call then would be convenient for the gentleman. The Tribunal decided not to call the author of the letter but told the applicant that it would take into account the contents of the letter.

26. His Honour noted that the Tribunal referred to the letter in its decision and observed that it could have confirmed the appellant’s political affiliation by telephone. His Honour found that the timing of the hearing before the Tribunal and the time in Bangladesh would not have made it inconvenient for a telephone call to be received. His Honour stated that the inference could be drawn that the appellant’s concern that such telephone call would be inconvenient for the recipient might indicate reluctance on the appellant’s part to have the contents of the letter tested and that the information received from the letter’s author would cause the Tribunal to doubt the letter’s authenticity.

27. At the Tribunal hearing the appellant relied upon email correspondence which he claimed had passed between his wife and himself. The Tribunal found that such email evidence was fabricated. Further, the appellant acknowledged that a police clearance certificate produced by him had been fabricated. In view of the lack of credibility of the appellant the Tribunal expressed the opinion that it did not accept ‘at face value the contents’ of the letter. The Federal Magistrate found that the Tribunal was justified in treating the letter accordingly.

28. In Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 an applicant sought a protection visa in Australia, claiming that in Bangladesh he was a member of Ahmadiyya, an Islamic sect, and had suffered persecution from Sunni Muslims as a result of his religious beliefs. The applicant provided a certificate from a Bangladeshi Ahmadiyya organisation which purported to confirm that the applicant was a member of the sect. The Tribunal made inquiries with an Australian Ahmadiyya organisation, which in turn made inquiries in Bangladesh. The organisation informed the Tribunal that the respondent was not a member and the certificate was a forgery. The Tribunal provided the applicant an opportunity to comment on this information. The applicant appealed on the basis that the Tribunal should have made further inquiries into the veracity of the certificate by calling a telephone number printed on the certificate.

29. The High Court by majority rejected such proposition, stating at [25]-[26]:

    [25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

30. The same considerations apply in the present circumstances. The Tribunal offered to telephone the writer of the letter and the appellant did not support such enquiry. The appellant is not able to resile from the course which he asked the Tribunal to adopt, namely to refrain from contacting the author of the letter: see University of Wollongong v Metwally (No 2) (1985) 60 ALR 68 at 71. Accordingly the Court rejects the first ground of appeal.

    Ground 2: Discrimination

31. The Tribunal found that the appellant ‘may have experienced some discrimination as a member of a minority in Bangladesh’ but found that such adverse conduct did not constitute persecution.

32. The appellant submits that since the Tribunal found that there was discrimination against the appellant but that it did not rise to a well-founded fear of persecution, such finding was ‘defective’ and the Federal Magistrate erred ‘in considering this issue’. In his written submissions the appellant submits that he faced serious discrimination ‘which will amount to be persecution’. Further, as a member of ‘Tribal Chakma the appellant was subject to discrimination by the mainstream Muslim community’.

33. His Honour considered this claim and observed that, as the High Court held in Chan v Minister for Immigration (1989) 169 CLR 379 at 429, not every form of discrimination constituted persecution. His Honour’s observation is entirely correct. For adverse conduct to amount to persecution it must meet the criteria in s 91R(1) of the Act, which states:

    (1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

    (a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

    (b)the persecution involves serious harm to the person; and

    (c)the persecution involves systematic and discriminatory conduct.

1. The Tribunal found that the kind of conduct which the appellant may have experienced did not satisfy s 91R(1). As observed by the Federal Magistrate, the Tribunal found that the discrimination that the appellant faced did not give rise to a well-founded fear of persecution. Such finding is a finding of fact which cannot be reviewed in this Court: see Minister for Immigration v SZJSS (2010) 243 CLR 164 at [33]. The Court rejects the second ground of appeal.

   Ground 3: Failure to consider social and religious discrimination

2. The appellant submits that his Honour erred in failing to find that the Tribunal committed jurisdictional error in not having regard to the appellant’s social and religious discrimination. In his written submissions the appellant maintains that he was photographed while participating in demonstrations and that his ‘ceaseless activities’ made him a target of persecution.

3. The Federal Magistrate referred to the discrimination that the Tribunal considered as detailed in the second ground set out above. His Honour found that there had already been consideration provided to the appellant’s claims of discrimination but that the discrimination as found by the Tribunal failed to constitute ‘persecution’ as defined in the Act. There is no jurisdictional error in the Federal Magistrate’s finding. The appellant’s submissions amount to a request for the Court to engage in impermissible merits review: see SZLPN v Minister for Immigration and Citizenship [2010] FCA 202 at [11] and the authorities quoted within that paragraph.

4. It follows that the appeal must be dismissed with costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:       7 September 2012