SZQUI v Minister for Immigration
[2012] FMCA 272
•2 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQUI v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 272 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether the Tribunal failed to consider two letters in support – whether the Refugee Review Tribunal’s findings were open to it in giving no weight to the applicant’s two letters of support – whether the Refugee Review Tribunal considered all the applicant’s claims – no jurisdictional error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 424A, 474 |
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1
Minister for Immigration and Citizenship v SZIAI (2009) ALR 429
| Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) |
| Applicant: | SZQUI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2434 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 2 April 2012 |
| Date of Last Submission: | 2 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 2 April 2012 |
REPRESENTATION
The applicant appeared in person with the assistance of a Bengali interpreter
| Appearing for the Respondents: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The proceeding before this Court, commenced by way of application filed on 26 October 2011 and amended application filed on 19 December 2011, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $6,240
NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2434 of 2011
| SZQUI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This application is made pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision made by Refugee Review Tribunal (“the Tribunal”) on 30 September 2011.
Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims to protection, an outline of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.
Background
The applicant is a citizen of Bangladesh who arrived in Australia on 5 September 2010 on a visitor visa issued on 18 August 2010 and valid until 4 October 2010. The applicant departed legally from Bangladesh on a passport issued in his own name.
On 1 October 2010, the applicant, lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) pursuant to the Act. Supporting documentation was provided with the application.
On 2 February 2011, the Delegate refused the applicant’s request for a protection visa.
On 25 February 2011, the applicant lodged an application for review by the Tribunal of the Delegate’s decision.
On 30 September 2011, the Tribunal affirmed the decision of the Delegate to not grant the protection visa.
On 26 October 2011, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
The applicant’s application for a protection visa
In his protection visa application, the applicant claimed to have been employed as a press and publication officer of the Bureau of Human Rights Bangladesh (“BHRB”) from January 2004 to September 2010.
The applicant claims that there is a “serious threat” to his life from the “Jamaat-ul-Mujahideen Bangladesh” (“JMB”) as a result of publishing a book on 23 November 2005 entitled “Autobiography of an Extremist”. He claimed that he had been “attacked physically” by the JMB after publication and leaflets and letters were sent to his home.
The applicant also claimed that he feared harm from “many illegal and legal extreme fundamentalist groups, parties and individuals acting on religious zeal especially JMB” if he were to return to Bangladesh.
The applicant claimed to have published a number of books upholding social justice and supporting pro-liberation activity. The applicant claimed that his reports were published in newspapers and his documents and contacts sent to the central intelligence authority “to help curb the extreme religious groups”.
The applicant claimed that he had been threatened over the telephone and received threatening letters and that state authorities cannot keep him safe.
The applicant claimed that there had been “… numerous attack[s] and death threats on [a] number of writers, poets and the activists of civil society.” He claimed that as a writer and publisher of works that uphold democratic social justice and pro-liberation activity, he is a target by the JMB because he has vocalised his opposition against the group’s extremist interest. Further the applicant claimed that the JMB held him responsible for recent government action against them because his work has been published in newspapers and used “… by the authorities to police extremist groups”.
The applicant further claimed that after the physical attacks he was sent leaflets at his residence, causing him to sell his residence and relocate with his family.
The Delegate’s decision
On 25 November 2010 the applicant was invited to attend an interview with the Delegate scheduled for 15 December 2010. A second interview was conducted with the applicant on 17 January 2011.
The Delegate accepted that the applicant was a writer and publisher but found no evidence of the applicant having an elevated public profile as a writer and publisher which may draw the attention of Islamic extremists. Further, the Delegate found the applicant’s claims of threats to be implausible.
The Delegate found the applicant’s conduct in returning to Bangladesh in July 2010 after a visit to Germany and after he claimed to have been warned by the JMB, to be, inter alia, inconsistent with his claimed fears.
On 2 February 2011, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.
The Tribunal’s review and decision
On 25 February 2011, the applicant applied for review by the Tribunal of the Delegate’s decision.
On 17 March 2011, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 28 April 2011 to give oral evidence and present arguments.
On 5 May 2011, the applicant attended the hearing before the Tribunal where he gave evidence in support of his claims.
The applicant provided further submissions and documents for the Tribunal’s consideration.
On 3 June 2011, the Tribunal wrote to the applicant, in accordance with s.424A of the Act, inviting him to comment or respond to certain information including the applicant’s employment at the BHRB, the Frankfurt Book Fair, the threats received from the Harkat Ul Jihad Bangladesh and the JMB, the applicant’s actions after returning from Germany, and his visa entry to Malaysia. The Tribunal highlighted that this information may be relevant to conclude that the applicant is not a reliable or credible witness and therefore cast doubt on all his evidence and find that Australia does not owe protection obligations towards him. The applicant was to submit his comments or response to the Tribunal by 29 June 2011.
On 29 June 2011, the Tribunal received a written response from the applicant, dated the same day, to its s.424A letter. Included with this response, were various documents including: a document, dated 4 November 2010 from Gary Thornell, Counsellor, from NSW Service for the Treatment and Rehabilitation of Torture and Trauma Services (STARTTS); and, a document dated 20 June 2011 and authored by Dr Mohammad Shahjahan, Secretary General, BHRB.
On 2 August 2011, the Tribunal wrote the applicant a second s.424A letter inviting him to comment or respond to certain information, including: the letter from Dr Mohammad Shahjahan, dated 20 June 2011; the applicant’s knowledge of the contact details of the BHRB; the applicant’s employment at the BHRB; the location of the applicant’s family in Bangladesh; and, the applicant’s travel to Germany between 30 June 2010 and 4 July 2010. The Tribunal’s letter stated that this information may be relevant because it may lead the Tribunal to conclude that the letter from Dr Shahjahan is not genuine and that the applicant had never been employed at the BHRB which may be part of the reasons why the Tribunal may affirm the decision under review.
On 25 August 2011 the applicant responded to the Tribunal’s second s.424A letter.
The Tribunal’s decision is accurately summarised in the first respondent’s solicitors written submissions as follows:
“6.1 The Tribunal accepted that the applicant was a national of Bangladesh and assessed his claims against Bangladesh as his country of nationality. The Tribunal also accepted that the applicant has published some books and other materials through his publishing company in Bangladesh. Beyond this, however, the Tribunal did not accept that the applicant had given a truthful account of his circumstances in Bangladesh and found him not to be a truthful witness (RD 210-11 [101]-[104]).
6.1 The Tribunal did not accept that the applicant was employed by the BHRB due to inconsistent evidence provided by the applicant regarding the dates he claimed to have been employed there, the address and contact details of the organisation and the applicant's knowledge of those details. The Tribunal considered the applicant's response to its s 424A letter regarding these issues, namely that the applicant suffered from poor memory, and a letter from STARTTS said to support that claim, but was not satisfied that this explained the inconsistencies (RD 211-2 [106]-[108]).
6.2 The Tribunal also considered a reference letter claimed to have been written by the General Secretary of the BHRB (reproduced at RD 180), but gave the letter no weight given the inconsistencies in the applicant's evidence as well as what it found to be inconsistencies between the General Secretary's letter and his signature and other details contained on the letter compared with other letters written by the General-Secretary. The Tribunal considered the applicant's request to contact the writer of the letter to confirm the letter's genuineness. The Tribunal decided it did not need to make further enquiries 'because there are a significant number of inconsistencies relating to the applicant's claimed employment which cast doubt on his evidence he was employed at the BHRB' (RD 212 [107], [109]).
6.3 The Tribunal found that the applicant's inconsistent and contradictory evidence relating to his claimed attendance at a book fair/symposium in Germany, threats made against him at that time and the sequence of events before and after this travel, cast doubt on his claims that his family received threats relating to him from an armed Islamic group while he was in Germany and that he was threatened and assaulted in 2005. It also cast doubt on his overall credibility as a witness of truth (RD 212-4 [110]-[115]).
6.4 The Tribunal found that the applicant's evidence regarding the timing of his decision to travel to Australia to be inconsistent and did not accept the applicant's explanations regarding his having previously obtained a visa to travel to Malaysia and found that this cast doubt on his claims (RD 214-5 [116]-[118]).
6.5 As a result of these findings, the Tribunal did not accept the applicant was a witness of truth or that any of the claimed incidents occurred. The Tribunal also considered the applicant's claims and a letter of support (reproduced at RD 129) that stated that the applicant had been a newspaper editor and writer for a Bangla newspaper published in Sydney and that his writings in a local Bangla newspaper had made him an enemy of Islamic organisations and forced him to leave Bangladesh. The Tribunal noted that the applicant had provided no independent evidence to support these claims and the Tribunal did not give the claims any weight, noting again that it did not accept the applicant is a witness of truth. The Tribunal then considered whether the applicant might be targeted as a member of a particular social group of writers targeted by armed Islamic groups but did not accept such a claim (RD 215-6 [119]-[120]).
7 The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution in Bangladesh and affirmed the decision under review.”
The proceeding before the Court
The applicant was unrepresented before this Court, although had the assistance of a Bengali interpreter.
On 23 November 2011, the applicant attended a directions hearing before me. I explained to the applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The applicant confirmed that he wished to continue with the application. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
At the commencement of the hearing, the applicant confirmed that he relied on the grounds contained in an amended application, filed on 19 December 2011, which are as follows:
“1. The Refugee Review Tribunal failed to put weight to the documents which were the vital documents in support of my claims.
Particulars:
A. The Tribunal failed to put weight to documents which were the vital documents in support of my claims. For example, Dr Shahjahan’s reference letter and Counsellor’s report from STARTTS. The Tribunal’s following comment indicted this perception that:
i) The Tribunal gives the reference letter, dated 20 June 2011, no weight.
ii) The Tribunal gives the reference letter, dated 4 November 2011, no weight.
2. The Refugee Review Tribunal made wrong assumption about my employment with the Bureau of Human Rights Bangladesh.
Particulars:
A. The Tribunal made wrong assumption about my employment with the Bureau of Human Rights Bangladesh. The Tribunal made a comment that:
i) The Tribunal does not accept the applicant has ever been employed by the Bureau of Human Rights Bangladesh where the Bureau provided reference letter for employment.
3. The Refugee Review Tribunal failed to consider my persecution under s.91R of the Migration Act.
Particulars:
A. The Tribunal failed to consider my persecution on the basis of my particular works as a Human rights activist and as a writer writer where this group could be considered as particular social group under the Convention. Further the Tribunal made comment that:
i) The Tribunal finds the applicant has never attracted the adverse attention………………”
[Errors in the original.]
Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally. The applicant made no relevant or meaningful submission in support of any of the grounds or in support of his application generally.
Ground 1
Ground 1 asserts that the Tribunal failed to “put weight” on a reference letter from Dr Shahjahan, dated 20 June 2011, confirming the applicant’s employment with the BHRB; and, a letter from a counsellor stating that the applicant has signs of post-traumatic stress and anxiety.
The applicant confirmed that his complaint in ground 1 was confined to those documents.
In its terms, ground 1 is no more than a disagreement with the Tribunal’s findings in respect of those documents and, as such, invites merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
As stated above, those documents were provided to the Tribunal by the applicant in response to the Tribunal’s s.424A letter, dated 3 June 2011.
The first document from Dr Shahjahan addressed the Tribunal’s concern as to whether the applicant was indeed working for the BHRB as claimed, having regard to the applicant’s failure to be able to identify the street name and other contact details of the BHRB. The Tribunal’s decision record makes clear that the Tribunal considered Dr Shahjahan’s letter. However, having regard to the unsatisfactory nature of the applicant’s evidence, determined to give Dr Shahjahan’s reference no weight. The Tribunal considered the applicant’s request that it contact Dr Shahjahan. However, having regard to the “significant number of inconsistencies” relating to the applicant’s claimed employment, casting doubt on the applicant’s claim to have been employed at the BHRB, the Tribunal declined the applicant’s request.
The Tribunal was not obliged to grant the applicant’s request. It is plain from the Tribunal’s decision record that it considered the request and exercised its discretion to refuse that request. In light of the Tribunal’s adverse credibility findings in respect of the applicant, it was both open to the Tribunal to refuse the applicant’s request and to give the reference letter no weight based on the evidence and material before it and for the reasons it gave.
The Tribunal’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
There was no transcript of the Tribunal hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 23 November 2011, the applicant was given an opportunity to file a transcript of the Tribunal hearing. The applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1). In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the Tribunal hearing.
Similarly, it was a matter for the Tribunal the weight that it gave the counsellor’s letter. The Tribunal’s decision record makes clear that it understood that the applicant was asserting that he was suffering from a poor memory as a consequence of threats from Islamic groups. However, the Tribunal was not satisfied that the counsellor’s letter satisfactorily explained the applicant’s inability to remember the contact details of an organisation for which he had claimed to work for a considerable period of time.
Again, the Tribunal’s decision to place no weight on the counsellor’s letter in support of the applicant’s claim for a poor memory as an explanation for the applicant’s inability to provide the contact details of his employer, was open to the Tribunal on the evidence and material before it and for the reasons it gave.
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 asserts that the Tribunal made a “wrong assumption” about the applicant’s employment with the BHRB.
On its face such a complaint is no more than a disagreement with the findings of the Tribunal, in particular, its decision to give no weight to Dr Shahjahan’s reference letter. Such a complaint invites merits review which, as stated above, this Court cannot entertain.
The Tribunal’s finding that the applicant was not employed by the BHRB as claimed was open to it on the evidence and material before it and for the reasons it gave.
In the circumstances, as referred to above, in relation to the Tribunal’s decision in the exercise of its discretion not to make any further telephone enquiry of Dr Shahjahan, no jurisdictional error is demonstrated for reasons similar to those referred to in Minister for Immigration and Citizenship v SZIAI (2009) ALR 429 at [26] per French CJ, Gummow, Hayne, Crennan and Bell JJ.
Accordingly, ground 2 is not made out.
Ground 3
Ground 3 appears to assert that the Tribunal failed to consider that the applicant may face persecution in Bangladesh by reason of being a member of a particular social group of human rights activists and writers.
However, the Tribunal comprehensively rejected the applicant’s claims of his employment and conduct in Bangladesh including rejecting the applicant’s claims to have ever received threats. In particular, the Tribunal did not accept that the applicant is “a progressive civil rights activist, human rights activist, NGO activist or holds any political or religious opinion considered hostile by armed Islamic groups, Muslims or any other group in Bangladesh”. The Tribunal found the applicant had never attracted adverse attention in Bangladesh as a writer or because of his publications and found that the applicant had never been forced to leave Bangladesh because of any threats as claimed.
As stated above, the fundamental reason for the Tribunal’s findings was its adverse credibility findings in respect of the applicant. As stated above, the Tribunal’s adverse credibility findings were open to it on the evidence and material before it and for the reasons it gave.
In the circumstances, it was open to the Tribunal to comprehensively reject the applicant’s claims. However, the Tribunal’s decision record makes clear that it considered the applicant’s claims to fear harm because he claimed to be a human rights activist and writer.
The Tribunal specifically considered whether there is a real chance that the applicant may face persecution in “for reasons of his political opinion, membership of a particular social group or any other Convention reason if her returned to Bangladesh, now or in the reasonably foreseeable future”.
Further, the Tribunal had regard to country information that some writers and publishers have been targeted by armed Islamic groups or Muslims because of the content of their writings. However, the Tribunal did not accept that the applicant had been such a writer or publisher. The Tribunal noted that the applicant had not submitted any independent evidence to support such claims.
Accordingly, ground 3 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 2 April 2012
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