SZQUQ v Minister for Immigration and Citizenship

[2012] FCA 1381

FEDERAL COURT OF AUSTRALIA

SZQUQ v Minister for Immigration and Citizenship [2012] FCA 1381

Citation:		SZQUQ v Minister for Immigration and Citizenship [2012] FCA 1381
Appeal from:		SZQUQ v Minister for Immigration and Citizenship and Anor [2012] FMCA 672
Parties:		SZQUQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1080 of 2012
Judge:		COWDROY J
Date of judgment:		7 December 2012
Legislation:		Migration Act1958 (Cth)
Cases cited:		Minister for Immigration and Citizenshipv SZJSS (2010) 243 CLR 164 Periannan Murugasuv Minister for Immigration and Ethnic Affairs (1987) 217 ALR 17 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 SZQOE v Minister for Immigration and Citizenship [2012] FCA 618 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Date of hearing:	14 November 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	33
Solicitor for the Appellant:	The Appellant appeared in person.
Solicitor for the First Respondent:	Clayton Utz Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1080 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQUQ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

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

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the costs of the First Respondent in the amount of $2,311.

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 1080 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQUQ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

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

REASONS FOR JUDGMENT

1. By Notice of Appeal dated 1 August 2012 the appellant appeals the decision of the Federal Magistrates Court: see SZQUQ v Minister for Immigration and Citizenship and Anor [2012] FMCA 672. In that decision, Barnes FM dismissed the appellant’s application to review a decision of the Refugee Review Tribunal (‘the Tribunal’), which affirmed the decision of the Department of Immigration and Citizenship’s (‘the Department’) to not grant the appellant a protection visa.

2. The appellant is a Bangladeshi national who arrived in Australia on 16 September 2010. The appellant had previously spent periods of time in Malaysia, Singapore and Japan. On 28 September 2010 the appellant applied for a protection visa.

3. The appellant claimed to have been involved in the Lalbagh Thana Jatiyabadi Dal, which is a political organisation affiliated with the Bangladeshi National Party (‘BNP’), the current primary opposition party in Bangladesh, and to fear political persecution if he were to return to Bangladesh.

4. The appellant claimed to have worked with the BNP on various political campaigns since 1991; to have been elected secretary of the Lalbagh Thana BNP in 1997; and became involved with senior leaders of the party. The appellant alleged that on a number of occasions there were attempts on his life. The appellant claimed to have been beaten by police during a general strike on 28 February 2000 and as a result was admitted to hospital, where he remained for a week. In 2005 the appellant claimed to have been elected as the executive member of the Dhaka Mahanagar BNP. During the election campaign in 2006 the appellant claimed to be targeted by supporters of the Awami League, the current governing political party in Bangladesh. The appellant asserted that after the 2008 election, Awami League cadres ransacked a shop and beat his brother severely, and that during this period the appellant was forced into hiding.

5. The appellant also provided more generalised information relating to the political situation in Bangladesh which purported to support his case.

   THE DEPARTMENT’S DECISION

6. The Department found that the appellant was very vague in describing the harms which he claimed to have suffered. The Department found that the harms which the appellant described were not the result of the appellant being specifically targeted, but instead were caused because of the surrounding civil unrest, similar to the situation in Periannan Murugasuv Minister for Immigration and Ethnic Affairs (1987) 217 ALR 17 at 23.

7. The appellant also maintained that such attacks were perpetrated by a variety of people, including the police, army, government officials and Awami League supporters. In the oral interview with the Department, the appellant stated that he had been admitted twice to hospital for about a week as a result of injuries he sustained, but his written application stated that he had only been admitted once.

8. The Department found that generally the appellant was not forthcoming in providing factual information and presented inconsistent responses throughout the interview. The vagueness of the appellant’s claims and the omission of major incidents such as the second period of hospitalisation, as well as internal inconsistencies surrounding the appellant’s claims to have been in hiding led the Department to find that the appellant did not have a genuine fear of persecution. Accordingly the Department rejected the appellant’s application for a protection visa.

   PROCEEDINGS BEFORE THE TRIBUNAL

9. On 9 March 2011 the appellant filed an Application for Review with the Tribunal. In support of his application for review, the appellant provided to the Tribunal a letter from the Lalbagh Thana BNP Convenor MD Azizdullah. That letter stated that the appellant had made an enormous contribution to the party and that he was the joint secretary of the Lalbagh Thana BNP. The letter stated that the appellant was at risk of persecution if he returned to Bangladesh.

10. On 30 March 2011 the Tribunal requested employees of the Department of Foreign Affairs and Trade (‘DFAT’) to confirm the letter’s veracity with the Lalbagh Thana BNP. On 29 April 2011 DFAT replied that its officers had spoken with Mr Azizullah, who stated that he did not know the appellant and that the Lalbagh Thana BNP had never had a joint secretary with the appellant’s name. Mr Azizullah inspected the letter and stated that his signature had been forged and a reference number which is given to all correspondence from the BNP office was not attached.

11. On 17 May 2011 the appellant attended the Tribunal. At the Tribunal the appellant elaborated on the claims made to the Department. The appellant stated that from either 2006 or 2007 until 2010 he worked at his father’s flour and wheat business in Bangladesh. The appellant stated that the letter from the BNP was genuine and had been obtained by his uncle. The appellant claimed that Mr Azizullah knew the appellant from his political work and that the appellant was in fact the joint secretary of the BNP. However, when the Tribunal put the information from DFAT to the appellant, the appellant stated that his uncle was entirely responsible for procuring the letter and the appellant could not say whether it was genuine.

12. Before the Tribunal the appellant provided a further letter, dated 10 May 2011 from a law firm in Bangladesh known as Law Associates. That letter stated that a politically motivated complaint had been filed against the appellant for an offence related to explosive substances and that an arrest warrant had been obtained and the police were currently searching for him.

13. The Tribunal found that the appellant’s testimony was internally inconsistent, inconsistent with country information and so implausible that it was most likely a fabrication. The Tribunal found that the appellant was never a member of the BNP and found the appellant to not be a witness of truth. The Tribunal found the letter from the BNP to be fraudulent. The Tribunal found that the appellant’s employment in his father’s wheat and flour shop was inconsistent with his claim that during the same period he was in hiding.

14. With respect to the letter from Law Associates, the Tribunal found that the appellant’s credibility had been so weakened by his inconsistent statements and the presentation of fraudulent information that it could not be satisfied with the corroborating evidence in the letter and accordingly gave the letter no weight.

15. The Tribunal affirmed the decision under review.

    APPEAL TO THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

16. On 28 October 2011 the appellant filed a Notice of Appeal in the Federal Magistrates Court appealing the Tribunal’s decision. The appellant filed an original application, but then subsequently filed an amended application and the Federal Magistrate considered the grounds in both documents. In the original application, the appellant claimed firstly that the Tribunal had failed to exercise its jurisdiction under the Migration Act1958 (Cth) (‘the Act’); secondly that the Tribunal did not give any weight to the relevant facts and documents; thirdly that the Tribunal had failed to observe the requirements of natural justice.

17. In the appellant’s amended application the following grounds of appeal were relied upon, namely that the Tribunal had failed to consider the appellant’s overall credibility at the time of assessment of his protection visa application; that the Tribunal failed to consider the political situation in Bangladesh; and subsequently failed to consider the appellant’s fear of political persecution.

18. The final ground of appeal was contained in the appellant’s written submissions before the Federal Magistrate. It contended that the Tribunal had ‘blamed’ him for submitting the falsified letter from the BNP in support of his application. The appellant denied responsibility for obtaining such letter.

19. The matter was heard by Barnes FM on 18 July 2012 and judgment was delivered the same day.

20. With respect to the grounds of appeal in the appellant’s original application, her Honour observed that they were not particularised. Her Honour found that the Tribunal had carried out the review required under the Act and rejected the appellant’s first ground of appeal.

21. With respect to the second ground, her Honour observed that the Tribunal was entitled to determine for itself the weight to be given to particular items of evidence: see Minister for Immigration and Citizenshipv SZJSS (2010) 243 CLR 164 (‘SZJSS’). Furthermore, the Tribunal was not required to refer to every piece of evidence submitted by an applicant in support of an application: see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630. Her Honour found that there was nothing to suggest that the Tribunal had failed to consider an integer of the appellant’s claims and consequently rejected the second ground of appeal.

22. As for the final ground of appeal in the original application, her Honour found that the Tribunal had complied with s 424AA of the Act in putting its concerns about the evidence to the appellant. There was nothing to suggest that the Tribunal had failed to comply with its obligations under the Act. Her Honour rejected that ground of appeal.

23. Her Honour then considered each of the grounds of appeal in the appellant’s amended application. With respect to the first ground, her Honour found that the Tribunal’s conclusion as to the weight that should be given to the letter from Law Associates was open to it, consistent with the decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1. Her Honour found that the Tribunal did have regard to both the DFAT report and the Law Associates letter and it was for the Tribunal to decide the weight to be given to the Law Associates letter. The first ground of appeal was rejected.

24. Her Honour interpreted the second ground of appeal in the amended application as a suggestion that in the Tribunal’s reasons it should have considered the political situation in Bangladesh and the potential for the situation to become more unstable and violent. However, her Honour found that as the Tribunal had rejected the appellant’s claims of involvement in political activities, there was no obligation on the Tribunal to consider what the position would be if it did accept the appellant’s claims. This ground of appeal was also rejected.

25. Her Honour dismissed the appellant’s application with costs.

    APPEAL TO THIS COURT

26. On 1 August 2012 the appellant filed a Notice of Appeal to this Court. The grounds of appeal contained within the Notice are identical to those in the amended notice of appeal filed in the Federal Magistrates Court.

27. On 2 November 2012 the appellant filed written submissions. The submissions raise two grounds. First, the Tribunal failed to consider whether there was a real chance that the appellant would suffer persecution upon his return to Bangladesh. Second, the Tribunal failed to consider the appellant’s application as a whole before making findings as to the appellant’s credibility and particularly failed to take into account the letter from Law Associates. The submissions argue that the Federal Magistrate ‘failed to raise these issues in its decision’. The appellant’s submissions largely repeat the issues which were agitated before the Federal Magistrate.

28. On 7 November 2012 the first respondent filed written submissions. Essentially, the written submissions state that the appellant’s appeal should be dismissed for the reasons given by Barnes FM.

29. On 14 November 2012 the appellant appeared at the hearing before this Court. The appellant was offered the opportunity to make any oral submissions he wished in support of his application, but he declined to do so. The first respondent indicated that it was also content to rely on its written submissions as well. The first respondent provided an affidavit sworn by Mark Clive Wiese on 14 November 2012, which was relied upon in support of a fixed costs order in the amount of $2,311.

    CONSIDERATION

30. The Court has considered the decision of the learned Federal Magistrate. The Court rejects the appellant’s first ground of appeal. The Tribunal clearly considered the appellant’s overall credibility as part of the assessment of his application. Evidence of such consideration is found throughout the Tribunal’s reasons, for example at [90] where the Tribunal states:

    The Tribunal finds that the applicant is not credible in regard to his evidence of his involvement with the BNP in the manner he claims and questions why the applicant would need to submit a false document if he was or had been a member, executive member and/or joint secretary of the BNP Lalbagh Thana. It finds he has had ample opportunity to provide a genuine letter. These matters combined with the current head of the Lalbagh Thana [BNP] having no knowledge of the applicant or his role in the party leads the Tribunal to find that he was not involved with the BNP as executive member of the Lalbagh Thana BNP or Joint Secretary of the Lalbagh Thana [BNP]. It also expects that if he was as senior as he claims assisting the BNP in its re-election in the 2001 and 2008 election in the Lalbagh Thana area he would be known by the Convenor of the local area of the BNP. It finds him not to be a witness of truth as to his involvement in the BNP in the manner he claims.

31. The first ground of appeal amounts to the appellant expressing disagreement with the Tribunal’s conclusions on his credibility: see cf. SZQOE v Minister for Immigration and Citizenship [2012] FCA 618 at [16]. It does not state why those conclusions involve an error of law. The conclusion as to the appellant’s credibility was clearly open to the Tribunal and was based on the evidence before it and the learned Federal Magistrate was correct in so finding. This ground of appeal is dismissed.

32. As to the second ground of appeal, SZJSS makes it clear that the weight to be given to particular pieces of evidence is a matter for the Tribunal. The appellant merely seeks to cavil with the very low weight the Tribunal gave to the letter from Law Associates. The fact remains that the appellant had produced falsified documents to the Tribunal. This unchallenged fact fundamentally undermined both the appellant’s credibility and the appellant’s basis for a claim to a protection visa. The Tribunal was clearly justified in finding that the letter from Law Associates (even if genuine) was insufficient to restore the appellant’s credibility and support the appellant’s claim and the learned Federal Magistrate was correct to reject this ground of appeal.

33. For the above reasons, the appeal must be dismissed. The appellant will be ordered to pay the first respondent’s costs on a fixed basis in the amount claimed, namely $2,311.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:       7 December 2012