SZQUQ v Minister for Immigration & Anor
[2012] FMCA 672
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQUQ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 672 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424AA, 424A, 425, 477 |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 SZNZI v Minister for Immigration & Anor [2010] FMCA 57 |
| Applicant: | SZQUQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2452 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 18 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 18 July 2012 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The time for making the application provided for by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 28 October 2011.
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2452 of 2011
| SZQUQ |
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 7 June 2011. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant sought review of the Tribunal decision by application filed on 28 October 2011. Under s. 477(1) of the Migration Act 1958 (Cth), such an application must be made to the Court within 35 days of the date of the Tribunal decision. In this case, that did not occur. The application was not made until some three months later. Under s.477(2) of the Act, the Court may by order extend that 35 day period as it considers appropriate if an application for that order has been made in writing specifying why the applicant considers it necessary in the interests of the administration of justice to make the order and the court is satisfied that it is necessary in the interests of the administration of justice to make the order. The application form provides an opportunity for the applicant to provide written reasons in relation to the extension of time.
In his original application, the applicant sought an extension of time on the following grounds:
(1) I did not lodge the application in time because I did not have any money to pay application fees.
(2) Now I am working and able to pay the application fees.
(3) I request the Honourable Registrar to accept my application and forgive me.
These grounds are not elaborated on in the accompanying affidavit and there is no reference to the issue of extension of time in the amended application.
Nonetheless, the applicant has made an application for an extension of time in writing and he has specified why he considers it necessary in the interests of the administration of justice to grant the extension of time. I gave him the opportunity today to address the Court in relation to this issue. He had nothing further to say. He sought to rely on his written submissions. These address the grounds in the amended application, but do not otherwise address the issue of the application for an extension of time.
The Court must consider whether it is necessary in the interests of the administration of justice to extend the time for making the application. The application for an extension of time was listed for hearing at the same time as the final hearing. The parties have had the opportunity to address all of the grounds on which the applicant seeks to rely as would occur in the context of a final hearing.
Of particular relevance where an extension of time is sought are issues such as the extent and nature of any delay and any explanation provided by the applicant in that respect and also whether there is any merit in the substantive application (SZNZI v Minister for Immigration & Anor [2010] FMCA 57 and SZQLG v Minister for Immigration and Citizenship & Anor [2011] FMCA 791, and also the discussion in SZNZU v Minister for Immigration & Anor [2010] FMCA 197).
The extent of the delay in this instance was some three months after the time limit expired. This must be balanced against the reasons for the delay and must be seen in the context of all the other circumstances, including the merits of the substantive application. It is also relevant (see Karmaker v Minister for Immigration [2011] FMCA 595) to have regard to whether there is any prejudice to the respondent, the impact on the applicant, the interests of the public at large and the Court’s discretion itself.
There is no suggestion from the respondent that there is any prejudice in relation to the application for an extension of time. That must be particularly so in circumstances where the case has been fully argued. This is not a case in which the respondent would be put to the burden and cost of additional litigation if the extension of time were to be granted.
The explanation provided by the applicant is not as comprehensive as it should be, having regard to the extent of the delay. However, consistent with the principle that the longer the unexplained the delay, the stronger the argument on the merits would have to be to grant an extension of time, there may be circumstances where it is preferable in the interests of the administration of justice to grant an extension of time where there is a relatively short delay for which there is some explanation and then to dismiss the application on its merits rather than simply dismissing it on the basis of refusing the extension of time. In that context it is relevant to have regard to the absence of any possibility of appeal to the Federal Court if the extension of time is refused.
In this case the applicant has not only filed an application, he has filed an amended application and supporting written submissions. The issues raised by the applicant cannot be said to be such that they are not arguable at all. However, for reasons which follow, I am not satisfied that a jurisdictional error has been established. I am nonetheless of the view that it is appropriate in this case, in the interests of the administration of justice, that an extension of time should be granted and the application determined on its merits. I would not necessarily take this approach in all cases, but in this case I intend to extend the period for seeking judicial review of the Tribunal decision as I am satisfied that it is necessary in the interests of the administration of justice to do so.
However, as indicated, it has not been established on any of the bases contended for by the applicant that there is a jurisdictional error. The applicant filed an amended application and written submissions addressing grounds in the amended application. In oral submissions, he indicated that he also wished to rely on the grounds in his application, although he had nothing further to say beyond what was contained in his written submissions.
The written submissions for the first respondent have quite properly addressed all of the grounds in both the application and the amended application and I have considered all of those grounds. I note that the affidavit filed by the applicant on 28 October 2011 reiterated the contentions in the original application and did not raise additional grounds. Hence it is appropriate to have regard to the background to this case and to the Tribunal decision in light of the three grounds in the original application and the two grounds in the amended application.
The background to these proceedings is that the applicant, a citizen of Bangladesh, arrived in Australia in September 2010. He applied for a protection visa on 28 October 2010. He attended an interview with the delegate. The delegate refused his application. The applicant sought review by the Tribunal. Relevantly, having regard to the grounds he relied on in support of his protection visa application, the applicant had provided the Department with a copy of a letter said to have come from the Bangladesh National Party (the BNP), Lalbagh Thana Branch, Lalbagh, Dhaka, under the name of a Mr Azizullah, the Convenor of that entity, certifying that the applicant had been known to him for many years, that he had made an enormous contribution to the BNP, that he was joint secretary of the Lalbagh Thana BNP and that if he returned to Bangladesh “he [would] be persecuted”.
While the matter was before the Tribunal, the Tribunal asked the Department of Foreign Affairs and Trade in Bangladesh to ask the BNP in Dhaka to verify whether the letter was genuine. Refugee Review Tribunal country advice dated 29 April 2011 was to the effect that it had approached DFAT on this question and that DFAT had advised on 28 April 2011 that the letter was false. The country advice set out the request to DFAT and its advice that on 26 April 2011, the post in Bangladesh had contacted Mr Azizullah, the Convenor of Lalbagh Thana BNP, by telephone to seek verification of the letter allegedly provided to the applicant on 1 February 2011 and that Mr Azizullah “did not recognize any person” with the name of the applicant from the address set out in the letter. Mr Azizullah “expressed [an] interest in inspecting the letter”. The post met with Mr Azizullah and showed him the letter. Mr Azizullah said that the Lalbagh Thana BNP office “did not have any Joint Secretary” with the applicant’s name. He confirmed the letter was false and that the signature on it was forged. He also advised that the office kept copies of reference letters provided by the Convenor but that they were “unable to locate” any copies of this letter. The advice also recorded that the letter did not have the reference number which should be on all correspondence from the Lalbagh Thana BNP office.
It is also relevant to note that the applicant provided to the Tribunal a copy of a letter dated 10 May 2011 on letterhead headed “Law Associates” signed and stamped with the name of an advocate advising that a specified political case had been started against the applicant and that a warrant of arrest had been issued.
In its decision the Tribunal set out at length the applicant’s claims made at various stages in connection with his application for a protection visa. In effect, the applicant claimed to fear persecution in Bangladesh based on his activities with, and support for, the political party the BNP. As the Tribunal summarised it, he claimed he “fear[ed] persecution in Bangladesh because of his involvement with the BNP”. He claimed he was involved as
an executive member of the Lalbagh Thana BNP from 1993 to 1997 and Joint Secretary from 1997 to 2005 and as an executive member of the Dhaka Mahangar in 2005.
He also claimed he was involved in election campaigns for local BNP candidates in 1991 and 1996 for Mir Showkat, and in 2001 and 2008 for Nasiruddin Pintu.
The applicant claimed that he worked with Mr Pintu from 1991 to 2009. He also claimed that
as a result of his high profile in the BNP, level of involvement and closeness to senior leaders, and participation in hartels with the BNP, he [had] been and [would] be specifically targeted by the Awami League on his return.
He claimed he had faced many difficulties from the Awami League and the caretaker government and that he had been injured and otherwise mistreated. He further claimed that he had to go into hiding in 2009 and 2010 and that a case had been lodged against him. He claimed to fear he would be arrested and “even killed” by the Awami League government if he returned to Bangladesh in the reasonably foreseeable future because of his past involvement with the BNP and its leaders.
However, the Tribunal found, for reasons which it gave, that the applicant was “not a witness of truth” and that he was not targeted in Bangladesh in the manner he claimed. It did not accept that he had suffered the harm that he claimed for the reasons he claimed, specifically because of any involvement or any activities with the BNP, associated organisations, involvement in strikes or rallies called by the BNP or because of work for or closeness to BNP leaders or candidates in elections or members of parliament. The Tribunal did not accept that the applicant left Bangladesh because of the harm he claimed or that he feared returning there because he feared persecution or harm.
In reaching these findings, the Tribunal stated generally that it found the applicant’s testimony internally inconsistent, inconsistent with independent country information and implausible amounting to “a fabrication” for the reasons which it gave. Such reasons are to be seen in light of the Tribunal’s lengthy summary of what occurred at the Tribunal hearing and the issues that it raised with the applicant.
The Tribunal’s concerns in relation to the applicant’s credibility, specifically as to his claim about involvement with the BNP, led it to not accept that he was ever a member of the BNP or associated organisations or involved with leaders as he claimed. It found him “not to be a witness of truth in this regard”. In particular, the Tribunal had regard to the letter the applicant had submitted which appeared to be on BNP letterhead and signed by Mohammad Azizullah, Convenor of the Lalbagh Thana BNP, certifying that he was joint secretary of the BNP, having regard to the advice from DFAT that the letter was not genuine. The Tribunal also considered the further advice that Mr Azizullah did not know anyone by the applicant’s name.
The Tribunal raised this issue with the applicant at the Tribunal hearing, consistent, as I consider further below, with the requirements of s.424AA of the Migration Act 1958 (Cth). It noted his claims in that respect. It read the letter to him. It put the relevance of that letter and its concerns about the genuineness of that letter to him. The applicant said he did not procure the letter, it was his uncle, and that he did not know whether it was genuine but that he was involved with the BNP and, if he returned, his life was at risk. He made such claims in the context of having claimed that Mr Azizullah knew him because of his profile and that although he was not around when he, the applicant, was joint secretary, Mr Azizullah knew him and had met him.
In its findings and reasons the Tribunal had regard to the applicant’s response about his uncle’s involvement in procuring the letter and his claim that he believed it to be genuine but that perhaps his uncle had created it, but was of the view that even if the applicant’s uncle had procured the bogus letter without the applicant’s knowledge, it was “still fraudulent and [did] not support his claims”. The Tribunal also found that since Mr Azizullah did not know the applicant, the applicant “should have known” that the letter was fraudulent. In that respect the Tribunal had regard to the advice from DFAT that Mr Azizullah had never heard of the applicant, in circumstances where the Tribunal would have expected that he would know the applicant if he had been in the party in the manner he claimed and had the involvement and the profile he claimed. The Tribunal found that the applicant was “not credible” in regard to his evidence of his involvement with the BNP. It questioned why he would need to submit a false document if he had, in fact, been a member, executive member, or joint secretary of the BNP Lalbagh Thana.
The Tribunal found the applicant had “ample opportunity” to provide a genuine letter. These matters, combined with the fact that the current Convenor of the Lalbagh Thana had no knowledge of the applicant or his role in the party, led the Tribunal to find that the applicant was not involved with the party in the positions he claimed, and that he was not involved in the senior manner he claimed in assisting the BNP in its re‑election in the 2001 and 2008 election in the Lalbagh Thana area.
The Tribunal also had regard to the fact that there was inconsistent evidence from the applicant in relation to his work with and knowledge of Mr Pintu”, in particular between his statement and at hearing as to his length of involvement with Mr Pintu. The Tribunal set out details of the inconsistency. While it acknowledged that there may be “some inconsistencies” in dates when recounting evidence from 10 to 15 years ago, it did not accept the significant inconsistency of some nine years in the length of the claimed involvement. It considered that if the applicant had worked for Mr Pintu as claimed he would have been consistent as to how long he had worked for and with him, particularly as he claimed that it was his association with Mr Pintu and other leaders of the BNP that had caused him to be “specifically targeted” by the Awami League. The Tribunal also had regard to the fact that, despite these claims about activities with and association with BNP leaders, the applicant lacked the knowledge of Mr Pintu he would be expected to have if he had been so involved. In reaching this conclusion the Tribunal referred to independent country information in relation to Mr Pintu’s activities in the BNP and Bangladesh, but observed that when the applicant had been asked about Mr Pintu’s role he had been vague. The Tribunal did not accept such vagueness and was of the view that, if the applicant had worked for Mr Pintu in the manner he claimed
he would know his background as a student leader and would know that he was President of the BNP student wing.
The Tribunal found the applicant did not work with Mr Pintu in the manner claimed and that he was “not a witness of truth in this regard”.
The Tribunal also had regard to the fact that the applicant had not had any involvement with BNP politics following his arrival in Australia either by becoming or trying to become involved in associated Australian BNP links or by continuing to keep in contact with BNP associates in Bangladesh. It did not accept as a satisfactory explanation that he had “read the newspapers” and found that if he had been involved in the manner claimed his involvement would not have ceased on arrival in Australia.
The Tribunal found, on the basis of these matters, that the applicant had never been involved with the BNP or its leaders in the manner claimed.
The Tribunal also considered the applicant’s claims that he went into hiding in 2009 after the Awami League came into power, and that until he left Bangladesh in 2010 he was either out of Dhaka, in a friend’s house in Dhaka, or secretly at home.
The Tribunal did not accept the applicant ever went into hiding for the reasons claimed. It had regard to his inconsistent evidence that he was working in his father’s shop during the same period. It did not accept his explanation that he did not go out at night and went to the shop for one or two hours a day as a reasonable explanation, having regard to his evidence that he was attending the shop for two to three hours a day continuously except for a few days and when he went overseas. The Tribunal found him “not to be a witness of truth in this regard”. It did not accept that he had gone into hiding as claimed for the reasons he claimed.
The Tribunal also had regard to the fact that the applicant travelled overseas from April 2010, but returned to Bangladesh in July 2010 before travelling to Australia in September 2010, having obtained a visa to travel to Australia while in Japan in June 2010. It found that his return to Bangladesh indicated that “he did not have a genuine fear of persecution” at the time of his return.
As the Tribunal found the applicant was not a member of the BNP or associated with the BNP as claimed and was not targeted as claimed, it found his reason for departure from Bangladesh in 2010 to avoid the Awami League to be “a fabrication”. In the absence of any other reason for his departure from Bangladesh, the Tribunal concluded the applicant “did not hold a genuine fear of persecution” at either of the times he left Bangladesh in 2010 for the reasons he claimed.
Out of completeness, the Tribunal also addressed the applicant’s claim that he had been arrested in 1990 when General Ershad was in power in Bangladesh. It did not accept that this occurred, because of the applicant’s lack of credibility but, in any event, found that the applicant had indicated he feared persecution at the hands of the Awami League and not from General Ershad’s regime.
The Tribunal reiterated that the applicant:
[was] not a credible witness and that he [had] fabricated evidence regarding his involvement with the BNP and its associated organisations and its leaders and the difficulties he faced and [would face] as a result.
It was not satisfied that he had had the offices he claimed to have had in the BNP, that he worked closely with members of parliament, candidates, and leaders, including named leaders such as Mr Pintu, or that he was involved in any strikes, rallies or actions opposing the Awami League on behalf of the BNP. It rejected his claim that he suffered harm at the hands of the Awami League, authorities or the caretaker government because of any political involvement with the BNP, including his claims about shots being fired at him, harassment, assault, torture, arrest, imprisonment, threats and charges laid against him for his political involvement.
The Tribunal did not accept that the applicant’s brother was harmed because of his political involvement. It did not accept that the applicant went into hiding in 2009 or left Bangladesh twice in 2010 for any reason associated with any involvement with the BNP or that he was targeted in the manner he claimed by the Awami League and the authorities. The Tribunal continued that it did not accept that the applicant would be targeted in the reasonably foreseeable future if he returned to Bangladesh for the reasons he claimed.
Under the heading “Letter From Law Associates” the Tribunal considered the document from Law Associates dated 10 May 2011 stating that there was a case against the applicant, that the police were searching for him and that if he returned he would be placed in jail. The Tribunal had regard to the fact that, for the reasons set out above, it did not accept that the applicant was a credible witness, or that he was involved in the BNP in the manner claimed, or that the events he described had led him to seek protection in Australia. It did not accept this letter as evidence that a false charge had been laid against the applicant of his involvement with the BNP.
In light of the Tribunal’s findings that the applicant “thoroughly lack[ed] credibility” and that he misled the Tribunal in relation to his claims to fear harm from the Awami League Government, the Tribunal found that:
[his] credibility [had] been so weakened that the well [had] been poisoned beyond redemption and it [could not] be satisfied with the corroborating evidence in the letter from Law Associates.
It gave no weight to that evidence.
The Tribunal concluded that it did not accept there was a real chance of the applicant being persecuted if he returned to Bangladesh. It was not satisfied that he had a well-founded fear of persecution within the meaning of the Refugees Convention.
It is convenient to consider first the grounds in the original application. The first ground is that the Tribunal failed to exercise its jurisdiction under the Migration Act. This generally expressed and unparticularised ground is not made out. Contrary to the applicant’s contention, it is clear that the Tribunal carried out the review required under the Migration Act.
The second ground is that the Tribunal made an error of law, being jurisdictional error, in that it did not put any weight to the relevant facts and documents. There is no elaboration as to precisely what facts and documents are referred to in this context. This ground is referred to in the same general and unparticularised terms in the supporting affidavit. As a matter of general principle, the weight to be given to particular items of evidence is a matter for the Tribunal (Minister for Immigration and Citizenship v SZJSS (2010) 85 ALJR 306; [2010] HCA 48 at [33]). It is for the Tribunal to determine whether it accepts particular evidence. It is also well-established that the Tribunal is not required to refer to every piece of evidence submitted by an applicant in its written reasons (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46]).
In this case there is nothing to suggest that the Tribunal failed to consider any integer of the applicant’s claims. The weight to be given to items of independent country information is a matter for the Tribunal.
Insofar as this claim is intended to relate to the supporting letters provided by the applicant, the Tribunal considered each of those supporting letters. As indicated, it found the letter said to be from the Convenor of the Lalbagh Thana BNP not to be authentic for reasons which it gave and gave no weight to the letter from Law Associates. Such findings were open to the Tribunal on the material before it for the reasons which it gave.
The Tribunal considered the applicant’s claims but rejected them, in essence, because it found that he was not a witness of truth. Credibility findings are a matter for the Tribunal as the decision-maker par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1).
Ground two may be seen as specifically taking issue with the finding that the Tribunal gave no weight to the letter from Law Associates. It is the case that the Tribunal did not make a positive finding that the Law Associates’ letter was fraudulent or not genuine. However, the Tribunal’s conclusion in relation to this letter was reached after the Tribunal had made an adverse credibility finding independently of the letter, based on the various concerns the Tribunal had with the applicant’s evidence referred to above.
In these circumstances, it was open to the Tribunal, consistent with the approach taken by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [49], to find that the applicant’s credibility had been “so weakened that the well had been poisoned beyond redemption” and, hence, to give no weight to the letter from Law Associates provided in attempted corroboration of his claims. No jurisdictional error has been established in this respect. Ground two is not made out.
Ground three is that the Tribunal failed to uphold the applicant’s natural justice. There is nothing in the material before the Court to suggest any failure by the Tribunal to comply with its obligations under Division 4 of Part 7 of the Migration Act 1958 (Cth) or that there has otherwise been a lack of procedural fairness or denial of natural justice. In that respect I note that the Tribunal, consistent with s.425 of the Act, invited the applicant to appear before it to give evidence and present arguments in relation to the issues arising in relation to the decision under review. It is apparent from the Tribunal’s account of the hearing (the only evidence of the hearing before the Court) that it raised issues of concern with the applicant throughout the hearing and gave him the opportunity to respond. It had regard to his explanations in its findings and reasons insofar as it was necessary to do so.
The written submissions and oral submissions for the Minister properly addressed the possible application of s.424A of the Migration Act under which the Tribunal is obliged to give to an applicant clear particulars of information that it considers would be the reason, or part of the reason, for affirming the decision under review. Under s.424A(2A), the Tribunal is not obliged to do so in accordance with the manner provided for in s.424A if it puts clear particulars to an applicant at the hearing and complies with the requirements of s.424AA.
In this case it is apparent from the Tribunal’s account of the Tribunal hearing that the Tribunal put certain information to the applicant under s.424AA of the Act, that it gave him particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review, and in that context raised a number of issues, in particular and relevantly, the advice from DFAT about the document he had submitted said to be from the Convenor of the Lalbagh Thana BNP, and also evidence given by the applicant in the Departmental interview.
The Tribunal also raised with the applicant its concerns about his lack of knowledge of Mr Pintu’s role in the BNP and the student wing of the BNP and his lack of knowledge about the area in which Mr Pintu was standing in the 2008 elections. Even if these were not matters that, strictly speaking, had to be put to the applicant under s.424A of the Act, the fact that the Tribunal raised additional issues with the applicant would not be such as to establish jurisdictional error.
Relevantly, it is clear that the Tribunal complied with s.424A by virtue of the method provided for in s.424AA of the Act by putting clear particulars of information within s.424A(1) of the Act to the applicant and, as far as reasonably practicable, ensuring he understood why it was relevant to the review and the consequences of it being relied on, as detailed in the Tribunal’s summary of the hearing. It orally invited him to comment and advised him he may seek additional time to comment or respond. The Tribunal recorded that the applicant chose to respond orally at the hearing. It recorded (and considered) his responses.
There is nothing in the material before the Court to suggest any concern about the Tribunal’s compliance with its obligations under the Migration Act. Beyond this, the generally expressed contention that the Tribunal failed to uphold the applicant’s natural justice is not made out. Insofar as this may be seen as seeking merits review, merits review is not available in this Court. The grounds in the original application, as summarised in the affidavit, are not made out.
The first ground in the amended application is that the Tribunal failed to consider the applicant’s overall credibility at the time of assessment of his protection visa application. The particulars to this ground repeat this claim and take issue with the fact that the Tribunal:
[found] that the applicant [was] not a credible witness and that he [had] fabricated evidence regarding his involvement with the BNP and its associated organizations and its leaders and the difficulties he faced and faces as a result … [and] failed to give no weight (sic) to the evidence of Law Associates in respect of a false case lodged against [the applicant].
Insofar as this can be seen as a contention that the Tribunal determined that the applicant had lied and rejected the credibility of his claims without weighing the alleged corroborative evidence in question at an earlier stage, and hence that the Tribunal’s decision was unreasonable or irrational, as indicated above, the approach taken by the Tribunal in relation to the letter from Law Associates was open to it, consistent with the principles enunciated by McHugh and Gummow JJ in Applicant S20/2002.
It is clear that the Tribunal had regard to the letter from Law Associates. Its reasoning shows that it balanced the evidentiary weight to be accorded to the letter with its conclusive rejection of the applicant’s credibility.
Insofar as the applicant may be seen as taking issue with the manner in which the Tribunal proceeded – that is, by making findings on credibility prior to assessing the weight to be given to the Law Associates letter – the Tribunal’s approach in this instance cannot be described as such as to constitute, or demonstrate, a jurisdictional error, however categorised by the applicant. As French J, as he then was, remarked in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at [34]:
… to complain of such an approach is perhaps to complain about want of logic or inferior modes of reasoning rather than to identify jurisdictional error.
This is not a case in which any asserted lack of logic is such as to establish that the Tribunal’s approach was so unreasonable that no reasonable decision‑maker could have taken it, or that it was irrational or unfair in a manner constituting or demonstrating jurisdictional error. The particular concerns expressed in ground one in the amended application in relation to the weight to be given to the evidence of the Law Associates letter do not establish jurisdictional error for the reasons considered here and also above.
The applicant contended that the Tribunal took into consideration the DFAT report but did not take into consideration the letter from Law Associates. However, it had regard to both documents. The weight to be given to items of particular evidence before the Tribunal is, as indicated, a matter for the Tribunal and no error is established in its approach.
Insofar as there is a general contention that the Tribunal failed to consider the applicant’s overall credibility at the time of its decision, that is precisely what the Tribunal did and no error has been established in that regard. Ground one is not made out.
Ground two in the amended application is that the Tribunal failed to consider the political situation in Bangladesh and subsequently failed to assess the applicant’s political fear of persecution. The particulars contend that a particular comment of the Tribunal indicated its lack of consideration of the Bangladeshi political situation. Reference is made to the Tribunal’s conclusion that it did not accept that there was a real chance of the applicant being persecuted if he returned to Bangladesh, and that it was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention.
On its face, it would appear that this ground involves a suggestion that the Tribunal was required in its reasons for decision to discuss the political situation in Bangladesh and, as the applicant stated in his submissions, the position if the current situation of law and order collapsed or became more violent. Insofar as that is the basis for this ground, it is not made out. The Tribunal referred on numerous occasions to the applicant’s claims in relation to the political situation in Bangladesh. However, it rejected the applicant’s credibility and claims about his involvement in the BNP, as well as his claims that he had experienced the past claimed instances of harm for the reasons that he claimed. On that basis it rejected his claim that he had a well-founded fear of persecution for the reasons he claimed. It did not accept that he would be targeted in the reasonably foreseeable future if he returned to Bangladesh for the reasons he claimed.
Having rejected the basis for the applicant’s claims and the claim that he would be targeted in the future, it was not necessary for the Tribunal to consider what would be the position if it had accepted claims about past events and future targeting.
The findings in this case were open to the Tribunal on the material before it for the reasons which it gave. No jurisdictional error is apparent on this basis.
In his written submissions, the applicant also contended that the Tribunal found he was never involved in BNP politics because the referee who provided him with a supporting letter failed to identify him, but that he had claimed that:
the letter prepared by one of my uncle and he insisted me it was authentic (sic).
However, he contended that the Tribunal still “blamed” him for lodging false documents. He submitted that the Tribunal did not take into consideration his response to the information put to him under s.424A of the Act.
There are a number of difficulties with this contention. First, the Tribunal did not rely solely on the failure of Mr Azizullah to identify the applicant as the basis for its finding that the applicant was never involved in BNP politics. Secondly, it is the case that the Tribunal recorded that when the issue was raised with him the applicant claimed in response that his uncle had procured the letter and told him it was genuine. He was also recorded as claiming that he did not know whether the letter was genuine. However, contrary to the applicant’s contention, the Tribunal did take into consideration the applicant’s response in this respect. As indicated above, the Tribunal set out this claim in its findings and reasons, but expressed the view that even if the uncle had procured the bogus letter without the applicant’s knowledge, it was still fraudulent and did not support his claims. Furthermore, the Tribunal had regard to the fact that since Mr Azizullah did not know the applicant, the applicant should have known the letter was fraudulent, as well as to the fact that the applicant’s evidence at hearing that he knew Mr Azizullah was contrary to the advice provided by DFAT in which Mr Azizullah stated that he had never heard of the applicant.
The Tribunal went on to explain that it would have expected that a person in the position of Mr Azizullah would have known the applicant if he had been in the party in the manner he claimed and had the 12-year involvement as an executive member and joint secretary as claimed and because the applicant said Mr Azizullah “would know of him because of his profile”.
The concerns the applicant raises in relation to the Tribunal’s approach to the letter in question are not such as to establish jurisdictional error, either on the basis contended for in ground two in the amended application or otherwise. This ground is not made out.
As none of the grounds relied on by the applicant have been established, the application must be dismissed.
RECORDED: NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing in the circumstances of the present case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. However, it must be said that the amount sought by the first respondent would seem to be out of line with the normal amount awarded in matters of this nature. Notwithstanding that there was an amended application, the written submissions were relatively straightforward. Doing as best I can on the information before me, and having regard to the nature of this and other similar matters, I consider that an appropriate amount is the sum of $5,000.
ORDERS DELIVERED
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 9 August 2012
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