SZQXT v Minister for Immigration - [2012] FMCA 527

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQXT v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 527

MIGRATION – Bangladeshi claiming persecution by extremist Islamic group – claims of threats disbelieved – finding of adequate state protection – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth)

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58

Applicant:

SZQXT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2783 of 2011

Judgment of:

Smith FM

Hearing date:

14 June 2012

Delivered at:

Sydney

Delivered on:

14 June 2012

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondents:

Ms L Weston

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2783 of 2011

SZQXT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia on a temporary business visa in June 2010, having previously visited Australia in February 2010. On 20 July 2010, he applied for a protection visa. In his protection visa, the applicant claimed a fear to return to his country of nationality, Bangladesh, by reason of his fears of an Islamic militant group known as JMB. The applicant explained his fears as follows:
The Islamic fundamentalist militant group who wants to kill me following my business activities for long time. They think my all work is harmful for the Islam Religion. I am doing business for film making & production. I am basically making & working for documentary film, traditional folk music, & making possibilities for international cultural collaboration in Europe. The Islamic militant group always against of culture. Moreover they don’t like at all international culture/foreign culture. They kill many people before. I had published a religious type, traditional folk musical video production & a book. They think it is against of them & they become [unclear] of that production. They warn me many times & give me final warning to kill me.
Will state details in a separate sheet.
The applicant subsequently submitted a lengthy typed statement and numerous documents detailing his background and fears. These included corroboration of his involvement in documentary filmmaking and other cultural interests, and of his foreign travel undertaken in the course of these activities. He also submitted copies of emailed threats received by him in May and June 2010, and documents with translations which he claimed were letters to a police station in 2008 and 2010 by himself and other members of his family complaining of threats and demands for donations. He also submitted a collection of general newspaper reports concerning the activities of JMB, including a newspaper report from June 2010 as evidence of the existence of a hit list. The applicant claimed that these documents corroborated his claimed history and his fears of returning to Bangladesh.
The applicant was interviewed by an officer in the Department of Immigration on 28 October 2010. He submitted some additional documents, confirming that he had published a book concerning folk songs and also had published an article in September 2010 which was critical of the JMB.
The delegate made a decision on 9 February 2011 to refuse the protection visa. The delegate said that he was “satisfied that the applicant has come to the attention of the JMB and/or Islamic militants in Bangladesh and that the applicant faces a threat of harm from such groups in Bangladesh”. However, the delegate relied on country information that:
...the Bangladeshi authorities campaigned strongly against the JMB since 2005, leading to hundreds of arrests of JMB members and prosecutions of several high-level JMB leaders. It is noted that the leadership and membership, that JMB has been significantly disbanded in recent years, although it has made attempts to regroup. Nevertheless, the Bangladeshi Government have committed significant state resources towards curbing and disbanding not only the JMB but other Islamic extremist and militant groups within Bangladesh, leading to arrests of high-ranking leaders of such groups..
The delegate said that he was satisfied that the applicant would be adequately protected by the authorities against the harm he claims to fear from Islamic militant groups. He was satisfied that the authorities had been adequately responsive to the threat of Islamic militant groups, and that protection would not be withheld from the applicant for a Convention reason. The delegate found that the applicant did not face a real chance of persecution if he returned to Bangladesh.
The applicant sought review of the delegate’s decision by the Refugee Review Tribunal, and attended a hearing on 13 May 2011. The Tribunal gives a description of the hearing in its “Statement of Decision and Reasons” and I accept its description.
According to the Tribunal, it received evidence from the applicant about his background, including his cultural activities and association with a Swedish NGO working in his village. The Tribunal discussed with the applicant his claims that he was threatened by emails in 2008 and again in 2010, and it appears to me that the Tribunal drew to the applicant’s attention that it might not accept that his account of these events was truthful. It discussed with him some of its other concerns, including the possibility that corroborative documents might not be accepted. The Tribunal also discussed with the applicant country information suggesting that the government had taken a strong and effective approach to Islamic extremist groups in Bangladesh. The applicant maintained that his documents were genuine and that he had genuine fears of persecution.
The Tribunal made a decision on 9 November 2011, which affirmed the delegate’s decision.
In its “Statement of Decision and Reasons”, the Tribunal listed the documents presented by the applicant, and identified the claims he had made. The applicant has identified no material error or omission in this part of the Tribunal’s decision.
The Tribunal recounted the evidence given by the applicant at the hearing, and then referred to its research in relation to country information. In particular, it noted recent reports concerning government operations directed against the JMB during 2010 and earlier years.
In its “Findings and Reasons”, the Tribunal accepted that the applicant had been a filmmaker, had an interest and involvement in Bengali cultural activities, had written a book about a Bengali musician, and had attended international film and cultural activities. It also accepted that his father had been active in politics in his village, and that the applicant himself had stood for election there in 1988 but was not elected. The Tribunal also accepted that the applicant had assisted a Swedish professor in academic research, and been involved with foreign NGO organisations in Bangladesh from time to time, which meant that he travelled extensively in the course of these interests.
However, the Tribunal did not accept that the applicant had been attacked by members of the JMB or any other Islamic extremists, as he had claimed. In particular, it did not accept claims that this had occurred in December 2003, although it appears to have accepted that he might have been attacked one night in 2003 by a group of unidentified men. The Tribunal did not accept the applicant’s claims that his attackers were identified as JMB members by an email sent to him in 2008 by extremists. It said that this evidence was “highly implausible”, and explained why it thought that.
The Tribunal also did not accept that the applicant had received threatening emails since 2008, in particular, the emails dated May and June 2010 after his first trip to Australia in February 2010. It said that this evidence “is of no probative value”, and noted that “the applicant has not independently verified the substance of the email messages or the authorship”. The Tribunal also did not accept the “probative value” of the letters said to have been sent to the police station, and said “such letters would be easy to produce and are essentially self-serving. I do not find they have any value in supporting the applicant’s claim.”
The Tribunal did accept the authenticity of the documents concerning the applicant’s filmmaking, research and other activities, but noted that they did not support his claims that he had been mistreated or threatened by Islamic extremists. The Tribunal expressly noted, at paragraph 103 of its reasons, the newspaper articles and reports submitted by the applicant, but did not accept that they supported his claims to have been personally threatened.
The Tribunal said that it considered that “he would have applied for protection during his first visit to Australia rather than returning to Bangladesh”, if he had had a genuine fear of persecution at that time. It did not accept his explanation for his failure to seek protection during his earlier travels, being the death threats he received in May and June 2010.
The Tribunal said that it had considered country information, and did not accept that the newspaper article the applicant claimed to have published in September 2010 “would put him at risk of harm if he returned to Bangladesh”, noting widespread public criticism of the terrorist groups in the Bangladeshi press. It did not accept that his involvement with foreign filmmakers and other activities would cause him to face a real chance of serious harm from members of the JMB or extremist groups. The Tribunal said:
115.… According to the country information the influence of the JMB is now very small and the number of their cadres has reduced significantly. I find that the government has taken effective steps to suppress the JMB and likeminded groups and has been successful in curbing their operations in Bangladesh. I do not accept that if he returned to Bangladesh and continued filmmaking, cultural and research activities he would face a real chance of persecution.
The Tribunal addressed some other elements in the applicant’s claimed history, which it accepted but did not consider would cause him to face a real chance of harm “which is one that is more than a remote chance, if he returns to Bangladesh now or in the foreseeable future”. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.
I have considered the Tribunal’s procedures and reasoning and, unaided by any pertinent submission, I am unable to identify any jurisdictional affecting its decision.
The applicant filed an application in this Court on 6 December 2011, seeking orders which would remit the matter for further consideration. The applicant’s three grounds are as follows:
1.The Second Respondent made jurisdictional error in deciding the application. Particularly the Second Respondent denied all of his information regarding threat from the JMB without any valid reasons.
2.The Second Respondent made jurisdictional error not considering that he was in the hit list of the militant group.
3.The Second Respondent made jurisdictional [error] in assessing the applicant’s claim and did not consider the current situation prevailing in Bangladesh.
These grounds have not been explained nor improved by any amended application or written submissions. The applicant’s oral submissions criticised the conclusions arrived at by the Tribunal, and maintain that his documents were all genuine and that he had told the truth. However, I do not consider that he raised any arguable jurisdictional error in the course of his oral submissions, nor did he allow me to identify any jurisdictional error raised by his three grounds of review.
I accept the submissions of the representative of the Minister that the Tribunal’s reasoning passes the tests of validity in relation to reasonableness which were identified by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, and subsequently in a series of Full Court judgments, the most recent of which being SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58. It is necessary for the Court to be satisfied that the Tribunal’s decision was not one that could be arrived at rationally on the evidence before the Tribunal, even if minds might differ as to its conclusions. In the present case, in my opinion, the Tribunal’s assessments of the applicant’s evidence were open to it as a matter of law.
I also accept the Minister’s submissions that the Tribunal’s assessment of the applicant’s corroborative documents shows that it weighed their probative value with the other evidence before it, in particular, the applicant’s own evidence. I can detect no error in its adverse assessment of some of that material which could give rise to jurisdictional error (see Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 at [38]-[39]).
I am not persuaded that the Tribunal failed to consider any part of the applicant’s refugee claims or the evidence put before it by the applicant. Unfortunately, that evidence did not persuade the Tribunal. However, I do not consider that the applicant has identified any basis upon which I can set aside its decision.
I must, therefore, dismiss the application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:

Date: 2 July 2012