SZQZU v Minister for Immigration and Citizenship
[2012] FCA 1409
•13 November 2012
FEDERAL COURT OF AUSTRALIA
SZQZU v Minister for Immigration and Citizenship [2012] FCA 1409
Citation: SZQZU v Minister for Immigration and Citizenship [2012] FCA 1409 Appeal from: SZQZU v Minister for Immigration & Citizenship & Anor [2012] FMCA 652 Parties: SZQZU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1163 of 2012 Judge: NORTH J Date of judgment: 13 November 2012 Date of hearing: 13 November 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 28 Counsel for the Appellant: The appellant appeared in person Solicitor for the Respondents: Mr R Baird of Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1163 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQZU
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
13 NOVEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The appellant pay the first respondent’s costs of the appeal.
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 1163 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQZU
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE:
13 NOVEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 1 August 2012. The Federal Magistrates Court dismissed an application for review of a decision of the Refugee Review Tribunal, the second respondent, made on 29 November 2011. The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Citizenship, the first respondent, not to grant the appellant a protection (Class XA) visa (the visa).
APPELLANT’S CLAIMS
The Tribunal set out the appellant’s claim as it appeared in his visa application. The appellant is a citizen of Bangladesh who claimed a fear of persecution on the grounds of his political opinion. The appellant was born in Feni, Bangladesh and claimed that he moved to Dhaka in order to complete year 12 at school and that there he became involved with the Islami Chhatra Shibir (ICS). He said that he continued his involvement while at university, where he recruited members to the ICS. He said that on 30 October 2006 the office of the organisation in Dhanmondi, in Dhaka, was ransacked by the opposing Chhatra League and in that event he was harmed. He said that by March 2008, he became the general secretary of the local committee of the organisation. Then in December 2008 the Awami League formed government in Bangladesh. He claimed that shortly afterwards on 3 January 2009, he was attacked by the Chhatra League in front of his house and as a result was hospitalised for three weeks.
At the beginning of 2010, he said that the police came looking for him and on 1 September 2010 he claimed he moved back to Feni where his family resided. The appellant said that a few days later he and his family were attacked by the Chhatra League. He said that his brother then went to the police to file a complaint but the police refused to accept the complaint. He said that he went into hiding in late August - September 2010 as he heard the police were trying to arrest him. He said that the police served an arrest warrant at Feni and that they raided his family home several times. The Tribunal noted that in the visa application the applicant referred to the issue of only one arrest warrant but that documents submitted by the appellant afterwards included copies of two arrest warrants issued against him. One on 25 March 2010 and the other on 28 July 2010. The appellant claimed that both the charges that were related to the arrest warrants were falsely made against him. He said charges indicated that the authorities sought to frame him for his involvement with the ICS. The appellant also provided a local newspaper report dated 21 September 2010. The newspaper article reported among other things, that the police had raided the house of the appellant’s father in order to arrest the appellant on 10 September 2010. The report also contained details of illegal activities he was alleged to have committed. In these circumstances, his brother who lives in Australia assisted him in applying for a sponsored family visa. After arriving in Australia, the appellant applied for a protection (Class XA) visa.
In summary the appellant claimed to fear harm from the Awami League, from government authorities and from relatives as a result of his involvement with the ICS.
TRIBUNAL’S DECISION
After setting out the decision of the delegate, a section on the evidence given in two Tribunal hearings and country information, the Tribunal set out its reasons and findings. The Tribunal found at [103]:
For the following reasons, the Tribunal does not accept the applicant’s claims. The Tribunal did not find the applicant to be a credible and truthful witness. In reaching this view, the Tribunal has had regard to the significant differences between the evidence he presented on his visa application and his evidence to the Tribunal, the unconvincing nature of key parts of his claims, and other reasons detailed below.
Without attempting to be complete in the reference to the Tribunal’s reasoning the following represent the main bases for the Tribunal’s decision. The Tribunal observed that the appellant did not mention the first arrest warrant issued on 25 March 2010 in his visa application. The arrest warrant was said to be based on a suspicion that he was one of a number of terrorists involved in the offence of killing Abul Hashem. The Tribunal asked the appellant why he had not mentioned the first arrest warrant in his visa application and he said he did not regard it as significant because his main troubles had come from the second arrest warrant issued on 28 July 2010.
In view of the seriousness of the alleged offence referred to in the first arrest warrant the Tribunal did not accept this explanation. The Tribunal concluded that the first arrest warrant had not been issued against the appellant. In relation to the second arrest warrant the Tribunal considered that no detail was given in the visa application about the reasons for its issue. The Tribunal did not accept that the second arrest warrant had been issued against the appellant.
Then the Tribunal addressed the issue whether the appellant went into hiding in late August - September 2010 in Feni, where his family lived. The Tribunal found the claim to be unconvincing. The Tribunal considered it unlikely that the appellant would seek to hide in an area where the police had already made efforts to find him. The Tribunal also drew attention to the inconsistency that the appellant went into hiding in Feni at the same time as it was said that his brother complained to the police in that area about attacks on him and his family. The Tribunal considered that the making of such complaint would involve revealing the appellant’s presence in the area. The Tribunal concluded that it was unlikely, given the detailed local newspaper report about the police trying to arrest him and which set out the illegal activities he was alleged to have committed, that the police would not have arrested the appellant if there were warrants issued for his arrest, that the appellant would not have gone into hiding earlier, or that he would have attempted to hide in Feni.
The Tribunal then referred to a number of documents submitted by the appellant in support of his case. It dealt specifically with the two arrest warrants, two first information reports concerning the alleged offences, a charge sheet, a letter from a relative of one of the victims of the appellant, a police report, and a complaint in support of the appellant’s claim that the charges against him had been falsely laid. The Tribunal rejected these documents on the basis of evidence that forged and fraudulent documents were readily available in Bangladesh. The Tribunal also referred to evidence that arrest warrants are not generally available to the public.
The Tribunal also rejected the documents on the basis that the appellant had said that the documents had been obtained by his brother from a lawyer in Bangladesh. The brother lives in Australia, and when asked why the brother had not been called to attend the hearing, the appellant told the Tribunal that he did not think to do so. The Tribunal held that there was no reason why the brother should not have been called to attend the hearing, and to corroborate the way in which the documents had been obtained. The Tribunal also did not accept that it was not possible for the appellant himself to have obtained the documents for two main reasons. Firstly, the lawyer was based in Feni, where the appellant claimed he was also staying. Secondly, the appellant claimed the lawyer had been assisting him from the time the first arrest warrant was issued in March 2010, and he claimed not to be in hiding until September 2010.
The Tribunal also referred to evidence that the appellant had submitted in support of a sponsored visa application that he had been employed until December 2010 by Himel Trading Corporation (also referred to as Hemel Trading Corporation in the decision), which is based in Dhaka. This evidence was repeated in the visa application. The Tribunal considered that it was inconsistent that the appellant was employed until December 2010 while saying that he was in hiding in Feni from September 2010. The appellant told the Tribunal that even though he was still employed, he stopped attending work regularly from August 2010. The Tribunal did not accept the appellant’s explanation that while he was employed, he was not required to attend work.
Then the Tribunal concluded that the appellant had changed his evidence about where he lived. First he told the Tribunal that he lived in Dhaka until he came to Australia and had last lived in Feni in 2000. Later he said that he lived in Feni immediately before coming to Australia. The Tribunal concluded that the change in evidence was designed to bolster the appellant’s story that he was in hiding in Feni.
The Tribunal then found that the appellant had obtained his passport in October 2010 through a broker, and it accepted the appellant’s evidence that there was no difficulty in obtaining the passport. The Tribunal regarded it as inconsistent that there were two arrest warrants issued against him for serious charges, and that he had to go into hiding, with the fact that there was no difficulty in obtaining a passport and leaving Bangladesh through Zia International Airport.
The Tribunal then examined the evidence of the appellant’s description about his role and the organisation of ICS, and found that it was lacking in detail, and that his explanation of the structure of the organisation was confusing. The Tribunal considered a letter of support from the current secretary of the organisation, and did not accept that it contained truthful information, as, in part, it was inconsistent with the appellant’s own evidence.
The Tribunal considered two medical certificates which were relied upon by the appellant in support of his claim that he was injured after being attacked in January 2009. The first medical certificate referred to the injury occurring on 3 January 2010, but in the follow-up certificate the author explained that this date was a mistake. The Tribunal rejected the contention that the earlier medical certificate was dated by accident, and gave reasons for that conclusion.
The appellant also relied upon an opinion by a counsellor at the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) that the appellant was suffering from post-traumatic stress disorder, anxiety, and depression. The Tribunal said at [125]:
[T]hese symptoms can be the result of any number of traumas and do not, in the absence of other evidence, show that the applicant had the experiences he claims in Bangladesh. The Tribunal also appreciates that many applicants tend to be anxious and wary of authority when presenting their claims before the Department and/or the Tribunal. The Tribunal also appreciates that applicants may not be able to recount precise details or sequence of events when they put their claims forward. However, in the Tribunal’s view, these factors do not explain the particular problems the Tribunal has identified in the applicant’s evidence above; and do not address the depth and the breadth of the Tribunal’s concerns with regard to the credibility of his overall claims. The Tribunal is of the view that the applicant, who is well educated and has worked as an accountant, has fabricated his claims and concocted evidence to achieve an immigration outcome.
The Tribunal concluded at [124]:
Although the Tribunal accepts that the applicant may have been exposed to the ICS when he…was studying, the Tribunal does not accept that the applicant has been active in the ICS or that he has been a member of the ICS. The Tribunal is of the view that the applicant has been working as an accountant at Hemel Trading Corporation since January 2008 and until December 2010. The Tribunal has found that the applicant has fabricated his claims that he is the subject of 2 arrest warrants. The Tribunal has not accepted that the applicant was in hiding from August 2010 or that he is wanted by the police on false charges. The Tribunal does not accept that the applicant has been an active leader of the ICS or that he was in hiding in 2010 or that there are arrest warrants because there are false cases against him. The Tribunal does not accept that the applicant was injured in 2006 and 2009 or at any other time due to his political activities or membership of the ICS. The Tribunal does not accept that the applicant has been targeted by the Awami League or [Chhatra] League or the police because of his political activities. The Tribunal has not found the applicant to be a witness of credit. The applicant gave evidence that he had previously wanted to come to Australia but his English language proficiency was not sufficient. The Tribunal is of the view that the applicant has fabricated his protection visa claims for the purpose of staying in Australia.
ISSUES ON THE APPEAL
The appellant then sought review in the Federal Magistrates Court. The grounds before the Federal Magistrates Court are repeated in the notice of appeal to this Court. The grounds were as follows:
1.The [Tribunal] did not put any weight to the supporting documents those provided my political activities for Jammat-e-Islami [the ICS being the youth organisation of Jammat-e-Islami].
Particulars:
A.The Tribunal did not put any weight to the supporting documents those indicated my political activities for Jammat-e-Islami. For example, I provide the followings:
i)Reference letter from the party leader.
ii)Newspaper [report].
iii)Case related documents.
iv)Hospital discharge certificate.
However the Tribunal did not put any weight to those documents and further the Tribunal made the following comment that:
The applicant has not been a member of the ICS or that he would have any involvement in the ICS in the foreseeable future.
2.The [Tribunal] did not consider my application whole to account my credibility.
Particulars:
A.The Tribunal did not consider my application whole to account my credibility rather it assessed it partially. The Tribunal made the following comment that:
The Tribunal has not found the applicant to be a witness of credit.
However, the Tribunal did not consider the Counsellor at STARTTS report about my personal circumstances and my ability to produce evidences before the Tribunal.
3.The [Tribunal] failed to ask comment from me about independent information.
Particulars:
A.The Tribunal failed to ask comment from me about independent information:
i) The Tribunal cited on its decision the independent information and assessed my application in the basis of the report. However, the Tribunal did not invite me any comment about its independent information.
Each of these grounds will now be considered.
First ground of appeal
The first ground was that the Tribunal did not put any weight on the supporting documents. These supporting documents were the reference letter from the party leader in support of the appellant, the local newspaper article dated 21 September 2010 which among other things reported that the police were trying to arrest the appellant, documents relating to the false cases against the appellant and the two medical certificates provided in support of his claim that he was attacked by the Chhatra League. The federal magistrate considered that it was a matter for the Tribunal to determine whether to accept particular evidence and the weight to be given to such evidence.
The federal magistrate said at [35]:
It is evident from the Tribunal’s Decision Record that it did consider each piece of evidence submitted by the applicant in support of his application, including the four documents mentioned in the applicant’s Amended Application and written submissions. The Tribunal gave these documents no weight as it was not satisfied that the documents contained truthful information or found that they were not authentic…The applicant is critical of the weight given to the evidence he submitted in support of his application, but the weight given to those pieces of evidence is a matter for the Tribunal.
The approach taken by the federal magistrate and the conclusion reached on the first ground of appeal is correct, and this ground of appeal to this Court cannot succeed.
Second ground of appeal and consideration
The second ground of appeal before the federal magistrate, and repeated in this Court, was that the Tribunal failed to consider evidence from a counsellor at STARTTS about the applicant’s condition in making an adverse finding about the appellant’s credibility. It is clear, and the federal magistrate so found, that the Tribunal did have regard to the letter from the counsellor at STARTTS. This is demonstrated by [125] of the Tribunal’s decision which is set out earlier in these reasons. The federal magistrate concluded at [42]:
The Tribunal did consider whether the letter from STARTTS would have affected the applicant’s ability to give evidence, but found that the diagnoses noted by the Counsellor did not address the particular problems it had with the applicant’s evidence and the credibility of his claims.
The federal magistrate also took the second ground to include a claim that the Tribunal had failed to make inquiries by contacting the appellant’s referees who provided supporting documents in respect of his involvement with the ICS. It is not obvious on the face of the ground that this issue was raised, but in any event, the federal magistrate correctly held that there was no duty imposed on the Tribunal to make inquiries in the circumstances of this case. Thus, the second ground of appeal should not be upheld.
Third ground of appeal
The third ground of appeal, both before the federal magistrate and before this Court, alleged a breach of s 424A of the Migration Act 1958 (Cth) (the Act) in that the Tribunal relied upon independent country information but did not give the appellant an opportunity to comment on that information. The federal magistrate set out the information relied upon by the Tribunal to support its decision, namely:
1.the conditions in Bangladesh relating to fraudulent documents and the availability of them to the general public.
2.the ICS;
3.the ability for a person the subject of an arrest warrant in Bangladesh to depart Bangladesh through Zia International Airport; and
4.the publication of newspapers in Dhaka and their credibility (the Tribunal referred to information that stated that many of the newspapers have a very small circulation and that the credibility of a number of them is questionable).
The federal magistrate considered that this information fell within the exception in s 424A(3) to the requirement in s 424A(1) of the Act to give the appellant particulars of information. The exception in s 424A(3) provides as follows:
This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of person of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non-disclosable information.
The federal magistrate was correct in isolating the four types of information relied upon by the Tribunal and in the conclusion that this information fell within the exception in s 424A(3) of the Act.
CONCLUSION
On the hearing of the appeal, the appellant, who was assisted by an interpreter into the Bengali language, was not able to articulate any further or other grounds of appeal or to explain where the Tribunal or the federal magistrate had erred, other than to assert that he was connected with the organisation. It follows that the appeal must be dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 5 December 2012