SZRIB v Minister for Immigration - [2012] FMCA 829

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRIB & ORS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 829

MIGRATION – RRT decision – Bangladeshi claiming political persecution – Tribunal found no real chance of serious harm – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth), ss.91R, 424A(3)(a)

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559

First Applicant:

SZRIB

Second Applicant:

SZRIC

Third Applicant:

SZRID

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 743 of 2012

Judgment of:

Smith FM

Hearing date:

6 September 2012

Delivered at:

Sydney

Delivered on:

6 September 2012

REPRESENTATION

Counsel for the Applicants:

Applicants in Person

Counsel for the Respondents:

Ms D Watson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The third applicant is removed as an applicant.
The application is dismissed.
The first and second applicants must pay the first respondent’s costs in the sum of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG743 of 2012

SZRIB

First Applicant

SZRIC

Second Applicant

SZRID

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant husband and wife arrived in Australia in January 2011 as visitors, sponsored by relations in Australia. The applicant husband previously visited Australia and other places in 2006 and 2007. On 14 February 2011, they lodged applications for protection visas, assisted by a migration agent, Mr Md. Sirajul Haque. The applicant wife made no claims of her own to fear persecution as a refugee if they returned to their country of nationality, Bangladesh. I shall therefore refer to the applicant husband as “the applicant”, as did the delegate and the Tribunal.
The applicant wife’s visa application indicated that she was pregnant, and their daughter was born just shortly before the delegate made his decision. However, neither the delegate nor the Tribunal addressed any rights which the daughter might have in relation to seeking permission to stay in Australia. In particular, the Tribunal’s decision which I am now reviewing, makes clear that the daughter was not a party to that proceeding, and that the Tribunal’s decision did not address her situation and rights. It therefore appeared to me that the joinder of the daughter as third applicant in the present application to the Court was misconceived, and the parties appearing before me today agreed that she should be removed as a party to the present case.
The applicant’s history upon which he claimed to fear persecution if he returned to Bangladesh was set out in a statement signed by him, which was supported by several submissions made by his agent and a number of documents. These included numerous photographs of political gatherings at which the applicant was in attendance, and also some references signed by persons in Bangladesh and one signed by a person in Australia. The applicant’s evidence also included press reports concerning events generally in Bangladesh, including incidents of violence not concerning the applicant. As I shall discuss further below, he also presented at the Tribunal hearing copies of what were said to be two newspaper reports about the applicant personally.
Throughout the proceedings, the applicant maintained the claims that were originally put forward in his visa statement, and were addressed at interviews by the delegate on 30 March 2011, and at a hearing of the Tribunal, held 16 December 2011. In short, he claimed to have become an organising secretary for the local branch of the student wing of the Bangladesh National Party (BNP) at his secondary college. He became “the executive member” of that organisation in 1992, and in 1996 he became the vice president of his college committee BNP youth league or other student wing. He referred to working in elections for a local candidate in 1996, and claimed that rival Awami League activists had ransacked his house and insulted his mother and sister in 1996.
The applicant claimed to have led processions in strikes in 1997, and again in 1999. He said that in October 1999 he was attacked when returning from the party office, and was seriously injured. He submitted a hospital document to confirm an injury. He claimed to have been severely beaten again in January 2000 by the police in the course of a general strike. His statement referred to working in elections for a candidate in elections in 2001 and becoming the vice president of the Dakar District Chatradal in 2004.
More recently, the applicant referred to the installation of a military backed caretaker government in January 2007, and claimed that he had continued to be attacked, and in particular that his shop was demolished before he went to England in July 2007. The applicant said he “did a lot of work” in the election in December 2008 in support of a local candidate and “in this election, when the Awami people tried to cast false votes, I protested this criminal act and I became subject to their torture”. He also claimed that in January 2009:
A group of Awami cadres went to our house in aiming to find me. When they did not find me they ransacked our house and looted our valuable items and insulted my mother and sister.
His statement concluded:
21.When I understood the above situation I found it would be difficult for me to live in the area during the Awami regime. I left my hometown as soon as the Awami League formed the government and I came to Dhaka and stayed at various relatives residence. In the meantime a number of false cases have been filed against me and I found my life became is in danger. Then I contacted my brother who is a Citizen of Australia. He sponsored me to come to Australia as such a visa issued on 8 November which I obtained 18 November 2010 from Dhaka post.
22.My wife is pregnant and I managed a senior officer at the airport by bribe who provided me an opportunity to get out through the airport on 12 January 2011. My life was not safe in Bangladesh. I am seeking refugee status in accordance with the United Nations Convention 1951 as amended 1967 of its protocol.
The delegate made a decision on 27 June 2011 to refuse the visa applications, after interviewing the applicant. The delegate had doubts about the truthfulness of the applicant’s claims and his overall credibility, based on concerns about plausibility and consistency with the applicant’s recorded actions. The delegate formed the opinion that:
The chance that the applicant would be harmed, if returned to Bangladesh, on the basis of his political opinion and in the manner he has claimed, is remote.
The Tribunal reviewed all the evidence presented by the applicant, including evidence given at a hearing, and made a decision to affirm the delegate’s decision on 13 March 2012. It appears to me that all of the documents submitted in support of the applicant’s case were carefully identified in the course of its “Statement of Decision and Reasons”, as were all the elements in the applicant’s refugee claims.
Some difficulties with his evidence were discussed with the applicant in the course of the hearing, according to the Tribunal’s description of the hearing. This included the documents which he had submitted at the hearing, purporting to be contemporaneous newspaper reports of attacks in 2009 and 2011. In this respect, the Tribunal said:
48.Asked if any of the attacks on him had been reported in the media the Applicant said the attack during the 2008 election, and the subsequent attack on his house, were published. The other incidents were not reported. Asked about the documents he had submitted as articles from The Daily Prothomsurjaday he said the report of 10 November 2011 concerning an attack on his house by a terrorist gang led by Sheikh Nader the local Awami League leader had been sent to him by a friend who had informed him of the incident. I put to him that some aspects of the reports appeared unusual. One of these was that they seemed to repeat the claims which he had made in his protection visa application. It also seemed difficult to believe that a terrorist who beat his mother would go on to explain to her that they intended to kill him because they were facing many problems in the next election due to his activities. He said he had kept his departure from Bangladesh secret. Noting that independent country information indicates that false or fraudulent documents are easily obtainable in Bangladesh I put to him that this could indicate that the material could not be relied on. He said he did not know anything about the newspaper. However he had telephoned his home and learned that his house was attacked and his mother was physically assaulted. Asked if any other member of his family had been harmed he said his sister had been at home but he was not sure if she was injured as well.
The Tribunal also discussed the applicant’s travel overseas, and other admitted conduct before coming to Australia, which it had put to him as casting doubt on whether, in fact, he was in hiding and in fear of persecution of a serious nature at that time.
The Tribunal noted that some additional photographs were forwarded after the hearing by the applicant’s agent, together with a reference letter from the local president of the BNP Australia Party.
In the Tribunal’s “Findings and Reasons”, the Tribunal noted the applicant’s claims of a long association with the BNP. It noted the photographs that had been submitted, and had some concern that they might have been “manipulated in some manner”. However, it said:
68.…Taking the photographic evidence overall, however, I am prepared to accept that it does support the Applicant’s claims of an involvement with the BNP. I am prepared to accept that, as he claims, he was associated with the student wing of the party, the Jatiatabadi Chatradal, both during his school years and later, in 2004, when he was appointed to the position of vice-president of a branch of the Chatradal in Dhaka. I also accept that in this position he played a role in election campaigns in the BNP interest, and that he was nominated as one of ten polling agents for the BNP candidate in his area in the 2008 Parliamentary election.
The Tribunal also accepted that the applicant had maintained “some form of tenuous connection with the party since his arrival” in Australia. However, the remainder of the applicant’s claims upon which his fear of persecution were based was not accepted by the Tribunal.
The Tribunal examined the applicant’s evidence concerning claims of serious harm “stretching back to 1996”, and his claims that the recent incidents in 2008 had led him to fear for his life and to live in hiding for over two years before coming to Australia.
The Tribunal accepted that “violence is a feature of Bangladeshi politics” particularly during and immediately following elections. However, it was not satisfied that the information supported a conclusion that the applicant, in his circumstances, had lived his life in fear of harm from the Awami League.
It did not consider the applicant’s evidence that his circumstances changed after a visit to the United Kingdom in July 2007 to be plausible. It thought that his remaining in Bangladesh after the claimed incident in December 2008 cast doubt on his evidence, and thought that his evidence about “this allegedly dramatic period of his life was vague and lacking in circumstantial detail”.
It also did not accept that he was the subject of false cases, noting that he had not explained why he had not engaged a lawyer, and did not know more about the cases.
The Tribunal noted some inconsistencies in the applicant’s evidence identifying specific people whom he feared. It also considered the newspaper reports, and said:
78.I note that the names Jewel, Shamin and Sheik Nader figure in the two reports said to have been carried in the newspaper The Daily Prothomsurjaday for 3 January 2009 and that Sheik Nader is named in the paper’s edition of 10 November 2011. I also note, however, that the independent country information indicates newspapers in Bangladesh can be bribed to produce fake articles. Further the first of these articles appears at least unusual in the way that it sets out the Applicant’s claims at some length. As well as repeating some of his claims the second article reports, in my view somewhat implausibly, that the Awami League activists who attacked his home also informed his mother, after beating her, that they would kill him if they found him ‘because we shall face many problems in next election due to his activities.’ Having considered both these articles I am not satisfied that any weight can be placed on them as support for the Applicant’s claims to be at risk of harm in Bangladesh.
The Tribunal considered the references from political party members in Bangladesh, and noted some concerns about their contents, but was prepared to accept that the purported signatories had signed them. Taking into account country information that such letters might be given regardless of the truth of their contents, the Tribunal said that it was not satisfied “that any significant weight can be placed on the letters as support for the claims to have suffered harm in Bangladesh”. The Tribunal did not consider that the hospital release letter demonstrated the claimed cause of the injury it referred to.
The Tribunal noted that the applicant had claimed to have had difficulty attracting government contracting business, as a result of his party ceasing to be in power. However, it said that it was not satisfied that this could be “reasonably interpreted as serious harm”, noting that he could have remained in business. It was not satisfied that his business had been destroyed as a result of the Awami League gaining power in 2008, and that he had been prevented from earning a subsistence because of his political opinion.
The Tribunal concluded:
Summary
83.Taking these matters together I do not accept the Applicant’s various claims to have been subjected to threats, physical harm or false cases in Bangladesh because of his political opinion and activities in support of the BNP. Nor do I accept that his house was attacked again by Awami League figures in November 2011, after he had left the country. Having considered the country information before the Tribunal I am not satisfied that the political situation in Bangladesh has changed so significantly since January 2011 that he could now be said to be at risk of harm because of his political profile where such a risk of harm had not existed previously. Nor am I satisfied that there has been any change in his own circumstances since he left Bangladesh to create such a risk, given the minimal contact he has had with the BNP in Australia. This being the case I am not satisfied there is a real chance that he would suffer serious harm amounting to persecution in Bangladesh because of his political opinion. He does not claim to fear harm for any other Convention reason and no other reason is apparent on the face of the information before the Tribunal.
84.I am not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason should he return to Bangladesh, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.
The applicants now ask the Court to set aside the Tribunal’s decision to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants should have been believed in the entirety of this evidence, nor whether they qualified for protection visas or any other permission to stay in Australia.
The grounds set out in the original application were, it appears to me, repeated and embellished in an amended application containing the following grounds:
1.The Refugee Review Tribunal’s decision was affected by jurisdictional error in that the Tribunal failed to consider whether there was a real chance that the applicants would suffer persecution in the future.
Particulars:
A.The Tribunal’s decision was affected by jurisdictional error in that the Tribunal failed to consider whether there was a real chance that the applicants would suffer persecution in the future that:
i)      The Tribunal accepted that I (first applicant) was involved with BNP politics but failed to assess my persecution on the basis of my political involvement. Further the Tribunal failed to consider whether I would be in danger of persecution if I continued my political activities in support of the BNP in near future if I were return to Bangladesh.
2.The Refugee Review Tribunal accepted that political violence existed in Bangladesh but failed to assess my harm that I used to suffer in Bangladesh because of my political opinion.
Particulars:
A.The Tribunal accepted that political violence existed in Bangladesh but failed to assess my harm that I used to suffer in Bangladesh because of my political opinion that:
i)      The Tribunal accepted that political violence existed in Bangladesh. However the Tribunal failed to consider in this context that I was a political leader in Bangladesh (Tribunal accepted) and as a consequence there is strong possibility to be persecuted if I return to Bangladesh in near future as a political leader.
3.The Refugee Review Tribunal indicated that newspaper in Bangladesh can be bribed to produce fake articles and as a subsequent made in opinion that the articles I produced before the Tribunal was fake.
Particulars:
A.The Tribunal indicated that newspaper in Bangladesh can be bribed to produce fake articles and as a subsequent made in opinion that the articles I produced before the Tribunal was fake. However the Tribunal failed to or willing to discover its authenticity that:
i)      The Tribunal did not make any investigation to discover the authenticity of the newspaper articles or even the Tribunal did not willing to make an investigation. The Tribunal’s decision was based on independent country information. Accordingly I believe that I was denied natural justice.
These grounds have been repeated and added to in written submissions.
In relation to Ground 1, in my opinion the Tribunal’s reasoning in paragraph 83, which I set out above, shows that it did not make any error of law in its understanding of the real chance test. The Tribunal arrived at its assessment of the future risk facing the applicant based on the history, which it accepted, excluding the history which it did not accept. However, such reasoning was in accordance with authority (see Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 575-6). Once the Tribunal’s findings about the applicant’s history are understood, there is no substance to a complaint that the Tribunal failed to consider the real chance that the applicants would face persecution in the future.
Ground 2 faces a similar difficulty, and essentially does not rise higher than a criticism of the merits of the Tribunal’s decision. In my opinion, the Tribunal’s assessments of the risks facing the applicant were open to it as a matter of law, and were founded upon logical reasoning and a sufficient evidentiary foundation. Whether or not other Tribunal members might have arrived at different decisions could not, in those circumstances, point to any jurisdictional error.

In relation to Ground 3, the Tribunal was not bound by law to put to the applicants general information bearing on its scepticism about supportive documents, and the two purported newspaper reports in particular (see s.424A(3)(a) of the Migration Act1958 (Cth)). Moreover, in my opinion, the Tribunal did fairly raise its significant concern about the reports with the applicant in the course of the hearing. In my opinion it was open to the Tribunal to be unpersuaded by the two newspaper reports, which were presented late in the proceedings, from an examination of their contents, and in the light of the general country information about false evidence at times supporting Bangladeshi refugee claims.
I do not accept that the Tribunal was under any legal duty to make further investigations into the authenticity of the newspaper reports. It was not requested to do so, and the applicant and his agent had the opportunity after the hearing to present supportive evidence of authenticity if they wished to do so. The situation does not, in my opinion, come within the exceptional categories where a duty to investigate might arise (see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [1] and [25], and Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [1], [20], and [86]).
My reasoning above deals with most of the points raised in the written submission filed by the applicants. I also note the following submission:
Accordingly I submit that the Tribunal did not consider the reality of the chance of persecution for me because of my political opinion if the current situation of law and order in Bangladesh would collapse or become more violence. The failure of the Tribunal to address this issue prevented it from having the rational basis to determine the chance of persecution of us in the future and resulted in the Tribunal not considering an essential substantial matter to our claims. w396/01 v MIMA (2000) 68 ALD 69 at [33].
However, it appears to me that the Tribunal did consider the risks facing the applicant in the light of the current situation in Bangladesh, that is, current at the time of the Tribunal’s decision. It did so expressly in paragraph 83 which I set out above. I am not persuaded that its reasoning on this issue lacked evidentiary foundation sufficient in law.
A final submission in the written submission refers to a failure by the Tribunal to “consider my persecution under s.91R of the Migration Act”, referring to the Tribunal’s findings in paragraph 83. However, unaided by further submissions which have not been forthcoming, I am unable to understand how a consideration of s.91R of the Migration Act could assist the Court to identify jurisdictional error affecting this decision.
The final paragraph in the written submission refers to the Tribunal ignoring all the documents submitted in support of the applicant’s claims. However, in my opinion, it is clear that the Tribunal did read and take those documents into consideration. This is shown not only by its detailed recitation of their contents, but also by its references to them in the course of its “Findings and Reasons”.
After considering all the points made by or on behalf of the applicant in the documents filed, I am not persuaded that the applicants have identified any jurisdictional error.
Both the applicant husband and applicant wife made submissions to me today. However, their submissions essentially invited the Court to exercise power which it does not have, to order the issuing of visas to them, or to assess their refugee status afresh, including by considering new evidence. However, it is not the Court’s function to do these things.
I have no option but to dismiss the application.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:

Date: 3 October 2012