SZRIB v Minister for Immigration and Citizenship

[2012] FCA 1348

FEDERAL COURT OF AUSTRALIA

SZRIB v Minister for Immigration and Citizenship [2012] FCA 1348

Citation:		SZRIB v Minister for Immigration and Citizenship[2012] FCA 1348
Appeal from:		SZRIB & Ors v Minister for Immigration and Anor [2012] FMCA 829
Parties:		SZRIB and SZRIC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1463 of 2012
Judge:		BESANKO J
Date of judgment:		30 November 2012
Date of hearing:	27 November 2012
Place:	Adelaide (Heard in Sydney)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	28
Counsel for the Appellants:	The Appellants appeared in person
Counsel for the Respondents:	Ms D Watson
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1463 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZRIB
First Appellant

SZRIC
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	30 NOVEMBER 2012
WHERE MADE:	ADELAIDE VIA VIDEO LINK WITH SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants 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 1463 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZRIB
First Appellant

SZRIC
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	30 NOVEMBER 2012
PLACE:	ADELAIDE (VIA VIDEO LINK WITH SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal from an order made by the Federal Magistrates Court. On 6 September 2012, that Court made an order that the appellants’ application for constitutional writs directed to the Refugee Review Tribunal be dismissed. The first respondent to the appeal is the Minister for Immigration and Citizenship. The second respondent, the Tribunal, has filed a Submitting notice.

2. The appellants are husband and wife, and citizens of Bangladesh. They arrived in Australia most recently on 15 January 2011. On 14 February 2011 they applied to the Department of Immigration and Citizenship for Protection (Class XA) visas. The female appellant applied as a member of the same family unit as the male appellant. The fate of her application is dependent on the outcome of the male appellant’s application. It is convenient for me to confine my attention to the claims of the male appellant and to refer to him as the appellant.

3. On 27 June 2011 a delegate of the Minister decided to refuse the appellant’s application for a Protection visa. The delegate notified the appellant of his decision.

4. On 22 July 2011 the appellant applied to the Tribunal for a review of the delegate’s decision. On 13 March 2012, the Tribunal decided to affirm the decision not to grant the appellant a Protection (Class XA) visa.

5. On 4 April 2012, the appellant issued an application in the Federal Magistrates Court for constitutional writs directed to the Tribunal. On 12 June 2012, the appellant filed an amended application for the same relief. On 6 September 2012, the Federal Magistrates Court made an order that the application be dismissed: SZRIB & Ors v Minister for Immigration and Anor [2012] FMCA 829.

   THE APPELLANT’S CLAIMS AND THE TRIBUNAL’S REASONS

6. The appellant is a citizen of Bangladesh. He claims to fear harm in Bangladesh because of his political opinion and his support of the Bangladesh Nationalist Party (“BNP”).

7. The appellant attached a statement to his application for a Protection visa. In that statement the appellant stated that he was born on 31 December 1972. He claimed that his family was politically active and that he became interested in politics at an early age. After completing his secondary school certificate the appellant was admitted to a college and at the same time he became the organising secretary of the student wing of the BNP. He became an executive member of the student wing and in 1996 he became the vice president. The appellant claimed that in the Parliamentary elections in Bangladesh in June 1996, he worked for a candidate from the BNP. The main opposition to the BNP came from the Awami League. The Awami League won a majority of the seats in the Parliament and formed the government of Bangladesh with the help of another party.

8. In his statement, the appellant claimed that on 13 June 1996 at about 8.00 pm a group of Awami activists unlawfully entered his house, ransacked it, looted property in the house and insulted his mother and sister. The appellant claimed that in December 1997 the BNP called a general strike and that he led a number of processions during the strike. He claimed that he was arrested and tortured whilst held in custody. The BNP was actively involved in organising strikes and the appellant was involved in those strikes. He claimed that as a result, he became an enemy of the Awami League activists. The appellant claimed that in October 1999 he was assaulted by a group of Awami League cadres and that he was so seriously injured that he attended hospital. He claimed that he was beaten again in January 2000. The appellant referred to political events between 2000 and 2004 and his close involvement in the activities of the BNP. He claimed that his shop at the Sutar Para Bazaar was demolished in or about January 2007. In July 2007, the appellant went to England and he returned to Bangladesh in August 2007. He tried to go to England again but he was not allowed to do so. There was another Parliamentary election in December 2008. The applicant claimed that he was actively involved. He claimed that the Awami people tried to cast false votes and that he protested at that criminal act. He claimed that as a result, he “became subject to their torture”. The appellant claimed that in 2008 a group of Awami cadres went to his house and when they did not find him there they ransacked the house, looted valuable items and insulted his mother and sister. He claimed that a number of false cases have been filed against him and that his life is in danger.

9. The Tribunal member said that taking the matters which he identified in his reasons together, he did not accept the appellant’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. He said that he did not accept that the appellant’s house in Bangladesh had been attacked by Awami League figures in November 2011 after he had left Bangladesh. Having regard to the country information before him, the Tribunal member said that he was not satisfied that the political situation in Bangladesh had changed so significantly since January 2011 that the appellant 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. Furthermore, the Tribunal member said that he was not satisfied that there had been any change in the appellant’s own circumstances since he left Bangladesh to create such a risk, given the minimal contact he had had with the BNP in Australia.

10. The Tribunal member said that he was not satisfied that there was a real chance that the appellant would suffer serious harm amounting to persecution in Bangladesh because of his political opinion.

11. Before reaching these conclusions, the Tribunal member considered various aspects of the appellant’s account of events. He found some aspects of the appellant’s account of events to be implausible. For example, he found it implausible that Bangladesh would have changed within the space of a week in July and August 2007 to the extent suggested by the appellant (paragraph 72). He found to be implausible the appellant’s explanations for not leaving Bangladesh between December 2008 and January 2011 (paragraph 74). Finally, the Tribunal member found the appellant’s explanation for not mentioning the name of the person who posed the greatest threat to him to be implausible (paragraph 79).

12. The Tribunal member found other aspects of the appellant’s account of events to be “vague and lacking in circumstantial detail” (that is, his period in hiding) (paragraph 75) and “vague and uninformative” (that is, the false cases lodged against him in Bangladesh) (paragraph 76).  

    THE FEDERAL MAGISTRATE’S REASONS

13. The appellant’s amended application in the Federal Magistrates Court for constitutional writs directed to the Tribunal contained three grounds. The appellant’s appeal to this Court contains the same three grounds. The appellant’s written submissions on the appeal to this Court are the same as the written submissions he made to the Federal Magistrates Court,

14. The first ground of the appellant’s amended application for constitutional writs was in the following terms:

    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 the near future if I were to return to Bangladesh.

15. Smith FM said that the Tribunal member’s reasoning in paragraph 83 of its reasons (summarised in paragraph 9 above) showed that he did not make any error of law in its understanding of the real chance test. He said that the Tribunal member arrived at his assessment of the future risk facing the appellant based on the history which he accepted, excluding the history which he did not. The Tribunal member’s approach was consistent with authority (Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 575-6 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) and did not involve error.

16. The second ground of the appellant’s application for constitutional writs was in the following terms:

    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.

17. Smith FM said (at paragraph 26) that this ground faced a similar difficulty to the first ground, “and essentially does not rise higher than a criticism of the merits of the Tribunal’s decision”. He said that the Tribunal member’s assessments of the risks facing the appellant were open to him as a matter of law, and were founded upon logical reasoning and a sufficient evidentiary foundation.

18. The third ground of the appellant’s application for constitutional writs was in the following terms:

    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.

19. The context for this ground is two paragraphs in the Tribunal’s reasons (48 and 78). Those paragraphs are in the following terms:

    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 [SN] 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.

    78.I note that the names [J], [S] and [SN] figure in the two reports said to have been carried in the newspaper The Daily Prothomsurjaday for 3 January 2009 and that [SN] 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.

20. Smith FM said that the Tribunal was not bound by law to put to the appellant general information bearing on its scepticism about supportive documents, and the two purported newspaper reports in particular. He referred to s 424A(3)(a) of the Migration Act 1958 (Cth). He said that, moreover, the Tribunal did fairly raise its significant concern about the reports with the appellant in the course of the hearing. He said that 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 light of the general country information about false evidence at times supporting Bangladeshi refugee claims” (paragraph 27).

21. Smith FM went on to say that the Tribunal was not under any legal duty to make further investigations into the authenticity of the newspaper reports. The Tribunal was not asked to do so, and the appellant and his agent had the opportunity after the hearing to present supportive evidence of authenticity if they wished to do so. The case did not come within the exceptional categories where a duty to inquire might arise. He referred to Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 and Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

22. Smith FM went on to consider further points raised in the appellant’s written submissions but not in his amended application for constitutional writs (that is, an alleged failure by the Tribunal to consider the position if law and order in Bangladesh collapsed, an alleged failure by the Tribunal to apply s 91R of the Migration Act 1958 (Cth) and an alleged failure by the Tribunal to consider all the documents submitted by the appellant) and concluded that the appellant had not established or identified any jurisdictional error. In the circumstances, he dismissed the application.

    ISSUES ON THE APPEAL

23. The appellants appeared in person before this Court. As I have said, their grounds of appeal and written submissions in support were identical to their grounds of application and written submissions before the Federal Magistrates Court.

24. I do not think there is any error in the Federal Magistrate’s approach to the grounds of the application or other matters raised in the written submissions.

25. As to the first and second grounds, the appellant does have in his favour findings by the Tribunal that he was involved in the BNP and that violence is a feature of Bangladesh politics. However, there were a number of aspects of the appellant’s account of events which the Tribunal did not accept and its ultimate conclusion that the appellant did not have a well-founded fear of persecution for a Convention reason should he return to Bangladesh, now or in the reasonably foreseeable future, was adverse to the appellant. I can detect no jurisdictional error in the Tribunal’s approach and reasons in reaching that conclusion.

26. As to the third ground, I agree with the Federal Magistrate that the Tribunal was not under a legal duty to make further investigations into the authenticity of the newspaper reports (see Minister of Immigration and Citizenship v SZIAI at 436 [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). I also agree with the Federal Magistrate that it was open to the Tribunal to reach the conclusions it did in paragraph 78 of its reasons without any breach of the rules of procedural fairness.

27. Finally, as to the other matters raised in the written submissions, the Federal Magistrate was correct to reject them for the reasons he gave (at [29]-[32]). In other words, the Tribunal did not err in considering the current situation in Bangladesh and it did not fail to consider the documents the appellant submitted in support of his application. Furthermore, in light of the Tribunal’s findings it is, as the Federal Magistrate found, unclear as to how a consideration of s 91R of the Migration Act 1958 (Cth) assists the appellant.

    CONCLUSION

28. The appeal should be dismissed and the appellants must pay the first respondent’s costs of the appeal.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:       30 November 2012