SZRIX v Minister for Immigration

[2012] FMCA 985

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRIX v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 985

MIGRATION – RRT decision – Bangladeshi claiming political persecution – disbelieved by Tribunal – rejection of corroborative letters based on DFAT inquiries – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth)

Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [2011] HCA 1
Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Re Minister for Immigration & Multicultural & Indigenous Affairs, Ex parte Applicants S134/2002 (2003) 211 CLR 441

Applicant: SZRIX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 806 of 2012

Judgment of: Smith FM

Hearing date: 24 October 2012

Delivered at: Sydney

Delivered on: 24 October 2012

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 806 of 2012

SZRIX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant arrived in Australia on a visitor’s visa in February 2011.  On 8 April 2011 an application for a protection visa was lodged on his behalf by a migration agent, Mr M.D. Sirajul Haque.  A statement attached to the visa application explained why the applicant claimed a fear to return to his country of nationality, Bangladesh.

2. In his statement, the applicant referred to joining the student wing of the Bangladesh National Party (BNP) at college, and becoming an organising secretary in 1988 and a vice-president of the party’s organisation at his college in 1989.  He claimed that after completing his degree, he joined the main BNP party, and then worked at various elections for his local candidate, Mr Huda, in an area of Dhaka.  He claimed that he was injured in the course of these elections by assaults from Awami League cadres.  He said he became an executive member of the local area committee of the party between 1998 and 2004, and an executive member of the Dhaka District Committee of the party in 2005.  In these positions he claimed to have been targeted and attacked by Awami League members, and also beaten by the police whilst leading a procession in 2010.

3. He then referred to events leading to his seeking protection in Australia:

   19.In the meantime our leader Begum Zia was evicted from her residence where she has lived for 40 years along with her family. A country wide hartal was called by the BNP on 14 November 2010. In this I took a leading role and I led picketing at Dhaka Uttara area. Like many areas our procession was also disrupted and the protestors were beaten by the police. I also injured in this incident.

   20.On 10 January 2011, I went to my local area for a party meeting, while I was driving home, I was attacked by a group of Awami cadres led by K…. I was beaten seriously and became unconscious and later I was admitted to a local clinic. After I came out from the clinic I found myself charged with a case of possessing illegal arms and bombs.

   21.My life became at risk in the hand of the current regime. Obviously I found I would not able to live in Bangladesh comfortably. I made contact with an agent who arranged to send me to a good country. He suggested that I should go to Australia, thus he managed to get me a visa which enable me to come to Australia.

   22.I managed to travel to the airport by bribing the relevant people and on 26 February 2011, I left Bangladesh for Australia. On 27 February, I came to Australia. If I return now I will be persecuted. Hence, I am seeking protection in Australia in light of the above circumstances and in accordance with the United Nations Convention in regard to the status of refugee.

4. In support of the applicant’s claims, his agent forwarded two letters to the Department of Immigration, both dated 16 April 2011. The first letter was signed by Mr Alam as secretary of the BNP local area committee, purporting to verify that the applicant had been an executive member of that committee and that:

   He had significant contribution towards our party. He led numerous processions on behalf of our party and became subject to oppression by the Awami League activists.  He was attacked on a number of occasions while he was in Bangladesh.  He was also subject to a false case while he was in Bangladesh.

5. The other letter was signed by Mr Huda, the applicant’s local BNP candidate and a prominent lawyer and politician.  It stated that the applicant was known to the signatory and:

   His ceaseless contribution for the party and tireless work in the election made him a position of trust and respect. He became one of the well known leaders in the region.  He became subject to a false case. 

   He was attacked on a number (of) occasions by the Awami activists.  Before departure from Bangladesh he was the executive member of the Dhaka district BNP.

6. Both letters invited contact for further information.  The applicant’s agent also forwarded some photographs and media cuttings. 

7. The applicant was interviewed by a delegate of the Minister on 8 June 2011, and the delegate made a decision refusing the visa application on 29 June 2011.  In his reasons, the delegate explained that he had not found the applicant to be a credible witness, and did not accept his claims that he was an innocent victim of harassment. The delegate noted that the applicant had originally denied travelling to the United Kingdom on a falsified travel document in late 2010, but had admitted this later in the interview.  The delegate was not satisfied that he had established a fear of persecution based on his “imputed political opinion”.

8. The applicant appealed to the Refugee Review Tribunal, where his agent continued to assist him.  Shortly before the hearing, the applicant presented a submission with some further documents, including a letter signed by an acting President of the BNP branch in Australia which certified that the applicant:

   … is an active member of Bangladesh Nationalist Party (BNP) Australia Branch.  Since he joined (March 2011) the party, he has showed his patience towards the community. 

   I believe that he is an active and sincere person. 

   I hope he succeeds.

9. The applicant also submitted a psychological assessment diagnosing symptoms of depression, stress and anxiety and giving an opinion of post-traumatic stress disorder.  The opinion was based on an acceptance by the interviewer of the traumatic events recounted by the applicant.

10. The Tribunal conducted a hearing attended by the applicant and his agent on 6 October 2011.  It later set out a detailed description of the hearing in its “Statement of Decision and Reasons”, and I accept this in the absence of any better evidence tendered by either party.  It shows that the applicant was questioned about the history he had claimed, and about some difficulties perceived by the Tribunal which eventually formed part of its reasoning.

11. In particular, the Tribunal raised with the applicant a concern that a letter from an Australian acquaintance in support of his obtaining an Australian visitor’s visa was dated 24 December 2010, and that this suggested that he had been making arrangements to come to Australia before the events in January 2011, which his visa statement claimed had triggered his flight from Bangladesh.

12. After the hearing, the Tribunal forwarded to the applicant and his agent an invitation to comment on information contained in two reports from an officer of the Department of Foreign Affairs and Trade (DFAT) in Dhaka. The first report indicated that the officer had made contact with Mr Alam, who had denied that his signature appeared on the purported reference letter from him.  Mr Alam had confirmed knowing the applicant, but gave no corroboration of the applicant’s claimed history.

13. The second report indicated that the officer had also contacted Mr Huda, who confirmed his signature on the reference letter, but said that he had not written it.  Mr Huda told the officer that he:

    … recognised the applicant as an activist from the (local area) committee.  He said that during elections and to the lead-up to elections, large number of people from the villages joined campaigns and it was not possible to remember all grassroots-level party members.  He cross-checked the letter and the identity of the applicant with his personal secretary, who was present during the meeting with post, and confirmed the applicant to be a member of the (local area) committee.

14. Mr Huda told the officer that “the applicant worked for him in election campaigns but was unable to specify which ones or when”. He also told the officer “it has become common occurrence for party members to bring their own referral letters for the party leader to sign”.  Accordingly, in this case Mr Huda had signed a pre-drafted letter. 

15. In a written response, the applicant addressed some, but not all, of the points made by the Tribunal.  He also submitted two further letters of reference, purporting to be signed by Mr Alam and Mr Huda.  The purported second letter from Mr Alam, said:

    I refer to the above named applicant. In relation to the above named applicant and his involvement with the Bangladesh Nationalist Party (BNP) of its (area) branch.

    I admit that a reference letter was written by me on 11 May 2011, which is true and correct.

    The contents of the letter regarding (the applicant) is absolutely correct. An officer from the Australian High Commission spoke with me and I could not identify (the applicant) at the time.

    My apologies to the concerned authority regarding this inconvenience.

    I will be contacted on (phone numbers omitted), if you require any further information.

16. Mr Huda’s second letter, as the Tribunal subsequently noted, was in terms identical to Mr Alam’s first letter, with the added paragraph:

    In that case, I have already (sent) the same letter to Australia.  When investigation team was coming then I cannot identify to him, because I forget to (applicant’s name).  But he is my active worker B.N.P.

17. The Tribunal made a decision on 23 March 2012, in which it affirmed the delegate’s decision.  In its “Statement of Decision and Reasons”, it recited the applicant’s claims and evidence given to the Department and to the Tribunal.  The Tribunal also recounted the correspondence subsequent to the hearing, concerning the DFAT advice and the applicant’s responses.

18. Under the heading “Findings and Reasons”, the Tribunal explained why it did not accept the applicant’s claims that he was a member of the Dhaka District Committee of the BNP, or had been targeted by the Awami League, or was the subject of a false case, or that there was a plan to kill him, or that he had to bribe people at the airport to depart Bangladesh.

19. The Tribunal gave close consideration to the letters of reference submitted by the applicant.  It noted the information obtained from the DFAT officer, and accepted the officer’s reported exchanges with both Mr Alam and Mr Huda.  It gave particular reasons for giving no weight to the second letters purportedly signed by each of them, referring to their inconsistencies with statements made to the DFAT officer, and textual difficulties suggesting that all the letters had been written by the same author, including the letter denied by Mr Alam.

20. The Tribunal concluded in relation to the evidence of the applicant’s involvement in political activities:

    102.Although the Tribunal has found that the letters that the applicant has provided do not contain truthful information, the Tribunal has given consideration to all the evidence about the applicant’s involvement in the BNP. The applicant claims to have been a member of the Dhaka District Committee from 2005 until he came to Australia and to have been targeted and threatened with death for this reason. He also claims he was an Executive member of the (local area) Committee until 2005 and that he has been a member of the BNP for many years since he was a student. The Tribunal is prepared to accept that the applicant might have been a grassroots party member for the BNP because Mr Huda and Mr Alam both told DFAT that they knew the applicant and the applicant displayed some knowledge about the structure of the BNP and Mr Huda’s history. However, the Tribunal is of the view that the applicant has greatly exaggerated his role in the BNP and the Tribunal does not accept that the applicant was a member of the Dhaka District Committee or the (local area) Committee or that he was persecuted or threatened for this reason, or that he was targeted because of any of his political activities at the (local area) level.

21. The Tribunal gave added reasons for its adverse conclusions, based on what it thought was the lack of some knowledge by the applicant as to recent events involving the Dhaka District Committee of the BNP and Mr Huda.

22. The Tribunal concluded generally that the applicant was not a witness of truth and “has fabricated his claims that he was a leader in the BNP and that he was persecuted and targeted for this reason”.

23. While accepting that the applicant “might have been a grassroots worker at the Thana level in the past” and “might have been caught up in random violence at election time or during hartals”, the Tribunal did not consider that conditions for the applicant had deteriorated.  It did not accept that the applicant had been attacked and injured on a number of occasions because of his claimed leadership role, nor that his house had been ransacked for that reason, nor that he had been threatened or harmed by the Awami League or any other person or authority.  The Tribunal made an express finding that it “does not accept that the applicant was targeted in the past as a grassroots worker or that there is a real chance that he would be targeted in the future for this reason” (see paragraph 111).

24. Similar findings were also made at the end of the Tribunal’s reasons, and the Tribunal also considered the future risks facing the applicant:

    119.The applicant has also submitted a letter to the Tribunal which states that the applicant has been involved in the activities of the BNP in Australia.  The Tribunal accepts that he has done so.  The Tribunal has accepted that the applicant was a grassroots worker in Bangladesh but the Tribunal has not accepted that he ever suffered harm for such a reason. The Tribunal does not accept that there is a real chance that the applicant would be persecuted if he returned to Bangladesh and was involved as a grassroots worker for the BNP, one of the major political parties in Bangladesh.

    120.The Tribunal has considered the totality of the applicant’s circumstances and his claims individually and cumulatively. For the reasons given above, the Tribunal does not accept that the applicant was an Executive member of the BNP Dhaka District committee or the (local area) Committee, or that he was targeted because he played any leadership role in the BNP, or because he was a grassroots worker for the BNP. The Tribunal has found that at best, the applicant was a low level grassroots worker of the BNP. The Tribunal has found that the applicant has greatly exaggerated his involvement in the BNP, he has fabricated his claim that he was attacked in 2011 and that there is a false case against him. The Tribunal does not accept that there is any arrest warrant for the applicant or that he is of adverse interest to the police or the authorities. The Tribunal does not accept that the applicant was a committed and active member of the BNP at the time he left Bangladesh. Independent information indicates that the BNP is the major opposition party in Bangladesh. The Tribunal is not satisfied that there is a real chance that the applicant would be persecuted should he choose to continue with any involvement he may have had in the BNP or associated organisations on his return to Bangladesh. The Tribunal does not accept on the evidence before it that there is a real chance that the applicant will be attacked, arrested or targeted by the police or the Awami League, or otherwise persecuted for reasons of his political opinion, or for any other Convention reason, if he returns to Bangladesh now or in the reasonably foreseeable future.

25. The applicant now asks the Court to set aside the Tribunal’s decision and 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 applicant should have been believed, or whether he qualifies for a protection visa or any other permission to stay in Australia.

26. The applicant has presented essentially the same three grounds for review in his original application, an amended application, and a written submission.  As formulated in the amended application, they state:

    1.The Refugee Review Tribunal failed to assess my persecution on the basis of my political involvement with the BNP in Bangladesh.

    Particulars:

    A.The Tribunal failed to assess my persecution on the basis of my political involvement with the BNP in Bangladesh. Further the Tribunal made the following comment that:

    i)      The Tribunal failed to assess that grassroots level leader and activist are facing more danger rather than central leaders where as the Tribunal accepted me as a grassroots leader of BNP and accepted that there was a high degree of violence between different political factions in Bangladesh.

    2.The Refugee Review Tribunal failed to assess my persecution on the basis of my political involvement with the BNP in Australia.

    Particulars:

    A.The Tribunal failed to assess my persecution on the basis of my political involvement with the BNP in Australia.

    i)      The Tribunal accepted my political involvement with the Australian BNP. However failed to consider that it may adversely affect me if I make myself available in Bangladesh.

    3.The Refugee Review Tribunal failed to make difference between the letters (earlier letter and later letter) issued by the Barrister Nazmul Huda and Mr Alamgir Alam and failed to put weight on them.

    Particulars:

    A.The Tribunal failed to make difference between the letters (earlier letter and later letter) issued by the Barrister Nazmul Huda and Mr Alamgir Alam and failed to put weight to them:

    i)      The Tribunal failed to make further investigation about the second letters’ authenticity from the authors before finally rejecting my application where as it was about a critical issue of my application.

27. Essentially, Ground 1 appears to suggest that the Tribunal failed to address whether or not there was a real chance of harm if the applicant returned to Bangladesh, based on its favourable findings that the applicant in the past might have been a “grassroots level worker at the (local area) level”. 

28. Contrary to the formulation of the ground, the Tribunal did not find he had been a grassroots “leader and activist”.  Moreover, in my opinion, it did address whether, to the extent that it was satisfied as to the applicant’s past involvement in politics, this might give rise to a real chance that he would be persecuted in the future if he continued his past involvement in the BNP.  It found that it was not so satisfied.  Such a finding is clearly made at the end of paragraph 120, which I have quoted above.  I therefore do not accept that there was any residual refugee claim, which survived the Tribunal’s adverse conclusions, and which it failed to address. 

1. In relation to Ground 2, I am unable to find in the evidence and submissions presented to the Tribunal any claim that the applicant would be separately at risk if he returned to Bangladesh by reason of him joining the Australian branch of the BNP.  I consider that such a claim was not made, and therefore the premise of Ground 2 is not made out.  The Tribunal was under no obligation to address refugee claims that were not made (see Re Minister for Immigration & Multicultural & Indigenous Affairs, Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [1], [28] and [31], and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [62]).

2. Moreover, at paragraph 119 the Tribunal did expressly take into account the fact that the applicant had joined the Australian branch of BNP and been involved in its activities, and took this into account when assessing the future.  In my opinion, the Tribunal was not required to do more than that.  I therefore do not accept that Ground 2 has established any jurisdictional error in the Tribunal’s reasons.

3. Essentially, the first part of Ground 3 is a criticism of the merits of the Tribunal’s assessment of the letters signed or purportedly signed by Mr Huda and Mr Alam, and of its decision ultimately to give none of the correspondence evidentiary weight.  However, in my opinion, the reasoning of the Tribunal based on textual matters and the information obtained from DFAT was open to it as a matter of law.  It is clear that the Tribunal closely read all of the letters and closely studied their contents.  Its reasoning is consistent with authority in relation to the consideration of corroborative evidence (see Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485), and does not exhibit any element of unreasonableness which could provide jurisdictional error (see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611).

4. The contention that the Tribunal was under some obligation to make further investigations about the authenticity of the second letters should not be accepted.  The Tribunal did not actually find that the second letters were not signed by their purported signatories.  It did, however, point out reasons why weight could not be given to their contents as providing true or accurate evidence.  In my opinion, it was under no obligation to make further inquiries, having arrived at conclusions as to the weight that could be given to the letters submitted by the applicant.  This is not an exceptional case, where an obligation might arise to make an obvious further inquiry which would resolve an issue (see Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429, [2009] HCA 39 at [1], [25]-[26], and Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [2011] HCA 1 at [1], [20], [86]).

5. The applicant today did not raise any other grounds for review, but maintained that the Court should give him relief in the matter because he would be at risk of his life if he returned to Bangladesh.  However, it is not the Court’s task itself to assess the risks he might face.  In my opinion, the Tribunal has done so in a manner according with law, and I can find no jurisdictional error allowing the Court to order a further hearing into his refugee claims. 

6. I must therefore dismiss the application.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  6 November 2012