SZRTZ v Minister for Immigration - [2013] FMCA 187

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRTZ v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 187

MIGRATION – Application to review decision of Refugee Review Tribunal – applicant seeks merits review – no jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)

Applicant:

SZRTZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1973 of 2012

Judgment of:

Barnes FM

Hearing date:

4 February 2013

Delivered at:

Sydney

Delivered on:

4 February 2013

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1973 of 2012

SZRTZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 15 August 2012. The Tribunal affirmed a decision of the delegate of the First Respondent not to grant the Applicant a protection visa. The Applicant, a citizen of Bangladesh, first arrived in Australia as the holder of a student visa. His student visa expired. He remained in Australia. The delegate recorded that he was located during random breath testing in April 2012 and detained. He lodged an application for a protection visa in May 2012, together with supporting documents.
Initially the Applicant claimed primarily to have a well‑founded fear of persecution in Bangladesh by reason of his alleged involvement with the Jatiyotabadi Chhatradal (the JCD) a student political party and his related support for the Bangladesh Nationalist Party (the BNP) and because he had witnessed the murder of a JCD student activist and friend referred to as Jewel.
After his application was refused by the delegate the Applicant sought review by the Tribunal. He attended a Tribunal hearing and submitted some media articles to the Tribunal.
In its decision the Tribunal outlined the claims made by the Applicant in connection with his protection visa application and the evidence given by him at the Departmental interview. It also summarised the evidence given by the Applicant at the Tribunal hearing.
In its findings and reasons, the Tribunal set out the Applicant’s claim to fear harm, which it characterised as a claim “to fear harm for reasons of his political opinion, actual and imputed”. It recorded his claim to have witnessed ICS cadres murder JCD (related to the BNP) student activist Jewel in September 2002 and his claim that they would “now be motivated to kill or harm the applicant, as Jewel’s best friend and confidante, a political associate and an eyewitness to his murder”.
The Tribunal recorded that the Applicant’s claims had “expanded over time” and that he now claimed that the JCB (and hence the BNP) had not only failed to protect him following the murder, but also that he believed that they “gave his home address to ICS cadres and may be further motivated to harm him because he accused JCD members of corruption”. In light of its general findings, the Tribunal did not accept that either the BNP or the JCD had any interest in the Applicant.
He also claimed to fear the ruling Awami League (the AL) on the basis that it persecuted BNP supporters generally but the Tribunal did not accept that the AL would have any adverse interest in the Applicant given its view that he had no political interest, involvement or profile and was not a member or active supporter of the opposition BNP.
Indeed, he claimed that “[a]ll the political parties [would] be motivated to silence him” as he opposed corruption and was “committed to speaking out against dirty politics”. However, the Tribunal recorded that when asked about any political contacts or interests since Jewel’s murder in 2002, the Applicant had said that he had none. He had initially appeared unaware of any options for involvement in political activities in Australia and expressed concern for the safety of his family. The Tribunal concluded that the Applicant did not have a genuine interest in political or social affairs, whether BNP-related or on broader topics such as corruption.
The Tribunal accepted that the Applicant was a student at a named secondary college from 2002 to 2004 when he finished his examinations. However it found that his account of his activities during the period after Jewel’s murder while he was still enrolled at the college and in the subsequent period from 2004 until his departure for Australia in 2006 was incomplete and evasive. The Tribunal did “not accept his claim that he ‘did nothing’ apart from work with his uncle for 6 months” during this period.
The Tribunal found that the murder of Jewel was well-documented, including in an internet article the Applicant presented at the hearing. While it accepted the Applicant was studying at the college at that time, the Tribunal had “significant concerns about the applicant’s claims that he was a member (or committee member) of the JCD at the college, that he was a close confidante and best friend of Jewel, that he was an eyewitness to Jewel’s murder and, in effect, the next on the ICS cadres’ list of victims”.
A number of concerns taken as a whole led the Tribunal to find that the Applicant had given an untruthful account of his experiences in Bangladesh. It had regard to specified concerns arising from the Applicant’s claims about his association with the JCD and Jewel and why he would be of enduring adverse interest to ICS cadres as well as to other political parties, including concerns about the plausibility of his claim to be a member of JCD at the college in light of his vague and uncertain evidence as to his membership and his activities as a member or committee member.
The Tribunal also found that the Applicant had given “little insight as to what additional exclusive or sensitive information Jewel [had given] him”, beyond widespread general rumours of corruption, that caused the ICS and the BNP to target him. It found that while the Applicant “appeared to speak with some authority about [Jewel’s] murder … all students on the college campus would have come to know about the incident and its circumstances, whether directly or indirectly”.
The Tribunal also found that the “applicant’s conduct following Jewel’s murder in September 2002 add[ed] to the Tribunal’s doubts about the truth of his claim to have had any direct link with it, or to have been personally affected”. In that regard it found his “continued enrolment at the college and his completion of his HSC examinations in mid-2004 strongly suggest[ed] that the murder had no ramifications for him”. The Tribunal set out and addressed the Applicant’s explanations in this respect, in particular his claim that he did not actually attend college classes but still did the examinations, but found he gave vague and unconvincing evidence when asked about the details of such arrangements and that he “did not appear to be speaking from lived personal experience at all”.
The Tribunal also found the Applicant’s evidence about his activities from this time until his departure from Bangladesh was unconvincing for reasons that it gave. It found that his continued residence (allegedly at his uncle’s nearby home) in close proximity to the college and the family home cast doubt on the genuineness of his fear of the ICS.
The Tribunal was of the view that the Applicant’s return to Bangladesh in 2008 added to its doubts about the truth of his refugee claims. It also had regard to the Applicant’s delay in applying for a protection visa both after his first arrival in Australia in 2006 and from 2008 on if the ongoing risks were not confirmed until then. The Tribunal addressed the Applicant’s explanations in this respect, but found his claimed reasons for the delay were not consistent with his claimed fear of persecution.
Taking these concerns as a whole, the Tribunal concluded that the Applicant had “given an untruthful account of his experiences at college, his broader political interests or the reasons for leaving Bangladesh”. It did “not accept that he was Jewel’s close friend, political associate or confidante, or that he was standing next to Jewel when he was murdered” and “narrowly missed being attacked” himself. Nor did it accept his claims about subsequently fleeing or that ICS cadres abused or assaulted his family members or asked after him. It did not accept that he had unsuccessfully complained to the police, remained in hiding from September 2002 or that there had been any other developments either during his return visit to Bangladesh in 2008 or thereafter that “caus[ed] him and his family to fear for his safety for refugee-related reasons”.
In light of its adverse view of the Applicant’s credibility and the paucity of his evidence about his claimed political interests, the Tribunal did not accept that he was a member or active supporter of the BNP or the JCD or the claims that followed therefrom. It did not accept that he had “had an argument with the JCD arising from Jewel’s accusations against them” or his commitment to speaking out against corruption and that he feared the JCD on that basis. More generally, the Tribunal did not accept that the Applicant had any political opinion that had motivated him to become active in student or other party politics or broader issues. It did not accept his claims about his activities on return to Bangladesh in 2008, in particular, that he was confined to relatives’ homes in another part of the country or that he had to refrain from political activities to avoid Convention-related persecution.
The Tribunal concluded generally that it did not accept that the Applicant had had any political involvement in Bangladesh in the past, that he had any relevant political opinion actual or perceived or that he had experienced any past harm for related reasons at the hand of the ICS, the BNP or the AL. On this basis it found that there was no real chance of any political group targeting the Applicant on his return for reasons arising from his past experiences or his future conduct.
The Tribunal addressed the Applicant’s advisor’s submission that “Bangladeshi society in general, [wa]s highly politicised and quite volatile”, but noted that the Applicant “did not claim and there [wa]s no supporting evidence to suggest that the mere fact of being a former Bangladeshi student or even favouring one or other major party, establishe[d] a real chance of political persecution”.
Nor did the Tribunal accept that the mere fact of the Applicant’s enrolment at the particular college during what was a “turbulent period” put him at risk of discrimination amounting to persecution for Convention-related or other reasons. In reaching this finding the Tribunal accepted that it was “evident from the press articles that the applicant provided at the hearing [that] political violence ha[d] flared up on various campuses and other locations” and that “corruption, nepotism and political favouritism [we]re rife in Bangladesh”. The Tribunal considered it plausible that prospective employers may scrutinise all aspects of any application for employment but nonetheless did not accept that mere enrolment at the college put the Applicant at risk of Convention-based persecution.
The Tribunal also found that there were “no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there [wa]s a real risk that he [would] suffer significant harm” within the complementary protection provisions of the Migration Act. It referred to the fact that it had found that he had not suffered persecution or other harm in the past, that he had no relevant political interests or other risk factors, had not been denied police protection and had not acted consistently with the conduct of a person who feared persecution or other harm.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
The Applicant sought review by application filed on 13 September 2012. In his application, under the heading “Grounds of application”, he states, “I am seeking protection visa. Refugee.” He made no claim of jurisdictional error in his accompanying affidavit.
The Applicant did not file an amended application. He was given the opportunity today in oral submissions to address any suggested basis for any claim of jurisdictional error on the part of the Tribunal.
Insofar as the Applicant took issue with the factual findings of the Tribunal he seeks impermissible merits review. It is well-established that it is not the role of this Court to engage in merits review of the Tribunal decision. Credibility findings are a matter for the Tribunal as the decision-maker and there is nothing in the present case to suggest that the Tribunal findings were not open to it for the reasons that it gave on the material before it.
Nor is there anything to suggest that the Tribunal failed to consider any integer of the Applicant’s claims. Insofar as the Applicant contended that he had given evidence about and in support of his claims, there is nothing in the material before the Court to suggest that the Tribunal failed to take into account potentially corroborative evidence in a manner constituting jurisdictional error. As indicated in its reasons for decision, the Tribunal referred to and had regard to the documentary material (in particular the internet articles) provided by the Applicant in support of his claims.
Contrary to the Applicant’s claims, the fact that the Tribunal did not accept the Applicant’s claims or that the evidence he provided established that he had a well-founded fear of persecution for a Convention reason is not indicative of jurisdictional error. Insofar as the Applicant appeared to contend generally that the Tribunal should have found that he was a refugee because it accepted that there was violence and corruption in Bangladesh, as set out above, while the Tribunal did accept to some extent the Applicant’s claims about the general situation in Bangladesh, it did not accept factual aspects of his claims about the reason for his fear of harm (in particular his claims about his risk following the murder of Jewel and the perception that he would have a political profile). It was for those reasons that the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason.
The Applicant claimed that he told the Tribunal everything and provided supporting claims and evidence. He took issue with the fact that the Tribunal did not accept his account. Insofar as he appeared to reiterate aspects of his contentions about factual events in Bangladesh, such matters are matters for the Tribunal. The Tribunal considered the integers of the Applicant’s claims and the various bases on which he claimed to fear persecution for a Convention reason. Its failure to accept that the Applicant’s claims gave rise to a well-founded fear of persecution for a Convention reason has not been shown to be affected by jurisdictional error.
As no jurisdictional error has been established the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The Applicant has been unsuccessful. There is nothing in the circumstances of this case to warrant a departure from the normal principle that an unsuccessful Applicant should meet the costs of the First Respondent. The First Respondent suggested that the scale amount in the Schedule to the Federal Magistrates Court Rules was an appropriate amount. However in my view, having regard to the comparatively straightforward nature of this case, the absence of any detailed grounds raised by the Applicant and the lack of complexity in the material before the Court, including in the First Respondent’s submissions, this is not a case which warrants costs in the amount of the scale. Rather an appropriate and reasonable amount in a case such as the present, having regard to the nature of this and other similar cases, is the sum of $4,000.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 21 March 2013