SZSLE v Minister for Immigration

[2013] FCCA 509

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSLE v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 509

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – applicant claiming political persecution in Bangladesh – applicant not believed – no arguable case of jurisdictional error.

Legislation:  

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZSLE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3077 of 2012

Judgment of: Judge Driver

Hearing date: 12 June 2013

Delivered at: Sydney

Delivered on: 12 June 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,239.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3077 of 2012

SZSLE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application amended on 17 April 2013, seeking review of a decision of the Refugee Review Tribunal (Tribunal).  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Bangladesh and had made claims of political persecution.  He arrived in Australia on 8 July 2011.  On 19 August 2011, he applied to the Minister’s Department for the protection visa.  That application was rejected by the Minister’s delegate on 27 April 2012.  On 23 May 2012, the applicant sought review of that decision by the Tribunal.

2. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend a hearing.  That hearing took place on 22 August 2012.  The applicant was questioned at length about his claims of past harm.  The Tribunal made clear that it had doubts about his credibility.  In its reasons, the Tribunal found that the applicant was not a credible witness, and the Tribunal rejected his claims.  In the course of reaching that conclusion, the Tribunal gave no weight to certain letters produced by the applicant in support of his claims[1]:

   As stated above the Tribunal did not find the applicant a credible witness.  It thus has given no weight to the letters from the BNP and Bangladesh Forazi Jamat.  The letter from Innovation World Limited does not indicate that the applicant was a cyclist or HIV/AIDS awareness campaigner.  The Tribunal gives it no weight.  The letter from Hunger Free World does not indicate that the letter writer or the organisation had an association with the applicant.  It does not specify how the letter writer came to become aware that the applicant was intending to start the bicycle tour referred to nor does the letter indicate that the applicant was a well-known or popular cyclist or a HIV/AIDS awareness campaigner.  It does not appear to relate to the group of cyclists the applicant claimed to have organised for the commemoration on 30 May 2011.  It is not more than a letter wishing the applicant and two others the best in relation to a particular tour.  The Tribunal thus gives the letter no weight.

   [1] Court Book (CB) 100 at [58]

3. The Tribunal, having rejected the applicant’s claims of past harm, found that there was not a real chance that the applicant would suffer harm in Bangladesh, for the reasons claimed, in the future[2]:

   Having found the applicant was not a credible witness and in light of the flaws in his testimony the Tribunal finds that the applicant was not a member of the BNP or Jubo Dal, did not hold the position of joint secretary of his local Jubo Dal, and did not have any association, actual or perceived, with the BNP or Jubo Dal.  Further, the Tribunal does not accept that he organised a large group of people to cycle on 30 May 2011, or that he was beaten, harassed or harmed by members of the Awami League.  Therefore, the Tribunal finds that there is not a real chance that the applicant or any member of his family would be harmed by the Awami League, the government, the police or the RAB in the reasonable foreseeable future if he returns to Bangladesh for reasons of political opinion or any other Convention ground.  Hence, the Tribunal finds that the applicant does not have a well-founded fear of Convention related persecution in Bangladesh.  Thus, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention and does not satisfy the criterion set out in s.36(2)(a). 

   [2] CB 100 at [59]

4. These proceedings began with a show cause application filed on 21 December 2012.  The applicant now relies upon his amended application, filed on 17 April.  There are two particularised grounds in that application:

   1. The Refugee Review Tribunal failed to give reasonable weight to the supporting documents for my involvement with the BNP in Bangladesh and my activity for HIV campaign.

   Particulars:

   A. The Tribunal failed to give reasonable weight to the supporting documents for my involvement with the BNP in Bangladesh and my activity for HIV campaign.  Further the Tribunal made the following comment that:

   i)      The Tribunal has given no weight to the letters from the BNP and Bangladesh Forazi Jamat.

   ii)      The Tribunal gives no weight to the HIV awareness campaign.

   The Tribunal did not make any investigation about the documents’ authenticity to make the above comment.

   2. The Refugee Review Tribunal failed to assess the possible chance of my persecution in future if I return to Bangladesh.

   Particulars

   A. The Tribunal failed to assess the possible chance of my persecution in future if I return to Bangladesh.  Further the Tribunal made the following comment that:

   i)      There is not a real chance that the applicant or any member of his family would be harmed by the Awami League, the government, the police or the RAB in the reasonable foreseeable future.

   The Tribunal failed to assess the political situation in Bangladesh in current regime.

5. The applicant also relies upon an affidavit filed with his original application on 21 December 2012.  I received that affidavit as a submission.  I also have before me the Minister’s response and the applicant’s outline of written submissions, filed on 29 May 2013.  I received as evidence the court book filed on 13 February 2013. 

6. The applicant first complains that the Tribunal erred by placing no weight on three documents.  Those are a letter from Mr Pirjada Mubeen Uddin Ahmed, a letter from Mr Nazmul Huda Chowdhury Mithu and a HIV campaign document.  Two of those documents had previously been rejected by the Minister’s delegate[3].  The applicant furnished a copy of the delegate’s decision to the Tribunal.  The third document was provided by the applicant to the Tribunal and is reproduced at CB 61. 

   [3] CB 45

7. The weight to be attached to particular documents is generally a matter for the Tribunal.  Having comprehensively rejected the credibility of the applicant’s claims, there was in my view no obligation on the Tribunal to give further consideration to the documents.  Nevertheless, the Tribunal did give reasoned consideration to the form and content of the documents.  The applicant complains that the Tribunal should have made further inquiries in order to gauge the authenticity of the documents.  However, in my view, there was no obvious inquiry the Tribunal could have made which could have been readily made, and which might have been determinative.

8. I also find no substance in Ground 2 of the amended application.  It is plain from the Tribunal’s reasons that the Tribunal did not fail to make a forward-looking assessment of the risk faced by the applicant in Bangladesh based upon his claims.  His difficulty is that, because the Tribunal rejected his claims of past harm, there was no basis upon which the Tribunal could find a real chance of future harm for the reasons advanced.  The Tribunal did lawfully assess the applicant’s claims of political persecution. 

9. In his affidavit, the applicant also asserts a want of procedural fairness by the Tribunal.  In my view, however, the process followed by the Tribunal was both fair and in compliance with its statutory obligations. 

10. I conclude that the applicant has failed to advance an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

11. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $3,239.  The applicant referred to current circumstances in Bangladesh, but made no submissions bearing on the issue of costs.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,239.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  13 June 2013