SZSRZ v Minister for Immigration
[2013] FCCA 1624
•15 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSRZ v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1624 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant disbelieved in critical respects – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Minister for Immigration v SZSNP (2010) 184 FCR 485 SZLUW v Minister for Immigration & Anor [2010] FCA 804 |
| Applicant: | SZSRZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 609 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2013 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms S Burnett Clayton Utz |
ORDERS
The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The application as amended on 18 June 2013 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 609 of 2013
| SZSRZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 28 February 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the application a protection visa. The applicant is from Bangladesh and had made claims of political persecution. The following statement of background facts relating to the applicant’s protection claims and the Tribunal decision on them is derived from the Minister’s written submissions filed on 9 October 2013.
The applicant, a citizen of Bangladesh, arrived in Australia on 14 February 2012, on a temporary business visa.[1]
[1] Court Book (CB) 1 and 3.
On 8 March 2012, the applicant applied for a protection (Class XA) visa to the Minister’s Department. On 15 June 2012, he attended an interview before a delegate of the Minister. On 17 July 2012, the delegate refused to grant the protection visa.[2]
[2] CB 118-132.
On 20 August 2012, the applicant applied to the Tribunal for review of the delegate's decision.[3] On 7 February 2013, the applicant attended a hearing before the Tribunal.[4]
[3] CB 143.
[4] CB 172.
On 28 February 2013, the Tribunal affirmed the delegate's decision refusing the protection visa.[5]
[5] CB 201- 226.
Applicant's claims
In his application for a protection visa, accompanying documents and interview before the delegate,[6] the applicant claimed to fear persecution from the Awami League because he was one of the vice presidents of the Bangladesh Jatiotabadi Jubo Dal (JBD), a wing of the Bangladesh Nationalist Party (BNP). In particular, the applicant claimed that:
[6] CB 7-10 and 59-87 and 208 and 209 at [26].
a)he first campaigned for the BNP during the 1996 elections and during the 2001 elections he was a polling agent at a local school centre. In 2005 he visited China to “test the market for electronic imports”. Later that year he visited India to explore garment imports.[7] In 2005, he visited friends in the United Kingdom;
b)in April 2011 he was attacked by the Awami League and hospitalised for five days. He claimed the attack was due to his drawing to the local people's attention the government's incapacity to protect “its own agents, let alone ordinary folk”;[8]
c)in June 2011, the Awami League attacked and set fire to his house, damaged his furniture and attacked him with sharp weapons - an attack in which he was severely injured and for which he was hospitalised at Dhaka Medical College;
d)his family members attempted to lodge a report with Dhaka Police in respect of the attack, but the police would not accept the complaint against the Awami League leader, Sultan Sikder and his associates;
e)after he was released from hospital, he went into hiding. His family members informed him that the police had visited his home to arrest him in connection with an incident between BNP supporters and the police at Keraniganj in April 2011;
f)to avoid arrest and further violence, on the advice of BNP party leaders, he decided to stay in hiding until he was granted an Australian visa;
g)his wife and two sons have recently moved to a relative's home to avoid further harassment from the Awami League;
h)he fears returning to Bangladesh because he will be killed by supporters of the Awami League, especially Sultan Sikder and associates. In January 2012, Sultan Sikder and his associates killed one of his close friends and a political colleague, Shahidual Islam;
i)the Bangladesh authorities cannot protect him because they act under the direction of the Awami League.
[7] CB 209 at [26].
[8] CB 209 at [26].
At the hearing before the Tribunal on 7 February 2013, the applicant gave oral evidence.[9] The applicant elaborated upon his written evidence and the evidence he gave before the delegate. In particular:
a)the applicant elaborated on his activities since the mid 1980s stating that he was actively involved with the JBD distributing posters and leaflets, talking to people about their problems and helping the BNP during elections. He stated that he helped the local BNP candidate Nazmul Huda during the 1996 and 2001 parliamentary elections;[10]
b)in February 2011, he was struck on the head and knocked off his motorcycle. The perpetrators were members of Sultan Sikder's gang, a local criminal closely associated with the Awami League;[11]
c)in June 2011, a group of some 20 to 25 men entered his house and attacked him with sharp weapons stating he had failed to comply with their demands for money. They also informed him that they were angry he worked for the BNP. The applicant spent time in hospital and thereafter in a private clinic following the attack. His father went to the police but they refused to accept any complaint against Sikder;[12]
d)the applicant stated that the police came looking for him after the “home invasion”. They alleged that he was involved in the April 2011 riots between the police and BNP activists in Keraniganji. The applicant referred to an untranslated charge sheet that he had provided to the Department as evidence of these trumped up charges;[13]
e)the applicant discussed with the Tribunal each of the documents he submitted to the Department and the Tribunal.[14]
[9] CB 211 at [31]-[61].
[10] CB 213 at [40]-[45].
[11] CB 214 at [46].
[12] CB 214 [48].
[13] CB 214 at [50].
[14] CB 215 at [53].
During the hearing, the Tribunal invited the applicant to comment and respond to adverse information that would form the reason, or part of the reason, to affirm the Delegate's decision.[15] The adverse information was that:
a)in 2010 the applicant had obtained and attempted to use a fraudulent passport;
b)he had initially denied ever having or using fraudulent documents;
c)he had then explained his need for the documents by stating that he had to leave Bangladesh. However, at the time he used them (prior to 2011) he had not experienced any significant problems.
[15] CB 216 at [57].
The Tribunal explained the significance of the adverse information, namely that:
a)when taken together with the applicant's residency in the United Kingdom for five months in 2005/2006, it could indicate that his priority was not BNP politics but rather to find a chance to migrate;
b)it could indicate that he had given false information about his need for a passport in 2010, and hence also the reason for his departure from Bangladesh in 2012;
c)it could indicate that the applicant had in the past relied on fraudulent documents and may continue to do so.
The Tribunal explained the consequences of the adverse information, in particular, that it might find him to be a witness of low credibility and disbelieve his protection claims.[16]
[16] CB 216 at [57].
The applicant confirmed that he understood these points and informed the Tribunal that he had given his comments and responses during the hearing and did not wish to add to these.[17]
[17] CB 216 at [58].
Finally, at the end of the hearing, the Tribunal noted the following matters:
a)there was a significant gap between the alleged home invasion in June 2011 and the applicant's arrival in Australia in 2012. The applicant responded that it was difficult for people in Bangladesh to obtain visas. He also explained that he had tried to minimise the disruption to his family;[18]
b)the Tribunal put to the applicant that the Department's file included allegations from an unknown member of the public. Those allegations were that he had sought protection based on untrue claims and that he had paid someone to make false police records and documents to be submitted in support of his protection visa application. The Tribunal informed the applicant that it would not place any weight on anonymous allegations of this kind without having had a chance to test the assertions. It told the applicant that it informed him of these allegations because it was obliged to inform him of their existence;[19]
c)the Tribunal asked the applicant if he feared harm in Bangladesh for any other reason that might relate to complementary protection. The applicant confirmed he had given all his claims and evidence. The Tribunal informed the applicant that it had extensive concerns about the truth of his protection claims.[20]
[18] CB 216 at [59].
[19] CB 216 and 217 at [60].
[20] CB 217 at [61].
The Tribunal's reasons
The Tribunal found the applicant to be a witness of very low credibility for a number of reasons. Of particular concern was that the applicant had told the Tribunal under oath that he had never used another identity or any fraudulent documents, when this was untrue. It had regard to the applicant's explanation and his emphasis on the role of his agent. However, the applicant's comments did not resolve the Tribunal's concern about the false statements made by the applicant until he was confronted with contrary evidence.[21]
[21] CB 218 at [69].
The Tribunal accepted that the applicant and his family supported the BNP and had some low profile business and social links with local BNP figures.[22] It did not accept that such contacts caused the applicant or his family any problems in the past. The Tribunal rejected the applicant's claim that he was an active supporter of the BNP or a party member or office-bearer of either the BNP, or in its youth wing, the JBD. [23]
[22] CB 219 at [70]-[72].
[23] CB 219 at [73].
The Tribunal had comprehensive concerns about the applicant's claims to have been involved in the politics of the JBD or the BNP. It found the applicant's description of his activities as a JBD office holder to be vague and repetitive. It noted that, notwithstanding his claimed longstanding interest in BNP politics, the applicant gave little insight as to why he focused his efforts on the party's youth wing rather than the BNP political party.[24]
[24] CB219-220 at [75].
The Tribunal considered the documents provided by the applicant to corroborate his claimed past involvement in the JBD. It found that the applicant's attempted use of a fraudulent passport in 2010, and his initial denial of this to the Tribunal, raised questions about the authenticity of all his documents. The Tribunal noted that the applicant had stated his father-in-law had collected the documents and sent them to him in an envelope. However, he also described the person identified on the envelope as a political friend living in Dhaka. The applicant did not appear to know much about the efforts of his father-in-law to obtain the documents and it was therefore difficult for the Tribunal to assess their provenance.[25] Having regard to its concerns concerning the corroborative documents provided by the applicant, the Tribunal did not accept that he had any active involvement in the BNP or any of its subsidiary organisations, including its youth wing, the JBD. It found that the applicant had fabricated his claims to be a JBD activist, local leader and/or office bearer.[26]
[25] CB 220 at [76].
[26] CB 222 at [77].
The Tribunal did not accept that the applicant had been targeted by the Awami League “thug” Sultan Sikder and denied police protection.[27] It did not accept that the applicant had been attacked on his motorcycle in February 2011.[28] It did not accept that a large group of Awami League thugs had attacked the applicant and vandalised his home in June 2011 or that he had been in hiding from June 2011 following the alleged attack.[29]
[27] CB 222 at [78].
[28] CB 223 at [79].
[29] CB 223-224 at [80] and [81].
The Tribunal accepted that the applicant had presented a copy of a charge sheet alleging various offences during the riots of April 2011 in Keraniganj. It noted that the charge sheet did not include the applicant's name. Accordingly it disclosed no link to the applicant. On the available evidence, and having regard to its concerns about the applicant's credibility, the Tribunal found that the applicant was not accused of any involvement in the April 2011 riots. It further found that he did not go into hiding for that or any other reason.[30] Nor did the Tribunal accept that the applicant's family had moved in response to any threatening police visits or any other factors related to his claims for protection.[31]
[30] CB 224 at [82].
[31] CB 224 to 225 at [84] and [85].
The Tribunal concluded that the applicant had fabricated his claims of past harm and all associated claims. Having considered the applicant’s claims individually and cumulatively, the Tribunal rejected critical aspects of the applicant's claim that he had suffered, or would suffer persecution, on the basis of his political opinions if he would returned to Bangladesh.[32]
[32] CB 225 at [91].
Further, the Tribunal considered the alternative criterion under s.36(2)(aa) of the Migration Act 1958 (Migration Act) (complementary protection) but was not satisfied that the applicant met that criterion due to a lack of credible supporting evidence.[33]
[33] CB 226 at [92].
These proceedings began with a show cause application filed on 26 March 2013. The applicant now relies upon an amended application filed on 18 June 2013. There are three particularised grounds in that application:
1. The Refugee Review Tribunal failed to provide weight to the supporting documents.
Particulars:
A. The Tribunal failed to provide weight to the supporting documents that:
i) I have provided supporting documents from the leaders in relation to my involvement with the politics.
ii) I have provided case related documents but the Tribunal did not give any weight.
2. The Refugee Review Tribunal failed to take into account the country’s political situation.
Particulars:
A. The Tribunal failed to take into account the country’s political situation that:
i) I have provided the country information which shows the continuing violence in Bangladesh. However the Tribunal failed to take into account the country information.
3. The Refugee Review Tribunal failed to accord my natural justice.
Particulars:
A. The Tribunal failed to accord my natural justice that:
i) As [proof] of my identity I have provided the identity documents from my country but the Tribunal failed to give any weight to those documents. Further I submit that the Tribunal failed to provide me an opportunity to response the identity issue.
The applicant also relies upon an affidavit filed on 26 March 2013 with his original application. That affidavit recites, in summary form, the grounds in the amended application and I received it as a submission.
I received as evidence the court book filed on 3 May 2013.
Both parties made written and oral submissions. It was clear from the applicant’s oral submissions that his fundamental concern is with the adverse credibility finding made by the Tribunal. The Tribunal found, at [69] of its reasons[34] that the applicant was a witness of very low credibility. Of particular concern to the Tribunal was that the applicant told the Tribunal, under oath, that he had never used another identity or any fraudulent documents, when this proved to be untrue. The applicant was initially concerned that the Tribunal should have accepted his identity documents. I took the applicant to [65][35] of the Tribunal’s reasons which makes clear that those identity documents were accepted. As I pointed out to him, the Tribunal accepted that he was who he claimed to be before the Tribunal. The Tribunal was not concerned with his identity, but rather with his honesty. The applicant ultimately conceded that he made a foolish mistake in attempting to conceal his use of a second passport under a different name. He was genuine in expressing his regret. Unfortunately for the applicant however, his mistake naturally caused the Tribunal to be cautious in assessing his claims. As the Tribunal made clear at [69] of its reasons, notwithstanding its fundamental concern about the applicant’s credibility, the Tribunal did asses his claims for protection objectively.
[34] CB 218.
[35] CB 218.
The Tribunal rejected the applicant’s claims of serious harm for a political reason. The applicant asserts that the Tribunal erred in not considering properly the political situation in Bangladesh. As he pointed out, the Tribunal had available to it substantial country information detailing problems in the exercise of political rights in Bangladesh. However, as I pointed out to the applicant in argument, the political situation in Bangladesh was only relevant to the Tribunal’s consideration to the extent that the Tribunal accepted that he was a victim of it. The Tribunal did not accept that he was a victim.
The applicant also asserts procedural unfairness. Clearly, the applicant’s use of a passport under an assumed name and the Tribunal’s information obtained from British authorities, was fundamentally important. The Tribunal’s decision records at [55]-[57][36] the discussion that occurred at the Tribunal hearing about this. It is clear from [57] that the Tribunal employed the procedure prescribed in s. 424AA of the Migration Act in disclosing to the applicant the adverse information available to it.
[36] CB 215-216.
I see no error in the Tribunal’s approach. I otherwise agree with the Minister’s submissions concerning the applicant’s grounds of review.
The applicant's case, as set out in his Amended Application and Outline of Submissions, raises the following three grounds of review:
a)The Tribunal failed to give weight to the supporting documents and “failed to assess my persecution on the basis of my political involvement” (Ground One).
b)The Tribunal failed to take into account the country's political situation (Ground Two).
c)The Tribunal denied the Applicant natural justice (Ground Three).
Ground One
In support of Ground One, the applicant asserts in his submissions that:
a)the Tribunal failed to consider whether there was a real chance that he would suffer persecution on the basis of his political activities if he returned to Bangladesh in the future;
b)he provided supporting letters from political leaders in Bangladesh, as well as Australia, but the Tribunal rejected that he had any active involvement with the BNP or its subsidiary organisations, or that there was a real risk that he would suffer significant harm;
c)the Tribunal failed to ask any material question as to how he would be adversely affected by the Australian political activities if he returned to Bangladesh and failed to apply the real chance test.
Contrary to the applicant's submissions, a fair reading of the Tribunal's decision record discloses that it did consider whether the applicant would suffer persecution on the basis of his political activities. Further, the Tribunal provided the applicant with every opportunity to explain and elaborate on his claims in support of his application for a protection visa.
The Tribunal specifically looked to whether the applicant would suffer harm in the future. It noted that the applicant had not claimed, and that there was nothing before it to suggest, that simply supporting the BNP, or having low level business and social contact with some local BNP figures, gave rise to a real chance of persecution for a Convention reason.[37]
[37] CB 225 at [88].
To the extent the applicant asserts that the Tribunal failed to consider the corroborative documents he provided and, in particular supporting letters, this is incorrect. As disclosed in the Tribunal's reasons for decision at [76], it gave consideration to all of the documents provided by the applicant in support of his application.[38] The Tribunal set out in detail why it had concerns with the authenticity of the applicant's documents. The Tribunal had regard to the letters of support from the JDB and the president of the BNP in Australia.[39] It had concerns about the authenticity of those documents, particularly given the applicant's past use of fraudulent documents. The question of weight to be given to evidence is a matter for the Tribunal alone. Nor did the Tribunal err in assessing the applicant's documentary evidence in light of its assessment of the applicant's credibility generally. It was open to the Tribunal to assess the credit of the applicant and then, in the light of that assessment, consider what weight should be given to his corroborative documents.[40]
[38] CB 220.
[39] CB 221.
[40] SZLUW v Minister for Immigration & Anor [2010] FCA 804 and Minister for Immigration v SZSNP (2010) 184 FCR 485 at [33].
Accordingly, Ground One must fail.
Ground Two
In support of Ground Two, the applicant submits that he provided country information showing the continuing violence in Bangladesh but the Tribunal failed to take that information into account. Further, the applicant asserts that the Tribunal failed to consider whether he would be in danger of persecution if he continued his political activities in support of the BNP. The applicant relies on W396 of 2001 v Minister for Immigration[41] (W396).
[41] (2000) 68 ALD 69.
In response to the applicant's reliance on W396, the Minister submits that the Tribunal's decision record discloses that the Tribunal asked itself the right question. I agree. There is no suggestion that it failed to consider a relevant consideration that it was bound to consider having regard to the applicant's claims and the evidence before it. The decision record discloses that the Tribunal comprehensively considered all of the applicant's claims, individually and cumulatively. It gave careful consideration to all of the supporting documentation provided by the applicant. A proper reading of the Tribunal's reasons for decision discloses that it did, contrary to the applicant's assertion, address the applicant's chance of persecution on his return to Bangladesh having regard to his political activities.
To the extent the applicant asserts that the Tribunal failed to take into account the country information he provided, the selection of country information and the weight to be placed on it are matters entirely for the Tribunal.[42]
[42] NAHI v Minister for Immigration [2004] FCAFC 10. The Tribunal did have regard to country information.
I reject Ground Two.
Ground Three
By this ground, the applicant asserts that the Tribunal failed to give weight to his “identity documents” and failed to provide the applicant with an opportunity to respond to “the identity issue”. As noted above, the Tribunal accepted the applicant’s claimed identity. Further and contrary to the applicant's claims, it is clear that the Tribunal did provide the applicant with ample opportunity to respond to his use of a fraudulent passport.[43] He was invited to respond to that adverse information at the hearing before the Tribunal but stated that he had given his comments/responses to these points and that did not wish to add to them.
[43] CB 216 at [57] and [58].
As the Tribunal used correctly the procedure under s.424AA of the Migration Act, it discharged its obligation under s.424A(1) of the Migration Act. Section 424A of the Migration Act requires the Tribunal to give an Applicant “clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.” Section 424AA of the Migration Act allows the Tribunal to meet the requirements of s.424A by putting any such information orally during the hearing and when the Tribunal does so, there is no continuing requirement to meet s.424A[44].
[44] Section 424A(2B) of the Migration Act.
The applicant has failed to establish any jurisdictional error on the part of the Tribunal. It follows that the application must be dismissed. I will make the following orders. The name of the first respondent be amended to “Minister for Immigration and Border Protection”. The application as amended on 18 June 2013 is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 23 October 2013
3
3