SZSWC v Minister for Immigration
[2015] FCCA 415
•26 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSWC v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 415 |
| Catchwords: MIGRATION – Application for review of the decision of the Refugee Review Tribunal – whether the Tribunal failed to apply s.425 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.425, 476 |
| SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 Minister for Immigration & Citizenship v SZJGY [2008] FCAFC 87 AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156 SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 |
| Applicant: | SZSWC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1097 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 23 September 2014 |
| Date of Last Submission: | 16 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondents: | Mr B O'Donnell |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 21 May 2013 and amended on 10 March 2014 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $ 5400.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1097 of 2013
| SZSWC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 21 May 2013 and amended on 10 March 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 April 2013 which affirmed the decision of the Minister’s delegate to refuse the grant of a protection visa to the applicant.
The evidence before the Court is contained in a bundle of relevant documents filed by the Minister (“Court Book”- “CB”) and a transcript of the Tribunal hearing (“T”) tendered by the applicant (“AE1”), and the affidavit of Winnie David of 18 September 2014, filed on behalf of the applicant (leave was not granted for the last sentence of [2] of the affidavit to be read).
Background
The applicant is a citizen of Bangladesh. He arrived in Australia on 16 November 2011 as the holder of a short term business visa (Class 456) (CB 13). On 8 December 2011 he applied for a protection visa (CB 1 to CB 25).
The applicant’s claims to protection were initially set out in a Statutory Declaration which accompanied his application (CB 26 to CB 29). The applicant claimed to be a member of a part of Bangladesh’s Buddhist minority and claimed to fear harm from Muslim fundamentalists if he were to return to Bangladesh.
He stated that he had been active in his community as a businessman and as a religious and political activist. Local Muslim fundamentalists seized land, on which local Buddhists intended to build a Buddhist temple. In the ensuing conflict, his father was killed and his brother was severely wounded.
The applicant stated that he campaigned, amongst other matters, for the return of the land. He did this as part of his activities as a political, and religious, activist in the Buddhist community.
In addition to Muslim fundamentalists, he claimed to fear harm from the supporters of a local politician who was opposed to the applicant’s activities. He was harassed, threatened and demands of money were made of him. His business was burned down. There was some possibility of the applicant intending to become a Buddhist monk.
The delegate refused the application for the visa (CB 71 to CB 93). The delegate was not satisfied the applicant was a credible witness (CB 88.8). Given the nature of the applicant’s case before the Court, the following is of note (CB 88):
“Conclusion
Overall, and for the reasons outlined above, I am not satisfied that the applicant is a credible witness. There are serious deficiencies in the applicant’s claims and testimony. Considered cumulatively, they are so serious that I cannot be satisfied as to the credibility of the applicant. These doubts in relation to the applicant’s claims are not marginal or irrelevant matters but lie at the heart of an assessment of whether the applicant and his family genuinely experienced harm and mistreatment at the hands of Muslim fundamentalists, including members of BNP, Jamat-e-Islami, Harkatul Zihad and Lashker-e-Tayaba. I am not satisfied that the central facts in this case presented by the applicant are consistent, coherent or plausible. As such I do not accept that the applicant or his family were subjected to harm and mistreatment due to involvement in a Buddhist organisation named Sahabdi Nagar Moitry Vihar. I am also not satisfied that the applicant has provided a satisfactory explanation for concerns raised at interview. Consequently, I am not required to give the applicant the benefit of the doubt.”
The applicant applied for review to the Tribunal on 6 November 2012 (CB 94 to CB 105). The applicant provided written submissions and supporting documentary evidence to the Tribunal (CB 110 to CB 124). He attended a hearing before the Tribunal on 13 March 2013 (CB 126).
The Tribunal affirmed the delegate’s decision (CB 140 to CB 162). The Tribunal accepted that the applicant was a member of the Buddhist minority in Bangladesh, and accepted certain aspects of his claims, in particular, those invoking his father’s status in the local community, and that, following his father’s death in 2003, the applicant became responsible for looking after his mother and disabled brother ([72] at CB 156).
The Tribunal, however, had serious concerns about the applicant’s credibility ([71] at CB 156):
“The Tribunal takes into account, in assessing this case, that the applicant does not have representation. Overall, it found his oral evidence to be vague, changeable and often consisting of broad, uncorroborated assertions…”
It rejected a large part of the applicant’s claims because of inconsistencies and implausibilities in his evidence, and because of independent country information. Given the nature of the applicant’s case, it is relevant to note that the Tribunal found the applicant to be an unreliable witness. It put “little weight” on the documents the applicant provided to the Tribunal in support of his claims.
Application before the Court
There is one ground in the amended application, with seven particulars. Before the Court, the applicant, who was represented by counsel, pressed only four of those particulars. The ground, and particulars pressed, are:
“1. The Tribunal, in contravention of s 425 of the Migration Act 1958 (Cth), failed to put the following issues to the applicant and give him an opportunity to comment:
a) One reason the Tribunal had ‘extensive concerns about the applicant’s claims’ (opening sentence of paragraph 73 of the Tribunal’s decision) was because the Tribunal ‘detected no real interest on [the applicant’s] part in exploring whether there was independent corroboration’ (4th dot point in paragraph 73). The Tribunal failed to put to the applicant the issue or relevance of the applicant’s lack of interest.
b) Another reason the Tribunal had ‘extensive concerns about the applicant’s claims’ was because ‘there is no persuasive evidence of anyone else having been seriously affected by’ the dispute concerning the temple land (5th dot point in paragraph 73). The Tribunal failed to put to the applicant the issue or relevance of the absence of evidence of other persons having been seriously affected.
c) Another reason the Tribunal had ‘extensive concerns about the applicant’s claims’ was because ‘the applicant remained in the local area, claimed to have continued his father’s work…and…sold some of his father’s land’ (6th dot point in paragraph 73). The Tribunal failed to put this issue to the applicant.
…
f) One reason the Tribunal placed little weight on the letter from the gurus at Rangamati CSS and the SNMV was because the applicant ‘appears to have a personal relationship with both men’ (first dot point in paragraph 74). The Tribunal failed to put this issue to the applicant.”
There did not appear to be great dispute between the parties as to the relevant law. Both referred to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (“SZBEL”) and the High Court’s explanation in that case of the operation of s.425 of the Act. In essence, this was the fulfilment of the Tribunal’s statutory obligation to provide the applicant with a fair process, pursuant to s.425 of the Act. The High Court drew attention to the wording of that section, and that the Tribunal was required to invite the applicant to a hearing, “…to give evidence and present arguments relating to the issues arising in relation to the decision under review…” (s.425(1) of the Act).
The dispute between the parties commenced with the question of what is an “issue” in a “review” (as that term is found in s.425 of the Act), and what were the issues in the current case.
Although in some ways it is a simplification of the respective submissions, a useful starting point in understanding the dispute between the parties, on what is the relevant meaning of “issues”, as it appears in s.425 of the Act, is that the applicant presses, as he described it, a degree of “narrowness” or “particularisation” in interpreting the key phrase from s.425 of the Act.
The applicant explained this by drawing attention to the delegate’s decision. He submitted that the delegate found adversely to the applicant’s credit. However, the “issue” arising from the delegate’s decision was not the finding of the applicant’s general lack of credibility, but were the particular matters of factual detail identified in the delegate’s decision record, which formed the basis for the delegate’s reasoning and ultimate conclusion (see CB 80 to CB 88).
Support can be found for the applicant’s argument in relation to whether “credibility” itself is an issue in such cases as Minister for Immigration & Citizenship v SZJGY [2008] FCAFC 87.
For the proposition relating to “narrowness” or “particularisation” as being an important characteristic in identifying the “issue” or “issues”, the applicant referred to AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156 (“AZAAD”). In essence, the applicant relied on the reasoning in that case, said to be that although the applicant’s credibility was raised by the Tribunal in AZAAD there were at least two matters not raised by either the delegate, an earlier Tribunal decision, or the Tribunal in that case. This was said to be the basis of the Tribunal’s error in the current case.
During submissions the Court raised with the applicant the judgment in SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 (“SZJUB”). There, the Court made a distinction between “issues”, and the substratum of facts underlying the issues. As was said in SZJUB at [25] (per Bennett J):
“The Tribunal clearly put the appellant on notice that it was having real difficulty in accepting that she would take the risk of being involved in a smuggling operation and being the target of the PSB. Those statements and questions by the Tribunal sufficiently indicated to the appellant that everything she said on this subject was in issue (SZBEL at [47]). The issue for the Tribunal was whether to believe the appellant. That raised the issue of whether she would have smuggled Bibles in view of the potential risk. The question is whether the fact that she had a business and a dependent child were issues in themselves or factual matters that related to the issue of risk. If they are factual matters that go to the issue arising in relation to the decision under review (ie, risk generally), the Tribunal is not obliged to put each of those factual matters to the appellant. The Tribunal is obliged to inform her of the issue but not of each fact that relates to it.”
The Minister’s submissions initially focussed on the “mischief” to which the High Court’s reasoning in SZBEL was directed. That is as follows. The wording of s.425 of the Act makes clear that the obligation to invite the applicant to a hearing to give evidence, in relation to the issues in the review, does not arise if the Tribunal decides the review in the applicant’s favour on the materials already before it.
The Minister’s understanding, in that light, was that the High Court found in SZBEL that an applicant was entitled to assume that (SZBEL at [36]):
“…unless the Tribunal ‘tells’ the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.”
The Minister’s position in relation to SZBEL (not in dispute with the applicant’s position), was that “procedural fairness” meant that the decision making process must be such that the applicant is not misled as to the issue, and, therefore, denied the opportunity to make arguments and give evidence in relation to those matters.
In short, if the Tribunal is minded to decide against the applicant on a different basis to that of the delegate, then the Tribunal must do enough to sufficiently put the applicant on notice, such that the applicant is not denied the opportunity of putting forward relevant evidence or arguments.
Up to this point the parties had no real dispute. The dispute emerged with the answers to the following two questions posed by the Minister’s submissions. I agree that these provide a useful focus to determine the outcome of the application to the Court.
The questions posed are, first, what is the degree of “mismatch” between the delegate’s reasons and the Tribunal’s reasons, such that the applicant would be relevantly misled, and second, what is the degree of specificity required in identifying any such “mismatch”. I understood Minister to submit in this context that, the key for the Tribunal is to act in such a way that an applicant is not able to “reasonably complain” of a denial of procedural fairness.
The Minister sought to explain these submissions with reference to the circumstances before the High Court in SZBEL. The Minister’s position was that the “issues” in SZBEL were at a higher level of “generality”, that is particularity, or specificity, than pressed by the applicant now.
In SZBEL, the delegate did not believe the applicant’s (an Iranian citizen) claim to be interested in Christianity (SZBEL at [13]). The Tribunal disbelieved the applicant’s account of relevant events. One of these “events” was that the applicant came to the adverse attention of the captain of the vessel, on which he travelled to Australia as a crew member, because of statements about Christianity he made, which were considered to be against Islam. The captain threatened the applicant that he would be reported to the authorities in Iran as an apostate.
The Minister pointed to the distinction between the delegate’s and the Tribunal’s decision in SZBEL. In short, the issue before the delegate was the sincerity of the applicant’s Christian belief. Before the Tribunal, the question of the applicant’s faith was not an issue. The Tribunal’s decision turned on its disbelief of some of the specific aspects of the applicant’s account of past events. Those “specific” aspects, with a minor exception, were not discussed with the delegate. Nor were they discussed at the hearing with the Tribunal (see SZBEL at [42] – [43]).
For current purposes, it is important to note that in AZAAD, the issue dispositive of the application before the delegate was whether the applicants, in that case, had a right to go to Italy, and thereby, avoid harm in Albania. The finding was that effective state protection was available in Italy (see AZAAD at [13]).
The Tribunal in AZAAD, however, disposed of the review by rejecting the key point of the first applicant’s factual claims, and found that the first applicant was not a witness of truth (see AZAAD at [23] – [24]). The evidence before the Court in AZAAD, was that at the hearing, the Tribunal did not identify the key elements of the first applicant’s account that were at issue such that she was denied the opportunity of addressing them (AZAAD at [59] – [63] per Besanko J, with whom Siopsis J agreed at [1]).
Although the applicant’s submissions focussed, at least initially, on the Tribunal’s hearing and reasons for decision, there was no dispute that flowing from the reasoning of the High Court in SZBEL, the delegate’s reasons for the decision also provide a primary reference point for what may be said to be the issues in the review
That is, as set out above, while the issues in the review are ultimately identified with reference to the Tribunal’s decision record, the question of whether the applicant was on sufficient notice of all of the issues determinative of the review before the Tribunal, requires focus on what a reasonable applicant would have discerned as being the live issues, as a result of the delegate’s decision.
The Minister proposes two answers to the applicant’s ground. First, with reference to SZBEL at [47]:
“First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”
The Minister argued that both as a result of the delegate’s decision, and the questioning of the applicant by the Tribunal at the hearing, the applicant would have been sufficiently on notice that everything he said in support of his application was at issue.
In my view, in the current case, the delegate’s decision made clear that the applicant’s credibility was generally at issue. The delegate found that the applicant had “fabricated key claims” (at CB 80):
“…For the reasons outlined below, I am of the opinion that the applicant has fabricated key claims in his Protection Visa application in an attempt to mislead the Department and manufacture protection claims. In reaching this conclusion, I have considered the following:…”
Further, as set out above at [8] of this judgment, the delegate’s “Conclusion” made clear that the delegate was not satisfied that the applicant was a “credible witness”. Any fair reading of that “Conclusion” makes plain that the delegate rejected the credibility of the applicant’s factual account (“central facts”) to fear harm in Bangladesh.
The Tribunal’s account of the hearing reported that ([52] at CB 152):
“The Tribunal alerted the applicant that it had extensive concerns about the credibility of his claims and evidence. It highlighted the following. Country information did not support his portrayal of the dire situation for the Barua Buddhists generally. It was difficult to believe that Chowdury's cadres had a sustained interest in him, even if his father started legal action in 2002 (that was dropped in 2007) and the applicant approached the police in 2009; or that Chowdury's cadres could act with impunity. The Tribunal noted that the temple letterhead had listed on it various patrons who could potentially assist the applicant if Chowdury's cadres or anyone put local Buddhists under unreasonable pressure. On this point, the applicant said that these important people do not make the effort to help ordinary people like him. The Tribunal also put to the applicant that he operated a small shop, and it was concerned that he had only donned his robes for the purpose of his passport and overseas travel.”
[Emphasis added].
The transcript of the hearing reveals that the Tribunal’s concern as to his credibility was not expressed at some general level, but specifically directed, at the hearing, to the entirety of key factual claims. (See for example, T7, line 43; T13, lines 44-47; T15 – various; T17,
lines 19-23; T19, lines 36-37; T20, lines 44-47;T21, lines 1-6; T21, lines 13-66; T21, lines 30-36, T25, lines 47; T26, line 5 (“I might believe that you’ve been dishonest about some other things that you’ve been telling me today. I need you to understand that…”); T31,
lines 28-32; T29, lines 6-9; T29, lines 23-24 (“my view of your credibility”); T31, lines 39-31; T31, lines 41-44; T32, line 23; T36, lines 20-32; T37, lines 6-17, T37, lines 48-49; T38, lines 23-23.)
The applicant’s key factual account was found by the delegate to lack credibility. The Tribunal, at the hearing, separately raised concerns it had with the applicant’s key factual account and, on numerous occasions, in relation to central elements of that factual account.
The Tribunal’s concerns about the credibility of the applicant’s factual account, which were not resolved by the applicant to the Tribunal’s satisfaction, plainly lay at the heart of its decision, in that it rejected the applicant’s claims in relation to these matters.
This is not a case (as in AZAAD), where the delegate’s, and the Tribunal’s, reasons for decision varied. While there may have been further details provided to the Tribunal, the rejection of the applicant’s key factual account as an issue, was similar. The applicant would have been on notice of that after the delegate’s decision. The evidence before the Court is that the Tribunal sufficiently indicated to him the concerns about the entirety of the key elements of his factual account to fear harm. The applicant has not been denied procedural fairness pursuant to s.425 of the Act.
The second basis of the Minister’s response is to individually address each of the matters the applicant presses as being “issues”. It is not necessary to seek to engage in some lengthy consideration as to whether these matters are “issues” in themselves, or are a part of the substratum of facts, relating to the issue, or issues. That is because, even proceeding on the basis that they are “issues”, the applicant would have been reasonably on notice of the Tribunal’s concerns, and was given the opportunity to address them.
Particular (a) asserts that one reason the Tribunal had “extensive concerns about the applicant’s claims” (see [73] at CB 156) was because the Tribunal “detected no real interest on [the applicant’s] part in exploring whether there was independent corroboration” of claims he had made concerning “his family’s claimed experiences” (see 4th dot point of [73] at CB 157).
The applicant submits that the delegate did not base his decision on this matter. Further the applicant argues that the transcript of the Tribunal hearing reveals that the Tribunal did not ask the applicant whether there was independent corroboration, or, indicate that it was concerned that he showed no interest:
1)T15, lines 6-14:
“Q. Okay, that’s not my question though, I’m asking, after your fire – after your shop was burned down, after Salahuddin Quader Chowdhury’s katas did that, did the media – did the press run any articles about that? Or did the Buddhist – did the temple, or did the other Buddhist groups protest what he did against your shop?
A. INTERPRETER: Few people tried to put it in the media, and also they tried to protest, but those Salahuddin Quader Chowdhury’s kata group threatened them also, and so everybody back off.”
2)T19, lines 6 -9:
“Q. Now a fire at a market, or a fire near the market, is something that the newspapers, or the ...(not transcribable)… people worry about, if there’s a fire near a market. Where there any reports on the fire in your shop?
A: INTERPRETER: No, there wasn’t any report.
3)T17 – 18 (generally about country information and violence against Buddhists in Bangladesh).
Even on the basis of the applicant’s view of the authorities, as to what constitutes an “issue” (that is the “narrower” description urged by the applicant), SZBEL (at [48]) makes plain that the Tribunal does not breach its procedural fairness obligations, pursuant to s.425 of the Act, by not giving the applicant a “running commentary” of its view of the evidence before it.
The Tribunal’s reference to the applicant’s lack of interest in obtaining independent corroborative evidence, was a view that the Tribunal took of the evidence before it.
I do not respectfully understand SZBEL, or AZAAD, to oblige the Tribunal to take the view that every single matter before it is an “issue”, requiring that it be expressly put to an applicant. Nor do I, respectfully, understand AZAAD to provide a basis for the applicant to argue that every finding made by the Tribunal must have been squarely put to an applicant for comment by the Tribunal, or to have specific reference to the delegate’s decision.
The Tribunal’s view, as to the perceived lack of interest by the applicant in obtaining independent corroboration, and the lack of any such corroboration, cannot be viewed, in isolation, as an issue in itself. Nor can the Tribunal’s concern about the lack of independent corroboration be seen as an issue in itself. As is clear, that view, expressed by the Tribunal, was a part of its analysis of the applicant’s claims concerning his family’s claimed experiences in 2002, 2003, and 2011, in the context of claimed violence against Buddhists in Bangladesh.
It must be said, with respect to the applicant, that I do not respectfully understand any of the relevant authorities to create some inflexible formula, that every finding made by the Tribunal must be referable to some specific discussion at the hearing.
Rather, as I respectfully understand, as was made plain in SZBEL (see in particular the reference to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 in that case), the Tribunal’s obligation is to provide fairness in the procedures it adopts. That is, that the applicant is on notice of, and given the opportunity to address, the issues in the review.
In the current case, in the context of the Tribunal’s discussion with the applicant regarding claimed attacks by Muslim extremists on Buddhists in Bangladesh, and the claimed attacks on his family, the Tribunal stated (at T17, lines 17-23) (and see generally at T16 to T18):
“Now those incidents were reported, and they aroused a very strong reaction from the Awami League leadership, and from the Buddhist community Bangladesh, and also from the international community. But I have not found any information to indicate that Baruas, or Buddhists in other part of Chittagong are – apart from the violence on those few days, that it has been continued in places like Rangunia, where you – or Shahabdi Nagar, where you come from. So would you like to add something?”
The Tribunal’s subsequent questions and the applicant’s responses (see T18, line 17) provide the basis to find that, on balance, the matter of corroboration, and the applicant’s lack of relevant interest, was “sufficiently indicated” (SZBEL at [47]) to the applicant. Particular (a) does not reveal the error asserted in the ground.
Particular (b) directs attention to the fifth dot point at [73] of the Tribunal’s decision (at CB 157):
“…The Tribunal is also concerned that, while the applicant claims that his father provided the temple land that was later seized, and he and his brother were killed and injured in the latter dispute, there is no persuasive evidence of anyone else having been seriously affected by it. To take the letter from the SNMV at face value (which the Tribunal does not, for the reasons given below), the 'present status' is recorded as being 'religious mendicant centre, primary education, technical education and agricultural farming'. This strongly suggests that the SNMV is thriving, and that it has not been subject to a significant land grab or threats by Muslims.”
The applicant says that an issue in the review was whether anyone else was affected by the local land dispute, which gave rise to the claimed harm. He submitted this was not an issue which arose from the delegate’s decision, nor was it discussed at the Tribunal hearing.
The answer to the applicant’s particular parallels that above in relation to particular (a). The Tribunal drew an inference from the evidence before it. As stated above, it was not obliged to give the applicant a “running commentary” about what it made of the evidence.
Similarly, the inference drawn by the Tribunal as to the absence of corroboration, was available to be drawn from the discussion reported at T16 to T18 concerning the Tribunal’s question to the applicant (see in particular T17, line 31):
“…Q. And do you have any – you know, you’ve made that statement, but have you got any examples of if people, the situation in Ruma, and Ukhia and Patiya was not simply verbal threats, this was actual violence, and the Muslims showed that they could, and did destroy the temples, or attack the people.”
Particular (b) does not make out the applicant’s ground.
The complaint in particular (c) is that the Tribunal found inconsistencies between the applicant’s claim that his brother was maimed and his father was killed by Muslim Fundamentalists, and, that the applicant remained in his local area and continued his father’s work.
The Tribunal stated (6th dot point at [73] at CB 157 to CB 158):
“The applicant's experiences add to the Tribunal's concerns that he has not been subject to persecution or threats at all. Despite the claim that Muslim fundamentalists maimed his brother and killed his father in 2002 and 2003, the applicant remained in the local area, claims to have continued his father's work (although the Tribunal does not accept these as reliable) and, according to the applicant's evidence, sold some of his father's land to buy a shop. He operated this shop until (at least shortly before) his departure for China. According to the applicant's evidence at the hearing, even after he tried to revive his father's campaign for the return of the seized temple land in early 2009, following the AL government's election in late 2008, a further two years passed before the alleged incidents in early 2011 that caused him to flee Rangunia. At the hearing, he said that Chowdhury's men had demanded protection money from most shopkeepers, but had in the past spared him because the shop was not so profitable. The Tribunal considers it striking that, apart from the specific incidents that the applicant refers to, he remaining living in Rangunia and ran a shop for almost ten years, with no apparent disruption to his livelihood or imminent threats.”
There are two points to be made about particular (c). First, the applicant’s submission appears to complain that the Tribunal had some expectation that the applicant should modify his behaviour to avoid harm. That of course, if made out, would reveal jurisdictional error (S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473).
That submission is not responsive to the ground as pleaded. In any event, it is not a fair reading of the Tribunal’s analysis. The Tribunal was plainly comparing two pieces of evidence before it. The applicant claimed that his family (of which plainly he is a part), were subject to such violent action by the Muslim fundamentalists that his brother was maimed and his father killed in 2002, and 2003, respectively.
Yet, the applicant remained in the local area, continued his father’s work, operated his father’s shop for some ten years, without any claim that he suffered harm until early 2011. This finding was open to the Tribunal on what was before it. There was no expectation by the Tribunal that the applicant should modify his behaviour.
Second, and directed to the ground and particular as pleaded, the Tribunal did discuss the applicant’s evidence that he had remained in his local area without harm (see T28, and for context, T27 – T29). Particular (c) does not assist in making out the ground of the application.
Particular (f) directs attention to [74] of the Tribunal’s decision and the following first dot point at [74] (at CB 158):
“The Tribunal has also considered the documents that the applicant provided to support his case. It has taken into account country information about the prevalence of document fraud in Bangladesh. Given the extent of its concerns about the reliability of his evidence as a whole, as well as the circumstances of his travel to China and then Australia, the Tribunal is not prepared to accept any of the documents at face value.
- The purported letters from the gurus at the Rangamati CSS (Sreemoth Sambodhi Bhikkhu) and the SNMV (Ven. Sangha Rathna Bhikkhu) are in English, and obviously written for the purpose of this application. The applicant appears to have a personal relationship with both men, as he claims that the former organised and paid for his travel to Australia, and the latter is his local guru. The Tribunal therefore places little weight on their statements as independent corroboration of the applicant's protection claims.”
Before the Court, the applicant argued that one reason the Tribunal placed “little weight” on the letters from these gurus was that he “appeared to have a personal relationship with both men”.
The applicant’s submissions sought to distinguish the approaches by the delegate and the Tribunal to this. The delegate found that the letters were “fabricated”, “contrived” and “not…genuine” (see CB 46 to CB 47 for the letters, and CB 86.5 to CB 88.3 for the delegate’s analysis).
The applicant submits that, in contrast, the Tribunal appears to have accepted that the letters were genuine, but placed “little weight” on them, because of the relationship between the applicant and the two authors (“gurus”).
The applicant argues that these two different findings were each issues in the review and the Tribunal failed to raise the latter with the applicant. In particular, he submits that while the two letters were discussed at the hearing, the Tribunal did not tell the applicant that they should be given “little weight” (T30, line 41 to T33, line 32).
I agree with the Minister that the view the Tribunal took of the evidence before it is an example of the type of thought process referred to by the High Court in SZBEL (at [48]).
The applicant had given evidence that one of the authors of the letters had paid for the applicant’s travel, and the other was his “local” guru (see T23, line 45; T25, lines 3-4 and line 23; and T30, lines 41 -45).
It is relevant to note that the applicant did not claim to fear harm from the Muslim extremists because of his relationship with either of these two gurus. Rather they provided, what purported to be, corroborative evidence of some aspects of his claims.
The applicant focusses on the distinction between a finding that the letters were fabricated, and the Tribunal’s subsequent finding, that it could give them “little weight”.
Putting to one side whether this matter is an “issue”, or a part of the substratum of facts to an issue, it is well to be reminded that what the relevant authorities seek to explain is that procedural fairness, as it arises from s.425 of the Act, requires that the applicant, in effect, be on notice of the matters adverse to his case, and which ultimately, were matters dispositive of the review.
While the delegate concluded his relevant analysis with such words as “fabricated” and not “genuine”, it is clear that these were descriptions of the contents of the letters. In relation to the letter from guru Sreemoth Sambohdi Bhikku, the delegate stated (CB 86):
“…I do not accept that the applicant has provided an honest account in relation to the genesis of this letter. I do not find it plausible that Sreeemoth Sambohdi Bhikku would have provided such a detailed account of the applicant’s situation. I find the content of the letter to be contrived for the purposes of supporting fabricated protection claims.”
In relation to the other letter, the delegate, again, arrived at this conclusion after referring to, and analysing the contents of, the letter (CB 87.7 to CB 88.2).
The applicant would have been reasonably on notice that the credibility concern about the letters arose specifically from their contents and country information generally about document fraud in Bangladesh.
That is, the delegate’s conclusion arose from the applicant’s failure to provide an “honest account” concerning the first letter (CB 87.7 to CB 88.2), its contents, and document fraud, and the inconsistency between the applicant’s evidence and a part of the second letter.
The delegate’s concern about the letters was plainly linked to, and expressed in, the context of the concern, and finding, about the applicant’s lack of credibility regarding his factual account of past events. The applicant could not have reasonably been misled, given this context, about the Tribunal’s view that the contents of the letters did not assist the applicant’s case. This view was a central part of the Tribunal’s analysis, and mirrored the delegate’s concern. In my view that is made plain by the Tribunal at [74] (at CB 158) and the subsequent and the subsequent first dot point (see above at [66]). Particular (f) does not support the ground of the application.
Conclusion
The sole ground of the application is not made out. It is appropriate to dismiss the application. I will make an order accordingly.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 26 February 2015
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