SZSXU v Minister for Immigration

[2014] FCCA 1133

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSXU v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1133

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal took into account irrelevant considerations or failed to take into account relevant considerations – whether Tribunal correctly applied the real chance test – whether Tribunal fell into jurisdictional error.

Chen Shi Hia v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293

Applicant: SZSXU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1287 of 2013

Judgment of: Judge Raphael

Hearing date: 26 May 2014

Date of Last Submission: 26 May 2014

Delivered at: Sydney

Delivered on: 26 May 2014

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the respondents’ costs assessed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1287 of 2013

SZSXU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh.  He arrived in Australia in April 2012 as an undocumented, unauthorised boat arrival.  The applicant put his claims to be a person to whom Australia owed protection obligations to a delegate of the Minister who found, on 7 March 2013, that he was not such a person.  The applicant then sought review of that decision from the Refugee Review Tribunal.  He attended a hearing before the Tribunal on 7 May 2013, where he was represented by a migration agent.  On 15 May 2013 the Tribunal determined to affirm the decision under review. 

2. The basis for the applicant’s claim to justify him being granted a protection visa was that he and his family had been supporters of the BNP.  He had been the subject of two false charges being laid against him, firstly in 1996 and then again in 2010.  The charge laid in 1996 was allegedly that his father and others, including himself, had taken part in the murder of an Awami League supporter in their village.  The charge laid against the applicant in 2010 was that he had taken part in a riot and was guilty of arson, again, as a result of a political demonstration.  The applicant submitted to the Tribunal certain documentation relating to the 2010 charge, but not in relation to the 1996 charge. 

3. The Tribunal questioned the applicant upon his story.  He told that whilst a very young man, he had gone to Malaysia to work in 1996 and had remained there until 2006.  In a number of paragraphs, the Tribunal questioned the applicant concerning his return to Bangladesh and it is fair to say that the applicant’s responses made it difficult to accurately assess exactly when he did come and go between Malaysia and Bangladesh between 2006 and 2012. 

   “In the Tribunal’s view, the applicant has failed to provide a cogent and consistent account of his movements between 2006 and 2012.  The Tribunal accepts that he returned to Bangladesh in 2006, after he had no prospect of obtaining further visas for Malaysia.  He appears to have been there in 2009 and 2010, for his marriage and birth of his first child.  The applicant’s uncertain, changeable evidence about the timing of his travel to Malaysia is significant.  Even before examining his protection claims individually, it casts doubt on his claim to have fled Bangladesh to escape persecution, and his need for protection.” [25] [CB 227]

4. The Tribunal deals in its decision record with the two false charge claims at [CB 228 and 229].  In regards to the first false charge claim, it notes that although the applicant’s brother, uncle and some cousins were arrested for the alleged murder, they were never convicted for lack of evidence.  It concluded at [33] [CB 228]:

   “Given its general concerns about the applicant’s credibility, the absence of any corroborating documents, and the fact of his return to Bangladesh in 2006, the Tribunal does not accept that there were any fabricated criminal charges against the applicant or any family members in 1996.”

5. In regards to the false charges alleged to have been laid against the applicant in 2010, the Tribunal considered the documentation supplied and noted, in particular, that it did not make any allegation of arson against the applicant, but only of being involved in the stealing or looting of a 21 inch television set.  The Tribunal noted:

   “the applicant’s evidence about his stay in Bangladesh varied from two or three weeks (as stated in his protection visa application) to about two years.  He has not adequately explained this discrepancy, and the Tribunal considers that it cast doubt on the entire incident.” [36] [CB 229].

   The Tribunal also noted independent country information concerning document fraud in Bangladesh.  The Tribunal concluded in respect of this claim that it could not be satisfied that it was true and it  did not accept that the applicant had been subject to any false criminal charges on political or any other grounds. 

6. Whilst the Tribunal accepted that the applicant and his family may well be BNP supporters, it did not believe that their profile was such that it was likely that he would suffer significant harm should he return to Bangladesh now or in the reasonably foreseeable future.  The Tribunal applied the same tests to the complementary protection visa application and, whilst noting Bangladesh’s volatile and often violent political climate, concluded that his family’s low level support of the BNP would not put him or his family at risk of harm should he return. 

7. On 18 February 2014 the applicant filed an amended application in this case.  There were three grounds.  The first was:

   “In making decision, the RRT acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations. 

   Particulars:

   The applicant claims that the RRT did not account the documents related with the police case.  [Ref to [33] of RRT decision]

   The applicant submitted the file related with the applicant’s to the Department of Immigration and the RRT.  The police alleged that he was associated with the murder and burning of house.  The police made false case.  The RRT did not account oral evidence and written evidence.  The applicant claims that he fled from Bangladesh because of fear of persecution and political reasons.  He said, at that at the time Awami League was in power and he had no protection from the Authority.  The fear of persecution was genuine because his two brother and uncle was arrested by the police.  All of the family members of the applicant fled from the original Home place.” [as in original]

8. The Tribunal made its decision concerning the alleged false charges against the applicant and his family members arising out of the 1996 incident based upon evidence provided to it by the applicant.  Included in the definition of “evidence” is “lack of evidence”.  Notwithstanding what the applicant says in this ground, no documentary evidence relating to the 1996 incident was produced, only evidence in relation to the 2010 incident.  The applicant’s arguments can be clearly seen as seeking to agitate the merits of his claim, and this is not something that is permitted in this court.  The Tribunal made its decision based upon available evidence in a clear and logical manner.  It cannot be impugned upon the grounds suggested by the applicant.

9. The second claim made by the applicant was:

   “The applicant claims that the RRT made a jurisdictional error when it made decision on assumption and probability.  The Tribunal’s finding of reasons is confused and test for persecution was not applied according to the rule of the Act. 

   Particulars:

   The applicant claims that the Tribunal formed the above opinion based on the limited information about the possible harm to the applicant.  The Tribunal ignored all other independent information and came on the conclusion.  The RRT made unreasonable doubt about applicant’s documents related with his case came on the conclusion that all documents come from Bangladesh is fabricated that the applicant and persons like him have no fear of persecution and harm.”

10. Whilst this ground is somewhat difficult to paraphrase, it appears to be suggesting that the Tribunal did not apply the real chance test in accordance with law.  In appendix A, commencing at [CB 234], the Tribunal sets out the legal position in regard to this test.  At [CB 236] it notes that:

    “A person can have a well-founded fear of persecution even though the possibility of a persecution is well below 50 per cent.” 

11. At [CB 235], the Tribunal makes reference to Chen Shi Hia v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293, where discussion of the real chance test is found. The court is satisfied that the Tribunal had in mind the proper test to apply. If there was any confusion in the reasons found in the Tribunal’s record, it is because of the confused manner in which the applicant made his own claims, which the court notes were frequently changed. The decision by the Tribunal to accept the independent country information concerning document fraud from Bangladesh is one for it and not for this court to interfere with. It was based upon available evidence. The second ground of the application must also fail.

12. The third ground of application was:

    “The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.” 

13. It appears to the court that this is no more than a reiteration of the second ground, and for this reason, it must also fail. 

14. The applicant appeared before me today.  He told me that the case he filed was for reasons of fairness.  He had so many problems in his country, and that was the reason he filed his case.  If he went back, he would be in problems with the police. He also told that the Awami League are still looking for him.  He said there were cases pending against him, and he cannot go back.  His life would be finished.  He told me that he did not burn anyone’s house down, and that he would not have taken the risk of travelling by boat to Australia if he was able to return safely to his home. 

15. Whilst the court can note these matters, they do not point to jurisdictional error on the part of the Tribunal, and are therefore not things that the court can take into account when deciding whether or not to grant the applicant the relief he seeks.  The application is dismissed.  The applicant must pay the respondent’s costs, which I assess in the sum of $5,000.00. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  30 May 2014