SZSYM v Minister for Immigration
[2013] FCCA 1848
•16 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSYM v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1848 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425 |
| Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 |
| Applicant: | SZSYM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1374 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 16 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 16 October 2013 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the First Respondent be amended to read ‘Minister for Immigration and Border Protection’.
The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1374 of 2013
| SZSYM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
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 28 May 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Bangladesh, arrived in Australia in October 2011. He applied for protection in November 2011 on the basis that he feared persecution because of his active political involvement. In particular, he claimed to have been a leader of the Bangladesh Jaitiotabaid Jubo Dal. He claimed he was harassed, threatened and beaten by members of the Awami League (the AL), who accused him of involvement with the Bangladesh National Party (the BNP). He claimed that after he was beaten he tried to file a case with the police but they refused to accept his case. He claimed that he feared returning to Bangladesh because he would be harmed by AL members or the government by reason of his political opinion.
The Applicant claimed he was Assistant General Secretary of a particular ward executive committee of the Jubo Dal and that he had been involved in BNP student politics in Bangladesh. He lived in Korea between 2006 and 2011. He claimed that on return to Bangladesh he became fully involved in politics and that he was then threatened and attacked by AL members. In support of his application he provided a letter attesting to his involvement in the BNP to which I will return.
The Applicant attended an interview with a delegate of the First Respondent. The only evidence of what occurred in that interview is the delegate’s account and the Tribunal’s account. The delegate refused the application finding that the Applicant’s claims had been fabricated and that he was not a credible witness. The delegate also found for reasons which he gave that, in light of the adverse credibility findings and other issues in relation to the letter of support, the letter was not genuine.
The Applicant sought review by the Tribunal. He attended a Tribunal hearing. Again, the only evidence before the Court as to what occurred in the Tribunal hearing is the Tribunal’s account. In its decision the Tribunal described the Applicant’s claims, including his oral claims in the Departmental interview and at the Tribunal hearing. It summarised the Applicant’s claims, as ultimately put to it, as claims to fear harm from members of the AL, the Bangladeshi government, the police and the Rapid Action Battalion (the RAB) for reasons of his political activity with the Chhatra Dal and Jubo Dal, the student and youth fronts of the BNP.
However the Tribunal did not find the Applicant to be a credible witness. It did not accept his claims. It gave reasons for those findings, referring in particular to internal inconsistencies in aspects of his evidence. It set out examples of such inconsistencies, in particular in relation to whether the Applicant went to Korea because he was fleeing threats and the circumstances in which he claimed he resigned from his political role. The Tribunal found that his evidence in these respects was “substantially different in relation to key matters”. It also had regard to inconsistencies in the Applicant’s evidence as to how he obtained the letter of support said to be from Saidul Haque, the President of Jubo Dal, in particular whether it came from his brother because Mr Haque was in jail or via email before he went to jail. The Tribunal addressed the Applicant’s explanation. It found no plausible explanation for such inconsistency and recorded that this was “not the kind of minor fact which may be referable to human error”.
The Tribunal also had regard to the fact that the Applicant had added some new claims at the Tribunal level about threats to his family. It did not accept his explanation for his failure to mention this to the Department (that he had problems with his memory), finding that he had been able to remember many other details including dates. It did not accept he would omit to mention such an important fact if it took place.
The Tribunal found that while the Applicant had some knowledge of political affairs, his level of knowledge was not commensurate with that of someone involved with the Chhatra Dal for 8 to 10 years or with being an Assistant Secretary of a ward for Jubo Dal. The Tribunal gave examples of the Applicant’s lack of knowledge, such as his inability to name the president of a rival student group at the time of his claimed involvement or to recall anything about a well-publicised 2004 incident in his ward of Chhatra Dal in which the organising secretary was arrested by RAB and died from wounds inflicted in detention. The Tribunal also had regard to other issues in relation to the Applicant’s lack of knowledge. While the Tribunal acknowledged that, as the Applicant had claimed, “mistakes [could] be made as part of normal human error, and … some of his answers may have been affected by stress or memory loss, when considering the evidence in totality [it did] not accept that his knowledge was commensurate with being a leader as he claimed”. It also found it implausible that the Applicant would be attacked by the AL so soon after joining Jubo Dal when his involvement had been minimal at that stage. In support of this finding, the Tribunal referred to country information set out in Attachment B to its decision.
The Tribunal found that the Applicant’s evidence regarding Chhatra Dal, Jubo Dal, the BNP and his involvement with those organisations was unconvincing, brief and vague, and appeared rehearsed. It referred, by way of example, to his inability to tell the Tribunal about the biggest rally or demonstration he had been involved in, in circumstances where he had said that he had been involved on many occasions.
The Tribunal took into account the Applicant’s explanation for inconsistencies and omissions. He claimed that the attack on him in Bangladesh and stress had caused him to have poor memory. However the Tribunal did not accept this explanation, particularly as he appeared to be able to remember many details, including dates.
Having rejected these aspects of the Applicant’s claims, considering all the evidence cumulatively the Tribunal was not satisfied that the Applicant was a member of or held positions in Chhatra Dal or Jubo Dal, that he went to Korea because of political problems, that he was threatened, attacked or harassed by AL members, that his family was threatened, that the police refused to take his case, or that he feared that he or his family would be humiliated or would face false cases.
As it had not found the Applicant to be credible, the Tribunal gave little weight to the letter from Saidal Haque given the prevalence of fraudulent documents in migration matters from Bangladesh as discussed in country information.
Based on these findings, the Tribunal did not accept that there was a real chance the Applicant would suffer serious harm for reason of his political opinion in the reasonably foreseeable future. It did not accept he was a member of or held positions in the BNP or its front organisations.
Given that the Applicant had some knowledge of BNP and political affairs in Bangladesh, the Tribunal did accept that he supported the BNP, as did his father, but not that he was a member or held any position. The Tribunal referred to independent country information which it found indicated that political violence on activists remained a serious problem in Bangladesh. However it was not satisfied that the information to which it referred demonstrated that there was a real chance of serious harm simply because a person happened to support one or the other party. Nor was it satisfied that the Applicant ever had, or now had, a profile as a political activist which would expose him to a real chance of serious harm. Hence it did not accept that country information which revealed there may be a real chance of serious harm for political activists in some situations supported a finding that supporters of the BNP, such as the Applicant or his father, faced a real chance of serious harm based on imputed political opinion.
The Tribunal addressed the issue of complementary protection, but having regard to the findings of fact it had set out, did not accept there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Bangladesh there was a real risk of significant harm within s.36(2A) of the Migration Act 1958 (Cth).
In that context the Tribunal again considered the Applicant’s claim that he was a supporter of the BNP, as was his father. However, on the basis of the country information it did not accept there were substantial grounds for believing that as a necessary and foreseeable consequence of being returned to Bangladesh there was a real risk of significant harm because the Applicant was a supporter of the BNP. The Tribunal affirmed the decision under review.
The Applicant sought review by application filed in this Court on 19 June 2013. He filed an amended application on 2 September 2013. In the hearing today he confirmed that the grounds he relied on were those contained in the amended application. He did not file written submissions. In oral submissions today the Applicant raised issues which to some extent relate to the grounds in the amended application. I have considered all that he said today as well as the grounds in the amended application.
It is convenient to consider first the grounds in the amended application. Grounds 1 and 2 can be considered together. The first ground is that the Tribunal failed to assess the Applicant’s persecution on the basis of his political involvement with the BNP in Bangladesh. The particulars repeat this claim and refer to the Tribunal’s conclusion that it did not accept there was a real chance the Applicant would suffer serious harm for reason of his political opinion in the reasonably foreseeable future, as it did not accept he was a member of or held positions in BNP or its front organisations. The particulars refer to the fact that the Tribunal accepted that the Applicant supported the BNP.
The second ground is that the Tribunal failed to assess the Applicant’s persecution on the basis of political circumstances existing in Bangladesh. The particulars refer to country reports said to show that political violence exists in Bangladesh and that BNP leaders and activists face serious harm, like kidnapping and cross-fire, by the AL and its government agency.
Insofar as the Applicant seeks merits review, merits review is not available in this Court. More specifically, the Tribunal did not fail to consider the Applicant’s claims on the basis of actual or imputed political opinion. Nor did it fail to consider the circumstances of political violence in Bangladesh. Rather, having rejected the Applicant’s claims that he was a member or a holder of position or a political activist in the BNP or its front organisations on the basis of adverse credibility findings, based on country information to which it referred the Tribunal was not satisfied that the Applicant faced a real chance of serious harm or met the test for complementary protection as a supporter of the BNP. It was not satisfied on the available evidence that the Applicant had a political profile which would expose him to a real chance of serious harm.
Such findings were open to the Tribunal on the material before it for the reasons which it gave. It gave comprehensive and cogent reasons for its rejection of the Applicant’s credibility. It addressed the various aspects of his claim: both those it did not accept and those it did accept. It referred to and annexed the country information to which it had regard. In particular, its findings in relation to the situation for supporters of the BNP were open to it on the material before it for the reasons which it gave. As it pointed out, the findings were made in circumstances where country information revealed there may be a real chance of serious harm for political activists in some situations. However the Tribunal found the information before it did not establish that supporters of the BNP faced a real chance of serious harm based on imputed political opinion.
I note that insofar as the Tribunal referred to country information in Attachment “A” that is clearly a typographical error and the Tribunal intended to refer to Attachment “B”. Reading the Tribunal’s decision fairly and as a whole, it is clear that the Tribunal had regard to the country information set out in Attachment B to the decision.
I note generally in relation to these grounds that insofar as the Applicant may be seen as taking issue with the choice of or weight to be given to items of country information such matters are matters for the Tribunal. There is no indication that the Applicant provided any country information to the Tribunal. Neither ground 1 nor ground 2 in the amended application is made out.
Ground 3 in the amended application is that the Tribunal failed to assess the Applicant’s credibility according to the Migration Act. There are two particulars to this ground. The first is that the Tribunal “failed to make any investigation about the supporting letters’ (sic) authenticity from the authors before finally rejecting [his] application whereas it was a critical issue of [his] application deciding [his] involvement with the BNP”. The second is that the Tribunal did not consider the application as a whole to assess the Applicant’s credibility.
Taking the second of these contentions first, contrary to the Applicant’s claim the Tribunal did consider the application as a whole. It repeated on a number of occasions that it had considered the totality of the applicant’s circumstances. The fact that it was not satisfied of the credibility of the major part of the Applicant’s claims is not such as to support any finding that it did not consider the application as a whole.
Insofar as the Applicant complained that the Tribunal failed to investigate “supporting letters’ (sic) authenticity”, as the solicitor for the First Respondent pointed out, and as was not disputed by the Applicant, it appears that only one letter of support was provided by the Applicant: the letter under the signature of Md. Saidul Haque which described the Applicant as a “political colleague and a dedicated activist” of the BNP and an assistant general secretary of a particular ward executive committee of the Jubo Dal who had received threats. It stated that police were not willing to protect him, that leaders and activists were not safe and that the AL may attack him or add his name to criminal cases if he returned to Bangladesh.
It has not been established that the Tribunal was under a duty to make inquiries of the purported author of the letter or otherwise in the sense considered by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39. The issues in relation to the letter of support were apparent to the Applicant from the delegate’s decision. A copy of the delegate’s decision was provided to the Tribunal by the Applicant. The delegate did not accept the letter was genuine, having regard to the absence of detailed information therein, as well as information about documentary fraud and the adverse credibility findings. I also note that there is no evidence that the Applicant sought any investigation by the Tribunal or that the Tribunal undertook to make any investigation or inquiries of the nature referred to in ground 3 in the amended application.
For its part, in its credibility findings the Tribunal had regard to inconsistencies in the Applicant’s claims about how he obtained this letter. Having found the Applicant not to be a credible witness, it gave little weight to the letter given the prevalence of fraudulent documents in migration matters from Bangladesh. The Tribunal’s adverse credibility findings were, as the First Respondent submitted, comprehensive and open to it. In those circumstances the Tribunal was entitled to afford no weight, or as it did, little weight, to the Applicant’s document (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [49] per McHugh and Gummow JJ). Ground 3 as pleaded in the amended application is not made out.
The Applicant raised a number of issues in oral submissions. He claimed first that what the Tribunal asked him at the hearing was 90 per cent in relation to his political activities and that he was able to answer all the questions. He claimed that it was unfair that the Tribunal asserted that he did not have adequate knowledge in relation to politics.
There is no evidentiary basis for such a claim in the material before the Court. As indicated, the only evidence before the Court as to what occurred in the Tribunal hearing is the Tribunal’s brief summary in its reasons for decision. The Tribunal provided specific examples of the Applicant’s lack of knowledge which it relied on as part of the reason for its adverse credibility finding. Moreover the Applicant’s limited knowledge was not the only basis for the Tribunal’s adverse credibility findings. The Applicant’s disagreement with the Tribunal’s view of his level of knowledge is not such as to establish jurisdictional error on the part of the Tribunal.
He also claimed that he urged the Tribunal to investigate his claim in the context of the Bangladeshi political situation, but that it did not inquire into that situation. However, contrary to the Applicant’s contention, the Tribunal had regard to country information in relation to the political situation in Bangladesh. Indeed it accepted that such country information revealed there may be a real chance of serious harm for political activists in some situations. However it was not satisfied that the Applicant was such a political activist. Beyond this, there was no obligation on the Tribunal to investigate the political situation in Bangladesh.
The Applicant also claimed that the assessment of his credibility was not right, as his only error was an unintentional error in relation to the date of birth of his child. He confirmed in oral submissions that he was referring to a mistake in the evidence that he gave in the interview with the delegate. He asserted that this was the only wrong answer he gave and hence he took issue with the Tribunal making an adverse credibility finding.
The basis for the Tribunal’s adverse credibility finding is set out above. The Tribunal did not rely on the Applicant’s lack of knowledge or inconsistent evidence to the delegate in relation to his family composition. As indicated, the Tribunal’s credibility findings were open to it on the material before it for the reasons which it gave. Insofar as the Applicant suggested that the only wrong answer he gave at any stage in the process related to the date of birth of one of his children, in fact, as the delegate set out, there were a number of issues or inconsistencies in relation to the Applicant’s claims about his family composition, including in relation to the age of his wife, how many brothers or siblings he had, whether he had children and the age of one of his children. The delegate expressed concern about such inconsistencies and the Applicant’s inability to provide a consistent, coherent and plausible account, in particular in relation to the names and ages of his children.
The Applicant claimed that he explained to the Tribunal that he could not give the right answer to the question about his child’s date of birth due to his memory loss and that his memory was affected due to a political attack on him in Bangladesh. The Tribunal did not rely on any such issues in its findings and reasons. The Applicant’s concern with the approach taken by the delegate does not establish jurisdictional error on the part of the Tribunal. While the Tribunal did not have regard to any lack of knowledge in relation to the child’s birth, the Tribunal did consider the fact that when asked about inconsistencies and omissions in his evidence the Applicant referred to the attack on him in Bangladesh and stress which he claimed had caused him to have a poor memory. It referred to this claim generally as well as in relation to various aspects of issues of concern. The Tribunal did not accept the Applicant’s explanation that the flaws in his evidence were the result of poor memory, particularly as he appeared to be able to remember many details, including dates.
Insofar as the issues raised by the Applicant in this respect may be seen as suggesting that his ability to participate in the hearing was affected so that he was not afforded the opportunity required under s.425 of the Migration Act, there is no evidence to support such claim.
The Applicant also claimed that he was in trouble and if he went back to Bangladesh he would face the same trouble and that there was no security for his life. In closing submissions he asked the Court to at least give him another two years in Australia. Insofar as he seeks merits review, merits review is not available in this Court. As I endeavoured to explain to the Applicant, the Court does not have a discretion to allow an unsuccessful applicant further time to remain in Australia.
As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed. Before I make the orders, I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The Applicant has been unsuccessful. The Minister seeks costs in the sum of $5,000. The amount sought is less than the amount provided for as a starting point in the Schedule to the Federal Circuit Court Rules. It is appropriate and reasonable in light of the nature of this and other similar matters.
The Applicant told the Court he could not pay that amount and was living in Australia with the support of friends. However the Applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 11 November 2013
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