SZSYR v Minister for Immigration

[2013] FCCA 1794

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSYR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1794

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – alleged failure to take into account a relevant consideration – alleged failure to consider evidence ‑  possible complaint of unreasonableness or illogicality – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 476, 91R

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Applicant: SZSYR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1380 of 2013

Judgment of: Judge Nicholls

Hearing date: 4 October 2013

Date of Last Submission: 4 October 2013

Delivered at: Sydney

Delivered on: 4 October 2013

REPRESENTATION

Applicant: In Person

Appearing for the Respondents: Rebecca Jones

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 20 June 2013 and amended on 11 September 2013 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1380 of 2013

SZSYR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”). The application was made on 20 June 2013 and amended on 11 September 2013. It seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 31 May 2013, which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. I have before me today a bundle of relevant documents filed by the Minister. What can be ascertained by way of background from the Court Book (“CB”) is as follows. The applicant is a citizen of Bangladesh (CB 2). He arrived in Australia on 13 July 2011 on a tourist visa (CB 3). He applied for a protection visa on 23 August 2011 (CB 1 to CB 37).

2. The applicant’s claims to protection were set out in a statement attached to his application for a protection visa (CB 16 to CB 17). These can be summarised as follows:

   1)The applicant claimed that he had been involved with the [“Jatiotabadi Jubo Dal”], the student wing of the Bangladesh National Party (“BNP”), and claimed that he was elected as one of the district leaders of the student wing [“Barahman Baria District Committee of the Jatiotabadi Jubo Dal”] (CB 16.1).

   2)The applicant claimed that from “time to time” he received threats from the opposition student wing, [the “Bangladesh Jubo League”], the student wing of the “Awami League”. He claimed that he left Bangladesh and went to Japan on a student visa to “avoid political harassment” (CB 16.2).

   3)Further, the applicant claimed that he returned to Bangladesh in July 2010 to attend “a political agenda”. While there, he claimed that a “fight” occurred between the BNP members and the Awami League, which resulted in his house being “ransacked”, and that the police had arrested some of the BNP supporters.

   4)The applicant claimed that, as a result, he moved to Dhaka and then went back to Japan to “avoid further attacks and police arrest” (CB 16.4).

   5)The applicant also claimed that, if returned to Bangladesh, he would face harm from the Awami League and the “present government [who is] very hostile to the BNP members” (CB 16.7 to CB 17.1).

   The applicant provided further documents to the Minister’s department in support of his claims (CB 41 to CB 44).

3. The Minister’s delegate refused the application for a protection visa on 27 April 2012 (CB 46), essentially because the delegate found that the applicant was not a credible witness. The delegate also found that the applicant did not possess “a notable political profile in Bangladesh” (CB 65.8). Therefore, the applicant would not face any serious harm in the future if he were to return there. The delegate also separately considered the complementary protection criterion (s.36(2)(aa) of the Act), and found that there were no “substantial grounds for believing” that the applicant would suffer “significant harm” if returned to Bangladesh.

The Tribunal

1. On 21 May 2012, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 71 to CB 77).

2. On 17 August 2012, the applicant attended a hearing before the Tribunal. He was assisted by an interpreter in the Bengali language. Following adjournment of the hearing, he attended a further hearing on 27 August 2012 (CB 129). Even further documents were provided to the Tribunal by the applicant at these hearings and during this time (see CB 97 to CB 125 and CB 129 to CB 130).

3. The Tribunal wrote to the applicant, by letter dated 7 March 2013, and gave him the opportunity to provide further information about his claim, given that some time had elapsed since the occasion of the last hearing (CB 31). Following a request from the applicant’s representative, who had been recently appointed, the Tribunal conducted yet another occasion hearing with the applicant on 3 May 2013 (CB 182). The applicant’s representative provided even further documents, on a number of occasions (CB 139 to CB 153 and CB 157 to CB 181 and CB 185 to CB 198).

4. The Tribunal affirmed the delegate’s decision on 31 May 2013 (CB 207). The Tribunal found the applicant “thoroughly lacking in credibility”. Having arrived at that conclusion, for reasons which it gave, the Tribunal did not accept the factual claims made by the applicant that he was a “member, official or supporter of the BNP or the Jubo Dal in either Bangladesh or Japan” ([13] at CB 204 and [24] at CB 207).

5. It is also important to note the following. The Tribunal found that the “brevity, generality and hesitation” of the applicant’s “testimony” regarding his political activity was “most telling” ([16] at CB 205). Further, the Tribunal found that the applicant was unable to provide information or “detail” that it would be “reasonable to expect” of a person who claimed to have had leadership and executive roles in a political organisation ([17] at CB 205 to [18] at CB 206).

6. Bearing in mind the applicant’s complaints now before the Court, I note from the Tribunal’s decision record that it did consider a letter provided by the applicant from a Mr Hasan, who also gave oral evidence on the applicant’s behalf. In relation to that letter, the Tribunal found that it was not “credible” or “reliable”. The Tribunal also found, that it was almost identical to another letter provided by another applicant from an “entirely different [district] in Bangladesh” ([21] at CB 206 to CB 207). Critically, and further, that the letter did not reflect the facts, as separately claimed by the applicant ([20] at CB 206). It is also clear, from the Tribunal’s decision record, that the Tribunal gave the other letters provided by the applicant “no weight” due to the applicant’s “thorough lack of credibility” ([23] at CB 207).

7. Further, the Tribunal disregarded the applicant’s conduct in Australia, which indicated that the applicant was “involved” in BNP activities in Australia, because it found that the applicant engaged in the conduct “for the purpose of strengthening his claim to be a refugee” and that he did not have a “genuine interest” in supporting the BNP ([25] at CB 207 to CB 208). The Tribunal, therefore, found that the applicant did not have a well-founded fear of persecution for a Convention reason ([26] at CB 208).

8. The Tribunal also considered the complementary protection criterion at s.36(2)(aa) of the Act ([27] at CB 208). The Tribunal re-stated its relevant factual findings, and further, stated that it did not accept a claim made by the applicant’s representative that the “Bangladesh community in Australia is monitored, and thus the political activity engaged in by the applicant in Australia would be known in Bangladesh and lead him to be harmed” ([27] at CB 208). The Tribunal found that there were no “substantial grounds for believing that the applicant [would] suffer significant harm for his conduct in Australia” ([27] at 208).

Application to the Court

1. The grounds of the application to the Court, as amended on 11 September 2013, contained three grounds of review with particulars:

   “1. The Refugee Review Tribunal failed to assess my persecution on the basis of political circumstances exist in Bangladesh.

   Particulars:

   A. The Tribunal failed to assess my persecution on the basis of political circumstances exist in Bangladesh.

   i) The country reports show that the political violence exist in Bangladesh. The reports also show that the BNP leaders and activists faced serious harm like kidnap and crossfire by the Awami League and its government agency.

   ii) The Tribunal accepted that the prevalence of political violence in Bangladesh and the long standing animosity between the country’s two major political parties, the Awami League and the BNP, is readily available.

   2. The Refugee Review Tribunal failed to assess my credibility according to the Migration Act.

   Particulars:

   A. The Tribunal failed to assess my credibility according to the Migration Act that:

   i) The Tribunal had given those letters no weight.

   ii) The Tribunal failed to make any investigation about the supporting letters’ authenticity from the authors before finally rejecting my application where as it was a critical issue of my application deciding my involvement with the BNP.

   iii) The Tribunal did not consider my application as a whole to assess my credibility and accordingly I submit that the Tribunal failed to follow procedural fairness.

   3. The Refugee Review Tribunal failed to assess my persecution on the basis of my political involvement with the Australian BNP.

   Particulars:

   A. The Tribunal failed to assess my persecution on the basis of my political involvement with the Australian BNP that:

   i) On the one hand the Tribunal accepted that I had been involved in some activities in Australia in connection with a group of BNP supporters led by Dr Wahab. On the other hand the Tribunal said that I do not believe that the applicant has a genuine interest in supporting the BNP.”

2. Before the Court today, the applicant appeared in person and was assisted by an interpreter in the Bengali language. Ms R Jones appeared for the first respondent.

3. The applicant made two oral complaints today. In essence, the first complaint was that the Tribunal accepted that there was “political violence” in Bangladesh. Yet it did not accept that he had engaged in political activities in Bangladesh. When I asked the applicant to identify what error of law the Tribunal had fallen into, the applicant sought to explain his complaint by reference to the letters he had submitted to the Tribunal. There were two aspects to this complaint, the first was that the Tribunal did not consider the letters and that the Tribunal did not accept the letters, in the sense that they were of assistance to the applicant’s claims. The second element was that if the Tribunal had made enquiries then it would have found, as he said, “the truthfulness” of his claim.

4. The second complaint involved the applicant’s challenge to the Tribunal’s disregard of his claimed political conduct in Australia. I will deal with both of those complaints in considering each of the applicant’s grounds.

5. I also have before me today written submissions from the Minister. I note that the applicant had previously been referred for legal advice and had obtained advice from a member of the panel of the Court’s NSW Refugee Review Tribunal Legal Advice Scheme. The applicant confirmed that he had spoken to a lawyer. I note also that a certificate on the file indicates that the advice was provided by counsel who regularly appears for both applicants and the Minister in migration matters. The applicant also filed written submissions, which I also have before me.

Consideration

1. Ground one does not assist his application. In essence, ground one asserts that the Tribunal failed to consider his circumstances in light of the current political circumstances that exist in Bangladesh.

2. The ground does nothing more than take issue with the factual findings and conclusion made by the Tribunal. At the time of making its decision the Tribunal was plainly aware of the relevant political situation and had regard to that information (see [13] at CB 204). What the applicant ignores is that the Tribunal found that his claims, if true, may have meant that the applicant was owed protection in Australia. However, the Tribunal comprehensively rejected the applicant’s credibility and found, in essence, that none of his claims were true. That is, the claims as to what had occurred in the past, overseas.

3. It is the case that findings of fact, including findings on credibility, are a matter for the Tribunal. So long as the relevant findings were reasonably open to the Tribunal on what was before it and in circumstances where the Tribunal gives cogent reasons for those findings, as in this case, then no legal error is revealed (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).

4. The applicant’s complaint before the Court proceeds on the assumption that because there is political violence in Bangladesh, his claims must be true. The Tribunal gave cogent reasons why that is not the case in relation to the applicant. Ground one is not made out.

5. Ground two, again, focuses on the matter of credibility, and while the ground is stated in broad terms, the particulars appear to narrow the complaint to the letters submitted by the applicant, which mirrored one of his complaints to the Court today.

6. There are a number of strands to the applicant’s complaint, repeated also in his submissions. First, there is nothing to show, nor did the applicant explain in his written or oral submissions, how the Tribunal failed to comply with the Act in this regard.

7. Second, as stated above, the Tribunal’s adverse credibility finding, was a finding of fact made within jurisdiction.

8. The applicant complains about the Tribunal’s treatment of the letters that he submitted to it. These letters fall into two groups. The first is the letter from Mr Hasan. In its decision record, the Tribunal noted that the “testimony” given by Mr Hasan was “problematic”, and subsequently explained that observation (see [20] at CB 206). Ultimately, the Tribunal found that neither Mr Hasan, nor his letter, was relevantly credible, and it gave reasons for this. No legal error is revealed.

9. The remainder of the letters submitted by the applicant, said to be from various political sources and the applicant’s brother, fall into the second group. What can immediately be noted is that, contrary to the applicant’s assertion, the Tribunal did consider these letters ([23] at CB 207).

10. However, the applicant may have used the phrase “not consider” in the sense of “not accept” or “not give weight to”. In those circumstances, I agree with the Minister that the Tribunal was entitled to give these letters “no weight” in circumstances where it had comprehensively rejected the credibility of the applicant’s claims. In my view the circumstances of the case fall within the High Court’s consideration in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (“S20/2002”) at [49] per McHugh and Gummow JJ (see also Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 at [33] per North and Lander JJ). In essence, the Tribunal was entitled to give no weight to the letters in circumstances where it was of the view that given its comprehensive rejection of the applicant’s credibility, no corroboration could undo that clear and comprehensive finding.

11. The applicant also complains that the Tribunal failed to investigate the authenticity of those letter by making investigations, and that the Tribunal should have made investigations with the authors. The only relevant evidence that is before the Court is the Tribunal’s decision record. Despite the opportunity provided to the applicant, no evidence has been put before the Court to challenge the Tribunal’s account of what occurred at the hearing. What is apparent from this is that the applicant’s migration agent told the Tribunal that he had contacted the writers of the letters and confirmed that they had written them ([21] at CB 206 and [23] at CB 207).

12. What is immediately apparent is that, as set out above, the applicant’s evidence itself, and that of Mr Hasan, was such that the corroborative evidence, no matter what “investigation” the Tribunal may may have conducted, could not undo the consequences of the gross deficiencies of the applicant’s own evidence, which the Tribunal had found to be false (with reference to S20/2002).

13. Further, there is nothing in the evidence before the Court, noting again that the applicant has not filed anything to challenge the Tribunal’s record, to show that the applicant or his migration agent requested that the Tribunal to make any investigations. Whatever investigation is now said to have been required appears to have been done by the agent himself. His assertion that the signatories to the letters were indeed the authors was not such as to alter the Tribunal’s mind as to the weight to be accorded to them.

14. There may be circumstances that may require the Tribunal to investigate (Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 (“SZIAI”)). However, I agree with the Minister that this is not a case where “…obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review” (SZIAI at [25]). It is clear that the Tribunal proceeded on the basis that even if the authors confirmed they had signed and written the letters, this was not enough to overcome its “grave” concerns and comprehensive findings about the applicant’s credibility.

15. The applicant also complains he was denied procedural fairness because the Tribunal did not consider his application “as a whole” to assess his credibility. It is not exactly clear what the applicant meant by this, but at best it appears to, again, be a complaint that the Tribunal did not accept some, or all, of his factual claims. As I have already said, in the circumstances presented, no legal error is revealed in this regard.

16. Nor can I otherwise see that any failure of procedural fairness is evident on the material before the Court. The applicant was invited to a hearing on three occasions. The Tribunal’s unchallenged account of what occurred reveals that the applicant was put squarely on notice as to the Tribunal’s concerns and given the opportunity to provide his explanations. That the purported explanations were not such as to convince or persuade the Tribunal as to the matter of his credibility does not reveal legal error. Ground two is not made out.

17. Ground three complains that the Tribunal accepted that he had been involved with the BNP in Australia, but then found that he had no interest in supporting the BNP. At its highest, and at best for the applicant, this may be, as the Minister proposes, some attempt to say that the Tribunal’s finding in relation to his involvement with the BNP supporters in Australia was irrational or illogical.

1. In this regard, a distinction can be drawn between a finding that has the characteristics of irrationality or illogicality, and a complaint that the Tribunal’s decision as a whole contains those characteristics (SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [85] per McKerracher J and at [15] per Rares J). In any event, no irrationality or illogicality, or for that matter unreasonableness, is evident either in relation to the specific matter about which the applicant complains, and certainly not the Tribunal’s decision as a whole, having regard to the direction relevantly provided by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131] per Crennan and Bell JJ and [78] per Heydon J.

2. What the applicant fails to understand is that while the Tribunal found he had been involved with a group of BNP supporters in Australia, in contrast to his lack of involvement in Bangladesh, it was the vagueness of the applicant’s evidence in regard to that involvement that led it find that he had no “genuine” interest in supporting the BNP. That led the Tribunal, and it must be said in context, “logically and rationally”, to the view that his involvement had been for the purpose of strengthening his claims to protection, so the Tribunal properly disregarded it pursuant to s.91R(3) of the Act. Ground three is not made out.

3. I also note, for the sake of completeness, that in considering the alternative criterion of complementary protection pursuant to s.36(2)(aa) of the Act, the Tribunal did not disregard that conduct for the purposes of that consideration. It specifically noted the applicant’s representative’s submission that the activities of the Bangladesh community in Australia are monitored and that therefore, the applicant’s political activity in Australia would be known in Bangladesh and lead to him being harmed. The Tribunal, as was open to it, relied on its own investigation and found that there was no evidence of any such monitoring of people who engaged in these activities in Australia, or any evidence that such persons were harmed for that reason upon returning to Bangladesh ([27] at CB 208). Therefore, the Tribunal found, having regard to the appropriate test, that the applicant did not satisfy the criterion in s.36(2)(aa) of the Act.

Conclusion

1. It is the case that the applicant has been given opportunity before this Court to articulate grounds upon which he says the Tribunal fell into the relevant legal error, that is, jurisdictional error.  As I said earlier, he was, at the Australian taxpayer’s expense, given access to legal advice for that purpose. But, none of the grounds of the application, as amended, are made out. Nor can I otherwise see any legal error in the Tribunal’s decision.  It is appropriate, therefore, in the circumstances, that I make an order dismissing the application. I will make such an order accordingly.

2. It is also appropriate in this case that an order for costs be made as the Minister requests.  Nothing has been put before the Court to argue against the making of such an order in the usual course. As to the amount, I am satisfied in the circumstances that $5,000 is a reasonable amount. I will make the order. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  4 November 2013