SZTHH v Minister for Immigration

[2015] FCCA 300

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTHH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 300

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant not believed – whether the Tribunal erred in dealing with supposedly corroborative documents considered.

Legislation:

Migration Act 1958 (Cth), s.425

SZBEL v Minister for Immigration (2006) 228 CLR 152

Applicant: SZTHH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2207 of 2013

Judgment of: Judge Driver

Hearing date: 12 February 2015

Delivered at: Sydney

Delivered on: 12 February 2015

REPRESENTATION

Counsel for the Applicant: Mr N Kulkarni

Counsel for the Respondents: Ms B Tronson

Solicitors for the Respondents: DLA Piper

ORDERS

1. The name of the applicant is not to appear on the transcript of proceedings.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2207 of 2013

SZTHH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 26 August 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Bangladesh and had made claims of political persecution.  The background to those claims is dealt with in the parties’ submissions, in particular, the submissions of the Minister.   

2. The applicant is a citizen of Bangladesh. He first arrived in Australia on 22 November 2011,[1] having been in Malaysia, Indonesia and Papua New Guinea since January 2001.[2]

   [1] Court Book (CB) 14.

   [2] CB 15.

3. On 28 February 2012, the applicant applied for a protection visa.[3]

   [3] CB 2-33.

4. The applicant claimed to have been involved with the Bangladesh Communist Party from July 1995 to January 2001.[4] He claimed that “[i]n the middle of 2000 the government became very strict to our activities”,[5] and for this reason he went into hiding and then left Bangladesh. He claimed to fear harm from “other political members” and the government.[6]

   [4] CB 18.

   [5] CB 18.

   [6] CB 20-21.

5. The applicant provided a number of letters in support of his application.[7]

   [7] CB 27-32.

6. On 27 July 2012, a delegate of the Minister refused the application for a visa (the delegate’s decision).[8]

   [8] CB 34-51.

7. On 14 August 2012, the applicant sought review of the delegate’s decision by the Tribunal.[9]

   [9] CB 52-75.

8. On 19 August 2013, the applicant appeared at a hearing before the Tribunal.[10]  He provided four letters to the Tribunal.[11]

   [10] CB 87-89.

   [11] CB 90-94.

9. On 27 August 2013, the Tribunal affirmed the delegate’s decision (the Tribunal’s decision).[12]

   [12] CB 95-108.

10. The Tribunal noted that the applicant’s claims as made in the hearing before the Tribunal were different from those made in his visa application. In particular, he now claimed he had not had to relocate before leaving Bangladesh[13] and he claimed he feared the members of his own party, not the members of his political opponents or the government.[14]

    [13] CB 100-101 [17].

    [14] CB 100-101 [17]-[18].

11. The Tribunal found that the applicant’s evidence contained a number of significant inconsistencies in a number of respects, including in relation to his biographical information, his arrival in Australia, his employment history and his claims.[15]

    [15] See generally CB 98-103 [9]-[21], [23]-[24], [27].

12. The Tribunal also found the applicant’s evidence unpersuasive for other reasons, including his “lack of demonstrable knowledge about the” communist party and the lack of credibility in his evidence about torture and his claim that the party was still interested in him.[16]

    [16] CB 102 [22], 103 [25]-[26].

13. Accordingly, the Tribunal was not satisfied of the truth of the applicant’s claims, that he held a genuine fear about returning to Bangladesh or that there was a real chance he would be persecuted if he returned to Bangladesh.[17]

    [17] CB 103 [28].

14. The Tribunal then considered the letters of support provided by the applicant.[18] The Tribunal noted it could not verify the letters as none of them contained contact details. The letter purportedly from the Elangi Communist Party was not on letterhead and its author was not named. The Tribunal found the letters did “not overcome the significant concerns of the Tribunal”.[19]

    [18] CB 103-104 [29].

    [19] CB 104 [29].

15. Further, the Tribunal was not satisfied that a “Naitional Certificate” (sic)[20] provided by the applicant was a genuine document[21] and so placed little weight on it.

    [20] CB 31.

    [21] CB 104 [30].

16. The Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations.[22]

    [22] CB 104 [31].

17. Similarly, as the Tribunal did not consider there was any credible evidence to support the applicant’s claims, it found the complementary protection obligations did not apply to him.[23]

    [23] CB 104 [32].

The present proceedings

1. These proceedings began with a show cause application filed on 18 September 2013.  The matter has had a somewhat protracted procedural history.  I initially made orders to prepare the matter for a show cause hearing on 16 October 2013.  On 29 January 2014, I vacated that hearing in view of proceedings in the High Court which I considered at the time might have an impact on this case.  That impediment was removed and on 10 April 2014, I directed that the matter be listed for a show cause hearing on 14 May 2014.  That listing was in turn vacated by consent after the applicant obtained legal representation.  The parties consented to orders listing the matter today for a hearing on a final basis. 

2. The applicant now relies upon an amended application filed on 2 February 2015.  There is one ground with two particulars in that amended application:

   1. In contravention of s.425 of the Migration Act 1958 (Cth), the Tribunal failed to put the following issues to the applicant and give him an opportunity to comment:

   a. In para 29 of its decision, the Tribunal referred to its consideration of three letters of support provided by the applicant.  The contents of at least one of those letters concerned the applicant’s involvement in the Purba Bangla Communist Party.  The Tribunal said that “none of these letters contain contact details in order for them to be verified”.  The Tribunal suggested that it would have taken steps to verify the letters and the provision of contact details would have enabled it to undertake those steps.  The Tribunal failed to put to the applicant that the absence of contact details on the letters would prevent them from being verified by the Tribunal.  The Tribunal failed to give the applicant an opportunity to obtain and furnish contact details of the authors of the letters so that they could be verified by the Tribunal.

   b. In para 29 of its decision, one reason the Tribunal gave little or no weight to the letters of support provided by the applicant and otherwise found that they “do not overcome the significant concerns” that had been outlined earlier in the reasons was the absence of contact details on the letters.  The Tribunal failed to put to the applicant that it would place little or no weight on the letters due to the absence of contact details.

   For one or both of these reasons, the Tribunal’s decision is infected by jurisdictional error because of a denial of procedural fairness or a failure to comply with s.425.

3. I have before me as evidence the court book filed on 3 October 2013 as well as the affidavit of the applicant made on 9 February 2015 to which is annexed a transcript of the hearing conducted before the Tribunal. 

4. The amended application, as elaborated upon in the applicant’s submissions, takes issue with a statement by the Tribunal at [29] of its reasons:[24]

   The Tribunal has considered the letters of support provided by the applicant’s brother (which is written in Bengali without a translation), the Elangi Communist Party and Shain Uddin.  However, none of these letters contain contact details in order for them to be verified.  The letter from the Elangi Communist Party is not written on party letterhead and the author of the letter is not named.  The Tribunal does not accept that this demonstrates the applicant’s involvement in the PBCP and places little weight on it as evidence.  Furthermore, the applicant stated that his brother’s letter was written in Bengali because if it was in English it would show it was fabricated.  When the Tribunal put to the applicant that the other letters he provided were written in English he claimed that they were different because they are not from his family.  The Tribunal does not accept such an explanation.  The letters provided do not overcome the significant concerns of the Tribunal referred to above.

   [24] CB 103-104

5. The applicant has two complaints.  The first is that the Tribunal did not raise with him its concern that letters proffered by him, apparently with the intention of corroborating his political claims, could not be verified in the absence of contact details on them or in relation to them.  Secondly, the applicant is concerned that the Tribunal did not raise with him its view that the letters should be given no or little weight.  In a broader sense, that is a complaint about the Tribunal declining to use the letters to address, more particularly, his political claim.

6. With respect to that argument, the starting point for the analysis in this case should not be [29], but [8] of the Tribunal’s reasons.  In that paragraph the Tribunal states, relevantly, that, although the Tribunal was willing to accept that the applicant had lived in Papua New Guinea for a time before coming to Australia, having spoken to him at length during the hearing, the Tribunal found him not to be a truthful or reliable witness.  The Tribunal found its concerns were so significant that it was not satisfied that any of the applicant’s claims were credible.  The Tribunal then at [9]-[28] details extensively nine areas where it had serious credibility concerns.  This is a case where the Tribunal made fundamental and extensive adverse credibility findings against the applicant.  In the circumstances, it would be arguable that the adverse credibility findings were so extensive and so fundamental that nothing further the applicant could have said would have made any difference. 

7. However, the Minister does not resist the application on that basis. The Minister’s contentions are directed to the proposition that s.425 of the Migration Act 1958 (Cth) (Migration Act) was breached in relation to the verification issue and the weight issue. In oral argument counsel for the applicant sought to draw support from the decision of the High Court in SZBEL v Minister for Immigration.[25]  In my opinion, this case can readily be distinguished from SZBEL.  In the first place, it is clear that the delegate comprehensively rejected the applicant’s claims based on his political involvement.[26]  The delegate found that the applicant’s evidence had been fabricated to convince the Minister’s Department that he should be a recipient of a protection visa and for no other reason.  From that the applicant would have been on notice that the entirety of this claims was subject to question.  Further, in my opinion, the reference by the delegate to fabricated evidence should have put the applicant on notice that the documents which he had, apparently, provided to the Minister’s Department, which are in issue in this case, were subject to serious question.

   [25] (2006) 228 CLR 152

   [26] See, in particular, CB 50 and 51

8. The applicant contends that by stating in its reasons that the letters in issue could not be verified because of an absence of contact details the Tribunal came under a duty to inquire, at least as to those contact details, in order to pursue the process of verification which the Tribunal may have had in mind.  I do not accept that proposition.  The Tribunal cannot be taken to have intended to engage in a process of verification or, indeed, to have made any particular inquiry.  In my opinion, the Tribunal did not come under any duty to inquire because no inquiry can be pointed to which could have been readily undertaken, be straightforward and to have had some potential impact on the outcome of the case.  As to the weight allocated to the letters, I accept the Minister’s submissions that the allocation of weight was a matter for the Tribunal. 

9. This is not a case where the applicant’s credibility hung in the balance and the purportedly corroborative material might have had a significant impact.  It is a case where the applicant’s claims had been comprehensively rejected for a range of reasons, and the purportedly corroborative documentary material probably would have made no difference.  I have come to the conclusion that the applicant is unable to demonstrate any jurisdictional error in the decision of the Tribunal, and, accordingly, the application must be dismissed and I so order.

10. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,646.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  19 February 2015