SZTHK v Minister for Immigration

[2014] FCCA 1352

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTHK v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1352

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal (Tribunal) – whether Tribunal’s decision is affected by jurisdictional error – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Applicant: SZTHK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2225 of 2013

Judgment of: Judge Manousaridis

Hearing date: 27 February 2014

Delivered at: Sydney

Delivered on: 27 June 2014

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms Carr
DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2225 of 2013

SZTHK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) to refuse the applicant the grant of a Protection (Class XA) visa (protection visa).

2. The application, which appears to have been prepared without legal assistance, raises three grounds:

   1.The second respondent made an error by irrelevant consideration.

   2.The second respondent made an error not admitting that the applicant was subject to a false case.

   3.The second respondent has not considered the applicant’s claim in accordance with the United Nation’s convention.

3. Before I consider these grounds, it will be useful to set out the claims the applicant made in support of his protection visa application and during the course of the hearing before the Tribunal, and the Tribunal’s reasons for affirming the delegate’s decision.

The applicant’s claims for a protection visa

1. The applicant, a citizen of Bangladesh, claimed in his application for a protection visa that he left Bangladesh because he “had political persecution, my political opponents targeted me, a false case was filed against me which made a situation for me to leave the country”.[1] The applicant claimed that:

   a)he was harmed or mistreated by the Awami League on two occasions.[2] The first occurred on 30 December 2008 when he was attacked by a “group of Awami goons” on his return to Dhaka. The second occurred on 2 February 2011, when he was leading a procession which was interrupted by the police and “local Awami goons”. The applicant was beaten by “Awami goons” and admitted into a private clinic.

   b)a false case was instigated against him and the applicant feared he will be killed by “Awami goons” if he returns to Bangladesh;[3]  and he feared harm and mistreatment from his political opponents and government agents, including the police and Rapid Action Battalion (RAB).[4]

   c)the applicant was involved in the Bangladesh National Party (BNP) and was the “Joint Secretary” of the Bhandari Kandi Union during the 2008 parliamentary election.[5] He worked for a candidate from a party alliance led by the BNP and was also an executive member of Shibchar Thana BNP. The applicant became a target for Awami activists during the election.[6]

   [1] CB19

   [2] CB20

   [3] CB20

   [4] CB21

   [5] CB21

   [6] CB21

Applicant’s evidence before the Tribunal

1. The applicant elaborated his claims for protection when he appeared before the Tribunal on 16 August 2013.[7]

   [7] CB173-177, [12]

2. The applicant said he left Bangladesh because he was involved in politics in his village; he was the “President” or “Chairman”[8] of the village BNP and had established a BNP club. In 2009, the applicant was expelled from the village for three years. On 11 September 2011 the applicant returned to the village at the request of his mother. The applicant was attacked and badly beaten and then handed to the police. The applicant bribed the police so he could return to Dhaka.

   [8] CB175, [12]

3. The applicant had a garment business in Dhaka but he could not continue with the running of his business after a series of false cases were instigated against him and the applicant was charged with disturbing the peace and throwing bombs. The applicant paid bribes to the police to avoid each case.

4. The applicant obtained a United Kingdom (UK) visa and left for the UK on 24 December 2011 after Awami League activists and the police went to his home wanting to kill him. While the applicant was in the UK he received a phone call from a “network of powerful people in the garment business who assured him they would do something to solve his problems”.[9]

   [9] CB174, [12]

5. The applicant raised a new claim before the Tribunal that upon his return to Bangladesh from the UK on 6 January 2012, the applicant was attacked in his home in Mirpur by Awami League activists. The applicant said that the Awami League activists and police harassed him in Mirpur every time the BNP declared a strike. The applicant stated that he was involved with the BNP leader in Mirpur and held the position of “Secretary”.[10] He associated with the BNP party and participated in protests and meetings. The applicant also said that he started receiving threats from a person named Shahada, an Awami League terrorist shortly after the attack in Mirpur.

   [10] CB174, [12]

6. The applicant made arrangements to leave Bangladesh after receiving another threat from Shahada and obtained an Australian visa. However, the applicant did not leave Bangladesh for two months after his Australian visa was organised for fear of being killed by Shahada.

The Tribunal’s decision

1. The Tribunal found the applicant’s claim to have suffered harm because he was a BNP member to be “unsubstantiated” and to comprise of no more than “simple assertions”.[11] The Tribunal had strong doubts about the credibility of the applicant’s claims due to there being “significant inconsistencies” between the applicant’s claims in his protection visa application and the claims advanced by the applicant before the Tribunal.[12]

   [11] CB177, [16]

   [12] CB177, [16]-[17]

2. The first inconsistency noted by the Tribunal included the applicant’s evidence regarding the position he held within the BNP and whether he was the “Joint Secretary”, “President” or “Chairman”.[13] The Tribunal also noted that the applicant had raised a new claim about being attacked by Awami League activists and the local police, and the applicant’s response that he did not raise these claims previously because “he did not have a lawyer, was not well-educated and had not thought it important”.[14] The third inconsistency the Tribunal noted was the applicant’s changing his claim from having one false case instigated against him to a series of false cases instigated.[15]

   [13] CB178, [17]

   [14] CB178, [17]

   [15] CB178, [17]

3. The Tribunal did not consider “convincing”[16] the applicant’s explanations for the inconsistencies between his protection visa application and what the applicant claimed at the Tribunal hearing; and it did not consider the applicant had provided a “plausible explanation” for the two-month delay between obtaining the Australian visa and departing Bangladesh.[17] The Tribunal was not satisfied that the “[a]pplicant was a member of the BNP in Bangladesh or that he ever actively supported the party in his village of Bhandari Kandi, in Mirpur or elsewhere”.[18] The Tribunal was also not satisfied that the applicant had been harmed by the Awami League or the police, that he was subject to false charges or that he was threatened by a person called Shahada.[19]

   [16] CB178, [18]

   [17] CB178, [21]

   [18] CB179, [22]

   [19] CB179, [22]

4. Finally, after considering the applicant’s “claims individually and cumulatively”, the Tribunal was not satisfied that the applicant would suffer a real risk of significant harm as set out in s.36(2)(aa).[20]

   [20] CB179, [25]-[27]

Ground 1 – the Tribunal took into account irrelevant considerations

1. The application does not identify the irrelevant considerations the applicant alleges the Tribunal failed to take into account. At the hearing, however, the applicant identified the irrelevant consideration to be what the applicant submitted was the Tribunal’s repeated questioning of the applicant about his UK visa and why the applicant did not stay in the UK. The applicant submitted that the Tribunal did not believe the applicant because it repeatedly asked the applicant why he did not “file a case” in the UK.

2. It appears the applicant takes issue with the relevance of two findings of the Tribunal. The first is the Tribunal’s finding that it was “difficult to reconcile” that the applicant left Bangladesh for the UK in December 2011 to escape being killed and then returned to Bangladesh within two weeks and without claiming protection.[21] The second is the Tribunal’s finding that it was difficult to understand why, when, after his return from the UK, he was attacked in his home in Mirpur by Awami League activists, the applicant did not return to the UK using his multiple-entry visa and claim protection there.[22]

   [21] CB178, [19]

   [22] CB178, [20]

3. The Tribunal did take into account these findings when deciding to affirm the delegate’s decision. The question is whether it was open to the Tribunal to consider these findings as relevant to issues it had to determine when reviewing the delegate’s decision. In my opinion, they were not irrelevant. The applicant’s returning to Bangladesh, and the applicant’s being entitled to return to the UK after he returned to Bangladesh, could rationally affect the assessment of the probability of the truth of the applicant’s claim that he feared persecution. A person who feared persecution in a particular country is unlikely to voluntarily travel or return to that country or, being in the country in which he or she fears persecution, remain in that country if it was open to that person to travel and gain lawful entry into a country in which he or she would not face persecution.

4. For these reasons, the applicant does not succeed on ground 1.

Ground 2 – the Tribunal did not accept the applicant’s claim

1. The second ground the applicant raises in his application for judicial review is that the Tribunal made an error by not accepting as true the applicant’s claim that he had a false case instigated against him. The applicant made the following oral submission at the hearing in support of this ground:[23]

   When I was in Bangladesh, I had a false case against me and following that false case, they would have taken me to jail. This is what I tried to emphasise . . . to the RRT.

   [23] T5.5

2. This ground does not disclose any jurisdictional error on the part of the Tribunal. It only expresses disagreement with the Tribunal’s not accepting the applicant’s claims, part of which relied on the applicant claiming he was subject to one false charge.

3. In any event, the Tribunal did not accept the applicant’s claim about his being the subject of a false charge because the Tribunal considered the applicant had given inconsistent evidence. The Tribunal’s reasons were as follows:[24]

   [The applicant] confirmed his claim that false cases had been lodged against him by the Awami League, with the help of the police. I noted that he had previously spoken of only one such false case, not a number of them. He said there was one case but every few months he was harassed and tortured. He would go to the police station and pay money. Asked again why he would now claim there had been a series of false cases, for disturbing the peace and throwing bombs, when he had spoken previously of only one case he said when he escaped from his village after being beaten the Awami League people lodged a false case. He could not enter the village for three years. Once he went to visit his mother but was attacked at the bus stop.

   [24] CB176, [12]

4. The Tribunal’s reasoning does not disclose any jurisdictional error – the Tribunal raised the potential inconsistency with the applicant at the hearing and considered the explanation given by the applicant for the inconsistency. It was open to the Tribunal to make the finding that the explanation provided by the applicant was unconvincing[25] and to conclude that it was not satisfied the applicant was “subjected to false charges”.[26]

   [25] CB178, [18]

   [26] CB179, [22]

5. Ground 2, therefore, fails.

Ground 3 – the Tribunal did not consider the applicant’s claims in accordance with the Refugees Convention

1. The only submission at the hearing made by the applicant in support of the third and final ground is that he will be gaoled and killed by the police if he returns to Bangladesh and returning to Bangladesh is “terribly dangerous” for the applicant.

2. It is evident from the Tribunal decision that it considered the applicant’s claims in accordance with the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. The Tribunal accurately set out the law[27] and identified that the applicant claimed to fear harm on the “Convention ground of his political opinion”[28] and not for any other Convention reason.[29] In relation to the claims raised by the applicant in support of his protection visa application, the Tribunal ultimately concluded:[30]

   I am not satisfied that the [a]pplicant has a well-founded fear of persecution for a Convention reason should he return to Bangladesh, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.

   [27] CB171, [3]-[4]

   [28] CB177, [14]

   [29] CB179, [23]

   [30] CB179, [24]

3. In my opinion, the Tribunal made no jurisdictional error and ground 3 also fails.

Conclusion and disposition

1. The applicant has not shown the Tribunal made any jurisdictional error in affirming the delegate’s decision not to grant the applicant a protection visa.

2. I therefore propose to dismiss the application and order that the applicant pay the Minister’s costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 27 June 2014