SZTIL v Minister for Immigration and Anor

[2014] FCCA 1604

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTIL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1604

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant not believed – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 425

Applicant WAEE v Minister for Immigration [2003] FCAFC 184

Applicant: SZTIL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2346 of 2013

Judgment of: Judge Driver

Hearing date: 23 July 2014

Delivered at: Sydney

Delivered on: 23 July 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms F Taah

Australian Government Solicitor

ORDERS

1. The application filed on 2 October 2013 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2346 of 2013

SZTIL

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 Tribunal decision was made on 16 September 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant claims political persecution in Bangladesh.  The following statement of background facts relating to those claims and the Tribunal decision on them is derived from the Minister’s outline of legal submissions. 

2. The applicant is a citizen of Bangladesh who arrived in Australia on 25 October 2011 on a temporary business visa which expired on 25 January 2012[1].  On 6 December 2011, the applicant lodged an application for a protection visa[2] which was refused by a delegate of the Minister on 25 July 2012[3].

   [1] Relevant Documents (RD) 49, 72

   [2] RD 1-33

   [3] RD 42-61

3. On 14 August 2012, the applicant applied to the Tribunal for review of the delegate’s decision[4].  He appeared before the Tribunal for a hearing on 2 September 2013[5] and on 16 September 2013, the Tribunal affirmed the decision not to grant the applicant a protection visa[6].

   [4] RD 62-70

   [5] RD 82-84

   [6] RD 115-126

Applicant’s claims

1. The applicant claimed to fear harm if returned to Bangladesh because of his role in the Bangladesh Nationalist Party (BNP) and his involvement in protests against a new international airport. The applicant claimed that he held executive positions within the BNP and that the Awami League had filed false cases against him when they came to power in 2009.  He claimed that he was arrested in January 2011 after he joined protests against the Government’s plan to build a new airport and that he had been the victim of extortion by the Awami League[7].

   [7] See applicant’s written statement at RD 17-19

2. Just after the application for a protection visa was lodged, the applicant’s agent submitted translations of what the applicant claimed were letters from leaders of the BNP including a letter from a former Information Minister for the BNP[8].  At the Tribunal hearing, the applicant submitted additional documents including translations of what appeared to be court and police reports which referred to the applicant’s name, and translations of letters with various dates stating that the police are investigating the applicant in relation to a murder[9].

   [8] RD 34-40

   [9] RD 85-112

Tribunal decision

1. The Tribunal rejected all of the applicant’s claims for protection. The Tribunal was not satisfied that the applicant was a member of the BNP, that he held executive positions within the BNP, that he had been the subject of extortion, that he was the leader or organiser of a protest against an international airport, or that there were outstanding charges against the applicant[10].  The following are several aspects of the applicant’s claims and evidence which led the Tribunal to disbelieve him:

   a)the applicant’s evidence about the number of times and the amounts of money he paid in extortion was inconsistent, with the applicant claiming that he could not recall how many times he paid money when the Tribunal brought the inconsistency to the applicant’s attention at the hearing[11];

   b)the applicant’s evidence about the executive positions he held in the BNP, his role within the party, the length of his appointments and the amount of annual fee paid were inconsistent with country information[12].  The Tribunal preferred the independent country information over the applicant’s evidence on these issues, which were at times internally inconsistent;

   c)the applicant gave confused, inconsistent and changing evidence about where he lived and when he went into hiding, with the applicant claiming that he had made a mistake in his oral evidence to the Tribunal on this issue[13].

   [10] RD 122[31]

   [11] RD  117[12]

   [12] RD 118-119[13]-[23]

   [13] RD 120[24]

2. The Tribunal found the applicant’s evidence at the hearing about the false charges against him to be inconsistent and unpersuasive[14].

   [14] RD 120[26]

3. The Tribunal considered the applicant’s supporting documents that were provided at the hearing, including the letters of support from persons in Bangladesh and documents relating to charges said to have been laid against the applicant.  The Tribunal noted that despite their significance, the applicant had not provided them until the Tribunal hearing in September 2013 (noting that the application had been lodged in December 2011)[15].  The Tribunal also found that the applicant’s evidence about the charges laid against him was inconsistent with the contents of the supporting letters he had submitted[16].  The Tribunal referred to country information regarding the prevalence of forged or fraudulently obtained documents in Bangladesh, along with the timing of the provision of the documents, and the credibility findings in relation to the applicant, and was not satisfied that the applicant’s documents were genuine[17]. 

   [15] RD 122[29]

   [16] RD 121[28]

   [17] RD 122[30]; [32]

4. The Tribunal concluded that the applicant did not satisfy the criterion set out in s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act).

5. The Tribunal then considered whether the applicant met the alternative criteria at s.36(2)(aa) of the Migration Act, however it was not satisfied that he did[18], and consequently, affirmed the decision not to grant the applicant a protection visa.

   [18] RD 123[35]-[37]

The present application

1. These proceedings began with a show cause application filed on 2 October 2013.  The applicant continues to rely upon that application.  There are two particularised grounds in the application:

   Ground One

   The Tribunal committed jurisdictional error when it denied the procedural fairness in failing to identify the [applicant] is a member of the Bangladesh Nationalist Party (BNP) and the Applicant had real fear of persecution by rolling AL Government and its police though there were many evidences before the Tribunal the applicant was subject real fear of persecution.

   Particulars

   The Tribunal stated, the applicant is a member of the BNP but the Tribunal Member did not believable (RRT decision 11 at [21]) as the applicant did not pay 05 Taka membership fee to become a primary member of the BNP.  In reality the fee for membership is not obligatory and its voluntary contribution only.  Any primary member of the BNP could contribute 05 Taka himself or other member can pay on behalf of him or even can pay all unpaid membership once a time which the Tribunal did not mentioned.

   Ground Two

   The Tribunal committed jurisdictional error and its failed to put the Applicant on notice that the issue of the false documents that the applicant produced before the Tribunal were false as there were not any information to the Tribunal Member that it has got information from its own sources that the documents were issued to supporting the applicant Onshore Protection Visa Application were false.

   Particulars

   The Tribunal whilst referred to the issue of false documents to support the protection visa application did not put the Applicant on notice that it was a determinative issue stated and in failing to allow the Applicant AN opportunity to be heard or comment on the issue of present Bangladeshi political persecution against opposition activists and leaders by the current regime and those circumstances which were matter and not in [issue] before the delegate.  The Applicant was denied an opportunity to present arguments on this determinative issue. (errors in original)

2. The application is supported by a short affidavit filed with it which I received.  I also have before me as evidence the book of relevant documents filed on 1 November 2013.

3. By the first ground in the application, the applicant takes issue with [21] of the Tribunal’s reasons[19]:

   The applicant claims that he is a member of the BNP.  However he stated that he did not have to pay any money to become a member and nor did he have to pay an annual membership fee.  This is not consistent with Article 5a(4) of the BNP Constitution which states that there is a membership joining fee of 5 taka and an annual membership fee of 5 taka and that an official receipt is issued for payment of these fees.[20]  When this was discussed with the applicant he claimed that this only related to primary members but it is different at district level.  The Tribunal does not accept this explanation as the BNP Constitution does not contain any such distinction when specifying membership fees.  The applicant has not provided any evidence in support of his explanation and therefore the tribunal prefers the independent evidence of the BNP’s own constitution.  The applicant’s lack of knowledge and payment of these fees suggests to the Tribunal that he is not a BNP member as claimed.

   [19] RD 119

   [20] See Article 5a(4) of the BNP Constitution which can be accessed at Accessed on 8 September 2013

4. The applicant told me, in his oral submissions from the bar table, that, in effect, the five taka membership fee for the BNP was inconsequential because he held upper positions in the party and was a major donor.  However, that factual dispute says nothing about the validity of the Tribunal decision.  The applicant told me that he did not challenge the authority of the Tribunal decision but he is concerned about the outcome and this aspect of the Tribunal’s reasons.

5. I agree with the Minister that this ground seeks impermissible merits review and accordingly does not establish any jurisdictional error. 

6. The second ground, as is noted in the Minister’s submissions, is not entirely clear. In substance, however, I take the applicant to be asserting a breach of s.425 of the Migration Act in relation to the documents produced by him. The applicant had produced some letters in support of his claims which had been provided to the Minister’s Department. The applicant provided to the delegate the letters which were purportedly from office holders within the BNP. The delegate considered these letters but was unable to place any weight on them because of country information which indicated a high level of document fraud in Bangladesh[21].  The applicant was on notice from the delegate’s decision of concerns about those documents. 

   [21] RD 55

7. The Tribunal, at [27] of its reasons[22], identified additional documents produced by the applicant for the first time to the Tribunal.  These documents were in part purportedly official documents intended to support his assertion of false charges laid against him.  The Tribunal in its reasons at [28]-[30][23] explains its problems with these documents.  First, the Tribunal was concerned that the documents were not consistent with the applicant’s oral evidence to the Tribunal.  Secondly, the Tribunal was concerned about the late provision of the documents.  Thirdly, the Tribunal was concerned about the high incidence of document fraud in Bangladesh. 

   [22] RD 121

   [23] RD 121-122

8. The Tribunal’s reasons at [29]-[30] record that it discussed with the applicant at the hearing the late provision of his supporting documents and the issue of fraudulently obtained documents in Bangladesh.  For those reasons, the Tribunal rejected the applicant’s documentary evidence. 

9. The applicant conceded in oral submissions that those concerns had been discussed with him at the Tribunal hearing.  That is consistent with the Tribunal’s description of what occurred at the hearing in its reasons.  I conclude that the applicant was on notice from the Tribunal hearing that the veracity of the documents he produced for the first time would be an issue in the review.  In any event, it is a matter for the Tribunal as to the weight to be attributed to the evidence before it[24].

   [24] Applicant WAEE v Minister for Immigration [2003] FCAFC 184

10. The particulars to the ground also complain that the applicant was denied an opportunity to “be heard or comment on the issue of present Bangladeshi political persecution against opposition activists and leaders”. There appears to be no factual basis for the proposition that the applicant was denied the opportunity on this issue or any other issue. The applicant attended the Tribunal hearing, and there is no evidence that the applicant was not given a reasonable opportunity to present oral arguments in support of his claims at that time.

11. The applicant has been unable to demonstrate any jurisdictional error by the Tribunal.

12. I will order that the application filed on 2 October 2013 is dismissed.

13. 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 $4,200.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  24 July 2014