SZTJL v Minister for Immigration

[2015] FCCA 689

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTJL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 689

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal gave inappropriate weight to certain evidence, failed to consider evidence, failed to apply the relevant tests, did not give separate reasons in relation to the applicant’s complementary protection claims and did not make enquiries.

Legislation:

Migration Act 1958, ss.36, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZTJL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2449 of 2013

Judgment of: Judge Cameron

Hearing date: 27 February 2015

Date of Last Submission: 27 February 2015

Delivered at: Sydney

Delivered on: 27 February 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr L. Dennis of Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2449 of 2013

SZTJL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Bangladesh who arrived in Australia on 25 October 2011.  On 1 December 2011 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in Bangladesh because of his support of the Bangladesh Nationalist Party (“BNP”).  On 15 June 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa were set out in the Tribunal’s decision.  As summarised by the Tribunal, the applicant relevantly made the following claims in his application for a protection visa:

   a)he had been involved with the BNP in Bangladesh from 1996 until his departure from Bangladesh in October 2011;

   b)he had initially been a publications officer with his local union council and later became the vice president of his district branch of the BNP;

   c)he feared returning to Bangladesh as he had been beaten, threatened, been the subject of a false claim, attacked at home and had his home ransacked by members of the Awami League because of his involvement with the BNP.  He also feared that the Awami League, police and the “RAB” would kill him, possibly in crossfire; and

   d)his wife and daughter had recently had to move to his father-in-law’s house to avoid Awami League harassment.

2. Relevantly, the Tribunal also had before it:

   a)a “Bangladesh First Information Report” in the applicant’s name and that of others dated 25 [sic] May 2012 regarding an incident of “anti-government procession for killing, burning and breaking of government and private assets”;

   b)a related letter stating that the applicant and others had attacked another person with intent to kill;

   c)summary of court orders from 7 July 2011 to 15 February 2012;

   d)a charge sheet dated 20 [sic] February 2012;

   e)a letter from a witness to the incident dated both 15 July 2011 and 15 May 2012; and

   f)an injury certificate dated 31 May 2011 from a health complex in Bangladesh.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal did not accept that the applicant was a credible or truthful witness and had ever faced the difficulties he had claimed, had ever been involved with the BNP in the manner claimed or had been targeted or beaten in the manner claimed.  It did not accept that the applicant had ever faced any difficulty because of his interest in BNP politics or that he would on his return to Bangladesh.  The Tribunal found the applicant’s evidence to be inconsistent, implausible and, therefore, fabricated and concocted in order to achieve an immigration outcome.  In this connection, the Tribunal:

   i)referred to the applicant’s inconsistent and vague evidence relating to him receiving remuneration and/or other payments for work performed on behalf of the BNP;

   ii)referred to the applicant’s significantly inconsistent evidence to the Department and to it as to his roles, and activities undertaken as part of those roles, within the BNP from 1996 to 2009;

   iii)referred to the applicant’s confusing evidence about the difficulties he had faced and would face in Bangladesh as a result of his political activities.  In particular, the Tribunal referred to the applicant’s failure to indicate at the departmental interview and at its hearing that he feared returning because of the charges or incidents referred to in the information report and charge sheet.  It considered that if the applicant had been falsely charged with murder because of his activities with the BNP under instructions from Awami League activists, he would have raised it at the departmental interview and/or its hearing.  It also considered that the medical certificate provided by the applicant in support of his claim to have been attacked in May 2011 was not genuine as its contents were internally inconsistent and also inconsistent with the applicant’s claims and circumstances;

   iv)referred to the applicant’s inability to provide it with the address where he had hidden in Dhaka.  The Tribunal referred to the applicant’s failure to provide that address on his business visa application in 2011 and his admission at its hearing that he had provided false information on that application in order to obtain the visa.  It noted that the applicant had instead stated on the application his home address, the address from which he had purportedly already fled;

   v)did not place any weight on the evidence given by a number of witnesses on behalf of the applicant that he had been involved with the BNP and had been targeted; and

   vi)referred to the applicant’s inconsistent evidence regarding the circumstances, positions and titles of individuals within the BNP and noted that his evidence was also inconsistent with independent country information before it;

   b)given its findings regarding the applicant’s credibility, the Tribunal placed no weight on the documents he submitted as corroborative evidence.  It also referred to the prevalence of document fraud in Bangladesh and to the internally inconsistent nature of some documents and noted that the documents provided were inconsistent with the applicant’s own evidence;

   c)despite providing confusing and inconsistent evidence as to his involvement with the BNP in Australia and the threats made to his family because of that involvement,  the Tribunal accepted that the applicant had attended a number of meetings and other activities associated with the BNP in Australia.  However, for the reasons it had already outlined regarding the applicant’s credibility, the Tribunal was not satisfied that the reason for the applicant’s conduct in Australia, attending the meetings and being involved in community work, had been otherwise than to strengthen his claims to be a refugee; and

   d)as the Tribunal found that the applicant had never been involved with the BNP in the manner claimed, it was not satisfied that he would participate in any BNP activities in any way on his return to Bangladesh or would suffer persecution or face significant harm by being prevented from being involved.

Proceedings in this Court

1. In his amended application the applicant alleged:

   1.The Refugee Review Tribunal failed to provide weight to the supporting documents.

   Particulars:

   The Tribunal failed to provide weight to the supporting documents that I have provided supporting documents from the leaders in relation to my involvement with the politics.  However the Tribunal did not give any weight.  Even the Tribunal did not give any weight to the documents which indicated my involvement with the Australian BNP.

   2.The Refugee Review Tribunal failed to take into account the country’s political situation.

   Particulars:

   The Tribunal failed to take into account the country’s political situation that I have provided the country information which shows the continuing violence in Bangladesh.  However the Tribunal failed to take into account the country information before make a decision.

   3.The Refugee Review Tribunal failed to consider my application under the Refugee Convention and the also under the complementary protection provisions.

   Particulars:

   The Tribunal failed to consider my application under the Refugee Convention and the also under the complementary protection provision that the Tribunal failed to realize that I will face adverse situation if I were return to Bangladesh because of my political opinion and I will face serious threat because of my political involvement.

2. In his written submissions filed on 13 February 2015 the applicant raised two additional matters, namely that:

   a)when dealing with his complementary protection claims, the Tribunal had failed to provide reasons separate from the reasons it had given in the context of his Convention-related claims; and

   b)had not raised with him the question of the authenticity of his “reference letters”.

3. At the hearing of this application the applicant also raised matters concerning the merits of his application and additionally alleged that the Tribunal had failed to “check” the documents which he had supplied to it.

Ground 1

1. In the first ground of his amended application the applicant alleged correctly that the Tribunal had not given any weight to the documents he had supplied in support of his application for review.  The implication of the allegation was that the Tribunal should have given weight to those documents and that it erred because it did not. 

2. The weight which the Tribunal gives to evidence before it is, subject to any associated legal error, a matter for it.  In this case, no legal error was identified by the applicant or is apparent from the relevant part of the Tribunal’s decision record at paras.55-61.  Consequently, the first ground of the amended application is not made out.

Ground 2

1. The second allegation, that the Tribunal failed to take the Bangladeshi political situation into account, itself failed to take into account the basis of the Tribunal’s decision.  The Tribunal affirmed the delegate’s decision because it did not believe the applicant, not because it doubted that politics in Bangladesh can be violent.  Further, the applicant did not identify what information had not been taken into account by the Tribunal or why, if it was the case, such a failure had any relevance to, or any possible impact on, the Tribunal’s decision. 

2. The second ground of the amended application has not been made out.

Ground 3

1. The third ground of the amended application, that the Tribunal failed to consider the applicant’s claims by reference to the Convention and complementary protection tests, also overlooked the fact that the applicant was disbelieved.  It was the Tribunal’s rejection of the applicant’s factual claims which was the basis of its decision and, in the circumstances, the Convention and complementary protection tests were of no particular materiality to the outcome of the review.  Nevertheless, the Tribunal understood the tests correctly and considered the applicant’s claims by reference to them at paras.6-18 and 63-71 of its reasons. 

Ground 4

1. The allegation advanced for the first time in the applicant’s written submissions was that, in dealing with his complementary protection claims, the Tribunal did not give reasons separate from those it had given in the context of his Convention-related claims. 

2. The Tribunal had only one body of evidence and it did not err by making findings on that evidence and then applying the different statutory tests to those findings.  Moreover, to the extent that the applicant’s complementary protection claims raised a matter not taken into account when applying the Convention test – namely, the applicant’s involvement with the BNP in Australia – the Tribunal did give separate consideration to it in the complementary protection context. 

Ground 5

1. The other allegation raised in the applicant’s written submissions was the assertion that the Tribunal had not raised any question as to the authenticity of the “reference letters”.  However, footnote 3 on page 10 of the Tribunal’s decision record shows that the authenticity of the Bangladeshi documents which the applicant supplied was expressly raised with him. 

Ground 6

1. At the hearing of this application the applicant alleged that the Tribunal should have “checked” the documents he had supplied.  However, he did not point to any request he had made to the Tribunal that it do so and the Tribunal has no duty to undertake enquiries except in very limited circumstances, which the applicant did not attempt to prove existed in this case. 

2. The other submissions made by the applicant at the hearing of this application touched on the merits of his claim to be entitled to a protection visa but, as explained to him at the hearing and as stated earlier in these reasons, the Court is not empowered to reconsider the merits of the applicant’s visa application. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 31 March 2015