SZTKD v Minister for Immigration
[2014] FCCA 1631
•23 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTKD v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1631 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider all the applicant’s claims, failed to accept the applicant’s claims, made an incorrect finding concerning the applicant’s credibility and denied the applicant natural justice. |
| Legislation: Migration Act 1958, ss.36, 422B, 424AA, 424A, 425, 474 |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration & Citizenship v Chamnam You [2008] FCA 241 |
| Applicant: | SZTKD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2503 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 23 June 2014 |
| Date of Last Submission: | 23 June 2014 |
| Delivered at: | Sydney |
| Delivered on: | 23 June 2014 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2503 of 2013
| SZTKD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh who arrived in Australia on 13 October 2011. On 11 November 2011 he lodged an application for a protection visa alleging that he feared persecution in Bangladesh because of his political opinion. On 31 July 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.
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 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 2-8 of the Tribunal’s decision.
The applicant made the following claims in a statement attached to his protection visa application:
a) his father, who was one of the wealthiest people in his home region, was a patron and vice-president of a Bangladesh National Party (“BNP”) district committee. As a result his family was targeted by local Awami League cadres;
b) in September 2000, when he was in his first year of primary school, he was kidnapped by Awami cadres while on his way home from school. He was mistreated and released a week later when his father paid a ransom. Afterwards he was scared and sick so his parents stopped his schooling for a year and then he continued until December 2008;
c) during the 2008 Bangladeshi elections his family provided vast sums of money to a BNP candidate and he also worked for the candidate canvassing for votes door-to-door. The Awami League candidate won the election and his family again became targets of the Awami cadres;
d) during 2008 and 2009 he travelled to India on three occasions and to Thailand, Laos and Singapore. In July 2009 he went to live with his uncle in South Korea and returned to Bangladesh in April 2011;
e) due to his family’s background and involvement with the BNP, in June 2011 he was elected a joint secretary of a BNP district committee and in July 2011 he became an executive member of the committee;
f) he became a target of one of the Awami League members. At about 8pm on 14 August 2011, while he was returning home, he was attacked by a group of Awami cadres led by that man (“the Awami cadres’ leader”) and beaten almost to death. He was hospitalised for seven days; and
g) his parents went to the police station and attempted to file a case but a false claim was filed against him instead.
In submissions dated 15 May 2012 the applicant’s representatives also submitted that he:
a) had been kidnapped in his third year of primary school;
b) had been a leading activist of the Jatiyatabadi Dal and leader of its district committee and had participated in numerous processions, meetings, demonstrations and local campaigns; and
c) could not safely relocate in Bangladesh as his opponents and the police could find him anywhere.
The applicant was interviewed by the delegate and made the following claims:
a) the Awami cadres’ leader had been involved in his kidnapping. After his release, he took two years off from school and later left school in January 2008;
b) in 2005, when he was in year 5, some Awami cadres had tried to cut his hands;
c) he had been an observer during the 2008 election campaign but had also spoken about how the Awami cadres’ leader shot people who spoke negatively about him. As a result, three to four days after the election the Awami cadres’ leader threatened to kill him;
d) his father had encouraged his involvement in the 2008 elections so that he could become braver and practise speaking publicly; and
e) he went to South Korea to save his life and, even though his father told him it was not safe, returned to Bangladesh in 2011 because he was homesick. When he returned to Bangladesh from South Korea, he became the joint president of the local BNP.
The applicant appeared before the Tribunal on 22 July 2013 and made the following additional claims:
a) his father had been the president of a district committee of the BNP from 1989 until 1998, when he left the position because of death threats he received in 1997;
b) one of his sisters lived in South Korea and his younger brother lived in Dhaka because of problems arising out of his father’s political involvement. In the past his sister had accompanied their father when he campaigned for the BNP and had been sent to South Korea to prevent any problems;
c) his father had told him that the Awami cadres’ leader had kidnapped him because of his father’s involvement with the BNP and because in 1996 his father had helped the opponent of the Awami cadres’ leader be elected;
d) after his release from kidnap he became very sick, had nightmares and could not sleep. He was sick for ten to fifteen days each month and had psychological problems which included being forgetful and being unable to sleep. He had travelled to India, Laos and Thailand to seek medical attention because of his mental and physical illnesses. He continued to be sick but had not consulted a doctor because he could not afford to;
e) after his release from kidnap he also took two years off from school, returned and then stopped altogether in 2006 when other students, whose fathers were involved in politics, cut his fingers. His name had remained on the school register until 2008;
f) he became involved in the 2008 election campaign, when he was sixteen years old, to speak out against the Awami cadres’ leader because he had kidnapped him and because as the union chairman, the Awami cadres’ leader would not grant him a certificate certifying that he lived in the region which would allow him to obtain a passport;
g) he campaigned for one week (he then said three days to a week) directly before the 2008 elections and told people that the Awami cadres’ leader had killed two people and would not give him a passport;
h) although his father had left politics in 1996, he had also participated in the 2008 elections because he was unhappy that the applicant had not been issued with a passport;
i) his father had allowed him to participate in the 2008 elections because he could not stand seeing him sick and “wanted to see if something would work out”. The applicant then said that initially his father had not wanted him to be involved because he was young and sick but senior “brothers” had gone to his house and taken him. Later his father told him to “go with confidence”;
j) about fifteen days to a month after the election, the Awami cadres’ leader targeted him. The Awami cadres’ leader thought that if he killed him then his father would stop his involvement with politics;
k) after the election he did not go outside alone and then lived at his uncle’s house for a few days before going to Korea;
l) he had not sought protection in any of the countries to which he had travelled because he had been young. He returned from Korea in April 2011 because he did not like staying with his uncle who would not let him go out at night. His father told him not to return but he did so without telling anyone. His father was unhappy about his return and so took him to stay with another uncle in Dhaka;
m) he resumed his involvement with Bangladeshi politics in July 2011. Although he had not been interested in any party, he was convinced to become the joint secretary of the local BNP and then an executive member of the district committee;
n) when his parents sought to report the 2011 incident they were turned away and instead the Awami cadres’ leader filed a case against him alleging that he had carried a bomb. This concerned his parents so they decided to send him overseas. Initially, his father had not known about his return to politics in 2011 but eventually found out and was determined to send him overseas; and
o) if he returned to Bangladesh he would have no interest (in politics) and had no interest in the past. He could not relocate because there was no security in Bangladesh.
At the Tribunal hearing the applicant produced a copy of a medical certificate relating to his attack on 14 August 2011. When the Tribunal put to him that it was unusual that the certificate did not record any injuries, the applicant said that hospitals were very busy and did not have time to make those entries.
At the Tribunal hearing the applicant’s migration agent also submitted that the applicant had memory problems. Following the hearing, on 9 September 2013, the applicant provided the Tribunal with a psychiatrist’s report dated 15 August 2013. The psychiatrist noted some of the applicant’s history and stated that, although the applicant’s condition had improved in the twelve months preceding the report, he still often had restless sleep and nightmares and his neighbours said that he cried out in his sleep. The doctor stated that that was consistent with a disrupted childhood and the existence of a perpetual state of fear which would re-emerge if the applicant returned to Bangladesh
The Tribunal’s decision and reasons
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 found the applicant to be a witness of low credibility. Although it accepted that some aspects of what it described as the applicant’s confused and incoherent evidence might have been explained by his possible memory loss from being kidnapped as a child, his anxiety disorder, and from him being away from family and familiar surroundings, when considering the totality of his evidence and lack of coherence on key elements, the Tribunal was not satisfied that he was a credible witness.
The Tribunal accepted that the applicant’s father had been involved with the BNP and that during the course of that involvement he might have received death threats, that the applicant’s father had ceased his involvement with the BNP in 1998 but had actively supported the BNP candidate in the 2008 elections, that the applicant had been kidnapped by the Awami cadres leader and as a result had ongoing mental health issues and that the applicant had been bullied by Awami students at school who threatened to cut his hands or legs. However, for the following reasons the Tribunal did not accept that the applicant had campaigned in the 2008 elections:
a) the Tribunal considered that it was not feasible that the applicant’s father would have allowed him, as a sixteen year-old with medical issues, to campaign and speak against the person who had allegedly kidnapped him and supposedly been involved in a number of deaths. It also did not accept that the applicant’s father had been threatened with death in 2007 [sic] because the applicant had claimed that his father had been involved in the 2008 elections without incident;
b) the applicant gave the following contradictory and confusing evidence about his involvement in the 2008 election campaign:
i)at his departmental interview he said that his father had thought he should get involved in the 2008 campaign so that he could become braver and practise his public speaking but at the Tribunal hearing he said that his father had not wanted him to be involved because he was young and sick. When the inconsistency was put to him, he said that at the departmental interview he had been referring to his later involvement in 2011 before saying that at first his father had not wanted him to be involved but then had said he should be;
ii)at the departmental interview he said that he had campaigned for three days before first saying at the Tribunal hearing that he had campaigned for a week and then saying that he had campaigned for three days to a week;
iii)at the departmental interview he said that during the campaign he had talked about the Awami cadres leader’s threats to kill him but at the Tribunal hearing he said that he had told voters about that person’s refusal to sign a residency certificate for him; and
iv)at the departmental interview he said that the Awami cadres’ leader had threatened him three to four days after the election but at the Tribunal hearing he said it was after fifteen days to a month and later said it was three months after the election; and
c) the Tribunal concluded that the applicant had not been involved in the 2008 elections, threatened or forced into hiding afterwards. It did not accept that the applicant had been sent to Korea because he feared for his life. The Tribunal instead found that while the general security situation in Bangladesh might have been a factor, the applicant might have been sent to Korea because of his medical problems. It found that the applicant’s return to Bangladesh freely in 2011 indicated that he had not had genuine fear and it did not accept that he would have returned for the reasons he gave if he had been genuinely afraid for his life.
For the following reasons the Tribunal did not accept that the applicant had become involved in politics after his return from Korea in April 2011 or that he had been made the president of a BNP district committee in June 2011:
a) the applicant’s evidence was that he had not really been interested in politics and had been targeted to join by “senior brothers”;
b) the applicant initially said he was the secretary of a district committee before changing his evidence to say he was the president;
c) the Tribunal did not accept that the applicant would have been asked to become president when he was so young, had been out of the country for twenty months, had anxiety issues, had little political interest and had only had a few days of campaign experience, as an observer. Even taking into account the applicant’s family’s connections, the Tribunal did not accept that at such a young age and with such minimal experience and interest he would have been appointed to the main BNP rather than to a youth wing;
d) the applicant claimed he had been living in Dhaka with his uncle which called into question why he would have been appointed to a committee in another district; and
e) the applicant gave inconsistent evidence about whether his father had supported his involvement which led the Tribunal to conclude that the applicant’s evidence had been fabricated.
As it did not accept that the applicant had been politically active, the Tribunal also did not accept that he had been attacked in August 2011 or that a false case had been filed against him. Given the prevalence of document fraud in Bangladesh, the Tribunal placed little weight on the medical certificate provided by the applicant, also noting that it did not contain any reference to the injuries he had allegedly suffered. The Tribunal also did not accept that the applicant’s father’s political involvement had been extensive or that it had created problems for the applicant after the kidnapping. It did not accept that his sister was not living in Bangladesh because of his father’s political involvement and noted that his father continued to live in Bangladesh safely.
The Tribunal noted country information which indicated that political violence against activists was a serious problem in Bangladesh, particularly around election times. However, the Tribunal was not satisfied that the applicant would be subject to such non-random conduct motivated against him. It was also not satisfied that the applicant had a profile as a political activist which would expose him to a real chance of serious or significant harm or that as a BNP supporter he faced harm based on imputed political opinion.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.The Refugee Review Tribunal (RRT) made error of law being a jurisdictional error because it did not consider my claim that I made in support of my case.
2.The Tribunal did not accept my political identity. It raised issues about my age to be a leader but legally there was nothing to obstruct me to become a leader in Bangladesh even while I was young. The Tribunal did not accept this just based on assumption that I could not be leader in such a young age which is an error of law, made by the Tribunal.
3.The Refugee Review Tribunal made jurisdictional error in assessing my credibility.
4.I believe I was not given natural justice and the Tribunal did not decide my case according to the law.
Ground 1
At the hearing of this application, the applicant submitted that the Tribunal had failed to consider his claim in two respects.
The first of those matters concerned the Tribunal’s statement at para.68 of its reasons:
I have also accepted that the applicant was kidnapped as a child and bullied at school in 2005 by Awami supporters.
The applicant submitted that the Tribunal had been saying there that the kidnap had occurred in 2005 and thus it should be concluded that the Tribunal had not listened to his claims. Paragraph 68 of the Tribunal’s decision is found in that part of its reasons dealing with the complementary protection obligations found in s.36(2)(aa) of the Act. However, it is instructive to read that in para.62 of its reasons, dealing with Convention-related persecution, the Tribunal said this:
While I accept that the applicant was kidnapped as a very young child because of his father’s connections, I have also found that besides an incident in school in 2005, the applicant has not suffered any other serious harm since then because of his father’s connection.
When that passage is considered, it is clear that the sentence which the applicant relied on, from para.68 of the Tribunal’s reasons, is not evidence of a misunderstanding by the Tribunal of the claims made by him or a failure to consider those claims.
The second element of the applicant’s submissions concerning the first ground of the application was that the Tribunal did not believe him, whatever he said. However, paras.53 and 54 of the Tribunal’s reasons expressly state the Tribunal’s acceptance of certain of the applicant’s factual allegations.
Turning to a broader consideration of the first ground of the application, it might be that the applicant was alleging that the Tribunal failed to consider other aspects of his claims. However, as the summary of the Tribunal’s decision record set out earlier in these reasons discloses, the Tribunal did consider his claims. It might also be that the first ground of the application alleges a failure on the part of the Tribunal to conduct a bona fide review. If so, however, the detailed nature of the Tribunal’s recitation of the various facts alleged by the applicant and the various iterations of those facts, together with its analysis of that evidence in its reasoning, satisfies me that the Tribunal did conduct a thorough and bona fide review of the claims made by the applicant.
For these reasons, the first ground of the application is not made out.
Ground 2
The allegation in the second ground of the application, that the Tribunal did not accept the applicant’s political identity because that conclusion was just based on an assumption that he was too young, fails to acknowledge that the Tribunal did not base its finding on that issue just on the applicant’s youth. Other reasons for its concerns have been identified in the foregoing summary of its reasons and do not need to be repeated. But in any event, the fact that the Tribunal concluded that the applicant’s youth would have precluded him from playing the political role he claimed for himself was not one which no reasonable Tribunal would have reached. That being so, the fact that the Tribunal’s finding was based at least in part on that issue does not provide a basis to find that its ultimate decision on the review was affected by jurisdictional error.
Ground 3
In the third ground of the application, the applicant challenged the Tribunal’s findings as to his credibility. A finding as to credibility is a finding of fact par excellence and thus something reserved for the Tribunal, absent some related error of law. In this case, the Tribunal’s view of the applicant’s credibility was open to it on the evidence and was neither illogical nor unreasonable in the sense discussed in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611.
Ground 4
The fourth ground of the application alleged that the Tribunal denied the applicant natural justice. Section 422B of the Act codifies the Tribunal’s relevant natural justice obligations in those sections found in div.4 of pt.7 of the Act. Section 422B does not make any reference to the natural justice bias rule and no allegation of bias has been made in this case so that aspect of natural justice need not be considered.
The applicant did not point to any particular provisions of div.4 of pt.7 of the Act as having been breached and it is not apparent to me that any was. Nevertheless, it is appropriate to consider in more detail the two principal provisions in that division, namely, ss.424A and 425.
Section 424A relevantly provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
…
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; …
Section 424AA relevantly provides:
424AA Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
…
At its hearing the Tribunal put certain matters to the applicant and stated in its reasons that it had done so pursuant to s.424AA. Although the Tribunal did not identify with any particular clarity the matters it put to the applicant pursuant to s.424AA in satisfaction of its s.424A obligation, neither has the applicant identified any information which he says should have been provided to him under those sections and which was not.
When first reading the Tribunal’s decision I had been concerned that its references in paras.29 and 30 to statements which the applicant made to the delegate might have been information which s.424A required be provided to the applicant. However, the information in question also appears at pages 9 and 10 of the delegate’s decision and, because page 9 of the applicant’s application to the Tribunal for review indicates that a copy of that decision record was provided to the Tribunal, as does the applicant’s migration agent’s covering letter of 27 August 2012, I am satisfied that the information in question was information which the applicant gave to the Tribunal for the purposes of the review and thus fell within the exceptions found in s.424A(3) to the operation of s.424A(1): Minister for Immigration & Citizenship v Chamnam You [2008] FCA 241.
Turning to s.425, that section relevantly provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
…
The applicant was invited to a hearing which he attended. At that hearing, the Tribunal put to the applicant various issues arising out of the decision under review. The applicant has not identified any other matters which should have been put to him pursuant to s.425(1) and I am not persuaded that any breach of that section has been made out.
Submissions at hearing
At the hearing of this application the applicant also submitted that the Tribunal had asked him questions in a random manner, which had confused him. It is unclear what the applicant meant by this assertion and it might be noted that no transcript of the Tribunal’s hearing was placed before the Court. Most particularly, the applicant has not demonstrated that it was the Tribunal’s questions rather than deficiencies, inconsistencies and confusion in his own account which led to any confusion at the Tribunal hearing.
The applicant also submitted that he had been confused at the Tribunal hearing because he had had to speak through an interpreter, but he made no allegation that the quality of the Tribunal’s interpreter services had led to any denial of natural justice to him. Importantly, the applicant has not pointed to anything which would suggest that he was denied the opportunity to put, or was disabled from putting, his case to the Tribunal or that he was not afforded the real and meaningful hearing guaranteed to him by s.425 of the Act.
The applicant also submitted at the hearing of this application that he was mentally disturbed. As the summary of the Tribunal’s decision record appearing earlier in these reasons notes, the Tribunal acknowledged that the applicant’s migration adviser had supplied it with a psychiatrist’s report. The applicant did not point to anything arising out of the psychiatrist’s report which would suggest that his mental state at the time of the hearing before the Tribunal was such that he was denied a real and meaningful hearing. It should also be noted that the Tribunal did consider the psychiatrist’s report and accepted:
… that someone who has been kidnapped as a child, or who has anxiety disorder, or who is away from family and familiar surroundings, may suffer some memory loss. Some aspects of his evidence may be explainable by these factors. However when considering the totality of his evidence, and the lack of coherence on key elements, I cannot be satisfied that he is a credible witness.
The applicant’s submission that he was mentally disturbed might, perhaps, have been a reference to his present mental condition, although this was not expressly articulated. The applicant did not provide the Court with any medical evidence in that connection and my own assessment of him during the course of the hearing in this Court was that he was alert and responsive. I am not of the view that any mental condition from which the applicant may suffer disabled him in any way from presenting his case to the Court.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 25 July 2014
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