SZUIP v Minister for Immigration

[2016] FCCA 484

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUIP v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 484

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal considered applicant’s claims – whether Tribunal gave to the applicant an opportunity to address a matter relevant to the genuineness of a document on which the applicant relied – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 359AA, 359A, 424AA, 424A

Applicant: SZUIP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1318 of 2014

Judgment of: Judge Manousaridis

Hearing date: 4 March 2015

Date of Last Submission: 4 March 2015

Delivered at: Sydney

Delivered on: 11 March 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms N Senanayake of

DLA Piper

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1318 of 2014

SZUIP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Bangladesh, applies for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (protection visa).

Claims for Protection

1. In a statement accompanying his protection visa application, the applicant claimed he faces “substantive human rights abuses, on the basis of the [applicant’s] religious and professional activities that [the applicant] has previously undertaken in Bangladesh”. The alleged facts on which that claim was made are as follows.

2. The applicant comes from a middle class religious Muslim family. In 1998 he became a general member of Jamaat-e-Islami. In 2007 the central office of Jamaat-e-Islami selected the applicant to be a Rukon. In that position, the applicant was in charge of members of Jamaat-e-Islami in his locality. That required him to maintain contact with members, find out their problems, and update the central office “for needful action”. He was also responsible for arranging and conducting religious meetings and congregations.

3. In 2000, before he was appointed a Rukon, the applicant commenced a business as a supplier and contractor. In 2007, however, the applicant ceased that business and was unemployed. He was unable to perform his functions of Rukon. When, in response to enquiries from Jamaat-e-Islami’s central office about his inability to perform his functions, the applicant explained he had no employment, Jamaat-e-Islami central office assisted the applicant by providing him with “Taka 20,000”. Towards the end of 2011, the applicant applied for the position of chief security officer with the National Christian Fellowship of Bangladesh (NCFB).

4. In January 2012 the applicant was appointed chief security officer of the NCFB and “joined with” the NCFB. As a result of the functions he was discharging as a chief security officer, the applicant was “falling short of performing” his responsibilities as a Rukon, and the central office of Jamaat-e-Islami discovered the applicant was “irregular to my Jamat responsibilities as I was working for a Christian Fellowship Organisation as a chief security officer”. A false rumour spread that the applicant had converted to Christianity so that he could be employed as chief security officer of the NCFB. That “ignited the Jamat community against [him] like a wild fire”. The applicant’s reputation was damaged, and he became an “eye sore to the Jamat community”.

5. In October or November 2012 the applicant attended the central office of Jamaat-e-Islami in Dhaka to discuss the “position surrounding” him. The members of the central office, however, were equally upset with the applicant and had “thrown their hatred towards” the applicant because he had converted to Christianity. They did not accept the applicant’s statements that he had not converted to Christianity.

6. After the meeting, when he was walking home from the shops, some boys assaulted the applicant. The applicant understood the boys belonged to Jamaat-e-Islami. The applicant did not report the assault because he did not want to place himself at risk “given to the present political situation in Bangladesh especially for the Jamat leaders and activists”. Because he considered himself to be “an innocent victim of the situation”, in January 2013 the applicant resigned as Rukon. The applicant’s resignation drew “the eye ball of many opponent Jamat activists” as a result of which the applicant “started getting unknown telephone calls every now and then including life threatening” calls.

7. Soon after he resigned, a Jamat activist contacted the NCFB to find out the applicant’s duty schedule “declaring that they were after me for possible harm to vindicate” the applicant’s betrayal of Jamaat-e-Islami.  The NCFB then terminated the applicant’s employment. The applicant panicked, and he decided to relocate himself and his wife and children to a place 150 km from Dhaka. After discussing his situation with his brother, who was in Australia, the applicant decided to escape Bangladesh by applying for an Australian visa.

8. The applicant did not arrive in Australia with his wife and children. He has, however, maintained contact with them and other family members. Through those contacts, it was revealed to the applicant that he had been officially charged “under section 120-A/122-BPC R/W16 MLD by the Dhaka metropolitan police” which “pertains to political charge, roughly translating as “One bearing Arms against the ruling government”. In addition, the applicant claimed the government “still finds my name in their black list without being aware that” the applicant had resigned from Jamaat-e-Islami.

9. The applicant provided a number of documents in support of his application.[1] These were a copy of a document dated 20 June 2013 purportedly from Jamaat-e-Islam confirming the applicant was a member of Jamaat-e-Islam in Bangladesh since 1998, and that he had been appointed a Rukon in March 2007;[2] a copy of a document dated 1 July 2013 purportedly from NCFB confirming the applicant had been a member of its security team from January 2012 until January 2013;[3] a copy of a letter dated 5 January 2012 purportedly from Bata confirming the applicant had been employed by that company between January 2008 and January 2012;[4] and documents purportedly relating to charges laid against the applicant.[5]

   [1] CB111-

   [2] CB120

   [3] CB118

   [4] CB119

   [5] CB112-117

Tribunal’s decision

1. The Tribunal was not satisfied the applicant was a credible witness. It did not accept the applicant was involved with Jamaat-e-Islami, that he has a profile as a supporter of Jamaat-e-Islami, or that he worked for the NCFB.[6]

   [6] CB239, [40]

2. First, the Tribunal found the applicant’s claim to have worked for a Christian Fellowship in Bangladesh undermined his claim to have been an activist and leader of Jamaat-e-Islami.[7] Information on the Jamaat-e-Islami website indicated that Islam is central to membership of that organisation, and that the party requires its members to “remove the thoughts, deeds and practices contrary to Islam from [their] practical life and firmly decide not to obey anyone opposed to Allah and His Rasul (SAW)”.[8]

   [7] CB231-232, [11]

   [8] CB231, [11]

3. Second, the Tribunal did not accept the applicant was ever a member of Jamaat-e-Islami because the applicant had given inconsistent evidence about when he first joined Jamaat-e-Islami, when he was appointed Rukon, and when he resigned from Jamaat-e-Islami.[9]  The Tribunal found the applicant’s evidence about his involvement with Jamaat-e-Islami to be “so contradictory, inconsistent and changeable that the Tribunal formed the firm view that he was fabricating his evidence in response to concerns raised by the Tribunal and was not involved with Jamaat-e-Islami”.[10]  

   [9] CB232-234, [12]-[18]

   [10] CB233-234, [18]

4. Third, the Tribunal did not accept the document purportedly from Jamaat-e-Islami to be genuine. The letter was inconsistent with the applicant’s evidence about when he joined Jamaat-e-Islami and when he became a Rukon. Further, the Tribunal did not accept that senior management of an organisation that has threatened to attack or kill someone would provide such a positive reference. The Tribunal also found the applicant provided inconsistent evidence at the hearing about how he obtained the letter. The applicant initially claimed he got it with the help of “other people” who were travelling between Australia and Bangladesh; but later, on being questioned further, the applicant said his brother had obtained the letter for him.[11] The Tribunal also referred to country information that indicated that forged or fraudulently obtained documents are easily obtainable in Bangladesh.[12]

   [11] CB234, [20]

   [12] CB234, [21]

5. Fourth, the Tribunal found the applicant’s evidence about his employment with the NCFB to be unpersuasive. The Tribunal found it surprising that a Christian organisation would hire a Jamaat-e-Islami leader for a senior security position, given the applicant had no experience or qualifications in security.[13] The Tribunal also found the applicant’s description of the events for which he provided security to be unpersuasive. The applicant was unable to name any of the events for which security is provided as set out on the NCFB website.[14] The applicant also gave inconsistent evidence about whether he resigned from the NCFB or was terminated,[15] and whether his position was part-time or full-time.[16] Finally, the Tribunal did not accept the document purportedly from the NCFB was genuine, given the inconsistent content about whether he resigned or was terminated, the Tribunal’s significant concerns in relation to the applicant’s evidence about his employment with NCFB, and country information about the prevalence of forged and fraudulent documents in Bangladesh.[17]

   [13] CB234, [22]-[23]

   [14] CB235, [25]

   [15] CB235, [26]

   [16] CB236, [29]

   [17] CB236, [30]

6. Fifth, the Tribunal had serious concerns about the truth of the applicant’s claims of false criminal charges having been laid against him. The applicant gave inconsistent evidence about when he became aware of the charges;[18] the documents the applicant provided did not state the applicant was charged for “bearing Arms against the ruling government”, as the applicant claimed in his application for a protection visa, but for the “crime of murder, then stealing money from the pocket of the dead person and assisting in murder”;[19] the Tribunal considered it surprising the applicant would be charged for an event that allegedly occurred at a time that the authorities in Bangladesh would have known the applicant was not in the country;[20] and the Tribunal did not accept the documents the applicant provided to be genuine, given the applicant’s name in one of the documents – the “Primary Information Report”[21] - appeared in a font different from that of the remaining part of the document, and the prevalence of forged and fraudulent documents in Bangladesh.

   [18] CB237, [31], [32]

   [19] CB237, [32]

   [20] CB237, [33]

   [21] CB115

7. Sixth, the Tribunal was not satisfied the applicant was assaulted by members of Jamaat-e-Islami or that he received threats because the applicant’s evidence was so inconsistent as not to be credible.[22]

   [22] CB238-239, [37]-[39]

8. The Tribunal, therefore, was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (Act).

Grounds of application

1. The application for review filed by the applicant contains two grounds of application. The first is:

   The second respondent made jurisdictional error by failing to comply with the requirements of s424AA(a) and (b) of the Migration Act 1958

   PARTICULARS

   Full particulars will be supplied when a transcript of the hearing 14 April 2014 becomes available.

2. The applicant, who is not legally represented, provided written submissions. That part of the written submissions that relates to ground 1 refers to “direction 6” made a “few years back” by “principal member of the MRT/RRT”. The applicant set out the direction that refers to the obligations imposed on the Migration Review Tribunal and the Tribunal by s.359AA or s.424AA and s.359A or s.424A of the Act. The applicant submitted the Tribunal failed to comply with direction 6. The applicant, in this part of his written submissions, also submitted the Tribunal failed to deal with the component integers of the applicant’s claims and, in effect, failed to have regard to all of the information in the application. He also appears to have submitted that the Tribunal had taken into account irrelevant considerations.

3. At the hearing before me, after I had the interpreter translate ground 1, I invited the applicant to make submissions in relation to ground 1 of the application. The applicant submitted “that the information put in front of the matter in that particular hearing wasn’t examined properly”.[23] When I asked whether the applicant could identify the material he claimed the Tribunal did not examine properly, the applicant said that “the documents which I have submitted  . . . they were not looked into carefully” and “they were ignored”, and that the Tribunal had taken “a rash decision”.[24] The applicant submitted the Tribunal did not agree with any of the documents he had submitted.[25] The Minister had put into evidence a transcript of the hearing before the Tribunal, and I asked whether the applicant wanted an opportunity to read it, given that in ground 1 the applicant said further particulars would be provided when a transcript becomes available. The applicant said he did not want to read the transcript. The applicant requested that I re-examine all the documents the applicant had provided to the Tribunal.

   [23] T6.15

   [24] T6.20

   [25] T6.25

4. As framed, ground 1 does not identify the manner in which the applicant alleges the Tribunal failed to comply with s.424AA of the Act. It states particulars would be provided after a transcript becomes available. Even though a transcript was available at the hearing, the applicant provided no particulars either in his written submissions, or in anything the applicant submitted to me at the hearing. The ground, therefore, cannot succeed.

5. To the extent the applicant submitted the Tribunal did not consider the integers of the applicant’s claims, or documents or other information he provided to the Tribunal, that submission cannot be made out. The Tribunal’s reasons for decision reveal that it identified the applicant’s claims and the documents on which the applicant relied, it questioned the applicant about his claims, put matters of concern to the applicant, and it gave intelligible reasons for not accepting the applicant’s claims. The conclusions the Tribunal arrived at were reasonably open to it, and for the reasons it gave.

6. As for the applicant’s request that I re-examine the documents on which he relied before the Tribunal, that is not a matter that falls within the jurisdiction of this Court. It was for the Tribunal to determine whether the documents were genuine. This Court’s jurisdiction is limited to determining whether the Tribunal, on the grounds raised by the applicant, made a jurisdictional error. It was reasonably open to the Tribunal, for the reasons it gave, not to accept as genuine the documents on which the applicant relied before the Tribunal.

7. The second ground of application is as follows:

   The second respondent made jurisdictional error by making a findings [sic] of fraudulently altered documents such as to give rise to a reasonable apprehension of bias.

   PARTICULARS:

   At [34] the second respondent stated that a primary information report was “fraudulently altered by the applicant and this reflected or [sic] his overall credibility. The second respondent denied the applicant procedural fairness and refused to make enquiries reasonably open to act [sic].

8. In his written submissions, the applicant submits the Tribunal was “so biased that” it “did not look it [sic], who was the author of this copy of the translation”. The applicant submits that a NAATI accredited interpreter prepared the Primary Information Report. The applicant submits that he had provided the Bengali version of the document to the translator, and it was the translator who included the applicant’s name in a different font. The applicant submits the Tribunal, therefore, was in error in finding that the applicant had altered the document; the Tribunal’s error manifested bias against the applicant, and the applicant was denied procedural fairness.

9. At the hearing before me, after the ground was interpreted to him, the applicant said he relied on his written submissions, and he again requested that I look into all the documents the applicant submitted to the Tribunal, and to re-examine their validity.[26]

   [26] T7.45

10. This part of the applicant’s claims relies on two factual assertions, namely, that the applicant had provided the original of the Primary Information Report to a translator, and that the translator had included in a different font the applicant’s name in the document that contained the translation. It is not within this Court’s jurisdiction to determine whether those factual assertions are correct. The relevant question is whether the Tribunal brought to the applicant’s attention for his comment the Tribunal’s concerns about the applicant’s name being printed in a different font. I am satisfied the Tribunal did. That is apparent from the following exchange:[27]

    [27] Affidavit of N Senanayake, annexure A; T27.30-T28.1

    MS IRISH: In the police information report that you’ve provided it gives a list of all the accused. Your name is listed as number six but it’s written in very different font to the remainder of the document which raises concerns for me about the genuineness of it.

    . . . .

    MS IRISH: Did you want to say anything about that?

    THE INTERPRETER: What he had obtained, that was sent to me.

11. In my opinion, the applicant was clearly informed of the Tribunal’s concerns that the Primary Information Report contained the name of the applicant in a font that was different from the font of the remaining part of the document, and that that matter had raised concerns in the mind of the Tribunal about the genuineness of the document. The applicant was specifically asked whether he had anything to say about that. The applicant did not say that he had provided the original to the interpreter, and that it was the interpreter who had included the applicant’s name in a different font. The applicant in effect said that the document was in the form he had received it.

12. Ground 2, therefore, also fails.

Conclusion and disposition

1. The applicant has not succeeded on either of his grounds. I propose, therefore, to order that the application be dismissed. I will also order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  11 March 2016