SZUNN v Minister for Immigration

[2015] FCCA 1298

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUNN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1298

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether the Tribunal misunderstood the applicant’s claims – whether the Tribunal failed to identify the applicant as a member of a particular social group –whether the Tribunal acted unreasonably in doubting the authenticity of the applicant’s documents – whether the Tribunal misapplied the test under s.36(2)(aa) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A)

Applicant: SZUNN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1657 of 2014

Judgment of: Judge Manousaridis

Hearing date: 12 May 2015

Delivered at: Sydney

Delivered on: 12 May 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms A Wong of DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,700.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1657 of 2014

SZUNN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, a national of Bangladesh, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection visa. 

2. The applicant’s claims for a Protection visa were based on the following alleged facts.[1]  The applicant became involved in student politics while in “higher secondary school”.  In 2002 he was elected the joint secretary of Chatra Dal, the student wing of the Bangladesh Nationalist Party (BNP).  The applicant became the president of the Chatra Dal in 2006 while he was attending college. 

   [1] CB39-42

3. In 2007, after an “army-backed caretaker government” came into power, the applicant was arrested and tortured inhumanely by police.  The applicant later worked for one of the leaders during an election that was organised by the caretaker government, but the leader was beaten by his opponent from the Awami League.  In 2009 the applicant was elected vice president of the “Thana Committee” Chatra Dal, but the applicant became a target of the Chatra League, the student wing of the Awami League.  In 2010 the applicant was attacked by Awami League cadres.  He was beaten unconscious and taken to a clinic for three days. 

4. The applicant led a procession in 2011, but the procession was disturbed by the police and Awami League cadres.  The applicant was seriously injured after being beaten by police using their batons, and spent two days at a clinic.  During 2012, while the applicant was in Dhaka, his house was attacked by “Awami goons”.  They looted the house, and the applicant was seriously injured and “near death”.  The applicant spent a week in a clinic before being released.  When his brother went to the police to file a case against the Awami goons, the applicant’s brother was informed there was a case against the applicant.  The applicant left Bangladesh after this incident because his “life was in danger”. 

5. The Tribunal did not accept any of the applicant’s claims.  It found the “applicant’s credibility [was] so seriously undermined” and there was “no credible or trustworthy evidence before it”.[2]  The Tribunal found the applicant is not affiliated with the BNP and did not join that party, as he claimed.  The Tribunal further determined that the reasons the applicant gave for joining the BNP were “superficial [and] lacked detail or understanding of the party’s goals, policies and objectives” because the applicant was unable to recount at the Tribunal hearing aspects of the BNP’s goals, policies and objectives.[3] 

   [2] CB135, [63]

   [3] CB135, [53]

6. The Tribunal held the applicant’s evidence that he held various positions with the BNP between 2001 and 2012 to be “confused, internally inconsistent, and chronologically inaccurate and implausible”.[4]  The Tribunal, therefore, did not find credible the applicant’s claims that he held office with the BNP.  The Tribunal ultimately concluded the applicant was not engaged in political activities to an extent that gave him a significant political profile in Bangladesh.  Because of these findings, the Tribunal did not accept that the applicant faced any serious harm from the Awami League, its members, goons or others affiliated or associated with the Awami League prior to the applicant’s departure from Bangladesh. 

   [4] CB134, [55]

7. The applicant also gave evidence at the Tribunal hearing that there were outstanding charges against him.  The first charge related to arms, and the second charge related to a false allegation of abducting and killing a child.  The Tribunal did not accept this aspect of the applicant’s claim because the applicant was able to depart Bangladesh legally using his own passport.  The Tribunal also held what purported to be a court document the applicant submitted in support of his claim was not genuine or reliable and gave it no weight. 

8. In his amended application for review, the applicant relies on four grounds of review.  These grounds are supported by what purport to be detailed particulars.  The applicant, who is not legally represented, did not make any submissions in relation to the grounds specified in his amended application.  He only said that the conditions in Bangladesh are known to everybody, that there is a very precarious situation in Bangladesh, and that if he goes back to Bangladesh, he will be killed. 

9. Those statements by themselves do not disclose any jurisdictional error on the part of the Tribunal, and only restate the essence of the claim for protection the applicant made before the Tribunal.  It is, of course, not the role of this Court to determine whether the applicant has a valid claim for protection.  The jurisdiction of this Court is limited to considering claims that the Refugee Review Tribunal did not consider the applicant’s claim according to law. 

10. The first ground of review stated in the amended application is as follows:

    In making decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.

11. In the particulars, it is claimed the Tribunal “raised doubt over the applicant’s political activities and the membership of BNP”;  the Tribunal “misunderstood the case”;  the Tribunal’s doubts about the applicant’s membership of the BNP “was based on unreasonable assumption”;  the Tribunal “asked many unreasonable and irrelevant questions with regards to affiliation with the Chatra Dal and BNP”;  and the Tribunal “raised several unreasonable questions such as father’s relationship with the BNP”. 

12. The Tribunal did raise with the applicant doubts it had about the applicant’s claims to have been elected to an executive office in the BNP in light of the applicant’s lack of knowledge of BNP policies and its ideology and what the Tribunal considered to be the applicant’s confused account of the various offices he claimed to have held in the BNP.  That by itself, however, does not disclose any jurisdictional error.  On the contrary, it enhanced the fairness of the hearing by providing the applicant an opportunity to respond to the doubts the Tribunal had about the applicant’s claims. 

13. There is nothing in the Tribunal’s reasons to suggest the Tribunal misunderstood the applicant’s claims; nor is there anything else in the material that was before me to suggest the Tribunal misunderstood the applicant’s claims, and there is nothing to suggest the Tribunal asked the applicant unreasonable or irrelevant questions.  The Tribunal was not obliged to accept the applicant as a witness of credit, and thus was entitled to ask questions that explored the credibility of the applicant’s accounts.  The questions the material indicates the Tribunal asked of the applicant were relevant to the credibility of the applicant.  It was reasonably open to the Tribunal to rely on the matters on which it did rely in not accepting the applicant to be a witness of credit.  Ground 1, therefore, is not made out. 

14. The second ground of review is:

    The Applicant claims that the Tribunal made a jurisdictional error when intentionally asked several irrelevant questions to undermine his political activities and his role in the Chhatra [sic] Dal and the BNP.

15. The particulars to this ground assert the Tribunal failed to identify that the applicant was a member of a particular social group, namely, a member of the BNP.  The complaint appears to be that the Tribunal did not expressly consider the applicant’s claims by reference to whether, as a member of the BNP, he was a member of a particular social group.  There is no substance to this ground.  The claim the applicant made was fear of persecution because of his having been involved with the BNP, and all that flowed from that.  The Tribunal considered that claim and rejected it because it was not satisfied the applicant was a witness of credit. 

16. The particulars make an additional claim, namely, that the Tribunal did not conduct the “interview in a judicial manner”.  The Minister, in his written submissions, treated this as a particular to what he considered to be a separate ground stated in the application in bold, namely:

    The applicant stated earlier in Col26 of the RRT decision:  That he liked the President at time he joined it.  When he was asked why he liked the president he said he liked president because of his leadership ability and he was a major figure in the Bangladesh Independence.  The applicant said that he liked his ideology of socialism and democracy.

17. I have treated this claim as a particular to what I have described as ground 2. 

18. The complaint appears to be that the Tribunal “repeated [the] same types of questions to discredit the applicant’s evidence”.  To the extent the complaint is that the Tribunal asked questions that were relevant to the credibility of the applicant, the Tribunal was entitled to ask such questions.  To the extent the applicant intends to claim that the Tribunal intended to discredit the applicant, there is nothing in the Tribunal’s reasons or in the material that is before me that suggests the Tribunal intended to discredit the applicant.  As I have already noted, the Tribunal was not obliged to accept the credibility of the applicant and it was entitled to ask questions that were relevant to the applicant’s credibility.  The questions the Tribunal asked about the applicant’s knowledge of the doctrines and ideology of the BNP were relevant to the question of whether the applicant was a member of or activist for the BNP, and hence had a well-founded fear of persecution on account of his being imputed with a political opinion by reason of his having been a member of or an activist for the BNP.  Ground 2, therefore, is not made out.

19. The third ground of review is as follows:

    The applicant claims that the RRT made a jurisdictional error when it made decision on assumption and probability.  The Tribunal’s finding of reasons is Confused and the test for persecution was not applied according to the Rules of the Migration Act.

20. In the particulars to this ground, the applicant makes two claims.  First, he appears to take issue with the Tribunal’s finding at paragraph 57 of its reasons that the applicant was not engaged in political activities at a level that gave him a significant political profile in Bangladesh.  It is claimed in the particulars that, “[in] reality the low profile political activists are killed first before the big political leaders in the name of security.”  This does not disclose any jurisdictional error.  It only expresses disagreement with the Tribunal’s conclusion.  It was reasonably open to the Tribunal to find, as it did, that the applicant did not have a significant political profile in Bangladesh, and for that reason was not exposed to a real risk of persecution for reasons of imputed political opinion. 

21. The particulars also claim the Tribunal acted unreasonably in doubting the authenticity of the documents on which the applicant relied.  The documents included what purported to be a document issued by “Bangladesh Police” certifying the applicant had been charged with “a case under Arms Act”, a letter purportedly issued by the BNP certifying the applicant was “a vice president from 2008-2012 of sadar upazilla, Bangladesh National Party (BNP) co-organisation of Student Political party of Jamalpur”, and hospital records.[5]  The Tribunal did not accept these documents were authentic because they are “rife with spelling errors, factual errors and are inconsistent with the applicant’s claims in his protection visa application and his oral testimony”.[6]  Further, the Tribunal did not accept the applicant had been charged with the offences the applicant claimed he was charged with, because he was able to leave and enter Bangladesh without any difficulty. 

    [5] CB100-104

    [6] CB135, [62]

22. It was reasonably open to the Tribunal to rely on these matters as grounds for not accepting the authenticity of the documents on which the applicant relied.  Ground 3, therefore, is not made out.

23. The fourth ground of review is as follows:

    The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2)(aa) of the Migration Act 1958. The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.

24. The Tribunal applied the correct test in relation to s.36(2)(aa) of the Migration Act 1958 (Cth) (Act). The Tribunal said it considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk the applicant will suffer significant harm as defined in s.36(2A) of the Act. The Tribunal found there were no substantial grounds for so believing because the Tribunal did not find credible the applicant’s claims regarding his claimed BNP affiliation, or his claims that there are criminal charges outstanding against him. Ground 4, therefore, is also not made out.

25. For these reasons, the Court proposes to order that the application be dismissed, and that the applicant pay the first respondent’s costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  19 May 2015