SZUPM and Ors v Minister for Immigration and Anor

[2016] FCCA 1114

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUPM & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1114

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 failed to comply with s.424A(1) of the Migration Act 1958.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 424AA, 424A, 474

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

First Applicant: SZUPM

Second Applicant: SZUPN

Third  Applicant: SZUPO

Fourth Applicant: SZUPP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1795 of 2014

Judgment of: Judge Cameron

Hearing date: 13 April 2016

Date of Last Submission: 13 April 2016

Delivered at: Sydney

Delivered on: 13 April 2016

REPRESENTATION

Counsel for the Applicants: Mr L. Karp

Solicitors for the Applicants: FLG Legal

Solicitors for the Respondents: Ms N. Blake of Clayton Utz

ORDERS

1. The application be dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $6,646.00.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1795 of 2014

SZUPM

First Applicant

SZUPN

Second Applicant

SZUPO

Third Applicant

SZUPP

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicants are citizens of Bangladesh who arrived in Australia on 1 August 2012.  On 14 August 2012 the first applicant lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Bangladesh because of his political opinion.  Included in that application were members of the first applicant’s family unit, namely, his wife, the second applicant, and their two children, the third and fourth applicants.

2. On 9 November 2012 the applicants’ application for protection visas was refused by a delegate of the first respondent (“Minister”). The applicants then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

3. In these judicial review proceedings the Court’s 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.

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

BACKGROUND FACTS

1. In its decision the Tribunal summarised the facts alleged in support of the applicants’ claim for protection.  As summarised by the Tribunal, the first applicant relevantly made the following claims in his protection visa application:

   a)he joined the Proletarian Party of East Bengal (“PBSP”) in 1995.  The party followed a Maoist ideology and aimed to establish a socialist state;

   b)he was intimidated and harassed by the Awami League and the BNP;

   c)the PBSP was outlawed in Bangladesh and persons affiliated with it faced harm from the authorities; 

   d)he became disillusioned with the PBSP because of its human rights abuses.  However, he did not openly defect because defectors were treated as traitors and faced severe consequences.  Instead, he stopped attending party meetings on a regular basis, ceasing entirely in 2011;  

   e)his PBSP comrades suspected that he was defecting and told the police that he worked for the party.  As a consequence, the police began harassing him;

   f)he would be targeted by the PBSP as a traitor whilst the authorities would harm or kill him as they considered him to be a member of the party; and

   g)no protection was available to him in Bangladesh.

2. In a later statutory declaration the first applicant claimed that he was arrested on 4 March 2012 and placed on remand.  He claimed that he was beaten “mercilessly” and that his lawyer paid to have him released (on 3 April 2012), whereupon he travelled to India (on 6 April 2012) for medical treatment.  The first applicant claimed that upon his return to Bangladesh, PBSP members entered his house and tried to kill him, causing him and his family to go into hiding.  He claimed that he came to Australia after his family insisted that he leave Bangladesh.

3. The first applicant also provided a number of court documents in support of his application, including an arrest warrant (dated 22 July 2012).

Claims before the Tribunal

1. The first applicant appeared before the Tribunal on 11 December 2013 and 20 March 2014 and relevantly made the following additional claims:

   a)he lived in an affluent area in Dhaka.  He worked as a travel agent for a time before starting his own business;  

   b)the police were searching for him and were filing cases against him in various districts;

   c)he was known to police everywhere in Bangladesh;

   d)he wrote an article in 1997 about government corruption;

   e)he also wrote an article for the party’s newspaper in 1997 and another in 2010.  For safety reasons, he did not retain copies of those articles;

   f)the PBSP had already been banned when he joined it in 1995.  He joined nevertheless because he was attracted to its policies regarding the poor;

   g)the party trained him in guerrilla warfare.  This training took place in Khulna;

   h)he set fire to a number of police stations but was never caught; and

   i)the PBSP did not issue membership cards.  Instead, members were provided with a copy of the party’s constitution.

2. The second and fourth applicants also gave oral evidence to the Tribunal on 20 March 2014.

The Tribunal’s decision and reasons

1. After discussing the claims made by the first applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons to whom Australia had 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.

2. The Tribunal considered whether the first applicant’s claim regarding his affiliation with the PBSP in Bangladesh was credible and noted the following matters in that regard:

   a)given his affluent urban background and work in private enterprise, the Tribunal questioned why the first applicant would have been attracted to a proscribed organisation such as the PBSP, a primarily rural-based party with far left Marxist-Leninist and Maoist ideologies;

   b)the first applicant claimed that he was trained as a cadre in Khulna despite having no apparent links to that area, which is some 400 kilometres away from his home in Dhaka;

   c)the Tribunal did not accept that the first applicant could have been actively involved in a proscribed terrorist organisation for the extended period he claimed, only to be arrested and to have an arrest warrant issued against him shortly before his departure from Bangladesh;

   d)the first applicant travelled to the United Kingdom on a number of occasions after his claimed affiliation with the PBSP commenced.  He returned to Bangladesh on each occasion without any apparent difficulty despite his claim to have been affiliated with a proscribed terrorist organisation for many years.  In the Tribunal’s view, his returns to Bangladesh were inconsistent with a subjective fear of persecution and indicative of the authorities’ lack of interest in him;  

   e)the first applicant travelled to India after his claimed arrest and then returned to Bangladesh.  The Tribunal did not accept that the first applicant would have been released if he had been detained because of his affiliation with the PBSP.  Further, his return to Bangladesh was strongly indicative of a lack of interest in him on the authorities’ part;

   f)after being confronted with evidence that the PBSP was viewed by a number of sources as a terrorist organisation, the first applicant appeared to tailor his evidence to downplay his role in it;

   g)the first applicant initially claimed that he had written an article for the PBSP but later said that he had written two.  He was not able to produce the articles and his description of their content was superficial and vague; 

   h)the first applicant’s evidence of how the PBSP newspaper was circulated appeared to the Tribunal to be invented as he went;

   i)the first applicant’s evidence in relation to the PBSP, his role and methods of communication between members of the organisation appeared to the Tribunal to be a fictional account of a claimed association with an illegal organisation.  In this regard, the Tribunal noted that the first applicant gave evidence of the measures taken by members to avoid detection while at the same time he claimed that he was prepared to write articles for the organisation which would have put him at considerable risk;

   j)the Tribunal found it implausible that the first applicant would engage in writing articles for a proscribed organisation, yet would not be able to produce any evidence of membership in the organisation apart from a copy of its manifesto; and

   k)the Tribunal did not think it was credible that the first applicant had been an active member of a proscribed terrorist group from 1995 until 2010 and had managed to evade arrest until he was denounced by his own party after taking a decision to abandon it.

3. The Tribunal did not accept that the first applicant was affiliated with the PBSP.  It did not accept that he was arrested, detained and released on bail as a result of this claimed affiliation or that he was of adverse interest to the PBSP as a former member.  Accordingly, the Tribunal gave no weight to the various documents submitted by the first applicant in support of his claims, also noting the ready availability of fraudulent documents in Bangladesh.

4. The Tribunal noted that even were it to have accepted that the first applicant had had some limited role in the PBSP, it would have found that his involvement in that organisation was remote in time and that there was no real chance that he would suffer serious harm for reasons of his political opinion.  In this regard, the Tribunal noted that:

   a)the first applicant had had no association with the PBSP for a number of years;

   b)country information indicated that the PBSP had been reduced to a small marginalised group involved primarily in criminal activities in the southern and north-western regions of Bangladesh.  There was no suggestion that the organisation was at all active in affluent areas of Dhaka (where the first applicant claimed to reside);

   c)the Tribunal found that the PBSP was now marginalised to such an extent that there would be no real chance that the first applicant would face persecution in Bangladesh at their hands or from the authorities for reasons of any low level activity or previous affiliation with it;

   d)the Tribunal found that the authorities had no genuine interest in the first applicant because:

   i)it did not accept that, after a claimed prolonged association with the PBSP of over fifteen years, the first applicant would suddenly have been accused of arms offences, arrested, detained and charged shortly before his departure from Bangladesh;

   ii)he returned to Bangladesh from India despite claiming that there were outstanding charges against him; and

   iii)he delayed leaving Bangladesh despite claiming that the PBSP and the authorities were looking for him; and

   e)the Tribunal did not accept that there was a real chance that the first applicant would be found by his old political colleagues anywhere in a densely populated country like Bangladesh.

PROCEEDINGS IN THIS COURT

1. In their further amended application the applicants alleged:

   1.The Tribunal failed to disclose to the applicant, as was required by s. 424A of the Migration Act, information in an anonymous letter dated 18 June 2013 (CB 319), that being information that was considered by the Tribunal as the reason or part of the reason for affirming the decision under review.

   Particulars

   (a)The information in that letter, to the effect that the applicant;

   (i)     was not a member of the political party of which he claimed membership.

   (ii)     had provided false documentation.

   (iii)   had no connection with agriculture.

   (iv)    had travelled to many countries with his family.

2. The question raised by the further amended application was whether the anonymous letter denouncing the applicants, which was received by the Minister’s department on 26 June 2013, had been before the Tribunal and considered by it.  It was reproduced at page 319 of the Court Book, which was exhibit 1 in this proceeding.  Whether the letter had actually been received by the Tribunal was not a matter proved or conceded at the hearing of the present application but it seems probable that it was.

3. Because the issue of the Tribunal’s receipt of the document was raised by me during the hearing and the parties were not in a position to deal with it, the hearing proceeded on the basis that the issue would be of no significance if the applicants were to fail to make out their s.424A allegations but, if they were able to do so, the matter would have to come back for further evidence on the question.

4. Section 424A of the Act states:

   424AInformation 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:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (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; or

   (c)that is non‑disclosable information.

   ...

5. The Tribunal’s decision was very detailed.  It is twenty-six pages in length and sets out, in what appears to be a very thorough way, the material which was before it.  The decision record commences with a statement of the law and then follows with summaries of the applicants’ initial claims, the decision of the delegate, what transpired at the first and the second days of the Tribunal’s hearing, independent country information and then material submitted after the Tribunal’s hearing. 

6. The recounting of evidence can be a fairly mechanical task and the failure to refer in that part of a decision-maker’s reasons to certain evidence is good, although not certain, evidence that the material has been overlooked.  On the other hand, even if evidence is rehearsed in that part of a decision-maker’s reasons, a failure to deal with it in an appropriate manner in the reasoning may be evidence that the summary’s reference to it was no more than the payment of lip service and that it was not given the consideration which the law required. 

7. In this case, not only was the letter not referred to in the Tribunal’s summary of evidence, it was also not referred to in the Tribunal’s reasoning which, as I have said, was quite thorough and detailed.  In those circumstances, the probabilities are that the Tribunal’s failure to refer to the letter at all bespeaks a failure to have had regard to it. 

8. What has brought me to a concluded view that the Tribunal did not have regard to the letter is a statement in the letter that:

   If you check his and his all family members’ passports very carefully then you got the irregularities that he withdrew some of the visa sticker and tore off some pages.

9. I cannot accept that the Tribunal would have passed over that information without inquiry or investigation, had it seen it.  Tampering with a passport, particularly the removal of pages, would be a comparatively easy matter to investigate and then to pursue if discovered.  Such information could have been decisive for the review before the Tribunal and for the Tribunal to have been aware of it and yet to have done nothing seems to me to be most unlikely.  I conclude that the Tribunal did not have regard to the anonymous letter. 

10. Because I have found that the Tribunal did not have regard to the letter, I find that the information it contained did not form part of its reasoning and, therefore, no s.424A obligation arose in connection with it.

11. I am fortified in that conclusion by passages in the Tribunal’s decision record which lead me to infer that the Tribunal was aware of the natural justice obligations it owed the applicants. In particular, the recounting of more than ten pages of country information, most of which was not, it seems, put to the applicants, points to the Tribunal being aware of s.424A(3)(a). In addresses the applicants’ counsel did point to some elements of that information being put to the applicants but I conclude that that was to test their evidence rather than to make a s.424A(1) notification. I note in that connection that it was not suggested that the Tribunal had taken steps which suggested attempted compliance with s.424AA.

12. Finally, even if I am wrong and the Tribunal did consider the letter and regard it in a way which engaged s.424A(1), I accept the Minister’s submission that the Tribunal expressed a separate and independent basis for its conclusion in paragraphs 142 to 146 of its decision record, summarized earlier in these reasons at [13].

CONCLUSION

1. I find that 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-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  11 May 2016