SZNKO v Minister for Immigration & Anor [2009] FMCA 978 (7 October 2009)

Last Updated: 7 October 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNKO v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 978

MIGRATION – Review of RRT decision – applicant a citizen of Bangladesh – where applicant provided the Tribunal with a supporting letter almost identical to a letter provided by another applicant – where Tribunal relied on the identical nature of the documents to conclude that the applicant’s document was not genuine – where Tribunal informed applicant of its concerns at the hearing – whether adequate particulars given – nature of the information considered – whether the other letter itself or fact of similarity constituted the “information” – whether applicant told that he could seek more time to respond.

Migration Act 1958 (Cth), ss.424AA, 424A

SZBYR v Minister for Immigration [2007] HCA 26 SZLIQ v Minister for Immigration [2008] FCA 1405 SZMCD v Minister for Immigration [2009] FCAFC 46

Applicant:

SZNKO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 808 of 2009

Judgment of:

Raphael FM

Hearing date:

9 September 2009

Date of Last Submission:

9 September 2009

Delivered at:

Sydney

Delivered on:

7 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr J Young

Solicitors for the Applicant:

Simon Diab & Associates

Counsel for the Respondents:

Mr Y Shariff

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 808 of 2009

SZNKO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh who arrived in Australia on 17 July 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 29 August 2008. On 24 November 2008 a delegate of the Minister, who had interviewed the applicant, refused to grant him a protection visa. On 1 December 2008 the applicant applied for a review of that decision from the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal where he brought witnesses to give evidence and produced documents. On 4 March 2009 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 5 March 2009.
2. The applicant’s claims to be a person to whom Australia owed protection obligations arose from his political opinion as a supporter of the BNP and his religious faith as a minority Christian in a majority Muslim county. The applicant claimed to have suffered persecution as a minority Christian since he was a student in 1985 when he was beaten up after returning from Church to school. He told how he was introduced to the BNP by a teacher when he was in year 9 and how he introduced a number of Christians to the BNP. He continued in student politics when he enrolled in tertiary education in 1999 and claims that he was threatened by Awami League supporters who said they would shoot him if he did not cease his association with the BNP. The applicant became a field officer for an NGO in 1992 and was involved in an incident when village leaders claimed that he was trying to convert them to Christianity. He then changed his occupation and in 1993 went to Kuwait where he worked as a cook. The applicant did not return to Bangladesh until 1997 when he married and after two months returned to Kuwait. He claims that he got mail from his family stating that Muslim people wanted to kill him and had attacked his home. His wife was told that if she kept in touch with him he would be murdered and she would be killed, so she left and went to live with her parents. The applicant returned to Bangladesh in 1998 and persuaded his wife to return to him. He worked in a restaurant in Bangladesh until 20 December 1999. But one day a man named “D”, who the applicant said had a direct link to an Awami League cadre and terrorist group, came looking for him in order to kill him. He left that job and then in January 2000 joined another restaurant where he worked for a year. He went to India and then went back again to Kuwait. He could not stay there because he kept getting information from his home that “D” and his terrorist group had been looting his house and destroying his fields. The applicant finally returned from Kuwait on 24 March 2006 and went to Dhaka with his family but the terrorist group followed him and tried to shoot him. He went to the police but they did not take any real action. He later joined the Bangladesh Christian Association and sought their help. He joined a protest in Kalagong with the Bangladesh Christian Association but when he was there the terrorist group were looking for him to kill him. He was told about World Youth Day and decided to apply to come to Australia because his life was at risk in Bangladesh.
3. The Tribunal questioned the applicant upon these statements and discussed with him independent country information about the situation for Christians in Bangladesh that he had produced and that the Tribunal had found. Following the hearing, Reverend Brown, who had attended part of the hearing but had to leave, provided a letter to the Tribunal concerning the situation in Bangladesh for Christians. The applicant also provided some further submissions to the Tribunal.
4. At [CB 253] the Tribunal commences its “Findings and Reasons”
   • “In the Tribunal’s view, the applicant has not presented a truthful and credible account of his past experiences in Bangladesh and has not presented a genuine account of his fears of harm should he return.
   • In the Tribunal’s view, the applicant’s actions in returning to Bangladesh from Kuwait in 2006 are not consistent with a person who held fears that he claims. In respect of either his political activity or his religious faith, the animosity which he now claims to fear was established at that time. In the case of fears from Bablu or his associates, this animosity has been experienced for an extraordinarily long period of time, the initial events and apparent short detention of Bablu having occurred in 1985. Likewise, the applicant claims to have previously expressed his political preference for the BNP before that time and to fear harm on this basis should he return.
   • In this context, the Tribunal does not believe that, were his claims of past experiences and fears of harm on return genuinely expressed, he would have returned to Bangladesh in 2006. When asked about this return in respect of the passport he presented to the Tribunal at the hearing, the applicant initially indicated that this return was necessary due to the nature and length of the visa which he then held for stay in Kuwait. He indicated that he had to return to Bangladesh because his visas were issued only for limited stay.
   • When this issue was further discussed it was apparent that in fact he held at that time, a visa which would have allowed his stay to 2007. The applicant then indicated that in fact he had returned to Bangladesh during 2006 because he wanted to assist his wife. He was unable, however, to give any real detail as to how he was at that time able to assist his wife, given that he had been out of the country for some period.
   • A further concern in respect of this issue is that the applicant not only returned to Bangladesh itself, but did not merely remain in Dhaka which he could have done at that time, but during this period returned to his home village, where the claimed threat to him must be seen to be at its highest. Again, his evidence was that he resided with his sister in Dhaka and did not work at any occupation during the period between his return in 2006 and his departure for Australia. In this context then, there was no reason for him to return to his home village yet he chose to do so. Even on his evidence, this appears to have been regularly undertaken, although the Tribunal doubts his evidence on this point in any case.”

At [113] [CB 254] the Tribunal sets out its views upon certain documentation provided by the applicant. These findings formed the basis of the applicant’s claim that the Tribunal fell into jurisdictional error in the manner in which it reached its decision.

“This belief is further supported by the significant doubts the Tribunal has about documents which the applicant has presented to support his claim. In the case of a letter purportedly issued by the Tumilia Union Council, the translation of this document is identical to another translation in respect of a document purportedly signed with a different signature and prepared on a different date in Bangladesh. This document is held on departmental case file CLF2008/124592 at folio 11 .The documents are of some length, and as discussed with the applicant at hearing, have very particular language regarding how the applicant fell under the “livid eye” of the “forbidden religious organisation”, the JMB. He offered no explanation for how such remarkably similar documents could be prepared by different sources, other than to assert the genuineness of the document he had presented.
In the Tribunal’s view, the identical nature of the documents, except for the identification of the applicant by name and relationship, indicates that the applicant has presented fraudulent material from Bangladesh and which has been presented without regard to the truth of the claims made in the document. It does not appear possible to the Tribunal that such identical documentation could be prepared in Bangladesh from different sources, on different dates, by chance. In the Tribunal’s view, the nature of this material indicates that false documents have been prepared and presented to assist this application.
...
In the Tribunal’s view, the significant letters provided from Bangladesh to support this case are unreliable. They are variable in their description and knowledge of the applicant’s circumstances and in at least one instance is, in the Tribunal’s view, a fabricated document designed to support the applicant’s claims untruthfully.”

5. The applicant proceeded upon an amended application which had only one ground. That was:
   • “The Second Respondent made jurisdictional error by failing to comply with sections 424AA or 424A in respect of information stated to be contained on a departmental case file for a person other than the applicant.”
6. The applicant provided a transcript of the hearing before the Tribunal. The letter from the Union Council to which the Tribunal referred is found in translation at [CB 53]:
   • “7-08-2008
     • This is to certify that [applicant] [other particulars provided]. I know him personally. To the best of my knowledge he is a Christian (R.C.) religions leader. He used to preach the Christian religion among the various young generation for long days. For this he falls into the livid eye of forbidden religious organization JMB in Bangladesh. It is jungi (Terror) organization who kill men by crackers and are also engaged in demoralizing activities keeping themselves at the behind of the administration. As [applicant] is engaged in preaching the Christian religion so JMB may attack him and his family members. For this his life is in a great danger. In any time their life may be ruined at the behind of the administration.
     • To the best of my knowledge his moral character is good and is not engaged in any misdeed or demoralizing activities.
     • In this situation I do like to advise him not to returning to the homeland.
       • I wish him all development & success in his life.
       • Sd/-Illegible
       • Md. Abu Bakar Miah
       • Chairman
       • Tulmis Union Council
       • Kaligong, Gazipur.”
         

The letter is first referred to in the transcript at [T17]:

“T: All right. I’d like to talk to you a little bit about your involvement with the BNP. Now, one of the things that you provided to support your claim of involvement with the BNP was this letter from the ... Union Council. How did you organise this letter?
A: My friend send this one ... Some of them send by ... some of them send by ...
T: O.K. Is the information in this letter true?

• A: Yes. ...

T: So do you know Mohammed Abu Bak Amir?
A: ...

• T: Abu Bak Amir, yes. And you know him?

A: Yes.
T: And what he’s written in this letter is true?

• A: Yes.
• T: Right. I’m concerned about this letter and that has made me concerned about all of the documents in relation to your case, because I am reviewing a case by another person from Bangladesh and they have provided a letter from a different union council signed by a different person. Apart from the parts of this letter that identify you, that letter is identical to this letter. It uses identical phrasing and some of it is quite unusual phrasing. It, it says for example, this, “For this he falls into the livered eye of the forbidden religious organisations.” And it appears to me hard to believe that two different people in Bangladesh would write exactly the same letter in relation to members of the BNP. Can you think of any reason why there would be another letter that’s essentially identical to this one and only except it claims to come from a different union council?

A: No, no. This is my union.

• T: Mmm. Well, what it could suggest to me is that you have got letters made to order and there just happens to be two letters got by two different people made to order and they happen to be identical. And in relation to two other letters of yours, they are also extremely similar to other material supplied by other applicants. That might make me question whether the documents you provided are genuine.
• A: Yes ... I provide all the genuine documents.
• T: I suppose the problem for me is partly I need to assess whether I think I’m being told the truth about a situation, and when you tell me today that between 2006 and 2008 you lived in Dhaka and but your application tells me you lived in your village during that time and when you tell me you did no work during that time but your application from tells me you worked in business during that period and when I think that this letter talking about your experience and your fears is identical to another letter purportedly written by somebody else. That might indicate to me that I’m really not being given a truthful account of your past experiences.

A: No, no, no, it is...

• T: Well, can you offer me some other explanation for why there’s differences between this materials and what you’re telling me today and there’s similarity between your letter and this other person’s?
• A: No, no. I think it is all same, because few mistake, they’re done by the solicitors.”

7. The Tribunal discussed the letter again in the context of s.424AA, firstly, at [T40]:

“T: Right..., I will now talk with you about some things that could be seen as negative to your application. Now, these are things that are of concern to me and that might be a reason for finding that the Department of Immigration’s decision was correct. I haven’t made my mind up about these things. What I want is your comments in relation to them, because I need to consider all of the available material. If you would prefer to not comment on those things today, then let me know and we can talk about how you might comment on them in the future.”

Then at [T43]:

“T: Now, the fourth point concerns the issue to do with the documents that have been supplied to support your case. I am very concerned about this Union Council letter that purports to give a background of your experiences and your fears in Bangladesh. It talks about you coming under the livered eye of forbidden religious organisations and that you might be attacked by members of the JNB or ... terrorist organisations and that your life is in great dangers. Now, as I say, my concern is that in relation to another case I’ve seen an essentially identical letter purportedly written by a different union council. Now, that might make me think that you are giving me documents that have been made to order and aren’t truthful.”

The Tribunal then refers to another letter from the Bangladesh Christian Association which is in identical terms with the letter which it has received in another case. This letter was not referred to in the reasons for decision. At [T44]:

“T: Well, I don’t propose to do that because it’s extremely difficult to do that without identifying people and that itself could create problems. And I suppose what I need to point out in relation to these documents is the ones that say that you’re at great risk and in grave danger are similar to other letters I’ve received. I can either...
A: He can give it for other person but the subject is different from other person.”

Finally the Tribunal said to the applicant at [T47]:

“T: Right. Could I have someone in Room 11, please. Right. I didn’t have anything else I wanted to ask you about. Is there anything we haven’t talked about that you think is important that you’d like to tell me?
A: As far as I know that I am telling the truth. All the incident ... all are true. I know that you people don’t believe in this but at least you can try to prove it, that whatever I’m telling, it is all the truth.
T: Again I’d indicate to you, I haven’t made my mind up about that. I need to think about what you’ve said today and the other evidence that’s available, but it’s important you have the opportunity to comment on things that I’m thinking about. Now, I’m conscious that Mr Brown wasn’t able to give his evidence. What happens after today is, I need to think about everything and reach a decision about your case. I need then to type up the reasons for the decision I reach. Up until the time I have typed up, finished and signed that decision, you can give me any material you would like me to consider. And what I can indicate to you is, I will not have finished your decision before Tuesday of next week. So if, if there are things that Mr Brown wishes he had been able to tell me or anything else you think of that you think is important, you can write that down and give it to me before Tuesday of next week. So if tonight you think of something you wish you had said, then by all means, get that written down and provide that to me. Do you understand that?”

8. The applicant contends that the “other letter” referred to by the Tribunal constituted information for the purposes of s.424A of the Act and that the Tribunal was obliged to provide particulars of the other letter to the applicant pursuant to s.424A or s.424AA. The respondent submitted that the “other letter” itself did not constitute “information” rather the relevant information was the fact that the “other letter” was similarly worded to a letter submitted by the applicant and that this may suggest that the letter and the other documents submitted by the applicant were not genuine. The Minister concedes that the Tribunal did not issue a letter pursuant to s.424A but submits that the transcript of the Tribunal hearing disclosed that the Tribunal discharged its obligations by complying with s.424AA. The applicant says that the Tribunal did not comply with s.424AA because it did not provide the applicant with full details of the letter. Whilst the applicant accepts that the Tribunal would not have been obliged to name the person who was the subject matter of the letter, he says that the Tribunal should have told him who wrote the letter, which Union Council it purported to come from and the date. The provisions of these “full particulars” would have enabled the applicant to provide an explanation about the similarity of the documents which was itself a dispositive issue in the case. The second argument which the applicant puts forward is that to the extent that the Tribunal purported to comply with s.424AA in relation to this information it did not comply with the strict provisions of that section:
   • “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
   • (b) if the Tribunal does so--the Tribunal must:
     • (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
     • (ii) orally invite the applicant to comment on or respond to the information; and
     • (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
     • (iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”

In particular, it did not comply with s.424AA(b)(iii) or (iv) in so far as it did not explain to the applicant with any clarity his option to seek additional time to make comments and the possibility that if he did so the Tribunal would adjourn the review. The phrase “if you would prefer not to comment on those things today then let me know and we could talk about how you might comment on them in the future” would not have indicated to the applicant that an adjournment was possible or that he might seek additional time to respond to the information. The applicant argues that the general statement “is there anything we haven’t talked about that you think is important that you’d like to tell me” does not advance the position and the discussion about providing further evidence at q.306 would be taken objectively to be a reference to Mr Brown and his evidence rather than providing commentary upon the Tribunal’s concerns about the identical letters.

9. In relation to the first issue, the respondent relies on the decision in SZBYR v Minister for Immigration [2007] HCA 26 in which it was said that information that “would be the reason, or part of the reason, for affirming the decision that is under review” must contain in its terms a “rejection, denial or undermining of the appellant’s claims to be persons to whom Australia owed protection obligations”. In that case, the “information” was a statutory declaration provided by the applicant in his PVA which was inconsistent with other evidence provided by the applicant. It was said that, had portions of that statutory declaration been believed, they may have been a “relevant step towards rejecting, not affirming, the decision under review.” Therefore, the information relied on by the Tribunal in reaching its decision was not the statutory declaration itself but the inconsistencies arising from a comparison of that document with the applicant’s other evidence.
10. In the instant case, the contents of the other letter do not support the applicant’s claims, as was the case in SZBYR. But neither can they be said to reject, deny or undermine those claims. For this reason, the other letter itself is not information which “would be the reason, or part of the reason, for affirming the decision under review”. Instead, it is the fact of the similarity between the letters which led the Tribunal to affirm the decision. It is with this distinction in mind that the Court must consider what particulars were required to be given to the applicant. If the relevant information is the fact of similarity rather than the letter itself, the requirement to provide clear particulars of this information cannot be said to extend to details of the letter such as the author, source and date it was written.
11. This finding appears to be the logical result of applying the reasoning in SZBYR though it is not entirely satisfactory. In SZLIQ v Minister for Immigration [2008] FCA 1405 the Court considered the Tribunal’s obligation under s.424A to provide particulars of information relating to a book extract. The Tribunal had relied on an extract from an Australian book which suggested a certain distance to be left between sweet potato plants which was different to that suggested by the applicant whose experiences related to farming practices in China. The Court found that the Tribunal had failed to provide particulars of the source of that information which, had it done so, may have alerted the applicant to the fact that the information was not clearly relevant to the applicant’s situation. Similarly, in the instant case, particulars regarding the date of the other letter may have provided the applicant with an answer to the Tribunal’s concerns which the bald reference to the existence of the letter could not. For example, the other letter may have been written after the applicant’s letter allowing the applicant to claim that the other letter had been copied from his own. In the circumstances of SZLIQ disclosure was mandated but in the instant case the applicant is denied similar protection. The two examples demonstrate a distinction (perhaps unintended) between information which is adverse because it states something different to the applicant’s claims and information which is adverse because it is identical to information provided by the applicant.
12. It would be argued by those promoting the SZBYR dicta that the letter, not being about the applicant, could not undermine his claims, only the similarity did that. The applicant would say this is a distinction without a difference; if there was no letter there could be no undermining suspicion. Whilst this is an attractive argument, it does not seem to be one which this Court can accept in the face of the firm views expressed by the High Court in SZBYR.
13. In relation to the second issue raised by the applicant, I cannot see how the transcript demonstrates a failure on the part of the Tribunal to advise the applicant that he was entitled to seek additional time to comment on the adverse information. The phrase used by the Tribunal at [T40] and extracted at [7] of these reasons is similar to that used by the Tribunal which was the subject of a recent Full Court decision. In SZMCD v Minister for Immigration [2009] FCAFC 46 the Tribunal gave details of country information it considered adverse to the applicant’s claims and stated:
    • “Now, would you like to comment on or respond to that and you don’t have to do that immediately. You can ask for more time if you want to.” [9]

The Full Court considered that, had the Tribunal been required to give details of the information, the Tribunal’s words would have adequately addressed the requirement to inform the applicant that he could seek additional time to comment [110 – 111]. The fact the Tribunal did not elaborate further or mention the possibility of an adjournment did not indicate to the Court that the Tribunal’s advice had fallen short of the requirements in s.424AA. The language used by the Tribunal in the instant case was to the same effect.

14. It is also clear from the transcript that the applicant elected to provide immediate responses to the adverse information at the hearing. His response to the Tribunal at [T40] was “Yes. If you ask me I can tell you”. In these circumstances the Tribunal was not obliged to consider whether it ought to adjourn the review.
15. The applicant has not been able to show that the Tribunal failed to address the requirements of s.424AA. As such, s.424A(2A) was engaged and there was no breach of s.424A. I dismiss the application and order that the applicant pay the first respondent’s costs assessed in the sum of $5,500.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 7 October 2009