SZQAU & Ors v Minister for Immigration & Anor [2011] FMCA 579 (20 July 2011)

Last Updated: 1 August 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQAU & ORS v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 579

MIGRATION – RRT Decision – Bangladeshi applicant fearing persecution for political activity – corroborative documents given no weight – no jurisdictional error shown – application dismissed.

Migration Act 1958 (Cth), ss.91R(3), 424A, 424AA

Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 Minister for Immigration & Citizenship v SZJSS [2010] HCA 48 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12

First Applicant:

SZQAU

Second Applicant:

SZQAV

Third Applicant:

SZQAW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 477 of 2011

Judgment of:

Smith FM

Hearing date:

20 July 2011

Delivered at:

Sydney

Delivered on:

20 July 2011

REPRESENTATION

Counsel for the Applicants:

In Person

Counsel for the Respondents:

Mr A Wood

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application is dismissed.
(2) The first and second applicants must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 477 of 2011

SZQAU

First Applicant

SZQAV

Second Applicant

SZQAW

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicants are a husband, his wife, and their son, who arrived in Australia as visitors in February 2010. On 1 March 2010, they lodged applications for protection visas. The husband claimed to fear persecution in his country of nationality, Bangladesh. He also claimed that his wife and child were at risk as a result of his own circumstances. I shall refer to him as “the applicant”.
2. The applicant’s claims were shortly expressed in his visa application in response to the question, “Why did you leave that country?” where he stated:
   • I was actively involved in BNP politics and was an office bearer of (his local area branch). Since my student life I was involved in BNP politics and hold the position in the student committee. After Awami League came into power on 29 December 2008 they targeted my political colleagues and me. On 7 February 2009 when I was coming to my home from the party office, the local Chatra League members attacked me and beat me mercilessly. They left me alone on side of the road and the street people took me to hospital. I am still carrying the injury on my body. At that time I was under treatment for more than 2 months. They tried to add my name with the existing cases so that I could not be able to do BNP politics. Finally they filed a false case against my political colleague and me on the incident that was occurred at the Dhaka University campus on 12 February 2009. In several times the Awami League activists came to my house and insulted my family members including my widow mother.
   • As the Awami League is in power, the police administration supported them. I am in fear that if the police and RAB find me in Bangladesh they will put me in crossfire. From this fear I left Bangladesh.
3. The applicant claimed to fear that if he returned “the activists of Awami League will humiliate and kill me; police and RAB will arrest me and kill me by cross fire.” He claimed to have been advised by his mother that his life is not safe, and that police were looking for him.
4. The applicant forwarded to the Department of Immigration a number of documents in support of his claims. These included three photographs, which he said “show my presence with our central leaders”. He also sent a newspaper report, together with a copy of the page on which it was claimed to have appeared on 5 May 2009, referring to the applicant by name as a person who had been assaulted in December 2008, and was the subject of false cases and other persecution. The documents also included two letters of support from people in Bangladesh, and a letter from the joint convenor of the local Australian BNP party, referring to the applicant as being “an active member” of that organisation. There were also a number of documents with stamps purporting to corroborate the existence of criminal proceedings against the applicant, including a warrant of arrest.
5. The applicant was interviewed by the delegate on 27 May 2010. Subsequent to the interview, he was invited in writing to comment on concerns of the delegate in relation to the appearance of the photographs and the newspaper report, which suggested that both of these had been fabricated. The applicant responded in writing asserting the authenticity of these documents.
6. The delegate made a decision on 25 October 2010 to refuse the visa applications. The delegate was not satisfied that the applicant was a key leader of the BNP as he claimed. The delegate referred to the manifest defects in the photographs and the newspaper report, and found that they had been fabricated to enhance his claims. The delegate was not satisfied as to the genuineness of the other two documents from Bangladesh. The delegate considered the applicant’s Australian activities in relation to the BNP, but was not satisfied in terms of s.91R(3) of the Migration Act, and was required to disregard that evidence. The delegate was not satisfied that the applicant had a well-founded fear of persecution on a Convention ground.
7. The applicants appealed to the Tribunal. They submitted a number of additional documents, including additional photos, some additional letters of reference, and a letter of support for the applicant’s application for a protection visa from a person who, the applicant tells me today, is a former Minister of the BNP government. That letter does not recount the applicant’s circumstances, but states that he was a student leader and “is a very active member of our organisation”, and “if he returns to Bangladesh will be subject to a false case, which was filed against him before, during the Awami League regime”. There are other certificates showing that he had been a football player, and documents purporting to authenticate the newspaper report which had previously been submitted. There were also two medical documents.
8. The applicant was questioned about his claims and his documents at a hearing of the Tribunal which he attended on 27 January 2011. Neither party has tendered a transcript of the recording of the hearing, and I accept the Tribunal’s description given in its statement of reasons.
9. At the hearing, the applicant repeated his previous claims as to his experiences in Bangladesh, and added further matters which he claimed to have encountered. These included a history of incidents leading up to his coming to Australia which had required him to hide and not to attend his place of business. The Tribunal questioned the applicant about these events and also his claims to have been, for many years, an active member of the BNP, including by questioning him about his knowledge of the 2008 election. The Tribunal discussed with the applicant some concerns about his documents, and noted that the two medical documents appeared only to contain prescriptions for multivitamins and medicine for stomach upsets.
10. The Tribunal discussed with the applicant the concerns previously noted by the delegate as to the three photographs and the genuineness of the newspaper article. The applicant was warned that information available to the Tribunal indicated that false or fraudulent documents were readily obtainable in Bangladesh and were often used in immigration and refugee cases. The Tribunal warned the applicant that these concerns might cast doubt on the genuineness of other documents he had submitted. According to the Tribunal:
    • Asked if he understood this he said nothing he had provided or stated was untrue. Had he known he had to provide many documents, he would have provided bundles of them. I explained that I was not asking him to provide more documents, and I was only talking about documents he had provided. He said he understood this.
11. The Tribunal also took brief evidence from a witness from the local BNP organisation, and the applicant’s wife.
12. The Tribunal made a decision on 18 February 2011, which affirmed the delegate’s decision. In its statement of reasons, the Tribunal carefully recounted the evidence before it, including the contents of an audio recording of the Department interview, and complete lists and descriptions of the various documents submitted to the Department and to the Tribunal. In my opinion, these descriptions indicate that the Tribunal did read those documents and considered their contents.
13. Under the heading ‘Findings and Reasons’, the Tribunal explained why it was not satisfied as to the credibility of the applicant’s claims to have been a political activist in Bangladesh and to have suffered harm as a result of this activity, and to fear harm for the same reason should he return to Bangladesh.
14. I note that the Tribunal mistakenly referred to Brazil at paragraph [83], but that is an obvious and immaterial slip.
15. The Tribunal explained its conclusion by analysing the applicant’s evidence concerning his political activity in Bangladesh, and noting difficulties with it. The Tribunal thought that his descriptions of his activities were vague and uninformative, and that he displayed a lack of knowledge of his local electorate in relation to the 2008 national elections which he claimed to have participated in. The Tribunal considered the evidence of the local leader of the BNP, but noted its hearsay nature in relation to the applicant’s activities in Bangladesh.
16. The Tribunal also explained its difficulties in relation to the applicant’s claims to have been a victim of false charges and assaults. The Tribunal found aspects of his claims to be implausible, including his claim to have continued to operate a business in Dhaka while hiding from the Awami League. It referred to his confused and implausible evidence about the subsequent closing of his business after he came to Australia and about the alleged assault in February 2009. The Tribunal said that it was not satisfied that the applicant’s two-month delay in leaving Bangladesh after obtaining a tourist visa was “consistent with his claimed fear of serious harm there”. The Tribunal noted new claims had been made for the first time at the hearing. The Tribunal said that it was unable to be satisfied that the applicant was ever targeted or ever subjected to the harm which he claimed while living in Bangladesh.
17. The Tribunal then addressed the applicant’s documents. It said:
    • 92. I have reached this conclusion taking into account the documents and photographs submitted by the Applicant in support of his claims.
    • 93. As put to the Applicant at the hearing, the photographs submitted by him which are said to show him in the presence of senior BNP leaders have been shown to be falsified. I have considered his explanation that these photographs were taken on a mobile telephone by another person and were, in some unexplained way, affected by power cuts but I do not accept this as being logical or plausible. Having considered the physical appearance of the photocopied page of the Daily Alor Jagat of 5 May 2009, and in particular the article referring to the Applicant, together with the independent country information available to the Tribunal about document fraud in Bangladesh, I am not satisfied that any reliance can be placed on this document. I find the Applicant’s explanation as to how his passport photograph appeared in the article to be so implausible that I do not believe it. I am similarly unable to place weight on the letter which is said to have been written by the secretary and publisher of the Daily Alor Jagat, given the personal information about the Applicant which it contains.
    • 94. The Applicant maintained at the hearing that all the documentary material he had supplied to the Department and the Tribunal was genuine, although he appeared to suggest that he did not know how the photographs were taken. Given that the photographs have been shown to be falsified and as I am not satisfied that the Daily Alor Jagat article or the letter from the paper’s secretary and publisher can be relied on, I find this casts doubt over the other documents which have been submitted from Bangladesh. Against the background of the independent country information about document fraud in Bangladesh I am not satisfied that any weight can be placed on these documents.
18. The Tribunal considered the evidence of the applicant’s political activities in Australia, but was not satisfied that this conduct had been otherwise than to strengthen his claim as a refugee, and it said that it was required by s.91R(3) to disregard that conduct in assessing his claim to have a well-founded fear of persecution in Bangladesh.
19. The Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention, and found that neither he nor his family members qualified under the criteria for that visa.
20. The applicants now ask the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant or his documents should have been believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
21. The grounds of the application set out in the original application were expressed in too general terms to be meaningfully addressed. However, the applicant has filed an amended application whose grounds are explained in a written submission. The grounds set out in the amended application are:
    • 1. The Refugee Review Tribunal failed to give any weight to the relevant documents those focused our claims.
      • Particulars
      • A. The Tribunal did not put any weight to the documents which we submitted before the Tribunal in support of our claims that:
        • ....(a list of the documents)
        • The Tribunal overlooked the above supporting letters and made a comment that “I am not satisfied that he was ever a political activists for the BNP while he was in Bangladesh”.
    • 2. The Refugee Review Tribunal did not comply with s.424A of the Migration Act 1958 before to make the following comment.
      • Particulars:
      • A. The Tribunal did not asked from me any oral or written comment about its following finding that:
        • i) Background of the independent country information about document fraud in Bangladesh I am not satisfied that any weight can be placed on these documents.
    • 3. The Refugee Review Tribunal failed to consider my fear of persecution under s.91R of the Migration Act.
      • Particulars:
      • A. The Tribunal failed to consider my fear of persecution under s.91R of the Migration Act, rather the Tribunal made the following comment that:
        • i) I am not satisfied that the reason for the conduct in Australia has been otherwise then to strengthen his claim to be a refugee.
22. In relation to ground 1, I do not accept that the Tribunal overlooked any of the documents listed under the particulars. As I have noted, the Tribunal expressly acknowledged the tender of these documents, and summarised their contents in the course of its statement of reasons. I am not persuaded that the fact that not all of them are specifically discussed within the Tribunal’s ‘findings and reasons’ shows that it did not consider their evidentiary weight, both cumulatively and separately.
23. The Tribunal gave, in my opinion, logical and rational reasons for arriving at its conclusion as to the weight to be given to all this evidence, and it is not the Court’s task to consider whether its weighing of the evidentiary weight of the documents accords with its own opinions (see Minister for Immigration & Citizenship v SZJSS [2010] HCA 48 at paragraphs [32] – [36].
24. The defects in the photographs and newspaper report which the applicant had presented to support his claims, and continued to do so throughout the proceedings in the Tribunal, were, in my opinion, manifest and clearly reflected adversely on the credibility both of his other documents and of his own evidence. In my opinion, the Tribunal’s conclusions in relation to the corroborative documents were clearly open to it as a matter of law.
25. I do not accept the submission by the applicant that the Tribunal was obliged to conduct further investigations into the authenticity of his documents, including by making telephone or other inquiries in Bangladesh. That submission is contrary to the weight of authority, including recent High Court cases (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 at [1], and Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [2011] HCA 1 at [1], [20], [86]).
26. Ground 2 of the amended application suffers from two flaws, in my opinion. First, the general country information concerning the prevalence of Bangladeshi refugee claimants relying upon fraudulent documentation was of a general nature, which was excluded from obligations under s.424A(1) by s.424A(3)(a). Secondly, in my opinion, the Tribunal did fairly put that general information to the applicant in the course of the hearing, when discussing his documents with him (see paragraphs [71] – [74]). It is not clear to me that the Tribunal was obliged to follow procedures under s.424AA, but it appears to have attempted to do so.
27. I am therefore not persuaded that it made any jurisdictional error in its consideration of the applicant’s documents.
28. Ground 3 is difficult to understand. The applicant’s written submission appears to complain that the Tribunal should have given weight to the applicant’s activities in Australia, both as probative of his claims about his political profile in Bangladesh as well as giving rise to a further risk of persecution if he returned to Bangladesh. However, in my opinion, the Tribunal correctly identified that it was precluded by s.91R(3) from giving this evidence that effect, in the absence of a finding in terms of s.91R(3)(b). The Tribunal clearly was not satisfied in those terms and, therefore, I am unable to detect any error in its application of that section.
29. The applicant’s submissions to me today addressed his complaint about the failure of the Tribunal to give weight to some of his documents, and maintained the truth of his claims. He also emphasised his desire to stay in Australia, and his belief that neither he nor his family would be safe in Bangladesh. However, as I have pointed out to him, it is not the task of the Court to make an assessment of that matter.
30. Taking into account all that he has said, I am not persuaded that the Tribunal’s decision has been shown to be affected by any jurisdictional error. I am therefore obliged to dismiss the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 1 August 2011