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SZOMB v Minister for Immigration and Citizenship [2011] FCA 81 (10 February 2011)

Last Updated: 14 February 2011

FEDERAL COURT OF AUSTRALIA

SZOMB v Minister for Immigration and Citizenship [2011] FCA 81

Citation:		SZOMB v Minister for Immigration and Citizenship [2011] FCA 81

Appeal from:		SZOMB v Minister for Immigration & Anor [2010] FMCA 742

Parties:		SZOMB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

File number:		NSD 1445 of 2010

Judge:		REEVES J

Date of judgment:		10 February 2011

Date of hearing:	7 February 2011

Place:	Sydney

Division:	GENERAL DIVISION

Category:	No catchwords

Number of paragraphs:	42

Counsel for the Appellant:	The Appellant appeared in person

Solicitor for the First Respondent:	A Totoeva of DLA Philips Fox

Counsel for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1445 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOMB Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	10 FEBRUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The notice of appeal filed on 26 October 2010 be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1445 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOMB Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	REEVES J
DATE:	10 FEBRUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an appeal against a judgment of a Federal Magistrate delivered on 6 October 2010, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

BACKGROUND AND PROCEDURAL HISTORY

The appellant is a citizen of Bangladesh who arrived in Australia on 10 March 2009. On 21 October 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister for Immigration and Citizenship refused the application on 30 January 2010. On 8 March 2010 the appellant applied to the Tribunal for a review of that decision. The Tribunal subsequently affirmed the delegate’s decision.

CLAIMS OF POLITICAL AND OTHER PERSECUTION

The appellant claimed to fear persecution in Bangladesh by reason of his political opinion and his religious beliefs. Essentially, he claimed to be of the Hindu faith, which is a religious minority in Bangladesh. He also claimed he was the local leader of the Bangladesh Jatiotabadi Chatradal and Jatiotabadi Jubodal, the student and youth wings of the Bangladesh Nationalist Party (“BNP”), which is the current opposition party in Bangladesh. He claimed that people with his religious background usually supported the Awami League, which is the ruling party in Bangladesh. He claimed that he was under constant threat of being persecuted by Awami League’s cadres and thugs because they were upset that he supported the BNP.
The appellant also claimed that on 15 September 2008 he married a Muslim woman. His wife came to Australia on a student visa in September 2008. The appellant was granted a student dependent visa in December 2008, however, due to employment and political commitments, he decided to stay in Bangladesh for another few months. He did this because he claimed he was optimistic the BNP would win the election that was being held at that time, so he decided to stay and campaign for the local BNP candidate. However, when the Awami League won the election, he claimed he became the target of post-election attacks. In January 2009 he was stopped by about ten people, slapped and told to leave the area otherwise he would be attacked. He claimed that his life was under constant threat, and he also feared his wife’s parents would find out about their marriage, so he left for Australia in March 2009.
The appellant claimed that within months of living with his wife in Australia, she told him that he had to convert to Islam or she would leave him. As well, he claimed that her parents started threatening his siblings in Bangladesh. He claimed that if he returned to Bangladesh, his political opponents, along with his wife’s father, would harm, or kill him.
The appellant provided two statements to the delegate. The first was purportedly issued by the Narail District Wing of the Bangladesh Jatiotabadi Chatradal and the second was purportedly issued by the Bangladesh Jatiotabadi Jubodal. Both confirmed his involvement in politics, and with the student and youth wings of the BNP.
In respect of these statements, it is important to note that the delegate received information from an informant who claimed that the claims contained in the appellant’s application were false. Moreover, this informant provided a blank letterhead of one of the political organisations referred to and claimed similar blank letterheads could be collected from any of the offices of those organisations and any information could then be inserted.

THE TRIBUNAL AFFIRMED THE DELEGATE’S DECISION

The Tribunal found the appellant was not a credible witness, that his evidence was vague and generalised, that he had difficulties providing specific information and that his evidence was inconsistent. Further, the Tribunal did not accept the appellant’s claims that the deficiencies in his evidence were due to his poor health and memory. In this respect, the Tribunal had regard to the medical certificate put forward by the appellant, but concluded that the ear infection described in that certificate was not likely to affect his memory. The Tribunal concluded that the vagueness and inconsistencies in the appellant’s evidence were a reflection of his poor credibility and not on his state of mind.
The Tribunal also found that the appellant’s limited knowledge of the BNP was inconsistent with the level of knowledge one would expect from a person who claimed to have been actively involved with the party and its politics. This caused the Tribunal to question the appellant’s claims to have been actively involved with the BNP.
The Tribunal also contrasted the appellant’s vagueness in the answers he provided at the Tribunal hearing regarding the harassment and threats he claimed to experience in Bangladesh with the detailed claims he made in his original application. On this basis, the Tribunal formed the view that the appellant had fabricated these claims.
In respect of the two statements provided by the appellant (described at [6] above), the Tribunal noted the spelling and linguistic errors contained therein, eg “59 Word Committee” instead of “59 Ward Committee”, and found that, while it considered it was possible that the writer’s English may not be perfect, it did not consider it plausible that a genuine letterhead and official stamps of those organisations would contain such errors. The Tribunal therefore formed the view that the appellant had fabricated those documents. This caused the Tribunal to further doubt the appellant’s credibility.
Given its adverse conclusions about the appellant’s credibility and his willingness to fabricate documents, the Tribunal decided to give no weight to the letter in support that was provided by the appellant’s brother.
The Tribunal also found that, had the appellant genuinely feared persecution in Bangladesh, he would have left that country as soon as he obtained his Australian student dependent visa and not remained there for a further three months.
In short, the Tribunal concluded the appellant was not a truthful witness and it rejected his claim to have had any political involvement in Bangladesh.
As to the other aspects of his claims, the Tribunal accepted the appellant was a Hindu and that he had married a Muslim woman in secret. It also accepted that his wife’s parents disapproved of the marriage. However, because of his confused and inconsistent evidence concerning this aspect of his claims, the Tribunal did not accept that his wife’s family wished to harm him. Further, as the Tribunal rejected the appellant’s claimed political involvement in the BNP, or any other political activities in Bangladesh, it did not accept the appellant’s politics would have any influence on the actions of his wife’s father.
Having rejected the entirety of his claims, the Tribunal concluded there was no real chance the appellant would face persecution for reasons of his religion, political opinion or for any other Convention reason, or any combination of Convention reasons, if he were to return to Bangladesh now, or in the reasonably foreseeable future. Accordingly, the Tribunal affirmed the delegate’s decision.

THE FEDERAL MAGISTRATE FINDS NO JURISDICTIONAL ERROR

In his amended application for judicial review in the Federal Magistrates Court, the appellant raised the following grounds:
1. The Refugee Review Tribunal failed to maintain procedural fairness to exercise its jurisdiction under the Act:

Particulars:

The Tribunal did not consider and put weight on my documents that I provided. I provided documents relating to my involvement with politics of the student and youth wing of Bangladesh Nationalist Party (BNP). Rather it affirmed the DIAC’s decision and DIAC assessed my documents receiving information from an unknown source, that those documents were fabricated. Although no detailed and specific information and name of sources were provided as where they received information that my documents were fraudulent. The Tribunal did not put weight on them and rather followed and supported the view of immigration department while affirming my case.

The Refugee Review Tribunal misunderstood and over exercised it’s jurisdiction in considering my information.

Particulars:

The Tribunal did not put weight to the letter from my brother. It presumed the letter to be self serving. The Refugee Review Tribunal over exercised it’s jurisdiction by thinking my brother’s letter as self serving. Its presumption led it not giving any weight on the letter and thus made a jurisdictional error.

The Refugee Review Tribunal made jurisdictional error in assessing my circumstances.

Particulars:

The Tribunal referred to various information regarding inter religious marriage in Bangladesh. These are the information that the Tribunal relied on while assessing my circumstances. In para 81 of its decision the Tribunal referred to inter religious marriage between high profile celebrities in Bangladesh and relying on those it believes that, inter religious marriage is not a big problem in Bangladesh. The Tribunal is not aware that, inter religious marriage between celebrities and between I and my ex-wife is not same. No one will dare to tell them anything since they are very prominent and powerful in the country. But people like me have always been sufferer, always been subject to attack, persecution, threat who went through inter religious marriage especially when some one being a Hindu marries a Muslim girl.

The Tribunal took wrong test in assessing my situation of inter religious marriage not thinking practical aspect in Bangladesh, thus made jurisdictional error.

As to the first part of ground 1, the Federal Magistrate noted that the Tribunal’s decision record disclosed that the documents the appellant had provided to the Tribunal were discussed at some length with the appellant at the hearing and were expressly considered by the Tribunal in its decision. As a consequence, his Honour found this part of ground 1 failed on the facts. As to the allegation in this ground that the Tribunal had simply adopted the delegate’s view that the documents were fabricated based on the information provided by the informant (see [7] above), the Federal Magistrate observed that the Tribunal’s decision record clearly demonstrated that it had applied an independent mind to the authenticity of those documents and arrived at its own independent conclusion in relation to them.
Before the Federal Magistrate the appellant also claimed the Tribunal had breached s 424A of the Migration Act 1958 (Cth) (“the Act”) by not informing him of the information the delegate had received from the informant. On this aspect, the Federal Magistrate observed that s 424A only obliged the Tribunal to notify an applicant of information that it considered would be the reason, or part of the reason, for affirming the decision under review. Thus, since the Tribunal’s reasons did not suggest that it had formed any opinion about the informant information, much less indicate that it considered it was the reason or part of the reason for affirming the decision under review, his Honour held that the Tribunal was not required to give particulars of that information to the appellant: citing Minister for Immigration & Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at 514[24]. Finally on this aspect, the Federal Magistrate held that in any event, in its s 424A letter dated 17 March 2010, the Tribunal had expressly referred to the informant information, it had identified its potential significance to the appellant’s application and it had invited the appellant to comment on it. For these reasons, the Federal Magistrate dismissed the first ground of review.
In respect of ground 2, the appellant submitted that the Tribunal had breached s 424A of the Act by not inviting him to comment on his brother’s letter. Not surprisingly, the Federal Magistrate held that, since that letter was provided to the Tribunal by the appellant for the purpose of its review, it fell within the exception to the operation of s 424A(1) contained in s 424A(3)(b) and thus did not need to be notified to him.
As to ground 3, the Federal Magistrate held that although the Tribunal had regard to the Department of Foreign Affairs & Trade (“DFAT”) report about inter-religion marriages, it did not rely upon that report in reaching its decision. Rather, the Tribunal rejected this aspect of the appellant’s claims because it found that his evidence regarding it was confused and devoid of detail.
Under the headings of grounds 4 and 5, the Federal Magistrate also had regard to certain complaints made by the appellant in his written submissions. First, (ground 4) the appellant claimed the Tribunal erred in assessing his credibility. The Federal Magistrate held this complaint could not be made out since it challenged the Tribunal’s credibility findings and they were matters par excellence for the Tribunal.
The appellant also argued in his written submissions (ground 5) that the Tribunal did not take into account his claims that he was mentally stressed and was not able to answer its questions properly. Noting that no medical evidence had been provided by the appellant to support these claims, the Federal Magistrate held this complaint was not made out. Finally, based on a fair reading of the Tribunal’s decision record, the Federal Magistrate rejected the appellant’s claims that the Tribunal had inaccurately stated that the threats he had received from his ex-wife’s family had started after the break-up of their relationship.
Accordingly, the Federal Magistrate dismissed the appellant’s judicial review application for want of jurisdictional error.

THE CONDUCT OF THE PRESENT APPEAL

On 26 October 2010 the appellant filed a notice of appeal in this Court which alleged that (without alteration):
1. The Federal Magistrate erred in not finding that the second respondent had failed to complete its judicial tasks not putting weight on my documents and my involvement in politics.

Particulars:

The Refugee Review Tribunal misunderstood and over exercised it’s jurisdiction in considering my information. The Federal Magistrate erred in not finding this error by the Tribunal.

Particulars:

The honourable Federal Magistrate viewed that, the Tribunal’s conclusions regarding the letter from my brother were logically open to it. That being so, the Tribunal’s decision to give it no weight does not disclose error on its part. Thus the honourable Federal magistrate overlooked the error of law made by the Tribunal.

The Refugee Review Tribunal made jurisdictional error in assessing my circumstances.

Particulars:

The Tribunal took wrong test in assessing my situation of inter religious marriage not thinking practical aspect in Bangladesh, thus made jurisdictional error. The Federal magistrate did not consider that a jurisdictional error made by the Refugee Review Tribunal.

The Honourable Federal Magistrate did not consider any of the above errors made by the Refugee Review Tribunals (RRT) regarding my claims.

At the hearing before me on 7 February 2011, the appellant appeared in person, unrepresented, but assisted by an interpreter. Mr Johnson appeared as counsel for the first respondent. In his brief oral submissions the appellant claimed, in essence, that he would be killed if he were forced to return to Bangladesh. Mr Johnson was content to rely upon the outline of written submissions that had been filed on behalf of the first respondent.

CONSIDERATION

At the outset it should be noted that, while they have been restructured somewhat to allege error on the part of the Federal Magistrate, the three grounds of appeal before this Court raise substantially the same issues as the three grounds of judicial review before the Federal Magistrates Court.
Ground 1 seeks to challenge the Federal Magistrate’s treatment of the Tribunal’s alleged failure to “consider and put weight on” the documents the appellant had provided to it in support of his application.
On this allegation I consider the Federal Magistrate was plainly correct in concluding that the Tribunal’s decision record shows that it did duly consider those documents. It follows that no error has been demonstrated on the part of the Federal Magistrate and this allegation must be rejected.
However, the particulars of this ground also repeat a claim made before the Federal Magistrate that the Tribunal had relied upon certain information provided to the delegate by an unnamed informant without first providing particulars of that information to the appellant for comment.
Despite the fact that this ground made no mention of s 424A, the Federal Magistrate was (somewhat generously, if I may say so) willing to treat it as an allegation of a breach of that section. On that basis, his Honour rejected the appellant’s claim because there was nothing in the Tribunal’s decision record to suggest that it had formed an opinion about this informant information, much less relied upon it as a reason, or part of the reasons for its decision.
From a fair reading of the Tribunal’s decision record, I consider that the Federal Magistrate was plainly correct in reaching this conclusion. That being so, s 424A had no role to play in this matter: see Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at [24]. It follows that no error has been demonstrated on the part of the Federal Magistrate in rejecting this claim.
For these reasons, I consider ground 1 of the appellant’s notice of appeal must be rejected.
The Federal Magistrate also assumed that the appellant was complaining about a breach of s 424A in ground 2 of his application for judicial review. His Honour did that because the appellant raised that complaint in his written submissions. However, in this Court, the appellant has made no mention of s 424A in his ground in his notice of appeal and he has not filed any written submissions. Against this background, I consider I can only assume that the appellant has deliberately chosen not to pursue an allegation of a breach of s 424A under ground 2 of his notice of appeal.
On the question of the weight that was given to the brother’s letter, the Federal Magistrate set out that part of the Tribunal’s decision record that dealt with this issue, as follows (at [27]):

The Tribunal also gives no weight to the letter from the applicant’s brother as the Tribunal finds this document to be self-serving and given the applicant’s willingness to fabricate documents, as well as the Tribunal’s concerns about the applicant’s credibility, the Tribunal is concerned about the probative value of his brother’s statement.

The Federal Magistrate then concluded (at [28]) that:

The Tribunal’s conclusions regarding the letter from the applicant’s brother were logically open to it. That being so, the Tribunal’s decision to give it no weight does not disclose error on its part.

It hardly needs to be said that the weighing of evidence is a matter that falls squarely within the fact-finding role of the Tribunal: see Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33] and [36]. Further, it is not the role of this Court, nor is it the role of the Federal Magistrates Court, to conduct a review of the fact-finding role of the Tribunal, or a merits review: see Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20].
Moreover, the Tribunal’s reasons for rejecting the corroborative value of the brother’s letter in this case clearly stemmed from the Tribunal’s conclusion that the appellant was not a witness of truth and had fabricated other documents. Thus, this is clearly a situation where the proffered corroborative evidence has been given no weight because “the well has been poisoned beyond redemption”: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [49] per McHugh and Gummow JJ.
For these reasons, I consider no error has been demonstrated on the part of the Federal Magistrate in relation to ground 2, and it must also be rejected.
As to ground 3, the Federal Magistrate found that, while the Tribunal had regard to the DFAT report on inter-religious marriages, it did not rely on the contents of that report in reaching its decision. Instead, the Federal Magistrate observed that the Tribunal had rejected the appellant’s claims on this aspect because they were confused and devoid of detail in relation to specific threats.
I am unable to detect any error on the part of the Federal Magistrate in these conclusions and, for this reason, ground 3 of the notice of appeal must also be rejected.

CONCLUSION

For these reasons, the appellant’s appeal must be dismissed. I will hear the parties on the question of costs.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated: 10 February 2011

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