FEDERAL COURT OF AUSTRALIA

SZNCN v Minister for Immigration and Citizenship [2009] FCA 926

SZNCN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 514 of 2009

SIOPIS J

21 AUGUST 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant is to pay the first respondent’s costs to be taxed.

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 eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The appellant is a citizen of Bangladesh who deserted the ship, MV Great Majesty, on 30 April 2008, while at Port Kembla.

2                     On 8 May 2008, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  In a statutory declaration attached to his application, the appellant claimed to have a well-founded fear of persecution if he returned to Bangladesh due to his membership of the Awami League (AL).  The appellant claimed that he was active in the Rasel Samriti Sangsad (the AL’s children’s wing) and was President of the Jalalabad unit.  He claimed that in 1996, while he was in college, he was elected Vice-President of the Bangladesh Chhatra League’s (AL’s student wing) No 2 Jalalabad Ward.

3                     The appellant claimed that in 1997, a person with connections to Jamaat-e-Islami and BNP activists filed a false case against him and other political colleagues.  He stated that he was arrested on 28 June 1997 and held on remand for three days, during which time he was assaulted and tortured by police.  He claimed that he was then imprisoned for one month and 23 days until the court dismissed the charges against him.  He also claimed that his political opponents destroyed his home and his shop.

4                     The appellant said further that he campaigned for the AL during the 2001 election, which was won by the coalition Jamaat-BNP.  He claimed that after the election, activists of Jamaat-BNP harassed the AL members, killing a number of the activists and leaders of the AL.  He claimed that Jamaat-BNP killed AL party leaders and that he was lucky to escape himself.  He said that on one occasion he was travelling behind a car in which other colleagues died in a bomb attack.  He said that when he tried to turn public opinion against the Jamaat-BNP, he was targeted.

5                     The appellant went on to say that in October 2001, he began working as a seaman.  He claimed that he continued his political activities during this time although they were harder to manage.

6                     The appellant claimed that he was kidnapped by members of Jamaat-BNP in December 2007 as a means of keeping him away from the AL.  He stated that they assaulted him and demanded a ransom from his family.  He claimed that he was rescued with the help of hundreds of AL supporters.  He further stated that after he was released, he went to the police to make a formal complaint, but the police refused to take any action.

7                     The appellant left Bangladesh in February 2008.

8                     The appellant claimed that the caretaker government would not protect him from the Jamaat-BNP activists.  Further, the appellant also claimed that the caretaker government in Bangladesh targeted AL leaders and activists.  Accordingly, he feared he would be harmed if he returned to Bangladesh.

9                     A delegate of the first respondent refused the application for a protection visa on 6 August 2008.  On 1 September 2008, the appellant applied to the Tribunal for a review of that decision.

THE TRIBUNAL

10                  The appellant attended the Tribunal hearing, and gave evidence.  The hearing extended over two sessions.  There were a number of documents provided by the appellant in support of his claims, which were before the Tribunal.  These documents were described at [27], [32] and [36] of the Tribunal’s decision.  They include letters from AL party officials supporting his claims as to his AL activities and copies of court documents said to relate to the appellant’s claim of false charges being brought against him.

11                  The Tribunal found that the appellant was a witness of “variable credibility”.  The Tribunal did not accept that the appellant had held any AL office, that he was an AL activist or local leader, or that he had any related political profile.  The Tribunal found his evidence to be vague, generalised and lacking in detail and independent corroboration.  The Tribunal accepted, however, that the appellant was a supporter of the AL.

12                  The Tribunal also placed no weight on the documents submitted by him in support of his claim to have been an AL activist, noting that independent country information indicated that there was a high prevalence of false documentation in Bangladesh and there was a lack of detail or specific examples of the appellant’s political activities in the documents.

13                  The Tribunal also found that the copies of the court documents he furnished in support of his claims did not show that he had been charged but only that he was the subject of investigation.

14                  The Tribunal also noted that the appellant’s employment as a cook on merchant vessels from 2001 to 2006 cast doubt on his claimed political involvement, and his credibility, as the appellant could not have sustained a profile or influence as an AL activist during his lengthy period of employment abroad.

15                  The Tribunal accepted that the appellant had been involved in some activities of the AL’s Bangabandhu Society in Australia.  Despite its concerns regarding the appellant’s credibility, the Tribunal accepted that the appellant may have become involved in these activities in part because he supported the AL and wished to meet like-minded compatriots in Australia.  The Tribunal was, therefore, satisfied that the appellant engaged in this conduct otherwise than for the purpose of strengthening his claim to be a refugee and that the conduct did not fall within the scope of s 91R(3) of the Migration Act 1958 (Cth) (the Act).  The Tribunal stated, however, that his conduct in Australia did not indicate that he was an AL activist or a local leader in Bangladesh as he claimed, as it did not displace the other concerns of the Tribunal.

16                  The Tribunal did not accept the appellant’s claims to have suffered any politically motivated harm in Bangladesh and rejected his claims to have been detained, subject to false charges, and kidnapped.  As mentioned, although the Tribunal accepted that the appellant had been and was an AL supporter, it did not accept that he was an office holder or activist or that he had any other political profile or identity.

17                  The Tribunal concluded that the appellant did not have a political profile or any other attributes that resulted in a real chance of Convention-related persecution under any government in the reasonably foreseeable future.

THE FEDERAL MAGISTRATES COURT

18                  On 31 December 2008, the appellant sought judicial review in the Federal Magistrates Court.

19                  On 28 April 2009, the appellant filed an amended application.  He relied on three grounds of review.  First, he claimed that the Tribunal made its decision in bad faith.  This, he said, relevantly, was evidenced by the fact that the Tribunal had commented that his evidence as to his political activities was vague and generalised.  Secondly, the appellant claimed that the Tribunal had acted in excess of its jurisdiction by finding that it was not satisfied that he had a well-founded fear of persecution, now or in the reasonably foreseeable future, if he returned to Bangladesh.  Thirdly, it was said the Tribunal failed to exercise its jurisdiction by not placing any weight on the documents the appellant submitted to support his claim to be an AL activist or local leader.

20                  The Federal Magistrate found that none of the grounds of review were made out.

21                  The Federal Magistrate concluded, at [69]-[72] of her reasons for decision, that:

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support.  The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses.  The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it.  The Tribunal then made findings based on the evidence and material before it.  Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave.  A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it to which it applied the correct law in reaching those conclusions.

In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision.  Accordingly, pursuant to s 474 of the Act, this Court has no jurisdiction to interfere.

The proceeding before this Court should be dismissed with costs.

THE APPEAL

22                  On 2 June 2009, the appellant filed a notice of appeal in which he repeated the grounds of review which he had relied upon before the Federal Magistrate.  I have treated these grounds as contentions that the Federal Magistrate erred in failing to find that:

1.         The Tribunal made the decision in bad faith by rejecting his evidence.

2.         The Tribunal acted in excess of its jurisdiction by finding that the appellant did not have a well-founded fear of persecution if he returned to Bangladesh.

3.         The Tribunal failed to exercise its jurisdiction as it did not put any weight on the documents submitted by the appellant.

Ground 1

23                  At the hearing before me, the appellant did not address any specific error in the Federal Magistrate’s reasons but complained that the Tribunal ought not to have disbelieved him; and that the Tribunal should not have placed no weight on the documents which he relied upon before the Tribunal.  He said that the Tribunal should have made an investigation to satisfy the doubts it had as to the documents.  I have treated these contentions as contentions by the appellant that the Federal Magistrate erred in failing to find jurisdictional error by the Tribunal on the account of the matters complained of.

24                  In my view the Federal Magistrate did not err in rejecting the appellant’s first ground of review.  The Federal Magistrate correctly found that there was no evidence to support the serious allegation that the Tribunal had acted in bad faith.  There was no transcript and there was nothing in the Tribunal record before the Court to support the claim that the Tribunal had acted in bad faith.

25                  Further, the Federal Magistrate engaged in a detailed analysis of the Tribunal’s decision and identified those parts of the Tribunal’s decision where the Tribunal had considered and rejected the appellant’s claims, including the reasons the Tribunal gave for placing no weight on the documents that the appellant had relied on before the Tribunal.  The Federal Magistrate pointed out that the Tribunal had rejected the appellant’s claims on credibility grounds because it did not accept that he had the high profile within the AL which the appellant claimed.

26                  The Federal Magistrate correctly concluded that the Tribunal accurately summarised the appellant’s claims as well as the documents provided by him in support of those claims, explored his claims with him in some detail at the hearing, put its matters of concern to him, including its concerns about the documents he submitted, and noted his responses.  Further, said the Federal Magistrate, the Tribunal had “carefully and comprehensively evaluated” all the appellant’s claims.  The Federal Magistrate further found that the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings.  In making these findings, the Federal Magistrate did not err.

27                  The Federal Magistrate classified the first ground of the appellant’s amended application as being, in essence, no more than a disagreement with the findings of the Tribunal which did not disclose jurisdictional error.

28                  In my view, for the reasons given by the Federal Magistrate, she did not err in making the findings which she made and did not err in concluding that the Tribunal did not fall into jurisdictional error by reason of the matters raised by the appellant.

29                  The first ground of appeal is dismissed.

Ground 2

30                  The Federal Magistrate rejected the second ground of review.  By that ground of review the appellant had contended that the Tribunal had acted in excess of its jurisdiction because it was not satisfied that the appellant had a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he were to return to Bangladesh.

31                  The Federal Magistrate noted that the Tribunal had rejected the factual premise upon which all of the appellant’s claims were founded namely, that the appellant was a high profile AL activist and local leader who was of interest to political opponents.  Accordingly, observed the Federal Magistrate, it was unnecessary for the Tribunal to engage in any further consideration of the appellant’s claim of a fear of persecution if he were to return to Bangladesh.  In making these findings the Federal Magistrate did not err.  The factual findings made by the Tribunal as to the appellant’s lack of political profile were findings which were open to the Tribunal to make.

32                  The Federal Magistrate also referred to the appellant’s claim that the Tribunal had not considered his claim that he would be persecuted by reason of his political opinion if the caretaker government was reinstated following the election scheduled to take place in December 2008.  The Federal Magistrate held that the Tribunal had considered that claim and rejected it on the basis that because the appellant did not have the high political profile which he claimed, he would not be the target of any government in the reasonably foreseeable future.  In making these findings the Federal Magistrate did not err.  At [93] of the Tribunal’s decision, the Tribunal said:

Country information indicates that Bangladesh has national parliamentary elections scheduled for 29 December 2008.  The Tribunal notes the applicant’s doubts, expressed at hearing, that they will in fact take place then.  There is considerable uncertainty about the country’s political future, including the composition and transitional arrangements for any incoming administration.  Although the applicant expressed his claims with reference to the current caretaker government, the Tribunal finds – having regard to his very limited political interests, his past travel to and from Bangladesh during periods under different governments, and his failure to seek refugee status any time prior to April 2008 – that the applicant does not have a political profile or any other attributes that result in a real chance of Convention‑related persecution under any government in the reasonably foreseeable future.  (Original emphasis.)

33                  These were findings which it was open to the Tribunal to make.

34                  The appellant’s contentions in support of this ground of appeal did not reveal any error by the Federal Magistrate.

35                  Accordingly, the second ground of appeal is dismissed.

Ground 3

36                  In support of the third ground of appeal, the appellant contended before me, in effect, that the Federal Magistrate erred in failing to find that the Tribunal had fallen into jurisdictional error by placing no weight on the documents he relied on to support his claims and in failing to investigate any doubts that it may have had regarding the documents.

37                  The Federal Magistrate found that the Tribunal had placed no weight on the facts asserted in the appellant’s documents in support of his difficulties in Bangladesh, in light of the country information that disclosed the prevalence of false and fraudulent documents in Bangladesh and the other evidence which was before it.  The Federal Magistrate held that the findings of the Tribunal were open to it on the evidence and materials before it and for the reasons it gave.

38                  The Federal Magistrate referred to the following observations of Jacobson J in NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 at [18]‑[20] (NAYU):

There was no obligation on the RRT to make any further investigation of the claim over and above the material submitted by the applicant.  The High Court has made it clear on a number of occasions that proceedings before the RRT are inquisitorial and that it is for an applicant to advance whatever evidence he or she wishes to put forward in support of the application; see eg Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] (per Gummow and Hayne JJ).

The authorities make it clear that the RRT is not obliged to embark upon its own inquiries except in limited circumstances.

In Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169‑170, Wilcox J pointed out that the circumstances under which a decision will be invalid for failure to make independent inquiries are strictly limited.  His Honour observed that it is no part of the duty of the decision-maker to make the applicant’s case for him.  His Honour said that it is not enough that the Court may find that the sounder course would have been to make more inquiries.  The exception is, as his Honour said, in a case where it is obvious that material is readily available and is centrally relevant to the decision to be made.  In those circumstances, it would be an unreasonable exercise of the decision making power for the decision maker to proceed without making an attempt to obtain that information.

39                  The Federal Magistrate found that there was nothing to suggest that there was cogent material readily available and centrally relevant to the Tribunal’s decision such that it was unreasonable for the Tribunal not to have attempted to obtain that information.

40                  In my view, the Federal Magistrate did not err in making the findings which she did.

41                  The question of the weight to be placed on evidence is a matter for the Tribunal.  It was open, in light of all the evidence in this case, for the Tribunal to have placed no weight on the content of the documents.  The adverse credibility findings made against the appellant are consistent with, and along with country information, provide a basis for, the Tribunal placing no weight on the documents (WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225 at [68]-[70]).

42                  Further, as Jacobson J observed in NAYU it is for an applicant for a protection visa to satisfy the Tribunal that protection obligations are owed to him or her.  There is no duty on the Tribunal to make investigations in relation to the claims made by an applicant save in the limited circumstances described by Jacobson J.  In this case, the Tribunal had made adverse credibility findings against the appellant on the basis of the implausibility of his claims, and so this was not a circumstance in which any investigative duty on the part of the Tribunal arose.

43                  The third ground of appeal is dismissed.

44                  The appeal is dismissed with costs.

Associate:

Dated:              21 August 2009