FEDERAL COURT OF AUSTRALIA

SZQPZ v Minister for Immigration and Citizenship [2012] FCA 853

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Magistrates Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“Tribunal”).

2    The grounds of appeal were stated as:

1.    The Federal Magistrate[] did not consider that the Tribunal found my life is not at risk in Bangladesh.

2.    The Tribunal did not consider that I am not a credible witness of my claim for refugee application and the Federal Magistrate did not consider that matter.

3.    The Tribunal did not accept my documents I submitted for my claim and the Federal Magistrate did not consider that matter.

The appellant did not file written submissions. On the hearing of the appeal, the appellant said little in support of his appeal, save that he asked for pro bono legal assistance as well as asking what evidence would be required to establish jurisdictional error. As I explained today, I would not make a referral under r 4.12 of the Federal Court Rules 2011 (Cth).

3    At the hearing of the appeal, the appellant was unrepresented, although he had the assistance of an interpreter. The first respondent appeared and was represented by its solicitor, who relied on written submissions dated 6 August 2012. The second respondent filed a submitting appearance, save as to costs.

4    For the reasons stated below, I would dismiss the appeal.

BACKGROUND

5    The appellant is a citizen of Bangladesh who applied for a protection visa on 25 October 2010. The appellant’s claims in support of his application were set out in a document entitled “Statement of Claims”. He also provided a number of photographs in support of his application.

6    In his Statement of Claims, the appellant claimed to have a well-founded fear of harm in Bangladesh by reason of his religious belief as a Buddhist monk and as the son of a respected leader of the Buddhist community in his local area, who had organised protests against activist members of the BNP and Jamat-e-Islam. The appellant specifically made the following statements.

(1)    People from the BNP and Jamat-e-Islam approached his father for support and money, but he refused. The appellant’s father protested against the activities of these groups and, in consequence, was threatened and injured.

(2)    The appellant’s father continued his activities, and his shop was attacked in November, and the family home, in December 2000. The appellant was kidnapped until a ransom was paid to secure his release.

(3)    For his safety, the appellant was sent to school elsewhere in January 2001. Sometime between January 2001 and April 2001, he was followed and this caused him to fear for his life. As a result, the appellant was sent to Sri Lanka to study.

(4)    In 2005 the appellant visited his family home in Bangladesh, where he was attacked and beaten. He returned to Sri Lanka thereafter.

(5)    The appellant’s cousin was kidnapped and killed by the activist groups. The appellant’s father reported the incident to the authorities, but nothing was done and the appellant’s father had to leave the area and their property.

7    A delegate of the first respondent invited the appellant to attend an interview on 12 January 2011. The appellant requested that the interview be postponed to allow him to obtain further documents from Bangladesh. The delegate proceeded with the interview but gave the appellant further time in which to submit further documents. Ultimately, however, the delegate made a decision to refuse his application for the visa.

8    The Tribunal subsequently affirmed the delegate’s decision.

THE TRIBUNAL DECISION

Procedural matters

9    The appellant provided the Tribunal with a written submission dated 18 June 2011 and participated in a hearing on 28 June 2011, with the assistance of an interpreter.

10    The course of the hearing is described in some detail in the decision record, including that the Tribunal put to the appellant particulars of information relating to the letters from the Lord Abbot Phra Chavalit Pariponno and written statements from Phra Dharmeswar Sraman and Sangharaj Dharmasen Mahathero, which, so the appellant was told, might reflect adversely on his credit. When the appellant sought time to respond, the Tribunal allowed him a week.

11    By a letter dated 5 July 2011, the appellant subsequently requested a further six weeks to allow him to obtain information from Bangladesh. The appellant was advised by telephone that the time would be extended until the close of business on 28 July 2011.

12    By letter dated 12 July 2011, the Tribunal wrote to the appellant pursuant to s 424A of the Migration Act 1958 (Cth), inviting him to comment on or respond to information received from the Australian Embassy in Bangkok. The letter included the Embassy’s advice. The letter explained the relevance of the information and indicated that it might cause the Tribunal to find that the appellant’s evidence or that of his witnesses was unreliable. The letter requested the appellant’s comments or response by 4 August 2011.

13    On 4 August 2011, the Tribunal received a letter and a call from the appellant requesting an extension of time of six weeks to respond to the s 424A letter. The appellant was advised by letter and phone call that an extension of time would not be granted, although he could provide any other supporting documents at any time until the Tribunal made its decision. Also on that day, the appellant provided the Tribunal with a letter from Sangharaj Dharmasen Mahathero, dated 17 July 2011. The appellant provided a written response to the Tribunal’s s 424A letter on 8 August 2011.

14    The Tribunal made its decision on 11 August 2011 in which it affirmed the decision not to grant the appellant a protection visa.

The Tribunal decision

15    The Tribunal accepted that the appellant and his family were Buddhists and members of a Bengali-speaking Barua minority. The Tribunal accepted that the appellant’s father ran a grocery store and worked as a fisherman. The Tribunal found that the appellant attended school locally from 7 to 13 years of age, visited the local agricultural high school under the sponsorship of Sangharaj Dharmasen Mahathero, and went to Sri Lanka to continue his education in a Buddhist monastery.

16    Although the Tribunal considered the appellant to be “a confident [and] articulate witness”, it took into account “his relative youth and his somewhat confined upbringing” in assessing his claims. Nonetheless, the Tribunal found that it had “comprehensive concerns” about the appellant’s claims of past harm for the following reasons.

(a)    The appellant’s knowledge of his alleged kidnapping was confined to a small number of specific facts, with little further information or context.

(b)    The appellant gave multiple reasons for the kidnapping. In this context, the appellant’s response to his father’s experiences was “casual and uncertain” and he was unable to explain why the alleged persecutors kidnapped and pursued the appellant every time he was in the neighbourhood rather than pursuing his father more vigorously.

(c)    The appellant’s account of the alleged renewed threat in Patiya in early 2001 was also problematic and lacking in credibility.

(d)    Aspects of the appellant’s evidence about events in Bangladesh in 2005 were implausible.

(e)    The appellant’s return trips to Bangladesh in 2009 cast doubt on his claims.

(f)    The appellant showed a lack of knowledge about his alleged persecutors.

(g)    Although the Tribunal was prepared to accept the authenticity of corroborative documents, it had concerns about the accuracy of their contents “and the meaning and weight that should be attached to them”, concluding that the documents did not displace the serious concerns about the appellant’s claims.

(h)    For a number of reasons, the Tribunal found the appellant’s claims that his family had disappeared in 2006 “unconvincing”.

17    In consequence, the Tribunal dismissed all of the appellant’s claims of past harm against him and his immediate family, although it was prepared to accept that it was plausible that a young man murdered in August 2006 may have been a relative. The Tribunal did not accept that this murder formed a basis for any well-founded fear of persecution of the appellant in future. The Tribunal noted that Bangladesh has a poor record in its treatment of minorities but found that the appellant did not face a well-founded fear of harm on this basis.

the federal magistrates court

18    In his review application, the appellant relied on the following four grounds:

1.    The Tribunal failed to accord procedural fairness:

(a)    The Tribunal erred in law amounting to jurisdictional error in finding that my family members were harassed and threatened to be killed by fundamentalist Muslims and I was also kidnapped and that I did not face harm for my religious belief. The Tribunal found that there is no real chance that I shall be harmed for the reason of my membership of a particular social group as a Buddhist monk.

(b)    The Tribunal failed to find that I faced significant harassment prior to my departure from Sri Lanka though I provided several documents to the Tribunal which clearly establish that I was persecuted in Bangladesh for my religious belief and the Tribunal made errors of law amounting to jurisdictional error.

2.    The Tribunal failed to take into consideration the letter from Ven. Mahathero and the letter from Ven. Pariponno at the time of decision and made an error in law amounting to jurisdictional error.

3.    The Tribunal failed to consider me as a credible witness and ignored the documents I submitted to the Tribunal in support of my claims and made errors amounting to jurisdictional error

4.    The Tribunal member failed to consider the disappearance of my father and his initiative to lead protest against the Muslim oppression to our community members and also found that I shall face societal discrimination in Bangladesh as Buddhist but I will not be harmed amounting to persecution for my religious belief and refused my claim. The Tribunal made error in law amounting to jurisdictional error.

19    On 12 September 2011 the appellant filed an affidavit sworn by him on that date, which, amongst other things, contained additional complaints about the Tribunal’s decision. On 28 September 2011, the appellant was given leave to file an amended application, but the appellant did not subsequently file an amended application or any other document in the Federal Magistrates Court.

20    The appellant appeared in person at the final hearing, assisted by an interpreter. The Federal Magistrate delivered judgment on 5 April 2012.

21    The Federal Magistrate’s reasons included a summary of the appellant’s claims, the delegate’s decision, the Tribunal’s decision and the proceedings in the Federal Magistrates Court. His Honour stated that the appellant’s submissions “sought only to assert ‘the truth’ of what he had told the Tribunal, and to therefore challenge the Tribunal’s factual findings, including the findings as to credibility”. His Honour concluded that:

Given that the Tribunal’s findings were all reasonably open to it on what was before it, and for which it gave cogent reasons probative of the evidence, the applicant’s submissions did not rise above a request for impermissible merits review.

22    The Federal Magistrate considered and dismissed the grounds of review relied on by the appellant for the following reasons.

1.    The first assertion relevant to the procedural fairness ground (Ground 1(a)) sought to cavil with the Tribunal’s factual findings and disclosed no jurisdictional error.

2.    The second assertion relevant to the procedural fairness ground (Ground 1(b)) challenged the Tribunal’s treatment of the appellant’s evidence, especially its treatment of the letters of support from religious leaders. The Federal Magistrate considered the Tribunal’s treatment of those documents in the context of Ground 2 and found that no jurisdictional error was made in respect of them. In substance, his Honour found that the appellant was seeking impermissible merits review.

3.    Turning to the relevant consideration ground (Ground 2), the Federal Magistrate noted, first, that at the final hearing the appellant had claimed that the letters in question were ‘real’. His Honour also found that the Tribunal had considered the letters from the religious leaders and accepted that they were authentic, but had identified concerns with their contents. The Federal Magistrate accepted that the weight to be accorded to evidence is a matter for the Tribunal, citing WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630.

4.    The Federal Magistrate found that the credibility ground (Ground 3) was no more than a challenge to the Tribunal’s findings of fact.

5.    The Federal Magistrate characterised the disappearance of family ground (Ground 4) as alleging that the Tribunal had failed to consider the claim, and determined that the Tribunal did not commit any such error.

23    Finally, as the first respondent observed this afternoon, the Federal Magistrate also considered each of the additional complaints raised by the appellant in his affidavit and concluded that no jurisdictional error arose from them. As his Honour could not otherwise discern any jurisdictional error in the Tribunal’s approach, the appellant’s review application was dismissed with costs.

GROUNDS OF APPEAL

Grounds 1 and 2

24    I accept that, as the first respondent submitted in written submissions, the first and second grounds of appeal may be premised on misconstructions of the Tribunal’s factual findings. The Tribunal did not find that the appellant’s life would be at risk in Bangladesh, nor did it make any comprehensive credibility finding such as that apparently contemplated in the second ground.

25    In any event, as I emphasised this afternoon, these two grounds of appeal challenge the Tribunal’s factual findings and assessment of evidence. In effect, they would have the Court engage in a merits review of the Tribunal’s decision. The Court cannot do this: it is not the role of either the Federal Magistrates Court or this Court to engage in merits review of the Tribunal’s factual findings or second-guess its assessment of the evidence before it: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [64].

26    The first two grounds do not disclose any appellable error on the part of the Federal Magistrate.

Ground 3

27    To the extent that the third ground might be understood as alleging that the Federal Magistrate failed to consider a ground of review raised by the appellant concerning the Tribunal’s treatment of his evidence, this ground is not made out. His Honour considered the appellant’s complaints about this aspect of the Tribunal’s decision and found that the Tribunal had not overlooked the corroborative evidence to which the appellant referred. It is clear from the Tribunal’s reasons that it gave careful consideration to the letters from religious leaders on which the appellant relied.

28    To the extent that this ground challenged the Federal Magistrate’s finding that the Tribunal had not committed any jurisdictional error in its assessment of the appellant’s evidence, this ground should also be rejected.

29    It must be borne in mind, first, that the Tribunal is not bound to refer to every item of material relied upon by an applicant (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 422-423 [65]); and, secondly, “an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim” (see Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at 309 [28]).

30    In the present case, the Tribunal’s reasons expressly discuss and evaluate the significance of the appellant’s corroborative documents, with particular consideration given to the supporting statements. As the Federal Magistrate noted, the evaluation of evidence and the assessment of weight are matters for the Tribunal and not for the Court.

31    Accordingly, the third ground does not disclose any appellable error on the part of the Federal Magistrate.

DISPOSITION

32    For the foregoing reasons, there is no appellable error shown in the judgment of the Federal Magistrates Court. Accordingly, the appeal should be dismissed.

Associate:

Dated:    14 August 2012