SZEFW v Minister for Immigration and Multicultural and Indigenous Affairs

Asylum applicants from all [political] parties submit voluminous documentation to support their claims, including in particular outstanding warrants for their arrest if they return to Bangladesh and other alleged court and police documents. Arrest warrants are not generally available to the public, and all such documents should be scrutinized carefully. Many "documented" claims of outstanding arrest warrants have proved to be fraudulent. As of December 1997, the Embassy had examined several hundred documents submitted by asylum applicants; none proved to be genuine… 7 It is important to understand that during the hearing, according to the terms of the Tribunal decision, the Tribunal discussed with the appellant documents that the appellant brought forward at the hearing. At the first hearing, the appellant submitted two documents to the Tribunal. The first, dated 2 June 2004, is referred to on page 9 of the Tribunal's reasons. It was an English translation of another document in Bengali and stated that the appellant was the vice-president of the executive committee of the Awami League, Uttara PS unit from 1992 to 1999. The Tribunal noted that the letterhead and title of the signatory had not been translated. The second document, dated 11 June 2004 had been apparently issued by the President of the Bangladesh Awami League, Australia, Mr Murul Azad. Mr Azad stated that the appellant was a vice-president of the executive committee of the Awami League, Uttara PS unit. Mr Azad stated that he had personally spoken to local leaders of the Awami League in Uttara and the "central leaders" of the Awami League regarding the appellant's condition and had been told that the appellant's life is in danger and that he is a target of local BNP activists supported by the police and members of the ruling party. 8 At the second hearing, the appellant produced a document, being a copy of a summons and a certified translation of a summons said to have been issued against him in Bangladesh. The summons appeared to have been filed against him in Uttara police station using High Court criminal warrant form 1b and named the appellant and stated his address. The certified translation was by Iqbal Ahmed, advocate, Supreme Court and attested by Kazi Wodeath Hossain, Notary Public of Bangladesh. 9 In describing the conduct of the second hearing the Tribunal then said the following at pages 10 and 11 of its reasons: The Tribunal noted that the summons was issued on 20 September 2003, approximately three weeks before the applicant left Bangladesh. The Tribunal also observed that he has claimed that he was told about the summons by his brother only after he had left Bangladesh for NZ. He was asked to explain why he had not seen the document in the three weeks that he remained in Bangladesh after the document had been issued. He said maybe someone else received it. The Tribunal observed that his address is clearly printed on the summons and he had not lived anywhere else. He said that he shared his house with other members of his family and perhaps someone else received the summons and failed to notify him. The Tribunal reminded the applicant that he has consistently said that two false charges had been filed, but he has only produced one summons. He said that he does not know what has happened to the other one. His brother has told him that he could not find the other one. The Tribunal observed that the letter he had supplied at the previous hearing in support of his membership of Awami League had also been translated by Iqbal Ahmed and attested to by Kazi Wodeath Hossain. He said he did not know why this is the case and stated that perhaps his brother knew this person. The applicant's adviser commented that there are not many advocates in Dhaka Court who can translate documents from Bengali to English and the applicant's brother must have just approached the same person to translate the documents. The Tribunal put to him the independent country information regarding document fraud in Bangladesh. The applicant said the document is genuine and his family would not do anything against his interest. The applicant's adviser noted that the reports from DFAT are dated and while agreed that document fraud is prevalent in Bangladesh, not all documents are bogus. The Tribunal noted that he has previously stated that he had held no positions in the party beyond 1999. He said that he stopped being the vice president of the Uttara branch, but continued to be on the executive committee of the party in his district after 1999. The Tribunal put to him that in response to unambiguous questions in this regard at the last hearing he had stated that he held no positions after 1999. He insisted that he was involved with the party at the district level, but confirmed that his activities had been limited to making donations to the party. The Tribunal observed that he had not claimed to have been harmed before September 2003 and asked him why anyone would want to press false charges against him in September 2003. He said that he was involved at the district level and supported the party at the local level. The BNP probably thought that it would be better to remove him from the area. 10 The findings and reasons of the Tribunal are found on pages 17 to 22 of the decision. It is necessary to understand how the Tribunal approached the matter in order to ascertain whether the Federal Magistrate erred in his approach to the matter before him. 11 The Tribunal commenced by noting that there were a number of discrepancies between the appellant's claims in his original protection visa application and the oral evidence which he provided to the Tribunal at the hearing. However, the Tribunal having had the opportunity to question the appellant at the hearing dealt with the matter on the basis of the appellant's oral evidence in assessing his claims and no adverse inference was drawn from any inconsistencies between the written claims and the oral evidence. The Tribunal then analysed the claims as follows. It correctly identified the Convention ground as political opinion. The appellant's claim was based on the assertion that as an active member of the Awami League he was at risk of persecution by BNP. The Tribunal accepted that he joined the Bangladesh Chattra League in 1987 and that he became an executive member of the party in the district of Dahka and was the vice-president of the Uttara branch of the party until 1999. The Tribunal then went on to make the following findings which are important to the appellant's argument of jurisdictional error. …In the Tribunal's view, however, the applicant's involvement with the party was not at a high level and confined, primarily, to his district. According to his own evidence, until 1999 his political activities were limited to door to door campaigning and organising meetings and processions. While at the first hearing he stated that he held no positions in the party after 1999, at the second hearing he changed his evidence by stating that he had remained on the executive committee of the party in his district after 1999. The contradiction in the applicant's evidence in this regard casts serious doubt on the veracity of his claim. He repeatedly confirmed that his activities after 1999 were confined to making financial donations to the party. The Tribunal is of the view that it is reasonable to expect the applicant to have performed activities other than making financial donations if he had in fact served on the executive committee of the party at the district level. The Tribunal, therefore, does not accept that the applicant had held any positions within the party after 1999. Furthermore, the applicant's knowledge of the party was not at a level that is reasonable to expect of someone who claims to have been "involved" with Awami League politics since high school and to have occupied the positions he has described. For instance, he was unable to recall the foundation date of Awami League and was unable to provide any meaningful distinction between Awami League and BNP policies. The Tribunal, based on the applicant's evidence, including his own description of his political activities and his knowledge of the party and its processes, is of that view that he was not engaged in political activities at a level that gave him a significant political profile in Bangladesh. 12 The Tribunal accepted that the appellant had been arrested and detained for a month in 1988, though it noted that the appellant at the hearing did not pursue this claim as a basis for his view of persecution. The appellant did not claim to be fearful of Jatiya party supporters and having regard to the substantial political changes in the country since 1988 the Tribunal was satisfied that the appellant's chance of facing similar harm in the reasonably foreseeable future was remote. 13 The Tribunal then dealt with the claim by the appellant that he was assaulted by local BNP activists in September 2003. The Tribunal dealt with this issue in the following terms on page 18 of its reasons: The applicant's evidence, however, does not support the view that this attack was politically motivated. According to his oral evidence, the persons who attacked him had initially asked him for money. He was verbally abused and seriously assaulted only after he had refused to pay them money. At no point his assailants had mentioned anything about his membership of Awami league. Further, the applicant did not know his attackers, except one who was known as a "trouble maker" in his area and often took part in fights. When he was asked if his assailants knew him by name, he said no. Based on the applicant's evidence, the Tribunal is not satisfied that the applicant was assaulted for the reason of his political opinion or profile and finds that the applicant was an unfortunate victim of a random and opportunistic act of violence. 14 The Tribunal then turned to the question of the assertion by the appellant that false charges had been laid against him. The Tribunal, having regard to material to which I will refer in a moment, did not accept that the summons, a copy of which and a translation of which, had been brought forward at the second hearing, was a genuine document and the Tribunal did not accept that any false charges had been filed against the appellant. The reasons for this lack of acceptance of the genuineness of the summons were set out in some detail on pages 18 to 20 of the Tribunal's reasons. Given the importance of the issue, I set out the text of those reasons in full: The applicant at the first hearing claimed that two false cases had been registered against him in September 2003. However, at the second hearing the applicant produced a copy of one summons and stated that his brother has been unable to locate the second summons. The summons is dated 20 September 2003 and states that a complaint has been made against the applicant under the Arms Act. The Tribunal has significant concerns regarding the authenticity of this document. Firstly, the applicant had stated that he only became aware of the false charges after he had left Bangladesh in mid October. When he was asked why he had not seen the document in three weeks between the date of issue and his departure from Bangladesh, he was unable to provide a meaningful answer apart from stating that perhaps someone in his household had failed to give it to him. The Tribunal finds this explanation unsatisfactory and dose [sic] not accept that a summons relating to serious charges could have been simply ignored by members of his family only to be brought to his attention after he had departed the country. Moreover, the Tribunal is not satisfied of the existence of a second summons and does not accept that his brother has lost the document and is unable to find it. Secondly, the document appears to have been translated by Iqbal Ahmed, Advocate, Supreme Court, and attested to by Kazi Wodeath Hossain, Notary Public of Bangladesh. The letter the applicant had supplied at the previous hearing in support of his membership of Awami League had also been translated by Iqbal Ahmed and attested to by Kazi Wodeath Hossain. Given that the documents had been translated and attested to at different dates, the Tribunal finds that this goes beyond the realm of coincidence. The applicant's adviser offered the explanation that there are not many advocates who are able to translate documents from Bengali to English and that Iqbal Ahmad may have been known to the applicant's brother. However, this does not explain Mr Kazi Wodeath Hossain's attestation to both documents. Thirdly, the applicant did not claim to have been a target of any harm, let alone serious harm, by BNP activists at any other occasion prior to September 2003 and as already indicated, apart from making financial donations to the party, he had no other activities after the BNP came to power in 2001. Indeed, during this period he was able to frequently travel overseas and stated at the hearing that he had never intended to seek protection outside of Bangladesh prior to his departure in October 2003. It is, therefore, unclear as to why BNP's animosity towards him was so deep that they wanted to see him removed from the locality by filing false charges against him in September 2003. Fourthly, the independent evidence before the Tribunal, which it accepts, indicates that there is a high degree of document fraud in Bangladesh. When this was put to the applicant, he stated that his family would not do anything against his interests. The applicant's adviser noted that the independent reports relied upon are dated and the situation in Bangladesh has changed. While there may have been many changes in Bangladesh in the last few years, there was nothing in the sources consulted by the Tribunal to suggest that the changes in Bangladesh has had any impact on the prevalence of document fraud in that country. Finally, if the applicant was notified of serious charges having been filed against him while he was NZ, he would have sought asylum in that country. The tribunal does not accept that he decided to come to Australia instead because of the quality of protection afforded to asylum seeker sin Australia [sic]. The Tribunal is of the view that if the false charges had been filed against the applicant and he was genuinely concerned, he would have sought protection in NZ. 15 The Tribunal then dealt with what it concluded about the appellant's political profile and the Tribunal's lack of satisfaction as to a well-founded fear of persecution. The appellant complains that the Tribunal misdirected itself away from the proper question of the satisfaction of Article 1A(2) of the Convention and concerned itself with the question whether or not the appellant was a high profile or not a high profile member of the Awami League. As can be seen from the following extract at pages 20 to 21 of the reasons of the Tribunal and from its earlier consideration of the country information, this criticism is misdirected. It is certainly the case that the Tribunal concerned itself with considering the level of importance of the appellant in the Awami League. However, it did so as part of considering the country information and in ascertaining whether or not it was satisfied that the appellant had a well-founded fear of persecution for reasons of his political opinion. Thus, I do not think that the following extract from the Tribunal's reasons reflects a misdirection of its enquiry which would, had it occurred, been a jurisdictional error. Whilst violence among political parties, much of it attributable to criminal elements, is an unfortunate aspect of a relatively new and still maturing political process, all of the major political parties in Bangladesh are legal, operate openly, have significant followings, and have been represented in all recent Parliaments. Both the BNP and the Awami League governments have arrested or detained opposition party leaders in an effort to control the generally high-level of violence associated with Bangladesh politics. Following the October 2001 elections DFAT advised that there is no evidence that the current government is pursuing a campaigning of persecution of its opponents. Whilst incidence of political violence increased in 2002 apart from one incident where the police arrested 300 supporters of the opposition Awami League hours before they staged a nationwide strike, the independent sources consulted by the Tribunal strongly suggest that when the authorities have shown an adverse interest in the opposition, their targets have been high profile members and senior politicians of Awami League (see, for instance, Amnesty International's Annual Report, 2003, Bangladesh, covering events from January to December 2002, http://web.amnesty.org/report/2003/bgd-summary-eng). Overall, the applicant did not have a significant political profile in Bangladesh and his activities do not suggest that he was a senior leader or politician. The Tribunal has already found that the applicant's experiences in the past do not amount to persecution and is satisfied that if the applicant returned to Bangladesh and continued to engage in political activity, devoid of criminality and thuggery, at the same level as he has in the past there is no real chance that he would face harm as a result. In reaching this view, the Tribunal has had regard to the independent evidence before it which shows that political activists who engage only in legitimate political activities and advocacy usually have little or nothing to fear from rival political groups (US Department of State, Bureau of Democracy, Human Rights and Labour Bangladesh: Profile of Asylum Claims and Country Conditions, February 1998, CX31417) The Tribunal, therefore, is not satisfied that the applicant has a well-founded fear of persecution for reasons of his political opinion. 16 The Tribunal then went on to consider particular news items and reports that had been provided by the appellant in support of his application for review, including most recent reports by Amnesty International. The Tribunal concluded that this material generally confirmed the independent country evidence before the Tribunal already dealt with. 17 By way of alternative finding, the Tribunal then went on to consider the issue of relocation. It considered that if it was wrong as to the well-founded fear it was satisfied that the appellant could reasonably relocate to a part of Bangladesh other than Uttara or the district of Dhaka. In thus concluding the Tribunal said the following at pages 21 and 22: The applicant's claims make clear that all his political activities were highly localised and at best confined to his district. Indeed, he made it clear at the hearing that he fears the local BNP leaders in his area. There are 64 districts in Bangladesh (see http://www.deshimaps.com/districtmaps.htm) and the applicant has provided no acceptable reasons as to why his unable to relocate internally. The Tribunal does not accept that he will be found by his political opponents anywhere in a densely populated country like Bangladesh. The applicant still owns his shop trading in computer accessories in Dhaka. His share of the profits is being transferred into his bank account in Bangladesh by his brother. He is young, intelligent, educated, well-travelled and an experienced businessman who is clearly able to adapt to new environments. The Tribunal, therefore, is satisfied that in all the circumstances it is reasonable for the applicant to relocate within Bangladesh. 18 The Tribunal then concluded that it was satisfied that the appellant's fear of persecution in Bangladesh for the reason of his political opinion was not well-founded and it concluded that having considered the evidence as a whole that it was not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention. 19 The amended application before the Federal Magistrate had three grounds identified. Each was dealt with by the Federal Magistrate. 20 The first ground was in the following terms: The Tribunal found that the applicant "did not have a significant political profile in Bangladesh and his activities do not suggest that he was a senior leader or politician", it is not an essential criterion to prove a real fear of persecution. The Tribunal fell into jurisdictional error in making these findings. The applicant was considered, as an executive member of the district committee of the Awami League was a significant level of leadership, which misunderstood by presiding member. Thus, the Tribunal made an error in regard to this issue. 21 The Federal Magistrate said that it was not clear what legal ground the appellant sought to rely upon by this paragraph. The Federal Magistrate did discern however that the appellant was putting that the wrong question was the subject of the Tribunal's consideration. The Federal Magistrate, in considering this, in effect rejected it for reasons substantially the same as set out above at para 15. That is, that the consideration of the level importance of the appellant in the Awami League was part of the consideration, in the context of the country information, as to whether or not the appellant would face, or was likely to face, any harm if he returned to Bangladesh. 22 The second ground in the amended application was in the following terms: The Tribunal was influenced by the country information and ignoring the real state affairs of the applicant, which the Tribunal fell into jurisdictional error in making the decision. In fact, the country information was significant to the decision made by the Tribunal. In light of the country information the Tribunal was influenced to make a decision negating the real fear of persecution. It is relevant to mention the following c authority of NARV v MIMIA and NAAK of 2002 v MIMIA (2004) FCA 113, section 424A(3) of the Act does not apply to information about the high level of documentary fraud in Bangladesh, and the Tribunal was under an obligation to bring that information to the attention of the applicant in accordance with s 424A. 23 The Federal Magistrate rejected this ground and the asserted failure to provide notification under s 424A on the basis of the application of s 424A(3)(a). The Federal Magistrate correctly identified that the decisions referred to by the appellant in ground two had been over-ruled by the Full Court's decision in the Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264. 24 The third ground in the amended application was in the following terms: The decision by the Tribunal made jurisdictional error saying that "the applicant´s involvement with the was not at high level and confined". The Tribunal did not mention about the criterion of High level. The position of the applicant was hypothetically termed by the Tribunal was affected the Tribunal´s assessment to determine the applicant´s case. The Tribunal accepted that the applicant was an executive member of the Dhaka district, which indicates a significant level of leadership. The Tribunal failed to determine the applicant´s case in light of the applicant´s fear of persecution rather the Tribunal aimed to negate the claim to discover the high level of leadership. It is also an issue to this honourable Court to consider. 25 The Federal Magistrate saw this as a procedural fairness ground and dealt with it in the following terms at [24]-[28]: This ground appears to be claiming that the applicant was not afforded procedural fairness because the Tribunal did not make him aware that his political involvement had to be at a high level. As the respondent says, it is not a criterion for the visa sought that the applicant had to be involved in politics at a high level. Rather the Tribunal found as a fact that in order to be at risk in Bangladesh an individual had to be involved at a high level, as a leader or as a high profile politician. At the first hearing the Tribunal put to the applicant independent information before it to the effect that only senior leaders and politicians were targeted for their political views in Bangladesh. The applicant said in response that the current situation in Bangladesh was not as described in that independent information and middle leaders faced most of the problems. It is evident the Tribunal rejected the applicant´s view and relied on the independent information. This does not amount to procedural unfairness. To the extent that this ground in effect requests the Court to engage in merits review, it must also be rejected for the reasons that I have given earlier. 26 With respect, this may not be the appropriate reading of the asserted ground of review. It appears to make the same point made by the first ground in the amended application and reflected in the arguments on appeal before me that there was a misdirection by the Tribunal of itself as to the correct question. I need not repeat what I have earlier said about that. 27 The Federal Magistrate then dealt with grounds raised at the hearing and said the following at [29]-[35]: At the hearing the applicant briefly raised a number of issues which he said indicated the Tribunal had erred. Firstly he asserted that the Tribunal did not investigate his claims or the Tribunal did not investigate his claims properly. He did not provide particulars. It is pertinent to note that in NAHI the Full Federal Court said at [10]: It is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Further, in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32, Gummow and Hayne JJ said at [43] that although the Tribunal has certain powers to obtain additional evidence "the Act does not impose any duty or obligation to do so". In any event an examination of the decision of the Tribunal does not support in any way the assertion that it failed to properly investigate the applicant´s claims. Secondly at the Court hearing the applicant said that the Tribunal misinterpreted his situation. For example he referred to an attack in September 2003 upon himself which he said was politically motivated. However, the Tribunal reached the view, which it was perfectly entitled to do, that it was not satisfied that the applicant was assaulted for reasons of his political opinion or profile but rather that he was an unfortunate victim of a random and opportunistic act of violence. 28 The appeal to this Court was constituted by a notice of appeal which set out the following grounds of appeal: 2. The [Federal Magistrate] erred in considering that the Refugee Review Tribunal made a jurisdictional error. 3. The [Federal Magistrate] faild [sic] to find out that the Tribunal made an error of law. 4. The [Federal Magistrate] erred in finding that the Tribunal denied natural justice to the applicants. 29 The submissions made by the appellant were contained in a two page document filed with the Court. The appellant addressed these orally before me. 30 The points on appeal made by the appellant were essentially as follows:

1. The Tribunal misdirected itself as to its task by concentrating on whether or not the appellant had a high profile in the Awami League.
2. The Tribunal failed to make proper investigation before making conclusions to such a serious matter as the falsity of the documentation provided by the appellant.
3. The Tribunal erred in concluding in that only top leaders of the Awami League would be targeted for violence. 31 The third point was, in substance, another way of putting the first point. I have dealt with these points earlier. I see no error in the way that the Tribunal dealt with these issues for the reasons I have earlier identified. Therefore, I do not see any error in the failure by the Federal Magistrate to discern any such error. 32 The Federal Magistrate correctly concluded that there was no duty to investigate on the Tribunal. It is unnecessary to recount in any detail the various cases in the Full Court of this Court which have rejected any foundation for an argument that a duty to investigate arises. 33 To the extent that it is asserted in the notice of appeal that there was a failure to afford procedural fairness and to the extent that this can be seen as related to the finding of the Tribunal as to the falsity of the documents the Tribunal can be seen to have squarely placed the appellant on notice that this issue was one for consideration by the Tribunal. The extracts from the Tribunal decision to which I have earlier referred appear to me to make plain that the appellant had the issue brought home to him squarely as one that needed to be dealt with. If I am wrong about this, the extracts at least deny the ability to infer from the reasons that the issue was not squarely raised. The evidence before the Federal Magistrate does not permit such a conclusion to be drawn. 34 I do not see any error in the way the Tribunal dealt with the matter and I do not see any error in the way the Federal Magistrate dealt with the matter. 35 I raised with Ms Mason the question of the possible application of SAAP v The Minister in Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 in the light of Full Court's reasons in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27. Ms Mason submitted, correctly in my view, that the approach of the Tribunal left no possible operation for s 424A of the Migration Act 1958. The Tribunal made clear that it relied only upon the information provided by the appellant at the Tribunal hearing. In these circumstances, it is unnecessary to deal with the issues raised by the intersection of these two cases. 36 For the above reasons the appeal should be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.