SZGIZ v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2005-12-02|Before: Stone J

REASONS FOR JUDGMENT 1 On 29 July 2005 Smith FM dismissed the appellant's application for review of a decision of the Refugee Review Tribunal ('the Tribunal') in which the Tribunal rejected his application for a protection visa; [2005] FMCA 1144. The application to the Federal Magistrates Court was made under s 483A of the Migration Act 1958 (Cth) ('the Act') and s 39B of the Judiciary Act 1903 (Cth). The appellant now appeals from his Honour's decision.

The appellant's application for a protection visa 2 The appellant, a citizen of Bangladesh, arrived in Australia on 24 January 1996 but did not lodge his application for a protection (Class XA) visa until 11 March 2005. In his protection visa application, the appellant claimed he was a Bangladeshi national who lived in Dhaka until July 1994. After studying for 12 years in Dhaka, he worked in his own business from December 1991 to February 1999. The appellant described his religion as Christian. 3 Attached to his protection visa was a statement setting out his claimed basis for refugee status. The Federal Magistrate described the attached statement at [5]-[7] of his judgment: 'Attached to the visa application was an eight page statement which set out factual claims upon which protection was sought under the Refugees Convention. In short, the applicant claimed to have become interested in Christianity as a young man in Bangladesh and after his arrival in Australia to have "decided to convert myself from Islam to Christianity". The statement said that he had been introduced to a priest in late 2000, and "currently I am following this priest's advice and is hoped to be baptised by him in his priesthood office at Sydney." The statement said that the applicant's interest in Christianity had come to the attention of the Bangladesh community in Sydney and Australia, including a business partner and his friends. It said that "some of my friends here in Sydney also threatened me" and "are trying to hit me physically. They always threaten me over telephone". The statement said: Recently I've come to know that some Muslim Fundamentalists from my own area (in Dhaka) threatened my family in January 2003. A fanatic Muslim group also attacked our house (in Dhaka). The statement contained an unclear reference to events in Bangladesh in 1995, and made further claims supporting a fear to return to Bangladesh based on concerns about Muslim extremists and "a growing threat of terrorism from my known enemies at Sydney and Dhaka".'

The proceedings before the Tribunal 4 The appellant appointed an adviser, Mr Mollah, to act in relation to his review application and to be his authorised recipient. However, his application to the Tribunal contained no new information in respect of his claims for refugee status. 5 By letter dated 31 March 2005 to the appellant's authorised recipient, the Tribunal wrote to the appellant advising him that it was not prepared to make a decision in his favour on the basis of the information before it. The Tribunal therefore invited the appellant to a hearing of his review application. In response, the appellant indicated he wished to attend the hearing with the assistance of an interpreter and accompanied by his adviser. The hearing before the Tribunal took place on 8 April 2005. The Tribunal notes in its reasons that the adviser arrived late. 6 At the hearing the appellant presented a number of documents to the Tribunal to support his claims for refugee protection. The Tribunal noted that these documents appeared to raise claims that had not been referred to in his original protection visa application. The Tribunal stated: 'The Tribunal discussed with the Applicant (prior to his adviser's late arrival) the preparation of his protection visa application. The Applicant said that he had outlined his claims by telephone in Bengali, and they had been prepared and submitted by the adviser with just brief checking by the Applicant. This was in response to the Tribunal's observation that the alleged criminal case (as documented) appeared to be a new claim and potentially significant which had not been referred to in the protection visa application. The Applicant said that he had referred to his allegedly being subject to an arrest warrant. The Tribunal expressed surprise that such a significant matter would be overlooked in a preparation of a refugee application. On his arrival, the adviser said that the Applicant had confirmed by telephone the text of his protection visa application statement, and suggested that the police matter had been raised by the Applicant only after its completion. At the end of the hearing, the Tribunal also noted that the Applicant had not sought protection until after his arrest by DIMIA compliance officials. The Applicant said that he had talked to a friend about seeking protection earlier, but had been deterred at that time because of the cost of lodging the application and engaging a lawyer. The Tribunal alerted him to the possible adverse conclusions which could be drawn from the circumstances in which he had sought protection.'

The Tribunal's reasons 7 Despite what the Tribunal described as an 'unfocussed' presentation of his claims to the Tribunal, it identified four distinct claims. 8 First, the appellant claimed a fear arising from a perceived lack of respect for Islam. The appellant claimed that fundamentalist Muslims would pursue and kill him following an incident in Kensington in 1999 in which he had failed to recognise an Arabic language Muslim text and had thus offended the religious sensitivities of three Muslim friends. Although this incident occurred in Australia the appellant claimed that people in Bangladesh also knew about it and he would suffer the same treatment there. The appellant gave evidence that this incident had led to his ostracism from the Bangladeshi community in Australia, his dismissal from work, an assault and people damaging a boarding house in which he was staying. He also claimed that he did not approach the police because of his illegal status. 9 Secondly, the appellant claimed fear of persecution on account of his political profile as a journalist. The appellant claimed that in Bangladesh he had been beaten up for distributing a magazine with a headline calling for the abolition of capital punishment. He claimed that in 1992 members of an Islamic group beat him up for expressing his political opinion and attributed some scarring on his upper left chest to the incident. 10 Thirdly, the appellant claimed a fear of persecution on the basis of his political profile arising out of the arrest of a terrorist acquaintance. The appellant claimed that after his acquaintance's arrest, the 'number one terrorist' had in turn allegedly named him to police. The appellant claimed that as a result there was now an arrest warrant issued for him and provided documentary evidence in support of this claim (see [6] above). The document provided by the appellant was a letter from a Mr Rahman, an advocate in the Dhaka Judge Court, in which he advised the appellant that a criminal case had been lodged against the appellant. He further informed the appellant that the case was serious in nature and that the appellant's life was not safe in Bangladesh at that stage. The Tribunal stated that it raised the issue of document fraud in Bangladesh at the hearing and indicated it might write to the appellant in relation to this issue. In addition, it questioned the appellant as to why the letter was only sent in March 2005 when the arrest warrant was allegedly issued in 2001. By letter dated 11 April 2005 (again sent to the appellant's authorised recipient), the Tribunal asked the appellant to comment on information concerning the prevalence of document fraud in Bangladesh. The Tribunal stated in its reasons that it received no response to this letter. 11 Finally, the appellant claimed to fear persecution on account of his Christianity. The Tribunal noted that this was the central claim in the appellant's protection visa application and yet the applicant's evidence as to his association with Christianity was 'threadbare'. The Tribunal's account of the applicant's evidence on this issue indicates the applicant's claims in this regard were vague and lacking in details. 12 After setting out the appellant's claims and evidence, the Tribunal stated: 'The Applicant's oral evidence at hearing was unfocused and sometimes obscure. The Tribunal observed that he appeared to be nervous, possibly attributable to his unexpected arrest after many years in Australia. The Tribunal makes allowance for this in its evaluation of his evidence. It is satisfied that his presentation was not negatively affected by interpretation (services were provided by an interpreter with substantial Tribunal experience), and it finds no basis to doubt the Applicant's competency to appear and give evidence before the Tribunal.' 13 The Tribunal noted significant discrepancies between the statement attached to his protection visa application (see [3] above) and his oral evidence provided at the hearing. It stated: 'The Applicant and his adviser accounted for these differently. It was common ground that the Applicant had communicated his claims to his adviser or a representative by telephone in Bengali, that these had been recorded and that the statement had been checked with him by telephone. The statement consisted of eight pages of specific personal claims (all relating to Christianity), a reasoned account of his attraction to Christianity (including aesthetic and philosophical elements which appeared to be at odds with his simple, pragmatic approach to religion as explained at hearing) and specific country information. The degree of detail in the statement suggests that it would have been difficult to record and check all these matters by telephone alone. The Applicant's inability at hearing to respond meaningfully to (indeed, his occasional surprise at) specific claims contained in it raise further questions about the reliability of the written statement. Also of concern is the omission from the statement of the Applicant's key claims as presented at the hearing. The statement refers only to the Applicant's claims concerning Christianity, and attributes his problems - such as threats and physical violence in Australia, and follow-up action by Muslim fundamentalists in Dhaka - to this cause. By way of contrast, at hearing the Applicant placed emphasis on other claims relating to religion and politics, and mentioned his interest in Christianity only at Tribunal's prompting. Whilst the Applicant claimed at hearing that he had mentioned the other claims (which he now described as his most important claims) to his adviser, it was the adviser's evidence that these post-dated preparation of the Applicant's written statement. The Tribunal finds the Applicant's evidence on this dubious, as it is difficult to imagine an adviser or anyone else completely omitting claims relating to serious criminal charges if these had in fact been mentioned. In sum, the Tribunal finds that the statement appended to the Applicant's protection visa application contains both embellishments and omissions which, viewed in their totality, render it an unreliable record. The Tribunal does not attribute responsibility for these errors. Although the Tribunal finds credible the adviser's account that the Applicant had failed to mention his claims other than his intended conversation to Christianity, its concerns about the production and contents of the document are such that it is unable to rely on it in any case. However, it does not rely on the mere fact of the discrepancies between it and the Applicant's oral evidence to draw any adverse inferences with respect to the Applicant's claims. 14 The Tribunal also had concerns about the appellant's delay in applying for a protection visa. It noted that the appellant had applied for a protection visa more than nine years after arriving in Australia and only after his detention by immigration authorities. The Tribunal stated: 'The Applicant's evidence points to a number of possible explanations for this. First, most of the alleged incidents…occurred some time after his arrival in Australia. Second, the Applicant variously explained why he had failed to react to threats of harm, measures which might now serve to corroborate his refugee claims: - he did not have 'hard evidence' of threats to him from Bangladeshis, he could not seek protection from the police because of his illegal status and he did not have the money to pursue a refugee application. The Tribunal finds these to be unsatisfactory explanations for the Applicant's inaction. It is not satisfied that a genuine refugee would delay seeking protection for financial reasons. It is also not satisfied that a person under genuine threat in Australia, even if reluctant to approach the police, would not be able to substantiate some measures to protect himself or herself. These circumstances cast serious doubt on the credibility of the Applicant's claims, but do not of themselves permit the Tribunal to dismiss his claims conclusively.' 15 In respect of the first claim made by the appellant (relating to fear arising from a perceived lack of respect for Islam), the Tribunal accepted as plausible that the appellant had a conversation in which he made casual comments that some Muslims might perceive as ignorant or disrespectful towards a Muslim prophet. However, it was not satisfied that three of his Bangladeshi friends would turn against him for that reason, nor that they would spread word of his perceived attitude such as to endanger him. Further, the Tribunal stated it was not satisfied that the single incident in which the appellant claimed to have made the relevant comments could have resulted in a series of subsequent incidents and social rejection as the appellant claimed. It accepted that the appellant may have had some disagreements or discord with compatriots from time to time, but it was not satisfied that they were Convention-related. The Tribunal also found that any disagreements were not serious in nature. Consequently, the Tribunal found this incident did not give rise to a well-founded fear of persecution if the appellant returned to Bangladesh. 16 Turning to consider the appellant's second claim for refugee status, the Tribunal accepted that the appellant had worked as a journalist for a magazine in the early 1990s and that he was involved in the article concerning the death penalty. However, the Tribunal was not satisfied that it resulted in politically motivated violence against him and noted, among other things, the delay in leaving Bangladesh after the claimed assault. As such, the Tribunal was not satisfied that the appellant had a genuine subjective fear of future harm in this respect. 17 The Tribunal did not accept the appellant's claims relating to fear of persecution arising from his association with the alleged terrorist. It referred to: (a) the differing ways in which the appellant described his relationship with the terrorist; (b) the lack of independent references to the alleged terrorist, especially given the appellant's background as a journalist; and (c) the failure of the appellant to refer to such a serious claim, involving criminal charges, in his protection visa application. 18 Further, the Tribunal placed no weight on the letter from Mr Rahman (see [10] above), stating that: 'This [letter], together with the Applicant's oral evidence, indicates that the Applicant has been subject to an arrest warrant issued in 2001. As explained at hearing, the Tribunal finds it inconceivable that the authorities would not start their investigations at the Applicant's last known address in Bangladesh - his father's house, the address to which Mr Rahman addressed his letter for on-forwarding to the Applicant - and that the Applicant's father would therefore not have come to know of the arrest warrant in 2001. The letter states specifically that the criminal case was lodged at the police station closest to the family home in suburban Dhaka. The Tribunal finds unconvincing the Applicant's response that perhaps his father did know after all, but decided not to tell him. Given the seriousness of the alleged charges, the minimum which might be expected from a family member would be to alert the Applicant about the authorities' interest in him (in case he were to return home unexpectedly). The Tribunal places no weight on the letter from Mr Rahman. It accepts for the purpose of this decision that the letter is genuine, taking into account the notarial certificate from Mr Mohiuddin and notwithstanding country information concerning the prevalence of document fraud in Bangladesh. However, it is not satisfied as to the veracity of its contents. According to the Applicant, it was written at his father's request following advice of the Applicant's arrest and subsequent protection visa application. This raises the possibility - but does not of itself prove - that the letter was written by the lawyer for a fee, for the express purpose of assisting the Applicant's case. The Tribunal put to the Applicant for comment country information reporting this as a known phenomenon in Bangladesh. The contents of the document raise questions which lead the Tribunal to conclude that it is not reliable. First, the Tribunal does not accept that a lawyer would write to the Applicant in 2005 via his father to 'inform' him of an arrest warrant issued some four year earlier, in 2001. Second, it also does not accept that the lawyer would be actively engaged in defending the case without having previously sought at least the advice or cooperation of the Applicant. Third, it doubts that a lawyer would jeopardize his client's interests by alluding in writing to the political motivations behind such charges. The Tribunal has considered whether the English text might be misleading, eg. Whether the lawyer means not to be 'informing' the Applicant (ie. bringing to his attention for the first time) but rather 'confirming' such information. However, this cannot be reconciled with the Applicant's evidence that he did not know previously of these charges and for that reason did not previously seek protection in Australia. All the above leads the Tribunal to be unable to accord weight to the letter in considering whether the Applicant is subject to any criminal charges.' 19 For these reasons, the Tribunal was not satisfied that the appellant was the subject of criminal charges or other related harm and, implicitly, that he did not face a real chance of serious harm if returned to Bangladesh. 20 In relation to the appellant's claims of fear of persecution on account of his Christianity, the Tribunal found, based on the appellant's scant knowledge and vague evidence, that the appellant did not have a genuine association with or an interest in Christianity and that he would not be so perceived by anyone. Further, the Tribunal found the appellant's claims in this context lacked credibility. 21 Consequently, the Tribunal found that the appellant had not been subject to past persecution (either in Bangladesh or Australia) on any of the bases claimed and concluded that it was not satisfied that he had a well-founded fear of persecution if he returned to Bangladesh.

The proceedings in the Federal Magistrates Court 22 On 20 May 2005, the appellant filed an application for judicial review in the Federal Magistrates Court. As his Honour noted at [25] of his judgment, the application before him contained a list of the general heads of judicial review and was entirely unparticularised. When asked by the Federal Magistrate to outline his complaints, the appellant submitted that the Tribunal's decision was made in bad faith; the Tribunal's questioning made him nervous; his agent lodged his protection visa application without his signature on it; and that the Tribunal member was not physically fit. 23 The Federal Magistrate noted that the appellant could not point to any aspect of the proceedings before the Tribunal that indicated bad faith and rejected this submission. Similarly, his Honour was satisfied, based on the Tribunal's account contained in its reasons, that the appellant had a full and fair opportunity to put his claims to the Tribunal and any questioning did not prevent him from responding satisfactorily. 24 In respect of the issues as to the signing of the protection visa application, the Federal Magistrate held that he did not need to resolve the factual dispute. His Honour stated at [4] of his judgment: 'The [protection visa] application has at various places signatures which purport to be those of the applicant, but he has disputed before me today whether they were his or whether they were inserted by somebody else. For reasons which I shall explain below, I do not need to reach conclusions about this assertion, but consider that the proceeding should be dealt with on the same basis that they were dealt with by the previous decision makers, i.e., that there was a valid visa application before the Department. I note, however, that comparing the signatures with the signature on the application before this Court, which the applicant accepts is his, it is not apparent to me that the signatures were not those of the applicant.' His Honour noted that the appellant did not deny that the protection visa application was made by him and was determined by the delegate and the Tribunal. The Federal Magistrate described the submission and dealt with it at [29] of his judgment: 'His complaint made the implicit submission that it would be unfair for his claims to have been addressed on the assumption that he had adopted the written statement. However, in my view, the Tribunal has been alive to his concern about this and has given him the benefit of any doubts. In the passages which I have extracted above, it showed that it explored the issue at the hearing, and that it decided the applicant's case giving him the benefit of doubt about who was responsible for inconsistencies between what he said at the hearing and what was in his original application form. I can find no jurisdictional error based on how the Tribunal dealt with the statement attached to the visa application.' 25 Finally, the Federal Magistrate rejected as without substance the appellant's contention in relation to the fitness of the Tribunal member. The application for review was dismissed with costs.

This appeal 26 The notice of appeal, filed in this Court on 19 August 2005, merely states that the Federal Magistrate failed to find error of law, jurisdictional error and procedural unfairness. It does not particularise these complaints in any way. 27 When, at the hearing, I asked the appellant to describe these errors in his own words, he was unable to do so, however he did expand his complaint against his adviser to include an assertion that the adviser had been fraudulent. While it does not appear that the appellant's complaint to the Tribunal about his adviser went so far as to allege fraud, as indicated above, it was necessary for the Tribunal and the Federal Magistrate to consider the different accounts given by the adviser and the appellant in explaining discrepancies between the statements made in his protection visa application and at the hearing before the Tribunal. The appellant did not provide any details of this complaint nor was it supported by any evidence or even explanation as to the implications of the alleged fraud for the appellant's account. Therefore I am unable to attach any weight to this claim or to deal with it further. 28 In my view the Federal Magistrate was correct to reject the grounds of review raised for the reasons he gave. The grounds raised by the appellant before his Honour did not demonstrate any jurisdictional error in the Tribunal's decision. The appellant has not raised anything on appeal to indicate that the Federal Magistrate erred or that the Tribunal's decision contained jurisdictional error. Subject to one issue discussed below, the appeal must be dismissed with costs. 29 In an entirely proper exercise of his duty as officer of the Court, counsel for the first respondent, Mr Kennett, raised a possible issue in respect of s 424A of the Act that might have been thought to assist the appellant. Referring to NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744, he contended that there is authority that the duty under s 424A is engaged when the Tribunal proposes to rely on contradictions between statements made in support of the protection visa application before the delegate and statements made to the Tribunal. Mr Kennett also noted that in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 at [30], Allsop J suggested that s 424A is engaged when, as here, the Tribunal relies on the absence of reference to a particular claim in earlier documentation: 'To say that there is no information here because the statement (which is information) lacked the aspect now being adduced would be to fail to recognize that the information that is central to the reason for the decision is that the appellant said so much and no more on an earlier occasion. That is the relevant information.' 30 In contrast to this approach, counsel for the first respondent referred me to SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 at [23]-[24]; SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221 at [11]; and SZBVE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1325 at [9]-[10]. In reliance on these cases, Mr Kennett submitted that propositions advanced in a protection visa application only constitute 'information' that forms part of the reason for the Tribunal's decision if the Tribunal accepts and relies on those propositions in reaching its decision. He contended that it was insufficient if all that is relied on is an inconsistency which detracts from the credibility of a claim made to the Tribunal. On this basis, it was submitted for the first respondent that the fact that a protection visa application does not say something is not 'information' of a kind that comes within s 424A of the Act. 31 With all respect, I have some difficulty with the proposition, at least in relation to the circumstances before me, that a failure to make a claim is information within the meaning of s 424A of the Act. The relevance of the failure to make the claim is that it highlights a gap or defect in the claims made by the appellant and therefore is relevant to the assessment of the information that is available to the Tribunal; see VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]. 32 For these reasons, I am not persuaded that there was any error in the decision of the Federal Magistrate or of the Tribunal. Therefore the appeal must be dismissed with costs. I certify that the preceding thirty two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 2 December 2005 The Appellant appeared in person

Date of Hearing: 28 November 2005

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (7)

Cited By (2)