SZHYQ v Minister for Immigration & Citizenship

EX TEMPORE REASONS FOR JUDGMENT 1 This is an appeal from orders and the judgment of Barnes FM delivered on 6 December 2007 dismissing the appellant's application for review of a decision made by the Refugee Review Tribunal ('the Tribunal') dated 7 November 2005 and published on 29 November 2005 affirming a decision of the delegate of the Minister for Immigration and Citizenship ('the Minister') to refuse the appellant husband and wife a Protection Visa under the provisions of the Migration Act 1958 (Cth). Barnes FM dismissed the application as her Honour considered that the Tribunal did not err in giving no weight to a document described as an "affiliation certificate" relied upon by the appellants. 2 The appellants are citizens of Bangladesh who arrived in Australia on 1 June 2005 on visitors' visas issued on 18 August 2004. On 5 July 2005 the appellants lodged applications for Protection Visas (Class XA) with the Department of Immigration, Multicultural and Indigenous Affairs. Only the appellant's husband made claims to be a refugee based upon persecution arising out of his engagement with the Awami League as a member and activist of that league. 3 I propose to explore some of the factual background to these matters in order to satisfy myself that the analysis of the Federal Magistrate in reviewing the reasons of the Tribunal and particularly those matters going to the contentious affiliation certificate reflect any error especially having regard to the unrepresented character of the appellant. 4 The Appeal Book at p 83 contains a statement lodged by the appellant in support of the application. In it he says that his political affiliation with the Awami League and its leadership compelled him to leave Bangladesh. The appellant said that his father was a freedom fighter who fought during the liberation war. The appellant completed secondary school studies in 1986 and said that he had a major interest in politics. In 1989 he says he entered the political arena under the "shade" of the Awami League, a secular-oriented political party under the leadership of Mehedi Hasan. 5 The appellant says he led many demonstrations against the then government of Ershad. He said he had a strong role in the movement particularly leading up to the transfer of power to the caretaker government. As a result of parliamentary elections held in Bangladesh on 27 February 1991 a caretaker government was installed. He says that his role in the election was significant and he made a major effort to support the candidate of the Awami League. At the end of the day the Awami League candidate lost the election and the BNP won a majority of the seats in the Parliament and formed the government. 6 The appellant says in 1992 he was elected as the publication secretary of the Kotowali Thana Committee, Awami League. He says that after the formation of the government the BNP Government were involved in various aspects of corruption. He says that many rallies took place against the BNP by the Awami League. On 12 June 1996 a further election took place and on this occasion the Awami League was successful and formed government after 21 years in opposition. 7 He says that after spending a full five years in the Awami League Government there was a transition of power as a result of elections in October 2001 in which the BNP resumed the government of Bangladesh. He says that after the election his house was ransacked and looted and his brothers were beaten mercilessly and on a number of occasions he was also beaten. He also said that on a number of occasions false cases were filed against him to ruin his political career. 8 The Delegate of the Minister made a decision to refuse the grant of a Protection Visa. That letter was dated 11 August 2005 and set out a range of reasons for the decision adopted by the delegate. There is no utility in reciting the particular reasons of the delegate. The appellant filed an application for review before the Tribunal. The letter to the Tribunal is dated 31 August 2005 and was received by the Tribunal on 1 September 2005. 9 On 21 September 2005 the Tribunal advised the appellant that a hearing would occur on 27 October 2005 in relation to various matters and the appellant was invited to attend which he ultimately did. On 12 October 2005 the appellant's solicitor, Mr W.R. Ghioni sent a facsimile to the Tribunal enclosing the contentious affiliation certificate (AB72). 10 The affiliation certificate was signed by a Mr Hiron and is dated 20 October 2005 and it set out a number of matters including these: (The appellant) is an active leader of Bangladesh Awami League (Youth Front), the present opposition party to the Bangladesh National Assembly. During the previous regime the appellant contributed enormous activities under the leadership of Shake Hasima, the former Prime Minister of Bangladesh, for establishing the caretaker government. 11 The letter goes on by saying: In raising the consensus in favour of the caretaker government he contributed an admirable role. 12 The affiliation certificate goes on to further explain aspects of the active engagement by the appellant in the activities of the Awami League. In addition to the affiliation certificate the appellant's solicitor sent a letter on 26 October 2005 dated 25 October 2005 to the Tribunal in which a number of matters are set out particularly in relation to the sequence of events which have occurred relating to acts of violence and harassment of Awami League political figures. At p 77 of the Appeal Book the appellant's solicitor sets out the range of individuals who have been either killed or attacked. The submission concludes by saying that: The appellant was a leading activist of the Bangladesh Awami League and was compelled to leave the country fearing a real fear of persecution from his political opponents of BNP-led coalition now in power. 13 The Tribunal after a hearing considered all of these matters and in the course of its reasons the Tribunal recites aspects of the statement I have already referred to and addresses aspects of the facsimile from the appellant's solicitor sent to the Tribunal on 26 October 2005. The Tribunal then sets out the background factual matters at pp 546 and 547 of the Appeal Book. At those pages, the Tribunal notes that the affiliation certificate refers to the appellant's role in the Awami League Youth Wing and that particular level of involvement had not been mentioned in the oral evidence. The Tribunal noted that that seemed to be, a little inconsistent. 14 The Tribunal also notes aspects of the appellant's relationship with Mr Hiron, the author of the letter. The appellant also notes some aspects of what is regarded as aspects of document fraud in relation to material generated in or in relation to Bangladesh. At AB548, the Tribunal notes that it asked the appellant questions about his experiences from his arrival in Dhaka in 2001 until his departure in 2005 and asked him whether there had been any serious incidents of physical harm. 15 The appellant said that there had been no such incidents. 16 The appellant told the Tribunal the he had been subject to false charges and he had learned of these some 10 to 12 days after his return from a tourist trip to Thailand in April 2004 when people told him that the police were looking for him. The Tribunal asked the appellant why the appellant had waited until June 2005 before leaving Bangladesh having regard to these contended charges and other matters, when he had received a visa to travel to Australia in August 2004. The appellant had waited almost a year before leaving Bangladesh. This delay seemed to suggest to the Tribunal that it was not consistent with the conduct of a person fleeing persecution. 17 The Tribunal then at AB549 to AB554 sets out its findings and reasons. It is not necessary to recite all of these matters. It is simply enough to note some of the conclusions arising out of the assessment of the evidence before the Tribunal and some perceived inconsistencies. The Tribunal accepted that the appellant was a supporter of the Awami League. The Tribunal noted that the appellant claimed that he was more than just a supporter but rather an active party member and an activist in the local area of Barisal. He contended that his involvement with the Awami League dated from 1989. 18 The Tribunal noted that during the period when the Awami League was in power from 1996 to 2001 the appellant explained in the vaguest of terms that he was "just doing politics". From 2001 the appellant said that he sometimes called on the Awami League office close to his home in Dhaka and kept in contact with Awami League party officials in Barisal although he was not politically active there. The Tribunal said that it was not satisfied on the basis of the appellant's oral evidence alone that the appellant engaged in activities as claimed. The Tribunal said it was not satisfied that the appellant was an Awami League activist or would be so perceived. 19 The Tribunal then turned to consider the contentious affiliation certificate, which of course, had been filed by the appellant as a document corroborative of his oral evidence. In relation to the certificate, the Tribunal reached this conclusion: The applicant also relied on an affiliation certificate written just prior to the Tribunal hearing by (Mr Hiron) convenor of the Barisal City Awami League and the unsuccessful Awami League candidate in the 2001 parliamentary elections. The Tribunal has a number of concerns about this document. First, at hearing, the applicant stated that he last spoke with Hiron around 2002. This is surprising (though not implausible) if, as the applicant claims, he maintained his interest in and personal contacts with the Barisal Awami League from 2001 and had decided in 2004 to reactivate his involvement in the party. Second, it is curious that the applicant did not seek the certificate directly from Mr Hiron but rather through a party friend; indeed, the only direct contact from Australia appears to have been a telephone call between the adviser and Hiron, the former claiming to be checking the document's authenticity. Third, the letters referred to the applicant as an "active leader" of the AL (Youth Front) and a "new leader". Leaving aside the distinction between the Awami League proper and its youth wing (the Tribunal accepts that the applicant had previously referred to recruiting the younger generation to the party) this description of the applicant's role in Barisal appears to be at odds with his own oral evidence. The applicant did not claim to be an "active leader" anywhere since 2001 but rather a person who wished to take up a role in Barisal in the future. The contents therefore do not reflect the applicant's own claimed circumstances but are generic. In light of the above concerns about the applicant's tenuous links with Hiron and the content of the "certificate," the Tribunal does not attach weight to it as evidence of the applicant's past role in the Awami League or the consequences of that as described in the document (such as the applicant being a "listed person"). The applicant's oral evidence regarding his role in the Awami League and the "affiliation certificate" do not satisfy the Tribunal that he had any leadership or other affiliation with the Awami League. The Tribunal notes that he has also not presented corroborating evidence from other sources. 20 Having regard to all of those matters, the Tribunal reached this conclusion: The appellant's oral evidence, the "affiliation certificate" and the lack of other corroborating evidence, considered together, do not satisfy the Tribunal that he has had any positive role or influence within the Awami League. The Tribunal detects in the applicant's evidence an implied claim that his political opinion relates not primarily to the Awami League as a national party but rather its manifestation in the Barisal area. 21 I quote those matters because they go the affiliation certificate particularly. At AB552, AB553 and AB554 the Tribunal sets out a range of other conclusions arising out of its assessment of the evidence. As to some of those matters, the Tribunal concluded: On that basis, the Tribunal considers such action against the applicant as an AL supporter plausible. However, the applicant's account of these incidents was inconsistent and unsubstantiated. After initially saying he left Barisal the day after the elections, he later said that he was assaulted there a second time and perhaps a total of three times some four or five days later. These claims too were unsubstantiated. The Tribunal is not satisfied on the basis of his oral evidence alone that the applicant suffered any harm in or around October 2001 as an Awami League supporter or for any other reason. 22 The Tribunal considered the evidence of the appellant in terms of his continuing contacts with the Awami League and further concluded: However, [the Tribunal] is not satisfied that a person subject to physical and property harm for reasons of their political opinion as the applicant claims was forced to move to another city for his and his family's safety or would advertise his ownership of an ongoing successful business in his hometown. 23 That observation arose out of the continuing operation by the appellant of a business in his hometown. The Tribunal then referred to various aspects of the travel of the appellant to India in January 2003 and to Thailand in both March 2003 and April 2004 and concluded that that freedom of travel did not suggest a genuine fear of persecution in 2003 and 2004. The Tribunal concluded: Indeed, it was the applicant's evidence that there were no incidents or present risk in Dhaka and that he was, during this period, "hibernating" politically. 24 The Tribunal also noted that: The appellant said at hearing almost as a correcting afterthought, that the April 2004 trip to Thailand had also been to escape political threat. 25 The Tribunal concluded at AB554 that: On the basis of all the above evidence, the Tribunal was not satisfied that the applicant held any position, role or influence in the Awami League in Barisal or anywhere in Bangladesh or that he would be so perceived. The Tribunal therefore finds that the applicant does not have a well-founded fear of persecution for a Convention reason. 26 I have examined these aspects of the Tribunal's reasoning and its findings so as to properly evaluate whether Barnes FM fell into error in any analysis of the challenge by the appellant to the reasoning and conclusions of the Tribunal. The appellant challenged that reasoning and those conclusions before the Federal Magistrates Court on two grounds, the second of which was abandoned. The appellant relied therefore on ground 1 in these terms: The Tribunal made jurisdictional error in failing to make a finding in relation to documents which the Tribunal itself acknowledged supported the applicant's refugee application. 27 In advancing the only remaining ground of challenge before the Federal Magistrates Court, the basis for the challenge of jurisdictional error was a failure on the part of the Tribunal to make a finding in relation to documents lodged by the appellant with the Tribunal and in particular, a finding in relation to the affiliation certificate. 28 The strength of the affiliation certificate as corroborative of the oral testimony was said to be improperly rejected by the Tribunal. The legal challenge was put by the appellant's counsel before the Federal Magistrates Court in these terms. Counsel argued that since the Tribunal had identified the appellant's claim to be an Awami League leader and activist, the Tribunal was then under an obligation to consider and make specific findings about all evidence relevant to that claim and it had failed to do so. 29 The criticism was that the Tribunal had simply expressed concerns about the affiliation certificate and those concerns are reflected in the passage I have already quoted. The criticism continued that no finding was made that the certificate was not genuine but simply that no weight could be attributed to it by reason of the "concerns" reflected by the Tribunal and the so-called "tenuous links" between the author of the certificate and the appellant. Criticism was made of the observation by the Tribunal that there seemed to be some inconsistency between the certificate and the appellant's oral evidence. 30 The appellant, before the Federal Magistrates Court, submitted that the Tribunal therefore erred in law in failing to make a specific finding about its concerns and the tenuous link and thus the affiliation certificate. That failure was said to constitute a jurisdictional error because the Tribunal had failed to complete its review task under the Act and had therefore failed to discharge its jurisdictional role. It was said that since the affiliation certificate represented material evidence relevant to a critical aspect of the claim, then a specific finding ought to have been made. 31 The response to those criticisms was simply that the assessment of the affiliation certificate against the background of the oral evidence of the appellant in conjunction with the other matters which the Tribunal mentioned in reaching its findings, was a fact‑finding matter within the matrix of fact which fell exclusively within the jurisdiction of the Tribunal and that there was no error of law in failing to make a finding of fact about the affiliation certificate itself. 32 At para [45] to in particular [58], the Federal Magistrate embarked upon a process of reasoning which dealt with the appellant's contention. The Federal Magistrate noted that it was not suggested by the appellant that the Tribunal had failed to have regard to the affiliation certificate or that it based its conclusion as to the weight to be accorded to the document as an evidential matter on any notion that it had been fabricated. 33 The question simply was what weight should be attributed to the document in making a finding of fact. In considering that question the Federal Magistrate noted the decision in VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 68 at [56] where Allsop J notes the distinction between failing to deal with claims on the one hand and a Tribunal failing to give a document or other evidence the weight or consideration that a court might think is due to it. 34 A failure to consider the material relevant to the question would, of course, be an error but the assessment of the weight to be given to a document in disposing of the factual controversy is not a matter for the court. It is well-established that such a matter is a matter for the decision-maker. The Federal Magistrate noted that it is important for the Tribunal to give consideration to the importance of the document and there can be no doubt that the Tribunal extensively weighed in the balance the affiliation certificate. At [55] and [56], the Federal Magistrate reaches these conclusions: Reading the Tribunal reasons fairly and as a whole (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259), the surprise the Tribunal expressed about the applicant's statement at the hearing that he last spoke with Mr Hiron around 2002 has to be seen in the light of these claims, in particular (as the Tribunal observed) the applicant's claim that he 'maintained his interest in and personal contacts with [local] AL from 2001, and had decided in 2004 to re‑activate his involvement with the party'. Seen in this light the concern was not simply that the document was dated 2005 as submitted for the applicant but, rather, constituted a reflection on the absence of positive evidence of recent association between the applicant and the person who provided the purportedly corroborative certificate in relation to the applicant's claim to have been an activist/leader in the AL. Such 'concern' formed part of the Tribunal's reasoning in relation to the weight to be given to the certificate. 35 At [56] the Federal Magistrate noted: Similarly, the Tribunal's finding that the manner in which the certificate was sought was 'curious' has to be seen in light of the applicant's claimed past association between himself and Mr Hiron. Again, the concern expressed by the Tribunal can, when read in context, be seen as an aspect of its reasoning in relation to the association between the applicant and the person who provided the Affiliation Certificate, relevant to the weight to be given to that certificate as evidence of the applicant's past role in the AL. 36 The Federal Magistrate noted at [57] that: The Tribunal went on to make a finding that the contents of the certificate did not reflect the applicant's own claimed circumstances but were generic. This went beyond an unresolved expression of concern. It can not be said that there was no evidence to support the finding. 37 At [58] the Federal Magistrate said this: The Tribunal was not required to consider the Affiliation Certificate in isolation. It was open to it to find that the applicant's oral evidence alone did not satisfy it that the applicant engaged in the activities claimed or that he was an AL activist and then to consider whether, in light of the other evidence before it, it was so satisfied. It did not simply dismiss the Affiliation Certificate. In light of the specific contents of the certificate the Tribunal stated that the description of the applicant as an 'active' and a 'new' leader appeared to be at odds with the applicant's oral evidence, as he had not claimed to an 'active leader' anywhere since 2001 but, rather, that he wished to take up such a role in the future. Having addressed what the applicant's oral claims were, it then found that the contents of the certificate 'therefore do not reflect the applicant's own claimed circumstances, but are generic'. This made it clear why it was of the view that the certificate was generic, in the sense that it addressed a more general description of a supporter rather than the specific circumstances of the applicant as claimed in his oral evidence. Indeed, it is notable that the certificate made no specific mention of the activities in which the applicant claimed he had engaged (such as his claimed work in 1991 and 1996 elections, his role as publication secretary and his work for Mr Hiron during the 2001 elections). 38 The appellant challenges those findings in this court on the footing that the Federal Magistrate erred by failing to find jurisdictional error. That ground is essentially a restatement of the earlier grounds. It seems to be the practice that in filing appeals in this Court the ground of appeal is said to simply be that the Federal Magistrate erred by failing to find error on the part of the Tribunal rather than a careful analysis of why it is that the reasoning of the Federal Magistrate is in error. 39 The second ground is that the Federal Magistrate erred in failing to find that the Tribunal fell into jurisdictional error in relation to the documents. I am not satisfied that there was any jurisdictional error in the reasoning of the Federal Magistrate. It is clear that having regard to the totality of the reasons, the Tribunal weighed the oral evidence, considered the various documents put to it by the appellant's solicitor and the Affiliation Certificate in trying to determine whether or not the Tribunal could be satisfied that the appellant held a well‑founded fear of persecution for reasons of his contended engagement as either a member or supporter of the Awami League. 40 I am satisfied therefore that there is no substance in the criticism that the Tribunal did not properly analyse and weigh the certificate against the factual matrix and I am satisfied that there was no obligation on the Tribunal to make a finding of fact about the certificate. It was sufficient for the Tribunal to assess the weight and significance of the certificate in determining whether it could be satisfied of the appellant's claims. Others might take a different view about the weight to be attributed to the certificate but that is not really the point. The question is whether there is error on the part of the Tribunal in failing to make a finding of fact in relation to the certificate. 41 The critical finding of fact was whether weight should be attributed to the document by the Tribunal in reaching the conclusion, as an administrative decision‑maker, as to whether or not the Tribunal could be satisfied that the appellant held a well‑founded fear of persecution for a Convention reason, thus giving rise to protection obligations owed to him by reason of the Migration Act 1958 (Cth) in conjunction with the Refugees Convention. 42 The appellant also says that the Tribunal's concerns about the certificate ought to have been put to him by reason of s 424A(1) of the Act. It is clear beyond doubt that the Tribunal's concerns about the certificate were not required to be put to the appellant (SZBYR v Minister for Immigration (2007) 235 ALR 609; [2007] HCA 26 at [18]. The obligation of the Tribunal in relation to its reasoning process is also equally clear. There is no obligation on the Tribunal to put to the appellant its process of reasoning for comment (see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187]). 43 The final matter raised by the appellant is that the Tribunal failed to consider the situation in Bangladesh at the time it made its decision and that the Tribunal did not even look at the documents the appellant submitted. The difficulty with that contention is that the reasons of the Tribunal refer to and acknowledge the documents (AB545.6). The Tribunal also referred to relatively recent independent country information when it accepted that the appellant was a supporter of the Awami League (AB550.3) but not an active leader of the Awami League. 44 However, the real difficulty, of course, is that once the Tribunal rejected the appellant's claims based on his own evidence including a finding that he held no subjective fear of persecution, information about ongoing persecution of Awami League members and activists in Bangladesh was not directly relevant to the resolution of that matter. The question for the Tribunal was whether it could be satisfied of the claims made by the appellant so as to ground satisfaction that the appellant held a well‑founded fear of persecution for a Convention reason. 45 I have spent some little time reviewing the reasons of the Tribunal and the decision of the Federal Magistrate primarily because the appellant is not represented before this Court and has sought, in effect, the assistance of the Court in a more forensic examination of the potential errors in the decision of the Federal Magistrate and as a result, the analysis of the decision of the Tribunal. 46 I can find no substance in the criticism that there was jurisdictional error and I am satisfied that none of the grounds of appeal to this Court are made out. I am equally satisfied that the process of reasoning adopted by Barnes FM reflects no error. The appellant seeks to agitate in truth the merits of the decision made by the Tribunal in the assessment of the evidence and ultimately the finding that the certificate is not persuasive of the oral evidence as a corroborative document. That matter is properly, as a matter of law, a matter for the Tribunal. It necessarily follows that the appeal must be dismissed with costs to be either taxed or agreed. 47 I am prepared to make an order to fix costs and the thus the order will be that the appellants pay the costs of the first respondent of and incidental to the appeal fixed in an amount of $4,104.10. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.