SZLYT v Minister for Immigration and Citizenship

Federal Court of Australia|2009-02-11|Before: Collier J

REASONS FOR JUDGMENT 1 This is an appeal against the decision of Cameron FM delivered on 14 October 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 17 January 2008. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

BACKGROUND 2 The appellant is a citizen of Bangladesh who arrived in Australia on 20 June 2007. On 18 July 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 21 August 2007. On 14 September 2007 the appellant applied to the Tribunal for a review of that decision. 3 The appellant claimed to have a well founded fear of persecution for reason of his political opinion, namely his support of and involvement in the Awami League. The appellant claimed that he became involved with the Bangladesh Chatra League, the student wing of the Bangladesh Awami League, in 1986 and was actively involved in supporting the Awami League in elections. He claimed that he became a renowned student leader in the region. He stated that when the BNP government came to power in 1991 he could no longer stay in his home town as he faced serious oppression from his College's administration. Consequently, he went to Dhaka to study. After completing his degree he joined the Awami League and in 1994 he was elected to the position of Vice President of the Babugonj Thana Awami League. 4 The appellant stated that on 3 October 2001 BNP and Jamat-i-Islami cadres ransacked and looted his house, beat his brother and warned him that if he did not leave the area he would be killed. He claimed that in 2003 he was elected to the position of executive member of the Barisal District Awami League. He said that on 27 October 2003 BNP and Jamat-i-Islami cadres again attacked and injured him, leaving him unconscious. He was treated in a clinic for a week. In July 2004 he was beaten by the local BNP and the police. A number of false cases were filed against him to destroy his political future. He was in constant hiding in Dhaka and he was often forced to flee from the police. He claimed that he had no alternative but to leave the country and in January 2005 he went to South Korea. 5 At the Tribunal hearing he further claimed that he left Bangladesh to save his life as all leaders were being arrested by the Rapid Action Battalion ("RAB"). He stated that the government was trying to abolish the Awami League by arresting and killing leaders and activists like him.

PROCEEDINGS BEFORE THE TRIBUNAL 6 The Tribunal was not satisfied that the appellant's claims to fear harm were credible, or that they had a factual or objective basis. The Tribunal found that the appellant's evidence concerning his political leadership role was vague, brief and uninformative and gave no impression of being based on authentic, first hand experience. The Tribunal noted that the appellant gave evidence that was inconsistent and generally lacking in credibility. The Tribunal also noted that the appellant introduced a range of new claims at the hearing which were not included in his previous written submissions or his statement. The Tribunal found that although the appellant may have supported the Awami League and been a member of the party, it could not be satisfied that he was a leader of the party in his area or that he had a political profile in Bangladesh. It was also not satisfied that the appellant feared he would be killed or otherwise harmed during the period in which he was living in South Korea and twice visited Bangladesh. 7 Finally, the Tribunal noted that nothing in the independent country information available to the Tribunal supported the appellant's contention that the Awami League was being singled out for persecution by the caretaker government or that the Awami League's leaders and activists were being killed.

PROCEEDINGS BEFORE THE FEDERAL MAGISTRATES COURT 8 On 11 February 2008 the appellant filed an application for judicial review of the Tribunal's decision. On 9 May 2008 the appellant filed an amended application in which he contended that the Tribunal: 1. Made incorrect findings concerning his political involvement. 2. Failed to disclose information received from Department of Foreign Affairs and Trade ("DFAT") and therefore was in breach of s 424A Migration Act 1958 (Cth) ("the Act"). 3. Erroneously preferred some country information over other country information. 4. Failed to comply with its obligations pursuant to s 424A of the Act as it did not give him information which was the reason or part of the reason for rejecting his claims. 5. The Tribunal made incorrect factual findings and relied on incorrect information. 9 The Federal Magistrate found that the first ground was a challenge to the Tribunal's factual conclusion that the appellant did not have the political profile that he claimed to have. His Honour stated that findings of fact are matters solely for the Tribunal and could not be reviewed by the Court in judicial review proceedings. 10 In relation to the second ground, his Honour noted that the material in the DFAT report was not specifically about the appellant or any other person but dealt with the then-current situation in Bangladesh and relevant aspects of the lives of Bangladeshis. His Honour stated that this information fell with the scope of s 424A(3)(a) of the Act which meant that the Tribunal was not required to notify the appellant of the information in the report. 11 Third, his Honour noted that the weight accorded to any particular piece of information is a matter solely for the Tribunal as part of its fact-finding function. His Honour was satisfied that the fact that the Tribunal did not seek to make further enquiries in relation to the letters submitted by the appellant, in circumstances where independent country information indicated that leaders of the Awami League are prepared to write letters in support of people who have supported the party in order to help them with their immigration or refugee claims, was not unreasonable. 12 Fourth, his Honour was satisfied that the Tribunal squarely put to the appellant that the credibility of the information contained in the letters that he submitted was in issue. His Honour was satisfied that the s 424A notice met the requirements of s 424A(1)(b) of the Act. 13 Finally, His Honour stated that the Court was not empowered to undertake a review of the merits of an application to the Tribunal. Having found no jurisdictional error, his Honour dismissed the application.

APPEAL TO THIS COURT 14 By Notice of Appeal filed on 31 October 2008, the appellant raised the following grounds of appeal against the decision of Cameron FM: 1. The learned Magistrate erred by not holding that the Tribunal made jurisdictional error in the way that it made its decision on the incorrect findings and erroneously selected country information. 2. The learned Magistrate erred by not holding that the Tribunal made jurisdictional error that the Tribunal did not comply with s424A obligations as the Tribunal failed to serve copy of the DFAT report to the applicant because the applicant wanted to find out the relationship of this report with his claim and the DFAT report was not open for the applicant. The Tribunal also made a mistake that the past statement of political leader for different protection application used as country information to reject the applicant's present claim for protection without serving a copy to the applicant for his explanation. 3. The learned Magistrate erred by not holding that the Tribunal made jurisdictional error in the way that it conducted the review and gave its decision on the basis of wrong use of jurisdiction, where the information used as evidences by the Tribunal supports the applicant's claim for protection but the Tribunal rejected the claim without giving sufficient reasons for decision. 15 The appellant made written submissions which included the following: · the findings of the Tribunal were not properly made; · the Tribunal wrongly found that independent country information indicates that leaders of the Awami League are prepared to write letters in support of people who have supported the party in order to help them with their immigration or refugee claims. The Tribunal erred in that there was no independent information supporting this finding, including the letter in support of the appellant; · the Tribunal was wrong in finding that the appellant went to South Korea for business rather than to save his life; · the Tribunal was not entitled to rely on the DFAT report containing country information without it being previously available to the appellant; · information provided by DFAT is not independent information because provision of information by DFAT is part of the decision-making process. 16 In summary the Minister submitted in writing: · in relation to the use by the Tribunal of independent country information, the Tribunal's choice of country information is a purely factual matter for it. Any error of fact caused by the Tribunal relying on incorrect country information does not amount to an error of law, let alone jurisdictional error: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10; · the findings of the Federal Magistrate were entirely correct in respect of the DFAT report and the application of s 424A; · the third ground of appeal is an attempt to cavil with the merits of the decision of the Tribunal and should be dismissed. As to the allegation that the Tribunal failed to give reasons, no particulars are provided, and in any event it is not necessary for the Tribunal to make specific findings of fact in relation to each item of evidence relied on (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 348-349); · the Tribunal took into account each of the mandatory considerations in reaching its decision. 17 At the hearing of the appeal before me the appellant appeared in person, and submitted in summary: · if the Tribunal had investigated his claim properly it would not have rejected his claims; · the Tribunal did not consider truly independent information; · the Tribunal considered the letters from the Awami League with a pre-conceived view as to their validity; · the Tribunal should be ordered to disclose the DFAT report in its entirety to him. 18 Ms Sirtes for the Minister submitted in summary: · the DFAT information with respect to the validity of letters from the Awami League was "country information" and fell within the terms of s 424A(3)(a); · in any event, even if the relevant country information was disclosable, there was no need for the Tribunal to disclose the DFAT report in its entirety. The Tribunal's obligation is limited to the written provision of "particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review" (cf SZBYR v Minister for Immigration and Citizenship (2007) HCA 26 at [15].

CONSIDERATION 19 In my view the grounds of appeal of the appellant cannot be substantiated. 20 In relation to the first ground of appeal, putting to one side for a moment the submission of the Minister that the manner in which this ground is now cast was not articulated in the Court below, the Tribunal clearly set out at length excerpts from the DFAT country information relevant to Bangladesh, including country information supplied to the Tribunal in response to questions about supporting letters provided by Awami League leaders in other cases. It is clear that the reliance by the Tribunal on country information is a factual matter for the Tribunal. In particular, the selection of country information and the weight given to such information is a factual matter for the Tribunal and not an issue for review in this Court (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 at [63]). Information provided by DFAT with respect to the preparedness of leaders of the Awami League to write letters in support of people who have supported the party in order to help them with their immigration or refugee claims is, contrary to the submission of the appellant, country information upon which the Tribunal is entitled to rely. 21 In relation to the second ground of appeal, the obligation of the Tribunal in s 424A(1) to provide the appellant with information does not extend to country information. This is made clear by s 424A(3)(a), which specifically excludes from the operation of s 424A(1) information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". In relation to the appellant's letter of support from the Awami League, the Tribunal noted in its reasons for decision: On 5 November 2004 DFAT provided a reply to the Tribunal in response to questions about supporting letters provided by Awami League leaders in another case. The relevant part of this response is as follows: … A reliable senior Awami League member has advised us that the Awami League documents attached to these referrals are genuine. However, our contact further advised that the content of these documents are worded in such a way as to offer this applicant support to obtain economic refugee status abroad, rather than to verify any particular status within the Awami League. He said many members within the Awami League are prepared to offer such documents on request from such applicants, in a humanitarian attempt to help their former supporters… 22 Later in the Tribunal's reasons for decisions it noted in relation to the relevant letters provided by the appellant in support of his application, inter alia: I am prepared to give him the benefit of the doubt by accepting that the letters were written by the two leaders who are shown as authors. As put to him at the hearing, however, independent country information indicates that leaders of the Awami League are prepared to write letters in support of people who have supported the Party in order to help them with their immigration or refugee claims. Given this information and the generalised content of the two letters I am not satisfied that any significant weight can be placed on them as evidence of the Applicant's role in the Awami League. 23 In my view the DFAT information concerning the approach of members of the Awami league to writing letters for supporters constitutes country information which falls within s 424A(3)(c). Further, and in any event, the weight placed by the Tribunal on the letters produced by the appellant is a factual matter for the Tribunal, and not subject to review. 24 Finally, in relation to the third ground of appeal, I do not accept that the Tribunal rejected the appellant's claims without giving sufficient reasons. 25 The appeal should be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate: Dated: 11 February 2009 Counsel for the Appellant: The Appellant appeared in person

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