SZQRP v Minister for Immigration and Citizenship

Federal Court of Australia|2012-08-21|Before: Sackville JJ, Flick J

REASONS FOR JUDGMENT 1 The Appellant is a citizen of the People's Republic of Bangladesh. 2 He arrived in Australia on 1 February 2011 on a visitor visa and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 24 February 2011. In very summary form, the Appellant's claims to protection were founded upon his political involvement with the Bangladesh National Party (the "BNP"). He claimed to fear harm from his political opponents in the Awami League. A delegate of the Minister refused his application on 2 April 2011. 3 An application seeking review of the delegate's decision was made to the Refugee Review Tribunal. He gave evidence and presented arguments to that Tribunal on 16 August 2011. The Tribunal affirmed the delegate's decision on 31 August 2011. 4 An Application seeking judicial review of the Tribunal's decision by the Federal Magistrates Court of Australia was filed on 26 September 2011. An Amended Application was filed on 14 November 2011. On 3 May 2012 that Court dismissed the application: SZQRP v Minister for Immigration [2012] FMCA 354. 5 A Notice of Appeal was filed in this Court on 15 May 2012. The hearing of that appeal took place on 13 August 2012. The Appellant appeared unrepresented with the assistance of an interpreter. 6 The appeal is to be dismissed.

The Grounds of Appeal 7 Omitting the "Particulars" provided, the Notice of Appeal expressed three Grounds of Appeal (without alteration) as follows: 1. The Refugee Review Tribunal did not put any weight to the supporting documents those were provided in support of my activities for the BNP in Bangladesh as well as Australia. The Court below failed to consider the issue. 2. The Refugee Review Tribunal failed to understand the legal procedures in Bangladesh in relation to the charge sheet. The Court below failed to consider this issue. 3. The Refugee Review Tribunal failed to consider my persecution under section 91R of the Migration Act. The Court below failed to consider this issue. Absent the reference to the Court below "fail[ing] to consider" the issues raised, these are the same grounds that were relied upon before the Federal Magistrate.

No Weight to the Supporting Documents 8 The first Ground of Appeal is understood to relate to the failure on the part of the Tribunal to give "any weight" to "supporting documents". The appellable error on the part of the Federal Magistrate is said to be a failure "to consider this issue". 9 The "supporting documents" referred to is understood to be confined to letters from: Mr Mahbub Uddin Khokon, a Member of the Bangladesh Parliament and a barrister, one being a letter dated 21 March 2011 and the second dated 17 August 2011; Mr Moklesur Rahman; Mr Kamikhachan Drass; Mr Monirul Haque George; and Dr Abdul Wahab. The Tribunal repeatedly expressed its conclusion that the Appellant demonstrated a "complete lack of credibility". The Tribunal found the Appellant's "… testimony inconsistent, and implausible amounting to a fabrication …". A claimant against whom adverse credit findings have been made is confronted with particular difficulty on review because "… a finding on credibility is the function of the primary decision-maker par excellence": Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], 168 ALR 407 at 423 per McHugh J. 10 The Appellant's reliance on so-called "corroborative evidence" was thus understandable. If his own credibility was so seriously open to question, it was important to him to support his claim - not by reference to his own evidence - but by reference to evidence from sources other than himself. 11 The weight to be given to the letters supposedly written by Mr Khokon was of particular significance to the Tribunal's reasoning process. The Tribunal had requested that the Department of Foreign Affairs and Trade contact the office of Mr Khokon to "enquire whether the letter he submitted was genuine". The response provided by the Department was as follows (without alteration): Post telephoned MP Barrister A.M. Mahbub Uddin Khokon, Joint Secretary General of the BNP to enquire about the referral letter provided to the applicant. Khokon was unable to recognise the applicant and requested to see the letter. On 24 July 2011, Post met Khokon who confirmed that he did not write such a letter and that the signature on the letter was forged. The Appellant's response to this was to claim that Mr Khokon was "… probably under pressue and has forgotton about the letter …". The Tribunal had also made an inquiry of Mr Delwar Hossain, the Convenor of the Bangladesh Nationalist Party in Australia, regarding the letter signed by Dr Wahab. Mr Hossain maintained that that letter was "fraudulent". The Appellant in his oral submissions said that Mr Hossain himself was lying. 12 The Appellant's attempts to support his claims by reference to evidence corroborative of his own account thus proceeded from a shaky foundation. 13 This first Ground of Appeal, however, inevitably confronted a number of further difficulties. 14 First, there is no requirement that the Tribunal refer to each and every piece of evidence before it: Reece v Webber [2011] FCAFC 33 at [65], 192 FCR 254 at 276. Jacobson, Flick and Reeves JJ there observed: [65] … A decision-maker is not normally required in its reasons for decision to refer to "every item of evidence that was before it" and an "omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked": cf SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58] per Lindgren J. See also: SZHPI v Minister for Immigration and Citizenship [2008] FCA 306 at [15] per Branson J; Australian Postal Corporation v Sellick (2008) 48 AAR 108; 245 ALR 561 at [64] per Bennett J. The Tribunal in the present proceeding did, in any event, refer to each of the letters relied upon by the Appellant. Any submission that the Tribunal failed "to consider this issue" is, accordingly, without substance. 15 Second, the "weight" to be given to the evidence before it is a matter for the Tribunal and not a matter for the Federal Magistrates Court or this Court on appeal. The "weight to be given to various considerations", it has been long accepted, "… is generally for the decision-maker and not the court to determine …": Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41 per Mason J. Similarly, in Abebe v Commonwealth of Australia [1999] HCA 14, 197 CLR 510. Gummow and Hayne JJ observed: [197] … In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say. And, in Chand v Minister for Immigration & Ethnic Affairs (unreported, 7 November 1997) von Doussa, Moore and Sackville JJ observed: The [Refugee Review Tribunal] is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The [Tribunal] is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another … See also: SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 at [14]. 16 Third, the Tribunal went beyond a mere statement that it gave the letters no "weight" by providing its reasons for doing so. Its reasons for the decision thus state as follows (without alteration): Corroborative Evidence 125. On the basis that Mahbub Uddin Khokan MP does not know the applicant which has so significantly undermined the applicant's credibility, for the reasons outlined above, the Tribunal cannot give any weight to any of the applicant's corroborative evidence outlined below. 126. In particular, with the regard to the letters from Mahbub Uddin Khokan MP on the basis of the applicant's lack of credibility and that Mahbub Uddin Khokon MP does not know the applicant, and the independent country information above as to the widespread document fraud in Bangladesh, the Tribunal places no weight on the letters the applicant claims are from Mahbub Uddin Khokon MP. 127. As Mahbub Uddin Khokon MP does not know the applicant and the applicant has no credibility, the Tribunal gives no weight to the evidence of Monirul Haque George that he spoke to Mahbub Uddin Khokon MP and therefore cannot place weight on it as corroborative evidence of the applicant's political activities in Bangladesh. 128. The applicant has also provided a letter from Monirul Haque George to support his claims of involvement in the BNP Bangladesh and difficulties he faced as a result. It notes that the evidence in Mr Haque's letter in this regard to be as a result of information told to him by the applicant. As the Tribunal has found the applicant not to be credible and Mahbub Uddin Khokon MP does not know the applicant, it places no weight on the evidence of Monirul Haque George including that he was referred by Mahbub Uddin Khokon MP. 129. The applicant also submitted letters from Moklesur Rahman, President of the Sonaimuri Thana Jubo Dal Committee and Kamikhachan Drass, General Secretary of the Noakhali District Jubo Dal to support his claims. On the basis of the information above, as to the widespread document fraud in Bangladesh and on the basis of the applicant's complete lack of credibility and that the local MP does not know the applicant, the Tribunal gives these documents no weight. 130. Similarly, the Tribunal places no weight on the letter of Dr Wahab as to the BNP activities of the applicant in Bangladesh as it is the applicant's evidence that he advised him of these activities and associated difficulties. As the Tribunal has found the applicant not to be credible in this regard it does not accept Dr. Wahab's letter as evidence of the applicant's role in the BNP in Bangladesh and the difficulties he faced as a result. 17 The references in these paragraphs evidence the fact that the Tribunal at least referred to each of the letters relied upon by the Appellant. But these paragraphs also indicate the basis upon which the Tribunal gave "no weight" to any of the letters including: the prevalence of "document fraud" in Bangladesh; and/or the lack of credibility of the Appellant and the fact that some of the letters depended upon information provided by the Appellant to the author(s). To these reasons may be added the inquiries made of Mr Khokon and evidence that: Mr Khokon had confirmed that he did not write the first of the two letters said to have been written by him and that "the signature on the letter was forged". Although it may readily be understandable why the Appellant may wish to distance himself from the letter said by Mr Khokon to be a forgery, the Tribunal was entitled to base its conclusions on all of the evidence before it - including inquiries made of Mr Khokon. 18 No appellable error is discernible in the reasons given by the Federal Magistrate for rejecting this same ground of review. To the extent that the Appellant seeks to contend that the Federal Magistrate "failed to consider this issue", that contention is rejected. The Federal Magistrate considered the argument advanced and correctly resolved it. 19 The first Ground of Appeal is thus rejected.

Legal Procedures in Bangladesh 20 The second Ground of Appeal seems to have two aspects to it, namely: a complaint that the Tribunal did not "understand the legal procedures in Bangladesh in relation to the charge sheet"; and, again, a contention that the Federal Magistrate: "failed to consider this issue". 21 The importance of the "charge sheet" to the Appellant's case stemmed from the Appellant's claim that the Awami League had ransacked his house in February 2010 and that a "false charge was laid against him for the killing of Shah Alam" on 20 February 2010. He claimed that the police were looking for him "to lay the false charge against him". 22 A "charge sheet" was produced to the Tribunal - but it did not contain the Appellant's name. The Appellant maintained that he was not included in the 15 "leaders" who were named but that he would be charged. The Tribunal concluded that there was no "charge sheet" with the Appellant's name on it and further concluded that the police were not "… seeking to find him because of a charge against him". The Tribunal's conclusions were again made in the context of it finding that the Appellant was "… not a witness of truth". The Tribunal concluded that the Applicant's evidence that he was forced to go into hiding because the police were looking for him but that he had returned to live in his home and continued to attend work was "inconsistent with his claimed fear of the police". 23 Any need to "understand the legal procedures in Bangladesh" did not arise. The Appellant's claims that the Awami League had set out to lay false charges against him was rejected. 24 The second Ground of Appeal is also rejected. Again, any submission that the Federal Magistrate failed to "consider this issue" is without substance.

Persecution - Section 91R 25 The final Ground of Appeal asserts that the Tribunal failed to consider "my persecution under section 91R" and that the Federal Magistrates Court "failed to consider this issue". 26 This Ground of Appeal is directed to the following conclusions of the Tribunal (without alteration): Conduct in Australia 131. The Tribunal accepts that he applicant has attended a number of meetings at the BNP in Australia. It is the applicant's claim that attending the meetings at the BNP will not in itself lead to any difficulties if he was to return to Bangladesh in the reasonably foreseeable future. He claims rather it is his leadership role in the BNP in Bangladesh. 132. However, for the reasons outline above, as the Tribunal is not satisfied that the applicant was ever a political activist for the BNP while he was in Bangladesh, or that he ever suffered harm for such a reason, the Tribunal is not satisfied that the reason for the conduct in Australia in attending the meetings has been otherwise than to strengthen his claim to be a refugee and, as required by s.91R(3) The Tribunal has therefore disregarded this conduct in assessing his claim to have a well-founded fear of persecution in Bangladesh. In response the applicant indicated he had been with the BNP for a long time, which for the reasons outlined above the Tribunal does not accept. 27 Section 91R(3) of the Migration Act 1958 (Cth) provides as follows: For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. 28 The Federal Magistrate correctly concluded that the Tribunal had properly disregarded the conduct relied upon. There is no appellable error discernible in the reasons of the Federal Magistrate. 29 The final Ground of Appeal is also rejected.

Conclusion 30 Concern has previously been expressed as to the potential for factual findings to be protected from meaningful judicial scrutiny by being characterised or clothed as findings based on adverse credit findings: SZPAB v Minister for Immigration and Citizenship [2011] FCA 1253 at [22]. But no such concern need be expressed in the present proceeding. The Tribunal has recounted, both in the context of the forged letter from Mr Khokon and in its rejection of the Appellant being forced into hiding, facts which more than adequately found its findings that the Appellant lacked credibility. 31 The appeal is to be dismissed. 32 There is no reason why the Appellant should not be ordered to pay the costs of the First Respondent.

The Orders of the Court are: 1. The appeal is dismissed. 2. The Appellant is to pay the costs of the First Respondent. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

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