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[2013] FCA 197
Federal Court of Australia
2013-03-08
Mr J, Collier J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court delivered on 7 December 2012 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). 2 The first appellant ("the appellant") is a citizen of Bangladesh who arrived in Australia on 17 February 2011. The second and third appellants are the appellant's wife and child. They are also citizens of Bangladesh and arrived in Australia on 28 February 2011. On 25 March 2011 all three appellants applied to the Department for protection visas. The second and third appellants were included in the application as family members of the appellant and did not possess their own claims. On 27 May 2011 the delegate of the Minister refused the application. 3 On 22 June 2011, the appellants sought a review of the delegate's decision with the Tribunal. The Tribunal affirmed the decision of the delegate on 15 December 2011.
The proceeding before the Tribunal 4 The appellant claimed that he joined the Bangladesh Nationalist Party (BNP) during high school. He claimed that he fears harm from members of the Awami League, which is a rival political party currently in government in Bangladesh. 5 He stated that he was a very popular leader and social worker with the BNP, and as a result attracted the enmity of the Awami League. The appellant went to Korea in 1999 and then to Japan in 2000 where he lived (working without a visa) until 2004. During that time he continued to support the BNP through donations. In 2004, the appellant was deported from Japan and returned to Bangladesh where he was "involved deeply" in the BNP. 6 In 2006, the appellant married his wife in Bangladesh. He then returned to Japan where he obtained a skilled worker visa, and operated a restaurant and motor vehicle business. His son was born during the stay in Japan. The appellant claimed that at various times between 2006 and 2010 members of the Awami League asked his friends and family of his whereabouts, and he remained in Japan because he was afraid of returning to Bangladesh. 7 In 2010, the appellant again returned to Bangladesh to see his mother who was ill. The appellant claimed that subsequently, members of the Awami League visited his family and told them that if the appellant did not leave Bangladesh they would kill him. The appellant also said that threats had been made against his son. 8 The appellant said that, on returning to Japan in January 2011, he was denied entry because the Japanese authorities were aware that he had been in the country illegally in the past. The appellant then returned to Bangladesh, where his passport was withheld by Bangladeshi authorities who demanded a payment of 50,000 taka. Eventually the appellant regained his passport and travelled to Australia, at which time he suffered mental distress. His wife and son joined him subsequently. 9 The Tribunal found that there were inconsistencies in the appellant's evidence, including his reasons for returning to Bangladesh in 2010. The Tribunal did not accept that the appellant would leave his wife and child in Bangladesh to flee to Japan and Australia in 2011, or that the appellant would have resumed political activities upon his return to Bangladesh in 2004, given his claim that he escaped to Japan for his own safety. The Tribunal did not find it credible that the appellant thought that Awami League members in his local area would not harm him when he returned in December 2010. 10 Overall, the Tribunal concluded that the appellant was not a witness of truth and that the account of events on which the refugee claim was based was false. While the appellant had provided letters from the BNP in Bangladesh, Japan and Australia to the Tribunal, the Tribunal held that the statements in those letters did not overcome or alleviate the flaws in the appellant's claims. 11 The Tribunal accepted that the appellant was denied entry to Japan in 2011 and that his passport was held by Bangladeshi authorities upon his return. However, the Tribunal did not accept that the passport was withheld due to his support for the BNP. 12 For these reasons, the Tribunal affirmed the decision of the delegate.
The proceeding before the Federal Magistrate 13 In his amended application, the appellant relied upon the following grounds: 1. The Refugee Review Tribunal failed to consider my overall credibility at the time of assessment of my protection visa application. Particulars: A. The Tribunal failed to consider my overall credibility at the time of assessment of my protection visa application that: i) The Tribunal found discrepancy about my evidence that I given to the Department and the Tribunal. ii) However the Tribunal ignored my statement in words I claimed that I did not understand English, I was unsound and anxious mental state. 2. The Refugee Review Tribunal failed to put weight to the documents which were the vital documents in support of my claims. Particulars: A. The Tribunal failed to put weight to the documents which were the vital documents in support of my claims. For example, letters from the BNP in Bangladesh, Japan and Australia. Further the Tribunal made the following comment that: i) If it were to find his evidence was not credible that it would not give to the documents that he had submitted and would submit to support his application. 3. The Refugee Review Tribunal failed to make enquiry about my Japan deportation and passport hold by the Bangladesh authority. Particulars: A. The Tribunal failed to make enquiry about my Japan deportation and passport hold by the Bangladesh authority. Further the Tribunal made the following comment that: i) The Tribunal determined not to take that step believing that it was not necessary to expend the time and resources required. ii) The Tribunal gives the reference letter, dated 4 November 2011, no weight. 14 Her Honour found that the Tribunal's findings concerning the appellant's credibility were open on the evidence before it. 15 In respect of the claim that the Tribunal failed to address the appellant's mental state and lack of English, her Honour held that the Tribunal was aware of those assertions but was not satisfied that they provided an explanation for the Tribunal's concerns relating to the appellant's credibility. 16 Similarly in respect of the second ground of review, her Honour concluded that the Tribunal gave the relevant documents no weight because the documents could not overcome the concerns it had about the appellant's credibility. 17 In respect of the third ground of review, her Honour held that the Tribunal did not have a general duty to enquire, except in limited circumstances. The facts before her Honour did not constitute such circumstances. Further, her Honour held that the Tribunal had noted that the authors of a letter apparently produced from the BNP in Japan could be contacted by telephone, but held that because of its prior findings on the appellant's credibility any evidence from the authors would be unreliable. 18 For these reasons, the application was dismissed.
Grounds of appeal 19 The appellant's notice of appeal set out the following grounds: 1. The Refugee Review Tribunal failed to consider my overall credibility at the time of assessment of my protection visa application. Particulars: A. The Tribunal failed to consider my overall credibility at the time of assessment of my protection visa application that: i) The Tribunal found discrepancy about my evidence that I given to the Department and the Tribunal. ii) However the Tribunal ignored my statement in words I claimed that I did not understand English, I was unsound and anxious mental state. 2. The Refugee Review Tribunal failed to put weight to the documents which were the vital documents in support of my claims. Particulars: A. The Tribunal failed to put weight to the documents which were the vital documents in support of my claims. For example, letters from the BNP in Bangladesh, Japan and Australia. Further the Tribunal made the following comment that: i) If it were to find his evidence was not credible that it would not give to the documents that he had submitted and would submit to support his application. 3. The Refugee Review Tribunal failed to make enquiry about my Japan deportation and passport hold by the Bangladesh authority. Particulars: A. The Tribunal failed to make enquiry about my Japan deportation and passport hold by the Bangladesh authority. Further the Tribunal made the following comment that: i) The Tribunal determined not to take that step believing that it was not necessary to expend the time and resources required. ii) The Tribunal gives the reference letter, dated 4 November 2011, no weight. 20 I note that these grounds of appeal are identical to the grounds of review before the Federal Magistrate. 21 The appellant filed written submissions in support of his appeal, and subsequently appeared in person.
Consideration 22 The reasons for decision given by the Federal Magistrate are thoughtful and detailed. No error in her Honour's reasoning is identified by the appellant - rather the appellant simply asks this Court to consider afresh the points raised in the Court below without any explanation as to why. This is not the role of an appellate Court. 23 Her Honour below observed, inter alia, that: The Tribunal explored the appellant's claims with him at the hearing in significant detail and put to him matters about which it was concerned, including inconsistencies in information provided by the appellant (at [38]). The Tribunal did not accept the appellant's explanations for inconsistencies in his evidence, for reasons which were open to it (at [39], [44]). The Tribunal had considered the language difficulties and distress to which the appellant referred, but was not satisfied that these factors explained the inconsistencies in the appellant's evidence (at [40]-[43]). While she had been initially concerned that the Tribunal may have prejudged the provenance of documents supplied by the appellant, the Federal Magistrate was satisfied that, seen in context, the contents of the Tribunal's letter to the appellant sent pursuant to s 424A of the Migration Act 1958 (Cth) do not suggest prejudgment (at [59]-[62]). Accordingly, her Honour concluded that the determination of the Tribunal (to give no weight to BNP letters of reference in support of the appellant's case) was open on the material. The decision of the Tribunal not to contact the authors of the BNP letters in support of the appellant was reasonable in light of the principles articulated by the High Court in Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429; [2009] HCA 39, and in particular that any inquiries could not have led to a different result (at [70]-[75]). 24 I am satisfied that her Honour has correctly applied the law in determining the appellant's claim for judicial review of the decision of the Tribunal. 25 In conclusion, I note that the appellant claimed in oral submissions before me that he had been denied justice because the Tribunal had failed to give weight to letters he had produced from the BNP. Mr Smith for the Minister referred to the following comments of Gummow and McHugh JJ in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30: [49] In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. 26 In this case it is clear that the decision of the Tribunal was that the appellant lacked credibility, and that this seriously affected the credit of documentation he provided in support of his case. While in my view questions may be asked about this approach - because, indeed, it is to be wondered how the appellant could in such circumstances produce any material which was not, in a sense, contaminated by the view the Tribunal had taken of his credibility - the authority cited by Mr Smith supports the Minister's case. 27 The appeal should be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.
SZRBC
Minister for Immigration and Citizenship