FEDERAL COURT OF AUSTRALIA SZMKR v Minister for Immigration and Citizenship [2011] FCA 141 Citation: SZMKR v Minister for Immigration and Citizenship [2011] FCA 141 Appeal from: SZMKR v Minister for Immigration & Anor [2010] FMCA 943 Parties: SZMKR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1846 of 2010 Judge: LANDER J Date of judgment: 23 February 2011 Catchwords: MIGRATION – judicial review – appeal from Federal Magistrate – procedural fairness – whether Tribunal's findings of credibility were open to it on the evidence – whether grounds of appeal accurately reflected Federal Magistrate's reasoning. Legislation: Migration Act 1958 (Cth) s 424A Cases cited: Applicant S298/2003 v Minister for Immigration and Citizenship (2007) 99 ALD 25 cited S298/2003 v Minister for Immigration & Anor [2007] FMCA 832 cited SZMKR v Minister for Immigration & Anor [2009] FMCA 825 cited SZMKR v Minister for Immigration & Citizenship [2010] FCA 340 cited SZMKR v Minister for Immigration & Citizenship [2010] FMCA 943 cited Date of hearing: 15 February 2011 Place: Adelaide (heard in Sydney) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 56 Counsel for the Appellant: Mr J R Young Solicitor for the Appellant: Kim & Associates Counsel for the First Respondent: Mr H P Bevan Solicitor for the First Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1846 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZMKR Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: LANDER J DATE OF ORDER: 23 FEBRUARY 2011 WHERE MADE: ADELAIDE (HEARD IN SYDNEY) THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1846 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZMKR Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: LANDER J DATE: 23 FEBRUARY 2011 PLACE: ADELAIDE (HEARD IN SYDNEY) REASONS FOR JUDGMENT 1 This is an appeal from an order of a Federal Magistrate made on 7 December 2010 dismissing the appellant's application for judicial review and ordering the appellant to pay $5,865 in costs. 2 The appellant is a Bangladeshi citizen and arrived in Australia on 9 March 1997 on a false South African passport. 3 On 2 April 2007 the appellant applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. On 6 May 1997 a delegate of the first respondent refused the appellant's application for a Protection visa. On 16 May 1997 the appellant lodged an application to the Refugee Review Tribunal (the Tribunal) for review of the first respondent's decision. On 19 August 1998 the Tribunal affirmed the decision under review. 4 On 14 September 2005 the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. On 31 May 2007, the Federal Magistrates Court affirmed the decision of the Tribunal: S298/2003 v Minister for Immigration & Anor [2007] FMCA 832. On 22 November 2007 the Federal Court set aside the decision of the Federal Magistrates Court, quashed the Tribunal's decision and remitted the matter to the Tribunal to be decided according to law: Applicant S298/2003 v Minister for Immigration and Citizenship (2007) 99 ALD 25. 5 On 12 May 2008 the Tribunal again affirmed the decision not to grant the appellant a Protection visa. On 7 November 2008 the Federal Magistrates Court, by consent, set aside the Tribunal's decision and ordered that the matter be remitted to the Tribunal for determination according to law. 6 On 18 March 2009, for the third time, the Tribunal affirmed the decision not to grant the appellant a Protection visa. On 14 April 2009 the appellant filed an application in the Federal Magistrates Court for judicial review of the Tribunal's decision. On 31 August 2009 the application was dismissed: SZMKR v Minister for Immigration & Anor [2009] FMCA 825. 7 On 9 April 2010 the Federal Court set aside the Tribunal's decision and remitted the matter to the Tribunal for determination according to law: SZMKR v Minister for Immigration & Citizenship [2010] FCA 340. 8 On 19 August 2010, for the fourth time, the Tribunal affirmed the decision of the delegate not to grant a Protection visa. On 14 September 2010 the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. An amended application was filed on 19 November 2010. On 7 December 2010 the application was dismissed and the appellant was ordered to pay the first respondent's costs: SZMKR v Minister for Immigration & Citizenship [2010] FMCA 943. 9 The appellant now appeals to this Court. The notice of appeal filed 24 December 2010 sets out three grounds of appeal. The appellant seeks orders that this Court set aside the decision of the Federal Magistrate; quash the decision of the Tribunal; remit the appellant's application for review to the Tribunal to be decided according to law; and for the first respondent to pay the appellant's costs in respect of this appeal and the proceedings before the Federal Magistrates Court. Proceedings before the Refugee Review Tribunal 10 The appellant is a Bengali Muslim who was born in Gazipur, Bangladesh in 1966. 11 The appellant claimed to have been a member of the Freedom Party since 1987. The Freedom Party was formed in opposition to the major political parties such as the Bangladesh Nationalist Party and the Awami League. In 1994, the appellant claimed to have been appointed Joint Secretary of the Freedom Party for the Narsingdi Palash area. The appellant alleged that he had been assaulted, threatened and harassed throughout his involvement with the Freedom Party. He claimed the incidences of assault increased after he became Joint Secretary. 12 The appellant claimed to have been involved in an incident at the Ghorasal Bazar Bus Station in 13 February 1995 in which three people were killed and a railway station was destroyed by fire. He claimed that he and other members of the Freedom Party were present in order to support a protest rally by mill workers for better wages. He claimed the rally descended into violence when members of the Awami League arrived. The appellant claimed he was struck by a piece of wood on the back but escaped serious harm by running away. 13 The appellant claimed there were criminal charges pending against him in Bangladesh in relation to this incident. He claimed that two charges had been laid against him, one relating to the destruction of the railway station and another relating to the deaths of three Awami League supporters. The appellant feared that, although the charges against him were false, the police would apprehend him upon his return to Bangladesh. He feared torture from the police whilst he was in detention. 14 The appellant claimed to have fled Bangladesh on 9 August 1995 as he feared the Awami League planned to kill him. He left for Botswana and from there went to South Africa. The appellant sought asylum in South Africa and lived there from August 1995 to March 1997. He then came to Australia. 15 The appellant fears persecution in Bangladesh because of his involvement with the Freedom Party. He fears harm from people associated with the government, the Awami League, the police and the army. 16 The Tribunal regarded the appellant as "a witness of very low credibility" and said that his claims were without any foundation in fact. The Tribunal noted there had been numerous inconsistencies in the declarations and oral submissions made by the appellant during the previous three separate Tribunal hearings. The Tribunal did not accept the appellant's claims that those inconsistencies were a result of the appellant's poor memory, his detention in Australia or his separation from his family. 17 The Tribunal did not accept that the appellant was a member of the Freedom Party, or that he was subject to harassment or assaults by members of the Awami League because of his association with the Freedom Party. 18 The Tribunal found the appellant's knowledge of and involvement in the Freedom Party to be inconsistent with that of a person who claimed to have been a party member since 1987. The appellant did not know the identity of Freedom Party leaders or have links with the party's national or district branches and was unsure whether there was a Freedom Party office. 19 The Tribunal rejected the authenticity of a letter allegedly sent by Abul Hossain, President of the Narsingdi Zilla Unit of the Freedom Party, which attested to the appellant's involvement with the Freedom Party as Joint Secretary from January 1994 to July 1995. The letter was typewritten on plain paper without a letterhead or contact details. The Tribunal noted that fraudulent or bogus documents were easily obtained in Bangladesh. Enquiries through the Department of Foreign Affairs and Trade indicated that no one by the name of Abul Hossain had ever held the position of President in the Freedom Party's Narsingdi Unit. Further, the Freedom Party's office at Narsingdi was no longer in operation. The Tribunal placed no weight on the letter as evidence that would corroborate the appellant's claim of having been associated with the Freedom Party. 20 The Tribunal did not accept that the applicant was present at the Ghorasal Bazar Bus Station incident or that he was assaulted during the incident by members of the Awami League. The appellant had told the first Tribunal hearing that the incident resulted from the Freedom Party and Awami League holding meetings at Ghorasal Bazar at the same time on 13 February 1995. However that version of events differed from the appellant's claims to the second Tribunal hearing that the Freedom Party members were only present at Ghorasal Bazar to support "around 100" factory workers in their protest rally for better wages. The Tribunal put to the appellant that a protest rally had been held between 12 and 15 February 1995 by mill workers but that the Freedom Party had no involvement in its organisation. The Tribunal noted that independent reports of the incident indicated that three workers had been killed and 50 injured when the police and paramilitary Bangladesh Rifles opened fire on more than 10,000 workers. The report did not refer to clashes between the Freedom Party and the Awami League. 21 The Tribunal rejected the appellant's claim that he is facing serious criminal charges in relation to the incident and that the police had approached his family seeking to lay charges against him. The appellant's evidence relating to the nature of the charges varied. The appellant had told the first Tribunal that the charges against him were for arson and murder. In the second Tribunal hearing the appellant submitted that the two charges against him were for arson and another charge relating to "public order". There was no mention of a charge of murder. 22 Further, the Tribunal noted independent reports indicated that it was the Bangladesh Rifles and police who were responsible for the deaths. The information made it unlikely that charges against the appellant in relation to those deaths would be maintained. 23 The Tribunal did not accept that the appellant was unaware that the Bangladesh Rifles were known to have killed the protestors. 24 The Tribunal rejected the appellant's claim that he left Bangladesh because of fears for his safety if he remained. The Tribunal did not accept that his travel to South Africa was related to his now-dismissed refugee claims. 25 The Tribunal did not accept that the appellant had "any political opinion that will motivate him to engage in oppositional political activities, or that will lead others to perceive him as a political activist". 26 The Tribunal concluded that there was no real chance of the appellant facing persecution for reasons of any political opinion, actual or imputed, in Bangladesh. Proceedings before the Federal Magistrates Court 27 The appellant's amended application filed 19 November 2010 set out nine grounds. At the hearing, the appellant, who was then represented by counsel, informed the Court that he intended to rely only on Grounds 4 and 5 of the amended application. The remaining grounds were not pressed. 28 Ground 4 asserted that the Tribunal imputed knowledge to the appellant about the fact the Bangladesh Rifles had killed protestors at the incident in Ghorasal in February 1995 in circumstances where it did not put to the appellant the basis of that imputed knowledge. 29 Ground 5 asserted that the Tribunal denied the appellant procedural fairness by finding that the appellant should have been aware that published reports indicated that Bangladesh authorities shot dead the protesting workers, without giving the appellant reasonable particulars about where or when that information was published. 30 The appellant sought the issue of the constitutional writs to quash the decision of the Tribunal and an order requiring the Tribunal to determine the application according to law. The appellant also sought an order for costs. 31 The Federal Magistrate found that the Tribunal had "squarely put" to the appellant its concern that the appellant had not made an attempt to identify the true perpetrators of the offences with which he had been charged in relation to the Ghorasal incident. 32 The Federal Magistrate considered the basis of the Tribunal's concern was the appellant's failure to take steps to apprise himself of what happened at Ghorasal, rather than the appellant's lack of awareness of reports about the event. 33 The Federal Magistrate found that the Tribunal clearly put to the appellant the country information to which it had regard, including the information that Bangladesh Rifles fired on the crowd of protestors. 34 The Federal Magistrate found that even if the Tribunal had not squarely put that information to the appellant, it is not information to which the obligations of s 424A(1) of the Migration Act 1958 (Cth) (the Act) apply by reason of s 424A(3)(a). The information was not specifically about the appellant or another person but rather it concerned a class of persons of which the appellant was a member. 35 The Federal Magistrate did not accept that the Tribunal made adverse findings against the appellant because of his lack of knowledge of published reports that Bangladesh Rifles had killed the protestors in the Ghorasal incident. The Tribunal had put the country information to the appellant and explored his knowledge of that information, in light of his alleged intimate involvement and subsequent false charges. 36 The Federal Magistrate said at [60] and [61]: 60. In the circumstances I do not accept the characterisation of the Tribunal's findings in Grounds 4 and 5 that the Tribunal made adverse findings in respect to the Applicant because of his lack of knowledge of published reports that Bangladesh Rifles had killed the protestors in the Ghorasal incident. 61. Rather, the Tribunal put to the Applicant the country information before it that Bangladesh Rifles had killed protestors. The Tribunal explored with the Applicant his knowledge of that information, particularly, in the light of the Applicant's alleged intimate involvement and subsequent false charges, including murder. In exploring the Applicant's lack of knowledge, the Tribunal expressed particular concern about his failure to take any steps to inform himself of the truth of the events in circumstances where he claimed that he had been blamed by the Awami League for all offences occurring on that day. 37 The Federal Magistrate concluded that the findings made by the Tribunal, including its adverse credibility findings, were open to it on the evidence. 38 The Federal Magistrate found that the appellant was not denied procedural fairness, noting that the Tribunal's concerns were squarely put to the appellant and his responses noted. Appeal to this Court 39 The notice of appeal filed 24 December 2010 sets out three grounds of appeal. 40 The first ground is that the Federal Magistrate erred in finding that by reason of s 424A(3)(a) of the Act the Tribunal was not obliged to explain the basis of its finding that the appellant must have known that the Bangladesh Rifles killed the protestors at the Ghorasal incident. 41 The second ground is that the Federal Magistrate erred by failing to have regard to the appellant's argument that he had been denied procedural fairness. The denial of procedural fairness is said to derive from the Tribunal's failure to inform him of the basis on which it found that he must have known about the Bangladesh Rifles' involvement in the Ghorsoral incident. 42 The third ground of appeal is that the Federal Magistrate erred by not finding that the Tribunal had fallen into jurisdictional error by failing to explain the basis on which it found that the appellant must have known about the Bangladesh Rifles killing the protestors at the Ghorasal incident. 43 It is difficult to discern whether the three grounds raise more than the one point but on the hearing of the appeal Mr Young, who appeared for the appellant, sensibly conflated the three grounds into one. 44 He argued that the appellant had been denied natural justice because it was wrongly assumed by the Tribunal that the appellant would have been able to ascertain that the Bangladesh Rifles were the real culprits at Ghorasal. He contended that the Tribunal's refusal to accept that the appellant was unaware that the Bangladesh Rifles killed the protestors in circumstances where the appellant was falsely accused of the murders was unfair without the Tribunal first finding how the appellant could have become aware of that fact. He said such a finding amounted to jurisdictional error because it amounted to a denial of procedural fairness. 45 The three grounds of appeal do not accurately state her Honour's reasons. Her Honour did not find that the Tribunal was not obliged to explain the basis of its finding that the appellant must have known that the Bangladesh Rifles killed the protestors at the Ghorasal incident. The same complaint was put to her Honour about the Tribunal's reasons and her Honour correctly, in my respectful opinion, identified at [60]-[61] of her reasons, set out above, the Tribunal's reasoning. The Tribunal reasoned that the appellant had made no effort to ascertain who was responsible for the killings at Ghorasal, which the Tribunal found was inconsistent with his claim that he had been blamed by the Awami League for offences on that day. Her Honour found that the Tribunal was entitled to make such a finding for the reasons it gave. Her Honour also did not reason in the way complained of in the grounds of appeal. She simply accepted that the Tribunal was entitled to reason in the way that it did and reach an adverse credibility finding because the appellant had not made any effort to ascertain who was responsible for the killings at Ghorasal. 46 The Tribunal did not reason in the way the grounds of appeal assert. Her Honour described the Tribunal's reasons at [55] as being "the failure of the [Appellant] to take any steps to apprise himself of the truth of the events on that day that caused the Tribunal concern, rather than the [Appellant's] lack of awareness of reports about that event". 47 The finding of the Tribunal about which Mr Young complained is at par 145 of the Tribunal's reasons: The Tribunal finds particularly telling that, even at the most recent Tribunal hearing, and despite his alleged proximity to the events of that day, the applicant still was unaware that the Bangladesh Rifles are known to have killed the protestors on that day. The Tribunal does not accept — even if the applicant fled Narsingdi on that day or soon afterwards, as claimed — that he would not have come to know these kinds of details about an incident with which he was allegedly linked. In short, the Tribunal finds it unbelievable that, if falsely accused of an offence such as murder and if present on the day, the applicant has not made it his business to find out who the actual perpetrators were. 48 The finding was made in the context of previous Tribunal hearings. The third Tribunal's reasons show that at that hearing the appellant was told: 63. I put to the applicant that the information available to the Tribunal indicated that there had been a 96 hour strike and railway blockade by jute and testile mill workers between 12 and 15 February 1995. There had been an incident at Ghorasal in which at least three workers had been killed and 50 had been injured but this had happened when the police, backed by the paramilitary Bangladesh Rifles, had opened fire on more than 10,000 workers who had been barricading the railway tracks at Ghorasal. Angry workers had uprooted the railway tracks and had set fire to part of the station (Research Directorate, Immigration and Refugee Board of Canada, Issue Paper – Bangladesh: Chronology of Events, January 1994 – December 1995, March 1996; Anis Ahmed, 'Workers claim five killed in Bangladesh strike', Reuters, 13 February 1995; 'Updates with fresh deaths, government statement', Agence France Presse, 13 February 1995). 49 The Tribunal whose decision was sought to be reviewed by the Federal Magistrate described the information which had been put to the appellant. It recorded the matter it put to the appellant at par 112: The Tribunal put to the applicant country information indicating that some 10,000 jute mill workers had been barricading the railway tracks at Ghorasal from 12 to 15 February 1995; that the police and Bangladesh Rifles had opened fire on the crowd (and were therefore at least partially responsible for the deaths); and that there was no mention of the FP or AL being players in all this. The applicant replied that the train station and bus station are close to each other. 50 At the Tribunal's second hearing, the matter was raised again. The Tribunal's reasons disclose the Tribunal's statements and the appellant's reply. At par 124 the Tribunal records: The Tribunal asked about the killings and the arson, highlighting its surprise that the applicant did not know that the Bangladesh Rifles had been responsible for the shootings and killings. The applicant said that he knew about the deaths, from family and friends, but did not know the circumstances. No-one had ever told him that officials were linked with the deaths. Asked what he believed the false cases to allege, the applicant said that they linked him with the deaths and the property damage (pulling up the railway tracks). The Tribunal put to the applicant that he has variously claimed to have been linked with public order offences and/or murder; and arson and/or damaging railway tracks. The Tribunal expressed concern that the applicant had not made it his business to find out precisely what charges, true or otherwise, to which he was subject. The applicant said that he could only record what his family and friends had told him — he had heard different things from different sources, but in his view, all the claims were 'similar'. The Tribunal explained that it did not consider murder charges interchangeable with public order offences at all. Furthermore, public reports that the Bangladesh Rifles had killed the protestors surely exonerated him. The applicant said that the AL and its criminal supporters had accused the applicant of all the offences that took place on that day. The Tribunal alerted the applicant to its ongoing concern that, irrespective of what the charges were, it expected the applicant's family would have given him a clear understanding of what the allegations actually were. 51 The Tribunal found at par 144: The Tribunal does not accept the applicant's claim to have been present at the Ghorasal Bazar Bus Station protest rally; to have had any association with the violence that occurred there; or that the AL has arranged for false charges to be laid against the applicant in relation to both physical violence and damage to public property. As the Tribunal discussed with the applicant at the most recent hearing, it found his evidence to successive Tribunals to vary significantly. The most significant discrepancies were between his evidence to the first Tribunal in 1998, and subsequent Tribunals from 2008, but in the Tribunal's opinion, his overall evidence was highly variable. The applicant has given differing accounts of who 'called' the meeting (whether it was the FP and AL, or as later stated, the jute mill workers with the parties as 'back-up'); the number of people at the meeting (whether in the hundreds or around 10,000); the duration of the meeting (he referred only to an event on 13 February 1995, whereas country information concerns a 96 hour strike and protest at that very site); and what false charges were made against him. It was the applicant's evidence that the police simply call by a person's home looking for them, and do not formally advice the person's family of precise charges. If true, it would have been open to the applicant to tell the Tribunal that rather than present different charges — ranging from public order to murder, and various forms of property damage — rather than give this information only to explain apparently serious discrepancies. 52 The Tribunal was entitled to draw from those matters the conclusion it drew at par 145. The Tribunal was there saying that it is incredible and indeed unbelievable that someone who said he was linked with the deaths of three protestors and falsely accused of murder would not have at the time of the hearing before the fourth Tribunal ascertained who the perpetrators were in circumstances where he had been told on an earlier occasion that which is recorded in par 63 of the third Tribunal's reasons. He had in fact been told the source of the Tribunal's knowledge for that which he was told at that time. 53 The finding at par 145 was open to the Tribunal. The Tribunal did not in making that finding fail to accord the appellant procedural fairness. The matters raised in the grounds of appeal have not been made out. 54 The Tribunal put to the appellant country information, including the information that Bangladesh Rifles fired on the crowd. The Tribunal was not obliged to put to the appellant country information in writing because that information is excepted by reason of s 424A(3)(a). Insofar as that is raised in the grounds of appeal, that ground must be dismissed. 55 With respect, I agree with her Honour's reasons and her conclusion that the Tribunal had not fallen into jurisdictional error because it did not reason in the way complained of in the grounds of appeal. 56 The appeal must be dismissed. The appellant must pay the first respondent's costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 23 February 2011