S1506 of 2003 v Minister for Immigration
[2006] FMCA 812
•22 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1506 OF 2003 v MINISTER FOR IMMIGRATION | [2006] FMCA 812 |
| MIGRATION – Review of decision of RRT – where applicant makes allegation about conduct of Tribunal but does not produce transcript – whether court book evidences jurisdictional error – whether Tribunal should make its own investigation relating to the applicant’s claims. |
| Migration Act 1958 Federal Magistrates Court Rules 2001 |
| Seyfarth v Minister for Immigration [2004] FCA 1713 M164/2002vMinister for Immigration and Multicultural Affairs [2006] FCAFC 16 S1194/2003 v Minister for Immigration [2006] FMCA 469 Minister for Immigration v NAOS of 2002 [2003] FCAFC 142 |
| Applicant: | APPLICANT S1506 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG603 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 22 May 2006 |
| Date of Last Submission: | 22 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2006 |
REPRESENTATION
| For the Applicant: | In Person |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant pay the respondent's costs which I assess in the sum of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG603 of 2004
| APPLICANT S1506 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh. He arrived in Australia on 4 January 1996. On 12 January 1996 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 4 July 1996 a delegate of the Minister refused to grant a protection visa and on 1 August 1996 the applicant sought review of that decision. The Tribunal held a hearing which the applicant attended on 10 September 1997, and the applicant provided the Tribunal with written submissions and translated copies of certain documents. On 24 November 1997 the Tribunal affirmed the decision not to grant a protection visa.
The applicant's claim to have a well‑founded fear of persecution for the Convention reason of political opinion arose out of his association with the Jatiya Party who he claimed to have joined as a student member in 1983 at the age of 11 years. He claimed to have remained a member of the student wing until 1991 and had been a local office holder for a period of a year, after which he was not re‑elected. The applicant claimed to fear the supporters of the Bangladesh National Party. At [CB 103] the Tribunal says:
“The applicant acknowledged at the Tribunal hearing that, prior to the change of government in 1990, he did not experience problems with political opposition groups. But after the BNP gained power he claimed that the Jatiya Party members were put in gaol. He said that it was the supporters of the BNP that he feared after the change of government. In response to a question of why he feared the BNP, he replied that he had seen others beaten by supporters of that party. The applicant provided no details of acts of discrimination or harassment or threats of harm or mistreatment directed against the applicant because of his membership of the student wing of the Jatiya Party in the period after 1990 except for charges in 1990 against accused persons, one of whom is described as the applicant referred to in translated copies of court/police documents provided at the Tribunal hearing. The 1990 charges relate to possession of firearms. The applicant said the charges were made by the BNP against him and other Jatiya Party members. The Tribunal notes that the applicant in his two statements, one with the application for a protection visa and the other provided at the Tribunal hearing, made no reference to these charges. When asked to explain he said that he did not know that the charges had been made against him until the end of 1996. However he provided copies of these documents at the same time that he submitted his second statement dated 10 September 1997 at the hearing which makes no reference to them. When asked why the BNP would want to kill him, he said that he had destroyed property of the BNP seven years ago. There is no reference to this destruction in either of the applicant's two statements.”
The applicant also admitted to the Tribunal to taking part in the burning of a Hindu temple, which he claimed was done following the destruction of the Babri mosque in India that occurred on 6 December 1992. The Tribunal noted that the Hindu temple that the applicant claimed to have been destroyed was destroyed in late 1993. The Tribunal commented that so far as fear that this applicant stated that he had as a result of the activities in relation to the mosque, this was a fear of:
“Police action in issuing charges against accused person that would appear to be normal and reasonable procedure in relation to acts of destruction of a temple, which in this instance the applicant admits to.”
The Tribunal was not only critical of the applicant's credibility but felt that it was unlikely that he would now suffer the form of harm that he feared:
“Since the applicant arrived in Australia there has been a change of government in Bangladesh and the governing party, the Awami League, has formed an alignment with the Jatiya Party which continues. The Tribunal is satisfied that, if the applicant's claims of his association with the Jatiya Party are true, he could avail himself of the protection of the Jatiya Party if he returned to Bangladesh at this time. That being the case, the Tribunal finds that he could reasonably be expected to seek protection through the authorities or the representatives of his party in Bangladesh should he be threatened by members of any opposition group.”
The Tribunal concluded:
“The Tribunal finds that any chance of harm as a consequence of the applicant's alleged position and activities associated with the Jatiya Party and of the warrants for his arrest that he claimed were outstanding against him, is both remote and insubstantial and therefore does not amount to a real chance of persecution for a Convention reason now or in the reasonably foreseeable future if the applicant returned to Bangladesh.”
The applicant claims that the Tribunal fell into jurisdictional error in the manner in which it reached its conclusions in this case. He says that the delegate and the Tribunal did not give him an opportunity to respond to any adverse material that it possessed prior to taking a decision upon his status. Unfortunately, the applicant has not provided the court with a copy of the transcript of the hearing. The court can only go on the basis of the documentation that is provided, namely the green book and the Tribunal's decision. It is not clear exactly what independent evidence the applicant is referring to. There was some independent evidence concerning the situation in Bangladesh as to its politics and as to the independence of the judiciary. Those matters were clearly raised with the applicant during the hearing. See, for example [CB 107].
Mr Smith, who appears on behalf of the Minister, submits that the independent information relied on by the Tribunal went no further than the information that was relied upon by the delegate in his decision and notified to the applicant at that time. He submits that the applicant would have been aware of this information at the time he made his application to the Tribunal for review and should have been in the position to meet it if he did not agree with it. I think there is considerable force in Mr Smith's argument.
The applicant argues that the Tribunal did not permit him to give evidence in accordance with the Migration Act 1958 (the “Act”). Again, this is not particularised. Again, there is no transcript. Again, one relies upon what is evident from the Tribunal's decision and that does not show action on the part of the Tribunal to shorten the evidence of the applicant or to prevent him from providing it with the fullest information. In fact, the Tribunal acted very generously towards the applicant who produced quite a considerable amount of paper on the day of the hearing which the Tribunal had not previously seen.
The applicant claims that the Tribunal failed to take into consideration the threat to his life and the discrimination that he would have to face if he had to return to Bangladesh. On the contrary, the Tribunal looked at that very matter because it was the essence of its task.
The applicant claims that the Tribunal failed to investigate. As I suspected, the applicant admitted to me during the course of the hearing that he regarded a failure to investigate as consisting of a failure by the Tribunal to check the allegations that he made concerning his personal situation. In other words, to check within Bangladesh as to the fact that he was who he said he was, that he had joined the political parties he said he had joined, that he took part in the activities that he claimed to have taken part in and that he was the subject of the false charges and other charges that he claimed to be the subject of.
As Hely J said in Seyfarth v Minister for Immigration [2004] FCA 1713 at [95]:
“There is no general duty on a decision maker "to prompt and stimulate an elaboration which the applicant chooses not to embark upon;" Re Minister for Immigration & Multicultural Affairs; Ex parte applicant S154/2002 (2003) 201 ALR 437 at 451. There is no general obligation on the Minister to make his own inquiries particularly where the visa holder has been given the opportunity to put all that he or she may wish to put before the minister: Lorenzo v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 435 at [45], 51 (Hill J).”
Although I am mindful of what the Full Bench of the Federal Court said in M164/2002vMinister for Immigration and Multicultural Affairs [2006] FCAFC 16, particularly at [62 to 69], I do not think that any court has yet expressed a view that the type of inquiries requested by the applicant are to be expected of a Tribunal. It is, after all, for the applicant to satisfy the Minister of his or her claims, and that state of satisfaction should be achieved by regard to the evidence that an applicant brings.
Mr Smith takes a narrower view of what the applicant was referring to when he suggested that the Tribunal had a duty to inquire. He referred to the document found at [CB 80-81], namely the document described by the Tribunal as:
A document addressed to Natore police station from a person claiming to be a Hindu alleging an attack on 24 November 1993 by an armed group who destroyed a house (referred to as a mondeer and a mondir in the document) fix with petrol all over house and injured him. The Hindu accuses seven persons one of whom is described [by the same name as the applicant].
Mr Smith argues that in relation to this document to which it could be said that M164 might apply, although of course that case was not decided until some nine years after the decision that I am dealing with, it would only have applied if the document was one that broadcast by its nature the need for further inquiry and that there was no impediment to the conduct of such an inquiry. Mr Smith gives two reasons why the document to which I have referred is not such a document. The first is that the Tribunal analysed the document itself and states at [CB 113]:
“The translated copies of court/police documents provided by the applicant at the hearing refer to an attack and destruction of a Hindu house on 24 October 1993. The applicant made no reference to his involvement in an attack and destruction of a Hindu temple in his previous statement related to his application for a protection visa.”
The Tribunal also notes at [CB 114] that the documents are not original but only translated copies. In relation to some earlier documents it lists other matters which tend to lead it to the view that the documents are not genuine.
The second point made by Mr Smith is that the documents provide very little by the way of information which would enable the Tribunal easily to check up on them. But perhaps the most telling point made by Mr Smith is that if an applicant is claiming to have a well‑founded fear of persecution by reason of the existence of certain false charges being brought against him, then it can hardly be said to be in his interests if the country to which he has fled identifies his whereabouts in the course of making inquires as to the veracity of documentation produced by him. This is a matter that must be borne in mind before placing undue reliance on the decision in M164/2002.
Mr Smith also refers me to applicant S1194/2003 v Minister for Immigration [2006] FMCA 469 at [28] where Driver FM accepted that the Tribunal's rejection of the authenticity of documents relating to charges against an applicant that arose on the basis of its own examination of the documents differentiated the case from M164/2002. I cannot see that there is anything in that decision of his Honour's which I could say was clearly wrong and therefore I should follow it.
The applicant made a complaint that the Tribunal failed to consider the cumulative effect of his experience. In order to make that complaint an applicant must be able to show that the Tribunal has accepted an applicant's experiences but has failed to take all of them into account cumulatively. It is not a claim that can be made if experiences are not found to have occurred. In this case the Tribunal noted that the applicant had personally suffered very little notwithstanding his political involvement, and there was therefore very little to accumulate in terms of persecution.
The applicant claimed that the Tribunal had failed to bring an open mind to the review. There was nothing in the decision itself which would indicate that this has happened, and it is really a claim of bias by another name. Such a claim must be clearly made and conclusively proved. See Minister for Immigration v NAOS of 2002 [2003] FCAFC 142.
Having considered all the matters put by the applicant I am afraid that I am unable to see any area in which the Tribunal fell into jurisdictional error in the manner in which it came to its decision in his case. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM
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