S1914 of 2003 v Minister for Immigration
[2005] FMCA 293
•22 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1914 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 293 |
| MIGRATION – Review of decision of Refugee Review Tribunal – citizen of Bangladesh – persecution on basis of religion – marriage to Muslim woman – findings on credibility – procedural fairness – section 424A not in force at time of Tribunal hearing – section 418(3) – applicant alleges made no Convention based claim – misled by legal adviser – duty to investigate – no error of law – application dismissed. Migration Act 1958 (Cth) Applicant S1914/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 589 |
| Applicant: | APPLICANT S1914 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1647 of 2004 |
| Delivered on: | 22 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 22 February 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Ms Pepper |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1647 of 2004
| APPLICANT S1914 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from a transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) which handed down its decision on 19 February 1998.
Background
The applicant, who is a citizen of Bangladesh, arrived in Australia on 23 September 1996 on a false Indian passport. On 18 October 1996 he applied for a protection visa which was refused by a delegate of the Minister on 25 March 1997. He applied to the Tribunal for a review of the decision on 29 April 1997.
The hearing, which the applicant attended, was held on 18 February 1998. On 19 February 1998 the Tribunal affirmed the decision of the Minister’s delegate.
Claims before the delegate and the Tribunal
Briefly, the applicant’s claim is that if he returns to Bangladesh he will be targeted by his wife’s family and the local Muslim community. The applicant claims that he has been persecuted because he was married to a Muslim woman, who converted to Hinduism.
He made short claims in his protection visa application stating that he would make a fuller statement later. These claims are set out at page 7 of the Court Book. He made fuller claims in a statutory declaration prepared for the Tribunal set out at pages 49 to 52 of the Court Book.
He claims that he and his wife faced strong opposition to their marriage and were physically tortured on some occasions. They feared death by stoning because the applicant failed to convert to Islam. They escaped to India and married. Then they had to leave because they were living in India illegally.
While they are away from Bangladesh, the applicant’s family suffered harm as well. He claims they were tortured, and as a result of the fear that this engendered, his father died suddenly. They returned to Bangladesh in 1990 when they received a letter from the applicant’s wife’s father saying that they were welcome back.
When they returned to his family, the applicant was set upon and tortured by members of the Muslim community. These people took away his property, including the family home. But the police did not help. He managed to escape with the help of his wife’s mother, leaving his family behind.
His family had subsequently been physically and mentally tortured and forced to convert back to Islam and sever all ties with the applicant.
The Tribunal decision
The Tribunal in its decision includes the claims made by the applicant before the delegate and in the statutory declaration to the Tribunal. In addition, further claims and discussion of the issues arose from the hearing on 18 February 1998.
It is apparent from the Tribunal decision that it reached the view that the applicant’s claims were fraught with inconsistencies. It found that the applicant’s claims were implausible, vague, and, as I said, inconsistent, even though it accepted some matters, such as that the applicant’s passport was false and he was indeed a Bangladeshi of Hindu faith. It also accepted that his wife came from a Muslim family and that they eloped without the knowledge of either family.
It also accepted that the applicant and his wife lived in India illegally for some years. But because of the inconsistencies and inplausibilities, it concluded that it could not believe much of the applicant’s evidence; for example, that on return to Bangladesh he was attacked, but then evaded a group of 30 to 40 armed men by running out the back door. Other examples of contentions which it did not accept included that the applicant returned to Bangladesh from India secretly six to eight times between 1990 and 1996, and that he worked as a chef in a restaurant for several months without detection. It did not accept the applicant’s claim that his family was forced to flee, following the alleged attack on their home.
The Tribunal rejected the applicant’s case on the facts. It therefore could not be satisfied that the applicant had a well-founded fear of persecution.
Consideration
The amended application contains one ground with seven particulars. In most cases the particulars are not relevant to this particular case. As the respondent has submitted, it appears that the amended application is asserting three grounds of review:
(a)that the Tribunal did not accord the applicant procedural fairness either pursuant to s 424A(1) of the Act or at common law by reason of its failure to disclose to the applicant certain independent country information;
(b)that the Tribunal breached s 418(3) of the Act; and
(c)that in fact “no convention based claim [was] initially made to the delegate” and thus the visa application was invalid and the Tribunal did not have jurisdiction to review it.
I will deal with each in turn.
The first is that the Tribunal did not accord the applicant procedural fairness, either pursuant to s 424A of the Migration Act 1958 (Cth) (the Act) or at common law. It appears that the applicant is alleging that the Tribunal failed to disclose to him certain country information on which he says it relied.
However s 424A was not in force at the time of the Tribunal’s decision and did not apply. More importantly, in relation to common law procedural fairness, the Tribunal did not rely on any independent country information in making its decision. This is contrary to the assertion of the applicant.
But it is clear, as I have already pointed out, that the Tribunal reached its decision because it did not believe the applicant. As a result of the inconsistencies and implausibility of much of the evidence that the Tribunal took from the applicant, it rejected the factual claims that he had presented to it. Accordingly there was nothing to put to the applicant for him to comment on.
As the respondent has noted, the only documents that were before the Tribunal and referred to in its decision were documents provided by the applicant in support of a claim that his wife had been physically assaulted by her brother after she refused to slaughter a cow.
This ground of review must be rejected.
The second ground of review appears to be based on s 418(3) of the Act. That section, which relates to the Secretary of the Department being notified of an application for review, provides that:
The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.
There is no evidence that this particular provision was not complied with. Indeed there are no particulars in relation to it in the amended application. The second ground also must be rejected.
The third ground, and one on which the applicant relied substantially at the hearing, appeared to be that no Convention based claim was initially made to the delegate. Therefore the visa application was invalid and the Tribunal did not have jurisdiction to review it. This is referred to in particular 7 in the amended application.
The first point to note is that on 16 October 1996 the applicant, through his then solicitors, Parish Patience, lodged with the Department a Part C “Application for an applicant who wishes to submit their own claims to be a refugee”. It is also headed: “Application for a Protection Visa (866).”
At question 36, “Why did you leave that country?”, the applicant said:
I was persecuted in Bangladesh because I had a love marriage with a Muslim woman. She became a Hindu which has caused us to be persecuted in the society. By both Hindus and Muslims. See my statement to follow.
I note that no statement was provided at that time. But Part C was signed by the applicant on 16 October 1996. A Part B form “Persons included in this application and family composition” was filed at the same time. Following an adverse decision from the delegate, an application for review was filed with the Tribunal on 29 April 1997. Attached to that was a three and a half pages long statutory declaration which expanded on the applicant’s claims.
The applicant has been involved in other litigation on this Tribunal decision, most recently in an appeal before Jacobson J, whose decision of 4 May 2004 (Applicant S1914/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 589) at paragraph 3 says:
The applicant appeared before me in person this morning. He was assisted by an interpreter. He submitted that he is a Hindu from Bangladesh and is a member of a minority religion in that country. He told me that he had married a Muslim woman and that if he wishes to live in Bangladesh he will have to change his religion which he does not want to do.
It is clear that the applicant has been pursuing his claim concerning his marriage to a Muslim woman for some time. It is equally clear that he made a Convention based claim to the delegate, which was followed up with some elaboration before the Tribunal.
There is no substance in his submission that the Tribunal had no jurisdiction. In his amended application there is reference to the decision of Finn J in Phanouvong v Minister for Immigration & Multicultural Affairs [1999] FCA 1489. This decision does not assist him. This ground must also be rejected.
At the hearing the applicant raised a number of additional grounds. These had not been pleaded in the amended application. First he said that he had been misled by his legal adviser. This amounted to a mere assertion from the bar table. There was no evidence before me on it. But even if I were to accept that he had been misled, this could not be blamed on the Tribunal.
He further asserted the Tribunal had a duty to investigate his claims if it did not believe him. This is clearly contrary to authority. It is not for the Tribunal to make out an applicant’s case. As was said by Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether the claim is made out.
Furthermore, although the Tribunal has certain powers to obtain additional evidence “the Act does not impose any duty or obligation to do so” (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ).
These grounds must also be rejected.
Conclusion
Counsel for the Respondent Minister has submitted to me that the application must be dismissed. I agree. It is apparent the Tribunal formed an adverse view about the credibility of the claims made by the applicant. These findings were reasonably open to the Tribunal on the material before it. As McHugh J has said in Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 the finding as to whether a person’s claim should be believed, that is, a finding on credibility is the function of the decision maker par excellence.
As I have said, the findings were reasonably open to the Tribunal. I am satisfied the Tribunal made no legal error going to jurisdiction in coming to its decision.
In the circumstances I dismiss the application.
I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 4 April 2005
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