S249 of 2003 v Minister for Immigration - [2005] FMCA 90

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S249 of 2003 v MINISTER FOR IMMIGRATION

[2005] FMCA 90

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision by the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse a protection visa to the applicant – applicant a citizen of Bangladesh – question of credibility – no reviewable error.

Applicant:

APPLICANT S249 of 2003

Respondent:

MINISTER FOR IMMGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2108/2004

Delivered on:

24 January 2005

Delivered at:

Sydney

Hearing date:

24 January 2005

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Mr Beech-Jones

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs in the amount of $4750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

PAM 2108 of 2004

APPLICANT S249 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application before the court this morning is an application for review of a decision of the Refugee Review Tribunal which was handed down on 9 February 2000. That decision affirmed a decision of a delegate of the Minister not to grant a protection visa to the applicant.
The applicant is a citizen of Bangladesh. He said that he was born on 3 January 1973. More relevantly he arrived in Australia on 1 October 1997. On the 29th of that month, he lodged an application for a protection visa. He gave the name M S Z. On 19 November 1997, the delegate of the respondent Minister refused his application so the applicant sought review by the Refugee Review Tribunal.
He says that he had a well founded fear of persecution upon his return to Bangladesh because he was a supporter of a party known as Jamaat‑e-Islami. He said that he joined the student wing of that party whilst he was still at high school and that from 1996 when the Awami League came to power, they took revenge on supporters of other parties. He himself said he was attacked twice and false charges were laid against him.
In his application filed on 8 July 2004, the applicant who is an inmate of an immigration detention centre sets out the grounds he claims justifying the application for review. He says the following:
1. I am not satisfied with RRT decision. The decision was made in bad faith.
2. Migration Act 1958 was not followed properly while making the decision.
3. I am deprived of natural justice by the Tribunal.
4. Most of my claims were not considered and the seriousness of my claims were watered down.
5. I am late in making application for a judicial review of my claims.
6. I'll provide more grounds with every details later.
The applicant has made an oral submission today and I have asked him a number of questions about his application. Mr Beech-Jones of counsel appears for the respondent Minister and has submitted written submissions which I have read and I have heard a brief oral submission from Mr Beech-Jones.
Mr Beech-Jones points out in his submission that the Refugee Review Tribunal's decision turned upon its assessment of the applicant's credibility. Indeed, from my reading of the decision, the question of the credibility of the applicant's evidence was very much the principal reason for the Tribunal to reject his claim.
He was asked about the fact that his application to the Tribunal was identical to that of an application by another applicant submitted by the same adviser. He admitted that he had told the adviser that he needed political asylum. The applicant says today that he was in fact misled by his migration adviser.
Page 129 of the court book in his findings and reasons the Tribunal refers to the applicant's vague and often bizarre generalisations or answers and his inability to give precise details about court cases which he claims to have been involved where he says that evidence was in fact fabricated against him.
The Tribunal has made a serious attack on the applicant's credibility. Page 97 of the court book says at about point 3:
I consider that the applicant has not been truthful to the Tribunal about any of his application. I do not accept his reasons as to why he has two passports. The reasoning given by him that he was so famous in this area of Bangladesh, 50 kilometres from Dhaka, that people at the airport may have recognised him if he had used his real passport is fanciful.
At about point 7, the Tribunal says:
Having considered all of the evidence relating to the applicant I do not accept that he is who he claims. I do not accept that he is M S Z. The best documentation presented by him is his Bangladesh passport issued by the Bangladesh authorities in the name of B H.
At about point 9 on that same page, the Tribunal makes the finding of fact:
I find that he is not M S Z. I find that he is B H. I do not know why he has sought to change identity but do not accept that the charge sheets and claims made by him are true, nor that they relate to him.
The Tribunal goes on to finish its findings and reasons by saying:
Overall I find that the applicant was not a truthful nor credible witness. I find that he does not have a well founded fear of persecution for reasons of a Convention ground.
The applicant says that he is dissatisfied with the Tribunal's decision and indeed I accept that he is dissatisfied. He has criticised the Tribunal for making findings of fact which he says are ill founded. He says that he did not lie to the Tribunal and that he is who says he is.
Unfortunately, it is the applicant's task to persuade the Tribunal and not the Tribunal's task to disprove his account. Assessment of credibility of a witness is entirely the function of the Tribunal. He says that the Tribunal acted in bad faith but I see no evidence of that. A finding that a person is not a credible witness is not of itself evidence of bad faith.
The applicant was able to address the Tribunal and answer questions put to him by the Tribunal. He was offered the services of an interpreter but he elected at that stage to dispense with the services of an interpreter fearing that, as he said that information about him may be passed on to the wrong hands. An interpreter's services were made available today but the applicant elected to present his own case with only a minimum of interpretation of some questions from the bench.
I see nothing which would indicate that the applicant was deprived of natural justice. The Tribunal heard his case. He was given the opportunity to present his case. He was given the opportunity to use an interpreter if he needed one or if he wished. The fact is that the Tribunal did not accept his evidence and that is certainly a reason for the applicant to be dissatisfied but it is not a reviewable error.
I find there is no reviewable error. The application is dismissed.
This is a matter where I am satisfied that an order for costs is appropriate. The applicant has been wholly unsuccessful in his claim. I am satisfied that the matter should be assessed according to the scale in schedule 1 of the Federal Magistrates Court Rules.
The applicant is to pay the respondent's costs in the sum of $4750.

I require a transcript of my reasons for this decision and the application is removed from the list of cases awaiting finalisation.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 9 February 2005