SZAGC v Minister for Immigration
[2003] FMCA 448
•3 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAGC v MINISTER FOR IMMIGRATION | [2003] FMCA 448 |
| MIGRATION – Review of RRT decision – application for a protection visa – where the applicant claims to have a well-founded fear of persecution for reasons of political association – where the applicant claims to have changed her identity – where the Tribunal made adverse credibility findings – whether there is a reviewable error. |
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
SGDB v Minister for Immigration [2003] FCA 74
Muin v Refugee Review Tribunal [2002] HCA 30
Kamal v Minister for Immigration [2002] FCA 818
Re Minister for Immigration; Ex parte Durairajasingham [2000] 168 ALR 407 W148/00A v Minister for Immigration [2001] FCA 679
WACA v Minister for Immigration [2002] FCA 122
| Applicant: | SZAGC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 318 of 2003 |
| Delivered on: | 3 October 2003 |
| Delivered at: | Sydney |
| Hearing date: | 3 October 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Self-represented |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 318 of 2003
| SZAGC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a Bangladeshi citizen who arrived in Australian on 19 October 2000. On 16 November 2000 she lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 10 April 2001 a delegate of the Minister refused to grant her a protection visa and on 4 May 2001 she applied for review of that decision by the Refugee Review Tribunal.
On 3 January 2003 the Tribunal wrote to the applicant advising her that it had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. The Tribunal appointed 30 January 2003 as a date upon which the applicant may attend it and give evidence. Prior to that date, on 3 January 2003, the Tribunal wrote to the applicant providing her with certain information which might be the reason, or part of the reason, for deciding that she was not entitled to a protection visa. She was invited to comment upon that information at the hearing. The applicant was assisted by a migration agent.
The applicant's claim to have a well-founded fear of persecution for the convention reason of political opinion was based upon the fact that she was an activist in the Freedom Party. She claimed to have married in 1994 and that her husband was also an activist. He had persuaded her to join the party. He knew many members of the party.
She claimed that she also knew some of these persons. It is common knowledge that senior members of the Freedom Party were indicted in respect of a plot to assassinate Sheik Mujibur Rahman who was the leader of the Awami League. When the Awami League won the 1996 election in Bangladesh it targeted members of the Freedom Party, a large number of whom were arrested, charged, and sentenced to long terms of imprisonment. Some were given the death sentence.
The applicant claimed that she and her husband had to leave Bangladesh and that they moved into India and into other countries before returning to Bangladesh in 2000. She told the Tribunal that in June 2000 she and her husband were returning from a visit to a political friend when the rickshaw in which they were travelling was attacked by Awami League terrorists and her husband was shot to death. After this incident the applicant feared for her own safety and fled to Australia in October.
In its findings and reasons which are found at [CB 118-121] the Tribunal says:
“I accept that the applicant is a national of Bangladesh. However, I have great difficulty believing that anything she said in the course of applying for a protection visa is true. The applicant has admitted to travelling to Australia using a passport which was not her own. However, she used that name in her protection visa application. She ensured that the details of her claim put to the Department of Immigration accorded with the information contained in that passport. The applicant maintained that the passport was hers even when evidence to the contrary was put to the applicant during the Departmental interview. In my view, the applicant's lack of frankness in relation to the issue of her identity adversely affects her credibility as a whole.”
The Tribunal goes on to doubt whether the applicant is even the person she now says she is but for the purposes of this decision it accepts that she is that person and was born on 15 March 1973. However, the Tribunal finds that other evidence not related to her identity was vague, internally inconsistent, and inconsistent with independent evidence. The Tribunal goes on to give examples of the inconsistencies.
Finally, the Tribunal says:
“As I cannot be satisfied that the applicant's husband was killed because of his political activities or that the applicant was active in the Freedom Party, I cannot be satisfied that the applicant is at risk of being killed or otherwise harmed in Bangladesh because of her own political opinion, that of her husband, or because she could bring charges against the people she claims killed her husband. The applicant has not claimed a fear of persecution in Bangladesh for any other reason and no other reasons are suggested on the evidence before me.”
The application filed by the applicant in this court states that the applicant is aggrieved by the decision because the Tribunal member failed to consider her fear of persecution, that the Tribunal member did not consider as a refugee although she believed she was a genuine refugee, that the Tribunal member did not bring into account the gravity of her fear for her life and the murder of her husband and the Tribunal member did not bring into account the political terrorists who killed her husband and could do serious harm to her. The application states that the Tribunal's member's decision was unfair, unjustified, and was based on unreliable sources.
Before me today the applicant produced a document entitled, “written argument.” She told me that it had been prepared with the assistance of a friend. This document seeks to attack the Tribunal's decision on the grounds that it did not have regard to the evidence and ignored the merits of her claim. The submissions state that the Tribunal did not act in good faith but provides no particulars of that very serious allegation. The submissions state that the Tribunal made a number of errors but does not particularise them. The document then makes reference to Abebe v Commonwealth of Australia (1999) 162 ALR1 at 33 and the decisions of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 and SGDB v Minister for Immigration [2003] FCA 74 as well as the case of Muin v Refugee Review Tribunal [2003] HCA 30. The document does not indicate how these cases are relevant to that of the applicant.
In her oral submissions the applicant told me that what she had told the Tribunal about her problems in Bangladesh and about the slaying of her husband was true but the Tribunal did not believe her. She informed me that she had genuine problems in Bangladesh and was a genuine refugee. She asked me to re-consider her case.
It should be clear from this recital of the history of these proceedings that what the applicant is seeking is a merits review. In common with many applicants she has a concern that the Tribunal did not accept her story. But she is probably not aware of the limitations upon this court in particular those concerning findings of credibility discussed by the Federal Court and the High Court in cases such as Kamal v Minister for Immigration [2002] FCA 818 at [36], Re Minister for Immigration; Ex parte Durairajasingham [2000] 168 ALR 407 at [67] or W148/00A v Minister for Immigration [2001] FCA 679 at [64] and [67] and WACA v Minister for Immigration [2002] FCA 122 at [8].
I have considered the court book and the information which was before the Tribunal. I am satisfied that the Tribunal was capable of coming to the conclusions which it did from the evidence which was before it including the applicant's admissions concerning her false passport. In the circumstances I am unable to grant review of this decision. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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