SZAHZ v Minister for Immigration
[2003] FMCA 597
•15 December 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAHZ v MINISTER FOR IMMIGRATION | [2003] FMCA 597 |
| MIGRATION – Review of RRT decision – where applicant was one of a large group of people applying for protection visas – where applicant complained that Tribunal’s questioning focussed on personal matters and not his political association – whether Tribunal had sufficient evidence to make findings on credibility. |
| Applicant: | SZAHZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 463 of 2003 |
| Delivered on: | 15 December 2003 |
| Delivered at: | Sydney |
| Hearing date: | 15 December 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 463 of 2003
| SZAHZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a citizen of Bangladesh. He arrived in Australia on 26 April 2001. On 2 May 2001, he lodged an appeal for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 10 May 2001, a delegate for the Minister refused to grant a protection visa and on 4 June 2001 the applicant applied for a review of that decision. The applicant attended a hearing before the Tribunal on 11 March 2003. At the conclusion of that hearing the Tribunal determined to affirm the decision of the delegate. It handed down its reasons on 12 March 2003.
The applicant arrived in Australia as part of a travelling troupe and there were approximately 26 people in that group. The applicant claimed that he had a well founded fear of persecution for the convention reason of political opinion. He stated that he was a member of the Freedom Party which he had joined in 1990 and to which he was elected general secretary for his area in 1994. The applicant stated that in December 1995 during a Freedom Party meeting the Awami League attacked the meeting and an Awami League member was murdered.
The applicant claims that he was blamed for the murder and that after the incident several cases were filed against him, one of which was for murder. He stated that that case was under judicial review by the High Court of Bangladesh. The applicant claimed that the Awami League planned to kill him at any cost and he was stopped from freely moving around his home country. In his claims to the delegate, the applicant said that he had connections with the troupe, and had performed several dramas with it.
The claims which I have recited above were made before the delegate. Two years later when the matter came before the Tribunal the applicant had no papers from the High Court of Bangladesh and he resiled from any close connection with the troupe. The Tribunal questioned the applicant closely. It raised with him the fact that out of the 26 people with whom he travelled to Australia, 18 had applied for asylum. They had all used the services of the same migration agent. The applicant told the Tribunal that he did not really know what was going on with the other members of the troupe, although he was aware that two others had applied. The Tribunal asked the applicant questions about his involvement in the Freedom Party to which it received unsatisfactory answers.
At [CB 93] the Tribunal summed up its views as to the applicant in the following way:
“In relation to his original claims and those made at hearing concerning the drama group and their travel to Australia, I note that he originally claimed to have been a member of the troupe, to have performed several dramas in different parts of Bangladesh, and "I was probably rated a good performer". At hearing, however, he claimed not to have been a real member of the troupe and that the association was one of no more than six months and one of convenience only to allow him and his two friends to travel to Australia. Clearly these versions of involvement are at odds with each other and indicate that the applicant is not being truthful in either the first version, the second or indeed in both.
In relation to other matters I note that at hearing he claimed to know little of the members of the group including little about those who live at his residence. He claimed not even to be aware that the persons he resides with were in the same drama group. He was also reluctant to even admit that they were on the same flight as him to Australia. This is clearly a ridiculous situation and is again an indication that the applicant is not being truthful.
The applicant had been able to obtain a passport in his own name, depart Bangladesh for India as part of the drama group in March 2001, return to Bangladesh a few days later and the following month depart from Bangladesh through Zia International Airport. I do not accept these are the actions of someone who is wanted by the police with warrants for his arrest ... I also do not accept that if he was in fact not part of the drama group, that he would have travelled with the group to India and then return to Bangladesh.
Overall I find the applicant has never been a member of the Freedom Party and that his claims are fabricated.
I find the applicant is not a credible witness. I am not satisfied that the applicant has a well founded fear of persecution within the meaning of the convention.”
The applicant's complaint both in his application to the court and before me today was that the Tribunal asked personal questions, not about his political activity but about his association with the other members of the drama troupe. It is quite clear, from a reading of the court book, that the Tribunal did ask questions about the applicant's political association. Unfortunately, the applicant was unable to answer them satisfactorily. It is understandable that the Tribunal asked the applicant a considerable number of questions about his association with other members of the drama group. It was not unreasonable for the Tribunal to be suspicious of an application which was one of 18, all filed by the same migration agent, all of which people came to Australia on the same aeroplane.
In the end the Tribunal made a finding on the basis of credibility. Credibility has been considered by the courts on numerous occasions and it is clearly a matter which is for the Tribunal's decision “par excellence”. The Tribunal had sufficient evidence upon which it was able to make its findings on credibility. Having found that the applicant was not a credible witness, it was perfectly entitled to determine that he was not a genuine refugee. In fact, the Tribunal went further. It came to the conclusion that he was unlikely to have even been a member of the Freedom Party because of his inability to respond to simple questions about the party's set-up and its running of candidates in the elections.
In these circumstances, I am unable to grant the applicant review of this decision. I dismiss the application and I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21, Rule 21.2(2)(a) of the Federal Magistrate's Court Rules.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
0
0
0