SZAJS v Minister for Immigration

[2004] FMCA 68

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAJS v MINISTER FOR IMMIGRATION [2004] FMCA 68

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – claims found to be fabricated – no substance to review application – application an abuse of process – applicant apparently coming to Australia as part of a migration scam – need for an investigation of the role played by the applicant’s former migration agent.

COSTS – Indemnity costs where the application made for an ulterior purpose and constitutes an abuse of process.

Migration Act 1958 (Cth), s.424A

Applicant: SZAJS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ585 of 2003

Delivered on: 12 February 2004

Delivered at: Sydney

Hearing date: 12 February 2004

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Court directs that the Minister’s legal advisers forward a copy of these reasons for decision to the Minister’s Department for the purposes of bringing them to the attention of the Migration Agents Registration Authority.

2. The application is dismissed.

3. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, to be assessed on an indemnity basis, and to be taxed if not agreed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ585 of 2003

SZAJS

Applicant

And

MINISTER FOR IMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 19 March 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Bangladesh and made claims of political persecution.  The background facts are set out in paragraphs 4 and 5 of written submissions prepared on behalf of the Minister by Mr Smith.  I adopt those paragraphs for the purposes of this judgment:

   The applicant arrived in Australia from Bangladesh on 26 April 2001 and on 2 May 2001 lodged an application for a protection visa.  The application was based on the applicant’s claims that he was a member of the Bangladesh Freedom Party.  He claimed that he attended a large public meeting organised by the Freedom Party on 20 October 2000 when the police and Awami League terrorists started attacking those present.  He was beaten unconscious and taken to a nearby hospital.  Because of his attendance at political meetings and previous activities in his Party charges were brought against him and an arrest warrant duly issued.  He claimed that the charges were false and that because of the endemic corruption in Bangladesh he would receive a substantial prison term.

   On 10 May 2001 a delegate of the respondent made a decision refusing to grant the applicant a protection visa and the applicant applied to the RRT for review of that decision on 6 June 2001.  By letter dated 23 January 2003 [court book, page 92] the RRT invited the applicant to attend a hearing to give oral evidence and to present arguments in support of his claims.  The applicant replied in writing to confirm that he did want to come to a hearing [court book, page 94].  By letter dated 19 March 2003 [court book, page 95] the RRT gave the applicant particulars of information which it considered may be the reason or part of the reasons for affirming the decision under review.  Those particulars were that the drama group with which the applicant had travelled to Australia had applied for protection visas through the same migration agent which included similarities such as the dates of the applications, the nature of the applications, the residences in Australia and the similarity of the claims.  On 19 March 2003 the applicant attended a hearing held by the RRT and gave evidence in support of his application.

2. Mr Smith also accurately summarises the RRT’s decision in paragraph 7 of his written submissions.  I also adopt that paragraph for the purposes of this judgment:

   The RRT’s decision turned entirely on the finding of credit.  That finding in turn was based upon the evidence given by the applicant at a hearing held by the RRT at which he answered questions put to him directly by the RRT.  The RRT in turn put to the applicant the information it considered which was adverse to him and also told him that the questions put to him and his inability to answer them in relation to the Freedom Party indicated that he knew nothing of significance about that Party apart from the names of the leaders [court book, page 107.8]. 

3. The application filed on 17 April 2003 asserts that the applicant is a refugee and advances a ground of error of law based upon procedural unfairness.  No particulars were provided but in his oral submissions today the applicant explained that he believes that the presiding member had already made up his mind before the RRT hearing.  In other words, the applicant asserts that a fair minded observer could come to the conclusion that the presiding member did not deal with the matter with an open mind. The applicant told me that he formed that view because the RRT made its decision on the day of the hearing. The applicant is also concerned that the presiding member only asked him questions about his personal circumstances and knowledge of the Freedom Party and not more generally about the risk he may face in Bangladesh. 

4. It is clear from the book of relevant documents (the court book) that the presiding member was sceptical about the applicant's claim prior to the hearing. The mere fact that the applicant was invited to a hearing indicates that the presiding member had some doubts about the claim. Moreover, the applicant was sent a notice under s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) on 19 March 2003. This appears at page 95 of the court book. The notice relevantly states:

   The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. 

   The information is as follows: The Tribunal has information concerning the drama group you travelled with to Australia and their having applied for protection visas through the same migration agent.  In particular the Tribunal has information as to dates of application, nature of applications, residences in Australia and similarity of claims. 

   This information is relevant because it casts doubt on the veracity of your claims.

5. The presiding member clearly raised his concerns with the applicant at the hearing.  The relevant discussion appears on page 104 and 105 of the court book.  In addition, at page 107 of the court book the presiding member says this:

   In interview the Tribunal asked the applicant about the group he had travelled with to Australia and his contact with his migration agent Mr Hoq Mollah.  It was put to him that of those who remained in Australia, that all had applied for protection visas within 3 days of each other and all through the same migration agent.  He said "I only know of one person and he was involved with me".  It was put to the applicant that his history as disclosed in his original protection visa application was very similar in several respects to others constituted to me.  He said that what had been written had happened to him and he was not aware of the claims of anyone else.  The Tribunal put to him that this history together with what was said by him about the apartments he was living in and his travel to Australia indicated to me that his claims may not be true and that he was part of a migration scam.  It was further put to him in relation to the Freedom Party that the questions put to him and his inability to answer them indicated that he knew nothing of significance about that Party [apart] from the names of the leaders.  He said that he couldn't tell any more though had been involved in the Party and if he returned his life would be in danger. 

6. The RRT gave an oral decision affirming the Department decision that the applicant was not entitled to a protection visa.  He was advised that his claims were not accepted as being true and in particular that he knew virtually nothing about the Party and its history.  The presiding member went on to note the remarkable similarly of this claim with four other claims previously considered by the same member and 11 claims considered by other RRT members. 

7. The presiding member then said:

   All files have a history of having the same migration adviser and to have made protection visa applications within days of each other in early May 2001.  All persons arrived in Australia on the same flight… on the same day…  Many of the group live in the same small number of houses.  Of the files constituted to me all claim to be Freedom Party Members of long standing and have similar to very similar stories; three of the applicants live in the same house… 

8. Having regard to these observations by the presiding member, in my view, he was right to have concerns about the applicant's claims.  The protection visa application had every appearance of being made as part of a migration scam.  However, the applicant was given the opportunity to persuade the presiding member otherwise.  He was unable to do so.  On the contrary, his answers to questions confirmed rather than changed the presiding member's opinion.  That does not indicate bias or even a reasonable apprehension of bias.  It indicates that the preliminary view formed by the presiding member about the application was absolutely right. 

9. There is no jurisdictional error in the decision of the RRT.  I will dismiss the application.

10. I have heard from the parties and, in particular, Mr Smith on the question of costs. There are two main issues. The first is the basis on which costs should be awarded. The second is who should pay them. On the first issue, it is my general practice to fix a specific amount of costs. However, in this matter I have formed the view that an indemnity costs award is called for. The decision of the RRT is strongly indicative of there being no substance to the application for a protection visa. The applicant appears to have come to this country as part of a migration scam. The Refugees Convention and the relevant provisions of the Migration Act exist for an important purpose. Large numbers of people in the world depend upon the protection of the Convention for their lives. Applications such as this bring the system into disrepute. Not only was there found to be no substance to the protection visa application, but there was no substance to the application to this Court. In my view, the application constitutes an abuse of the Court's process. I have formed the view that it was made for an ulterior purpose, namely to prolong the stay of the applicant in Australia. This properly calls for an indemnity costs award.

11. I also have a serious concern about the role played by the applicant's former migration agent, Mr Hoq Mollah, as detailed in the decision of the RRT.  Given that concern, I have considered whether I should invite an application for Mr Mollah to pay costs.  However, I accept Mr Smith's submission that there is nothing to indicate that Mr Mollah has played any role in these legal proceedings.  The role played by Mr Mollah in bringing the applicant to this country and in making a protection visa application should be investigated.  I will therefore direct that the Minister's legal advisers forward a copy of my decision and reasons to the Minister's Department for the purpose of bringing them to the attention of the Migration Agents Registration Authority. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  17 February 2004