SZAKH v Minister for Immigration
[2004] FMCA 146
•17 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAKH v MINISTER FOR IMMIGRATION | [2004] FMCA 146 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – no reviewable error found – application dismissed. |
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
| Applicant: | SZAKH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ610 of 2003 |
| Delivered on: | 17 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 17 March 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SZAKH |
SZ610 of 2003
| SZAKH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 26 March 2003. The decision was advised to the applicant, both orally and in writing, on that day. 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 asserted political persecution in that country.
The background facts and circumstances including the RRT decision are set out in written submissions prepared by Mr Smith in paragraphs 5 through to 8. I adopt that statement of background facts for the purposes of this judgment:
The applicant claimed to be a citizen of Bangladesh who arrived in Australia on 17 May 2001 and applied for a protection visa on 6 June 2001. In the statement accompanying that application the applicant claimed that he feared persecution in Bangladesh by reason of his political opinion. In particular, he claimed that he had been persecuted in the past by members of the Awami League and the police by reason of his involvement in the Bangladesh Freedom Party.
A delegate of the respondent decided on 22 August 2001 to refuse to grant the applicant a protection visa and on 12 September 2001 the applicant applied to the RRT for review of that decision.
By letter dated 23 January 2003 (court book, page 69) the RRT informed the applicant that it had considered the material before it and was unable to make a decision in his favour on that material alone. In the letter the RRT invited the applicant to attend a hearing in order to give further evidence and to make submissions in support of his claims. The applicant attended the hearing on 26 March 2003 and on that day the RRT delivered its decision.
Tribunal’s Decision
The RRT did not accept the applicant as a credible witness. This was because at the hearing the applicant was unable to answer anything of significance about the Freedom Party. According to the RRT the applicant did not know when that Party was formed, he did not know the name of its youth wing, the name of the newspaper or anything about the local Freedom Party in the electoral districts which it had contested in the June 1996 elections. Apart from knowing that Colonel Farook had been detained in 1997 the applicant knew nothing about the personalities in the Party and particularly not the central leadership although he knew the name of the Awami League candidate and the name of the youth wing in his area. In light of the applicant’s evidence in this respect the RRT found that the applicant had never had an association with or had been a member of the Freedom Party and that his claims to that extent were fabricated. The RRT concluded that the applicant was not a person to whom Australia owed protection obligations.
The applicant proceeds on the basis of his application filed on 22 April 2003. In that application, apart from asserting that he is a genuine refugee, the applicant alleges a lack of procedural fairness in the RRT proceeding. He also asserts that the RRT did not consider any oral evidence and took its decision prior to the hearing. These matters are dealt with in paragraphs 9-11 of Mr Smith's written submissions:
In the absence of particulars it is difficult to address the grounds raised in paragraph 1 of the application for review. Nevertheless, the findings of the RRT are so clear that it cannot be said to have made any error of law. Having rejected all of the applicant’s claims there was nothing for the RRT to do but to affirm the decision under review. It was not a case where there was some residual factual element which could possibly lead to a finding that the applicant was a person to whom Australia owed protection obligations under the Convention. Simply put, the RRT did not accept a word of what the applicant said and on this basis was entitled to reject the application and to affirm the decision under review.
There is no evidence to suggest that the applicant was denied procedural fairness. It is clear that he was invited to and attended a hearing and that at that hearing the RRT put to him that it did not accept his evidence because it was inconsistent with the RRT member’s knowledge of the Freedom Party: court book, pages 260-261. The applicant there had the opportunity to address that issue and attempted to do so. The fact is that the rrt was not convinced by the applicant’s evidence.
In order to establish that the RRT was biased the applicant must show that its mind was so made up that it was incapable of alteration regardless of what evidence or material was put before it: Minister for Immigration v Jia Legeng (2001) 205 CLR 507. The evidence before the Court establishes that the RRT was not able to make a favourable decision on the material before it prior to the hearing and that it was not convinced by the applicant’s evidence at the hearing that it ought to make a favourable decision. Further, the evidence establishes that the critical issue for the RRT was the evidence given by the applicant as to his knowledge of the Bangladesh Freedom Party. This suggests that far from having a closed mind the RRT was swayed by the evidence given to it such that it relied entirely upon that evidence in order to arrive at its decision. This ground cannot be made out.
The applicant was not able to add significantly to his claims in his oral submissions today. He is concerned that the hearing was unfair and the presiding member was biased. He recalls that he was asked a lot of questions by the presiding member and that he was nervous. He recalls that after discussing matters with other Bangladesh visa claimants, he was deterred from producing documents in support of his claims because of concern that the documents would not be accepted. However, it was the applicant's choice not to submit documents. This case was not decided by the RRT on the basis of documents or a lack of documents. It was decided on the basis of the presiding member's view of the applicant's claims following the hearing.
The RRT had formed a preliminary view by 23 January 2003 when a hearing invitation was sent to the applicant (court book, page 69). However the adoption of a preliminary view does not carry with it any implication of bias.
The applicant was given an opportunity at the hearing before the RRT on 26 March 2003 to expand and support his claims. The presiding member was entitled to test the veracity of his claims through interrogation. The opportunity given to the applicant by the RRT appears to me to have been a fair one. It appears that the applicant was somewhat nervous at the RRT hearing but he told me that he did not alert the presiding member to any problem he may have had. The presiding member clearly had credibility concerns but put them to the applicant. There is nothing before me to persuade me that the presiding member had a closed mind. The decision was clearly based on credibility findings made by the presiding member but it appears to me that those findings were reasonably open to the RRT on the material before it.
I agree with and adopt, for the purposes of this judgment, paragraphs 9, 10 and 11 of Mr Smith's written submissions.
There is no jurisdictional error in the decision of the RRT. In the circumstances, the application must be dismissed.
On the question of costs, Mr Smith submits that I should make a costs order and has invited me to fix costs in the sum of $4,000 on a party/party basis. The applicant has invited me to fix costs in a reduced amount. He has referred to his inability to pay costs. However, impecuniosity will not affect the decision of the Court as to whether to make a costs order or the quantum of the costs order. That said, there was nothing in this case to take it out of the ordinary run of cases. There was no more than an average amount of preparation required by the Minister. The issues raised by the applicant were relatively straightforward and relatively easily dealt with by the Minister's legal advisers. Having regard to the low level of complexity in the case and the average level of preparation required, in my view, $3,500 would be adequate recompense to the Minister. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 March 2004
0