SZAKL v Minister for Immigration

[2004] FMCA 170

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAKL v MINISTER FOR IMMIGRATION [2004] FMCA 170

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – no reviewable error found – application dismissed.

SZAJS v Minister for Immigration [2004] FMCA 68

Applicant: SZAKL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ619 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: Ms S Kaur-Baines

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ619 of 2003

SZAKL

Applicant

And

MINISTER FOR IMMIGRATION &
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 10 March 2003 and handed down on 3 April 2003.  The RRT affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa. 

2. The applicant is from Bangladesh and made claims of political persecution.  The background facts, including a description of the decision of the RRT, are accurately set out in written submissions prepared by Ms Kaur-Bains in paragraphs 2-6 of those written submissions.  I adopt those paragraphs for the purposes of this judgment: 

   The applicant entered Australia on 26 April 2001 and on 3 May 2001 lodged an application for a protection visa. 

   The applicant claimed that he had a well-founded fear of being persecuted for reasons of his political opinion, being a member of the Bangladesh Freedom Party.  He claimed that he had a family background in political activities and because of family influences he joined the Bangladesh Freedom Party as a general member in 1991. He became seriously involved in the activities of the party including processions, demonstrations and meetings.  The applicant also claimed that an Awami League activist was murdered and he was blamed for the murder and there was a false charge against him, and there was still several cases filed against him.  The applicant claimed that the Awami League were looking for him as were the police and his life was under threat in Bangladesh (court book, page 95, second paragraph).

   Decision of the RRT

   The RRT did not accept the applicant’s evidence that he had been a member of the Bangladesh Freedom Party since 1991 and found that he was not a credible witness and his claims were fabricated (court book, page 102, second paragraph).  This decision was based on the RRT’s assessment of the evidence given by the applicant. 

   The RRT found that:

   a)The applicant knew virtually nothing about the Freedom Party other than very general knowledge. Given the applicant’s educational background and claimed profile in the Party he should have known more than he did;

   b)The applicant did not know the names of the Freedom Party members who ran in the 1996 elections, being the last time that the Party put forward candidates in any elections.  The fact that the applicant did not know the names indicated that he was not involved in those elections;

   c)The applicant’s alleged participation in Freedom Party rallies as late as 2001 was untrue given that such an event had not been reported and the country information relating to the Party was to the effect that since 1998 the Party had little significance and was in a defunct and moribund state.

   d)The RRT also found the applicant had been able to obtain a passport in his own name and depart Bangladesh for India in March 2001, return to Bangladesh a few days later and the following month depart from Bangladesh through Zia International Airport legally without interference from the police. The RRT found that these were not the actions of someone who was wanted by the police with warrants for arrest (court book, page 103, first paragraph).

3. The applicant relies upon his application for review filed on 23 April 2003, an affidavit in support filed on the same day and written submissions filed on 15 March 2004.  In his application the applicant asserts that the RRT failed to consider his claim that he was a genuine freedom fighter and that he had become a political victim. 

4. The applicant claimed to be a member of the Freedom Party and asserts that his claim was not considered.  Secondly, the applicant asserts that the RRT did not take into account the gravity of his fear of fabricated charges brought against him and did not believe that charges had been laid against him.  Thirdly the applicant asserts that the RRT’s decision was unfair, unjustified and was too personal based on unreliable sources.  Finally, the applicant asserts that the RRT asked too many narrow and personal questions rather than asking questions about the applicant's persecution problems. 

5. In his written submissions, the applicant asserts in general terms what the obligations are upon a decision maker assessing a protection visa application.  The applicant asserts that he is a genuine refugee and that if his application had been properly assessed it would have been accepted.

6. As I explained to the applicant, the task of the Court is a limited one.  The task of the Court is to identify jurisdictional error.  I do not find the applicant's written submissions to be of assistance in identifying any jurisdictional error.  It is apparent that the decision of the RRT was based upon adverse credibility findings.  Based upon those credibility findings, the presiding member found that the applicant had never been a member of the freedom party, contrary to his claims, and that his claims were fabricated.

7. It is apparent to me that, contrary to the applicant's assertions, the RRT did consider the applicant's claim to be a member of the Freedom Party.  However, the claim was rejected.  The asserted fabricated political charges were dependent upon acceptance that the applicant had indeed been politically active.  The rejection of the applicant's claim to have been a member of the Freedom Party and to have been politically active carried with it a rejection of his claim to have been subject to a false political charge. Both claims were considered and rejected by the RRT. 

8. There is no substance to the applicant's claim that the RRT decision was unfair, unjustified or too personally based.  The applicant has not produced any evidence of procedural unfairness.  He asserted in his affidavit that at the RRT hearing he was frightened and was not able to deal effectively with the RRT’s questions.  However, he could not recall whether he had drawn any problems to the attention of the presiding member.

9. The decision of the RRT was justified in as much as the adverse credibility findings were reasonably open to the RRT on the material before it.  The decision was in a sense personally based in that the adverse credibility findings were based upon the questions put to the applicant at the hearing and his responses to them.  However, the RRT is entitled to test the veracity of the applicant's claims at an oral hearing. 

10. The mere fact that the applicant was invited to an oral hearing indicates that the RRT was unwilling to make a decision on the written material alone.  The questions asked of him may have been unwelcome or may have made him feel uncomfortable but the RRT was entitled to ask them.

11. In one sense, probably not intended by the applicant, it is true to say that the decision of the RRT was based on an unreliable source.  The RRT decided that the applicant's claims were not to be believed and in that sense he was taken to be an unreliable source by the RRT. 

12. There is no jurisdictional error in the decision of the RRT.

13. I note in passing that the presiding member states on page 12 of his reasons (court book, page 102) that he has carefully considered the applicant's claims and evidence.  In my experience it is generally not helpful and may be counter-productive to assert careful consideration.  The Court expects that the RRT would always give careful consideration to claims and evidence.  Where an assertion of careful consideration is made it does not add anything to the decision and it invites speculation as to the reasons why the presiding member felt it necessary to assert that careful consideration. 

14. I also note that the facts in relation to this applicant's claims of persecution and the circumstances of his arrival in Australia appear very similar to facts and circumstances of the matter that I dealt with in SZAJS v Minister for Immigration [2004] FMCA 68. I cannot say with any certainty that the claims of this applicant are necessarily related to the claims of the applicant in that case. However, they may be. The presiding member who dealt with the applicant in the matter of SZAJS took some considerable trouble to inform himself about apparently related claims.  It appears that the presiding member in this case may not have pursued the same lines of inquiry.  To that extent the applicant can probably count himself fortunate. 

15. I will dismiss the application. 

16. On the question of costs Ms Kaur-Bains has sought an order for costs and has invited me to fix an amount.  This was a matter requiring at least an ordinary amount of preparation on behalf of the Minister.  The Minister had to deal with an application and supporting affidavit and, at a late stage, written submissions from the applicant.  In the circumstances of this matter, I will order that the applicant pay the respondent Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  23 March 2004