SZAKU v Minister for Immigration
[2004] FMCA 188
•24 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAKU v MINISTER FOR IMMIGRATION | [2004] FMCA 188 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – no substance to assertions of jurisdictional error – application an abuse of process – indemnity costs award in a fixed amount – referral of decision to MARA for consideration. |
Migration Act 1958 (Cth), s.474
Abebe v Commonwealth (1999) 197 CLR 510
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Linnett v McIntyre (2002) 117 FCR 189
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration; ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
Re Minister for Immigration; ex parte Lam (2003) 195 ALR 502
SZAJS v Minister for Immigration [2004] FMMCA 68
W148/00A v Minister for Immigration (2001) 185 ALR 703
| Applicant: | SZAKU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ644 of 2003 |
| Delivered on: | 24 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 24 March 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr T Reilly |
| 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 $4,500.
The transcript of today’s proceedings be obtained and the Court refer the transcript, a copy of the decision of the Refugee Review Tribunal in this matter, a copy of my reasons for decision in this matter if produced and a copy of my reasons for decision in SZAJS v Minister for Immigration [2004] FMCA 68 to the Migration Agents Registration Authority for such action as it considers appropriate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ644 of 2003
| SZAKU |
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 11 March 2003 and handed down on 3 April 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The essential background facts and circumstances are set out in Mr Reilly's written submissions filed in chambers on 19 March 2004. I adopt paragraphs 1 to 4 of those written submissions for the purpose of this judgment:
On 3 April 2003 the RRT handed down a decision affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.
The applicant applied for the visa on 3 May 2001: court book, pages 1‑31. The delegate’s decision refusing the visa was made on 10 May 2001: court book, pages 32-39. The applicant applied to the RRT for review on 31 May 2001: court book, pages 42-49. The RRT held a hearing on 6 March 2003: court book, page 73.
The applicant claimed to fear persecution for reason of his political opinion in Bangladesh. He claimed to be a leading member of the Freedom Party (FP), and to have been assaulted in January 2001 and had false charges brought against him by members of the rival Awami League. He claimed to have then gone into hiding. He claimed to have been a member of a drama group since 2000, and was able to obtain a visa to come to Australia for this reason. See generally court book, pages 26-31, 46-49, 80-84.
The RRT found that the applicant was not credible, and had fabricated his claims: see generally court book, pages 89-90. The RRT noted that he demonstrated very little knowledge of the FP at the hearing, and found that the applicant’s claim to be a member of the FP had been fabricated: court book, page 90.2. Similarly the RRT regarded the applicant’s claims as to being wanted by the Bangladeshi authorities as inconsistent with his ability to leave Bangladesh legally on his own passport.
I note at this point that the background facts and circumstances in this matter are remarkably similar to those in the matter of SZAJS v Minister for Immigration [2004] FMCA 68. The presiding member noted in his reasons for decision the remarkable similarity between the claims by this applicant and the circumstances of his arrival in Australia and a significant number of other applications. It appears that this applicant is one of a group of people who arrived in Australia from Bangladesh at the same time ostensibly as members of a drama troupe.
It appears that all members of the group on arrival in Australia sought protection visas and made claims of membership of the Bangladesh Freedom Party. I have seen three such cases myself. In each of those cases the applicants were unsuccessful before the RRT because the credibility of their claims was rejected. To put it mildly, the credibility concerns of the presiding member in this case were reasonably open to him on the material before him.
There is nothing in the application for review filed on 28 April 2003 which discloses a reasonable cause of action. It is simply a list of grounds of review with no particulars. On 11 June 2003 the applicant was ordered, by consent, to file and serve an amended application and any evidence upon which he proposed to rely on or before 30 September 2003. An amended application with particulars of the grounds of review relied upon was necessary in order to enlighten the Court and the Minister as to what in reality was the applicant's concern about the decision of the RRT. No amended application was filed.
In the circumstances, if the matter had come before me on a motion for summary dismissal I would have been minded to grant it. However, it has come before me for hearing and I have heard it. The applicant has filed what purport to be written submissions on 24 March 2004. The written submissions are no more than a farrago of snippets of information from previous cases. The submissions also assert that the applicant is a genuine refugee, but that is not for the Court to decide.
I reject the applicant's submissions. I adopt those of Mr Reilly set out in paragraphs 5 through to 7 of his written submissions:
It is apparent that the applicant was unsuccessful because of the view the RRT took of the facts, in particular its finding that the applicant was not credible and his claims fabricated. Such findings are matters of fact for the RRT par excellence: Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the RRT’s credibility findings were open to it, no error is demonstrated in such conclusions: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and R D Nicholson JJ. The RRTs findings were open for the reasons it gives. The Court cannot review the merits of the RRT’s decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the RRT making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
The application does not properly particularise any error in the RRT’s decision. Improperly, an unparticularised allegation of bad faith is made. There is no basis for any of the assertions in the application, including the assertion that the applicant was denied natural justice, and in the absence of particulars the application raises no case to answer.
As there is no arguable jurisdictional error in the RRT’s decision it is strictly unnecessary to discuss the effect of Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 or s 474 of the Migration Act 1958 (Cth) (the Act). However the distinction between jurisdictional and non-jurisdictional errors remains: Linett v McIntyre (2002) 117 FCR 189 (FC) at [5], [30-35], [86-87]; Re Minister for Immigration; Ex parte Lam (2003) 195 ALR 502 at [77]; Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [59]. The RRT was plainly addressing the right question, and the applicant’s complaints can at most concern the weight given to evidence before it, which cannot be a jurisdictional error: Linett. As there is no jurisdictional error in the RRT’s decision it follows that it is a “privative clause decision” within s.474 of the Act.
Mr Reilly did not consider it necessary to expand upon his written submissions. Neither did the applicant.
There is no jurisdictional error in the decision of the RRT. The application must be dismissed.
On the question of costs, Mr Reilly has sought an order for indemnity costs fixed in the sum of $4,500. I accept that costs of that order would have been reasonably and necessarily incurred on behalf of the Minister in this matter. In addition, I accept that an indemnity costs order is called for for essentially the same reasons as I expressed in SZAJS and Minister for Immigration. This application is an abuse of process. The application disclosed no cause of action and orders of the Court seeking to extract an application that did disclose a cause of action were not complied with. The applicant's written submissions did not advance his position at all. I surmise that this application was made for the purpose of extending the applicant's stay in Australia. For all of those reasons 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 $4,500.
I will also order that the transcript of today's proceedings be obtained and that the Court refer the transcript, a copy of the decision of the RRT in this matter, a copy of my reasons in this matter if produced and a copy of my reasons for decision in SZAJS and Minister for Immigration to the Migration Agents Registration Authority for such action as it considers appropriate.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 31 March 2004
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