SZALB v Minister for Immigration
[2004] FMCA 191
•24 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZALB v MINISTER FOR IMMIGRATION | [2004] FMCA 191 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – no jurisdictional error disclosed – application dismissed. |
| Applicant: | SZALB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ661 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: | Blake Dawson Waldron |
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 $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ661 of 2003
| SZALB |
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 20 March 2003 and handed down on 11 April 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 relevant background facts and circumstances are set out in paragraphs 2, 3 and 4 of written submissions prepared on behalf of the Minister by Mr Reilly. I adopt those paragraphs for the purposes of this judgment:
The applicant applied for the visa on 8 December 2000: court book, pages 1-44. The delegate’s decision refusing the visa was made on 28 February 2001: court book, pages 45-53. The applicant applied to the RRT for review on 26 March 2001: court book, pages 54-57. The RRT held a hearing on 19 March 2003.
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 1999 and had false charges filed against him in 1995 by members of the rival Awami League (AL). He claimed to have been in hiding outside Dhaka since 1995 (although he later told the RRT he was working in Dhaka from 1997 to 2000). He claimed to fear further harm from AL members if returned to Bangladesh. See generally court book, pages 32-38, 68-75, 201-207.
The RRT found that the applicant was not credible, and had fabricated his claims: see generally court book, pages 210-214. The RRT noted that he demonstrated very little knowledge of the FP at the hearing (court book, page 212), and found that the applicant’s claim to be a member of the FP had been fabricated: court book, page 214.3. The RRT concluded that it accordingly did not accept the applicant’s claims that he had been harmed by the AL or anyone else for this reason: court book, page 212.6. Further, the RRT noted a number of inconsistencies and contradictions in the applicant’s evidence concerning his whereabouts, and concluded that the applicant was not in hiding as he had claimed: court book, page 213.4. The RRT placed no weight on the supporting documents submitted by the applicant, noting its general findings that the applicant was not credible, and also country information concerning document fraud in Bangladesh: court book, pages 213.6-214.2 (discussed with the applicant during the hearing: court book, pages 206-207).
The applicant proceeds on the basis of his application filed on 29 April 2003. In that application the applicant asserts that he is a genuine refugee, but as I explained to him, it is not the function of the Court to decide that issue. He also criticises the decision of the delegate, but as I explained to him, the Court is reviewing the decision of the RRT, not the delegate.
In relation to the RRT decision, the applicant asserts that the RRT did not take into account his evidence and therefore made an error of law. He also asserts that the RRT did not investigate his case. There is no substance to either of those grounds of review. Far from there being an absence of consideration of the applicant's case, the decision of the RRT indicates an especially thoughtful and detailed consideration. Ultimately, however, the applicant failed because he was not believed.
The applicant is concerned that his evidence may not have been understood properly and that the presiding member made factual errors. In his oral submissions the applicant took issue with the presiding member's findings that the applicant was wrong in stating that there is no youth wing of the Freedom Party. He also asserts that the presiding member misunderstood his evidence about his residence and should have accepted that he was in hiding at the relevant time.
Even allowing for the possibility that the presiding member may have made a factual error in relation to the youth wing of the Freedom Party, there was ample material before the RRT in order for it to make the adverse credibility findings that were made. The applicant had been inconsistent in his evidence and displayed little knowledge of the Freedom Party.
I agree with Mr Reilly that the credibility findings made by the RRT were reasonably open to it on the material before it. As Mr Reilly pointed out, credibility findings are matters of fact for the RRT. The applicant does not agree with them but his dissatisfaction, in my view, does not really extend beyond an attack on the merits of the RRT decision.
I have examined the decision of the RRT and, in my view, there is no jurisdictional error apparent from the record, either on the basis of the application or otherwise. I will therefore dismiss the application.
On the question of costs, Mr Reilly seeks an order for costs and submits that costs should be fixed in the sum of $4,000 on a party/party basis. The applicant refers to his inability to pay. As I explained to him, impecuniosity is not a reason for the Court to refrain from making a costs order. Costs should follow the event but, in my view, a proper award of party/party costs should be somewhat less than the $4,000 sought.
The matter was relatively straightforward. The amount of preparation required on behalf of the Minister was no more than average. While I welcome Mr Reilly's assistance, it is debatable whether the matter really called for representation by counsel. 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 $3,000.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 March 2004
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