SZANG v Minister for Immigration
[2004] FMCA 364
•3 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZANG v MINISTER FOR IMMIGRATION | [2004] FMCA 364 |
| MIGRATION – Review of RRT decision – where initially applicant claimed to have a well-founded fear of persecution on basis of his political opinion and homosexuality – where latter claim withdrawn on day of RRT hearing – where Tribunal questioned applicant as to inconsistencies in his claim and fact that his claim mirrored that of another applicant – where Tribunal made adverse findings as to applicant’s credibility – where applicant failed to particularise his claims – whether Tribunal asking questions repeatedly evidences bad faith – whether the findings and reasons of the Tribunal evidences jurisdictional error or denial of procedural fairness. |
RRT; Ex parte H [2001] HCA 28
Abebe v The Commonwealth [1999] 197 CLR 510
Waterford v The Commonwealth [1987] 163 CLR 54
SCAA v Minister [2002] FCA 668
SBBS v Minister [2002] FCAFC 361
| Applicant: | SZANG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 746 of 2003 |
| Delivered on: | 3 June 2004 |
| Delivered at: | Sydney |
| Hearing date: | 3 June 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in Person |
| Counsel for the Respondent: | Mr J A C Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,850.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 746 of 2003
| SZANG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFIARS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh. He arrived in Australia on 10 May 2001. On 22 June 2001 he made an application for a Protection (Class XA) Visa to the Department of Immigration and Multicultural and Indigenous Affairs. On 30 April 2002 a delegate of the Minister refused to grant a protection visa and on 27 May 2002 the applicant sought review of that decision by the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal on 10 April 2003. At the termination of the hearing the Tribunal advised the applicant that it intended to affirm the decision not to grant a protection visa. The decision was handed down on 24 April 2003.
The applicant originally claimed to have a well-founded fear of persecution for the convention reasons of political opinion and membership of a particular social group. The political opinion which he espoused was that of membership of the BNP. The particular social group to which he claimed to belong was that of homosexuals in Bangladesh. The Tribunal found that the applicant had left Bangladesh with another person who had owned a company which the applicant worked for in Oman. Both of these people arrived in Australia on the same day and resided at the same address in Sydney. The Tribunal at found that they had approached the same adviser and launched their protection visa applications on the same day. At [CB 131] the Tribunal said:
“ In very nearly identical submissions prepared by that adviser they both claimed to be homosexual and cited each other as their long-term sexual partner. Given these claims about being each other's partner, it is to be expected that up to a point they would lodge similar claims based upon a common history of attraction and emotional interdependence. Indeed, they both claim they had fled Bangladesh for their lives. They claimed their individual sexuality in their relationship was discovered by undefined and unquantified Muslim hardliners who threatened to kill them and who would kill them if they, the two applicants, ever returned to Bangladesh.
Oddly, however, both applicants separately withdrew their claims relating to homosexuality on the days of their respective RRT hearings (and not before), claiming, again separately, that they no longer feared being persecuted in Bangladesh for reasons of homosexuality. The present applicant's reasons for the withdrawal were virtually identical to the reasons provided by the other applicant: he had recently decided that he no longer wanted to be homosexual and therefore considered himself safe from persecution henceforward.”
Although the claim concerning the applicant's homosexuality and the possibility of his being persecuted as a result had been withdrawn, the Tribunal discussed with the applicant the internal inconsistencies in what he was now saying. These inconsistencies, together with the existence of an almost identical application on the part of the other asylum seeker, gave the Tribunal cause to doubt the credibility of the applicant. For example at [CB 134]:
“ However, paragraph 16 of the applicant's factual submission corresponds precisely, in all relevant respects, with paragraph 15 in the submission pertaining to the applicant in RRT case NO2/42759. Apart from one small, unique geographical particular, that appears to represent nothing more than an attempt on the narrator's part to appropriate a generic account as his own, the paragraph cited precisely the same ordering of identically expressed actions and reactions not just pertaining to the narrator but to other players in the story. It cites precisely the same causes and effects, again identically ordered and termed, right down to a detail about the narrator's political enemies having "tried to destroy the business of my mother." It also repeats the same grammatical and syntactical errors, arguing that paragraph 16 in the present Applicant's file and paragraph 15 in the other's are two copies of the one statement originating from the one author, whether it was the present Applicant, the other applicant, the adviser himself, or someone else.”
The applicant had left Bangladesh in 2001 in order to work in Oman. In April 2002 he returned to Bangladesh although at that time he held a valid passport and a valid visa to enter Australia. He remained in Bangladesh for just over a month before he departed to Australia. The Tribunal considered that this was evidence that the applicant did not have a subjective fear of persecution. It discussed the matter with the applicant before concluding at [CB 135]:
“He not only provided no logical reason for returning to Bangladesh in April 2003; he failed to provide a reason for hiding in Dhaka for a month when it should have been plain to him that if he had to go into hiding in the first place then he should not remain in the country at all.”
The applicant also made allegations that he was the subject of false charges having been laid against him by political enemies. He was able to provide the Tribunal with considerable detail about the formal particulars of the case but, the Tribunal found, very few details about the facts. The Tribunal pointed out to him that if the case had been commenced in April 2001, as the case number which the applicant cited for it appeared to indicate that it did, he would easily be able to have the charge thrown out on the simple ground that his passport showed clearly that he was resident in Oman at the time.
At [CB 139] the Tribunal deals with its reasons for finding against the applicant:
“ It is important to make clear, however, that in dismissing the present application as fraudulent, the Tribunal does not need to rely on the evidence of the Applicant sharing claims with another applicant through his adviser. It has been shown that his evidence was internally inconsistent on its own. This is the central and ultimate problem for the Applicant. The problem is exemplified in his poor performance in relation to paragraph 16 of his printed submission, particularly with respect to the following two sentences:
"In the end of April 2001 a group of Awami thugs tried to kill me twice. Luckily I was saved twice."
The Applicant's inconsistent evidence about these two episodes and their resolution shows that he is not the author of his substantive claims. It ultimately does not matter whether they appear in some other applicant's file or not. The Tribunal finds that they are simply not true claims in the present Applicant's case.”
At [CB 140] the Tribunal makes a further finding that even if it is wrong concerning the applicant's credibility he is not a person to whom Australia would have protection obligations because the politically motivated charges which he claimed to have been made could easily be dismissed and because the party which he claimed to support, the BNP, was now in power.
The applicant's application to this Court, filed on 5 May 2003, outlines grounds for setting aside the decision of the Tribunal. The first ground is, "The Tribunal did not take into account the conviction of Court case against me in Bangladesh of a convention-based reason." As Mr Potts, who appears on behalf of the Minister, points out, the applicant has never said that he has been convicted in any Court. He claimed that there were false charges laid against him. The result of those charges is unknown. What is clear, however, is that the Tribunal did deal with them. It dealt with them in some detail, and it put what I consider to be a fairly cogent argument to the applicant as to how he might secure his release from any charges hanging over his head.
The second ground was, "The Tribunal made its decision in bad faith." Order 54B rule 2 of the Federal Court Rules requires allegations of bad faith to be particularised. That has not been done by the applicant even though the usual orders were made by the Registrar of this Court when the matter came on for directions. The applicant has provided the Court with an outline of submissions. On page 3 of those submissions the applicant says the following:
“The decision-maker acted in bad faith. This is very easy to find, the RRT decision dated 10 April 2003, in my refugee application. This means that the decision-maker got the facts wrong, took into account irrelevant matter, did not take certain matters into consideration. And the decision-maker did not make an honest attempt to come to the right decision, also the decision-maker intentionally made a wrong decision, in other words acted in bad faith.”
The applicant did not particularise this paragraph in any way. Before me he stated that he complained about the Tribunal because it asked its questions repeatedly. I do not have the benefit of a copy of the transcript, but I would note that in RRT; Ex parte H [2001] HCA 28 at [30] the High Court said:
“Where, as in the present case, credibility is an issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.”
It would seem to me that the Tribunal was doing no more than complying with the requirements set out by the High Court in this case when it repeatedly asked him questions about his claims. It is not clear to me what facts the decision-maker got wrong. Even if he had got some facts wrong, there is no error of law in making a wrong finding of fact: Abebe v The Commonwealth [1999] 197 CLR 510; Waterford v The Commonwealth [1987] 163 CLR 54 at 77 per Brennan J.
The applicant has not assisted me by explaining what irrelevant matter the Tribunal took into account, nor what matters were not taken into consideration. I am unable to see how the decision-maker did not make an honest attempt to come to the right decision or why it could be argued that he intentionally made a wrong decision. In SCAA v Minister [2002] FCA 668 Von Doussa J said at [38]:
“ In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.”
The applicant here has not attempted to provide the Court with anything more than the reasons for decision. The criteria for the establishment of a finding of bad faith was considered by the Full Court in SBBS v Minister [2002] FCAFC 361. I believe that the nine considerations expressed between [42] and [48] are now so well known that I need only say that this case does not fit within any of them.
The applicant argues in his third ground that "the Tribunal deprived me of natural justice." There are no particulars of this and I do not propose to dignify with comment an allegation so totally unsupported with a detailed argument as to why it is capable of being sustained.
The fourth ground was "the Tribunal denied the evidentiary proof of my claim." Mr Potts interprets this ground, together with the fifth and seventh grounds, as a complaint about the Tribunal's findings of facts and the merits of the decision, namely, that the findings were adverse to the applicant. Jurisdictional error will not arise from mistaken findings of facts and the Court is not able to relook at the merits of the decision: Wu v MIMIA [2003] FCA 1249; Abebe v Commonwealth (1999) 162 ALR 1.
The fifth ground is "the Tribunal's decision did not reflect the material facts of my claim." I believe I have already dealt with this in the previous paragraph.
The sixth ground is "the Tribunal has given a decision, which was preset in the back of its mind." This seems to me to be another ground of bias and is unsupported by any evidence. I can see that the applicant may have felt that he was starting off at somewhat of a disadvantage by the Tribunal being aware of the identical application of his colleague. However, to my mind the Tribunal dealt with this matter in a fair and thorough manner. All items of concern were discussed with the applicant and his replies elicited. It was only after those replies were elicited and the Tribunal considered them that it appears to have made its decision. This does not constitute a predetermined conclusion or a mind closed to argument.
The seventh ground of complaint is "the Tribunal mixed up many facts with this decision which affected the decision." In the absence of any particulars, it is not really appropriate to make a guess at what the applicant may have been thinking. He has been given the opportunity to express his concerns, but has not done so in a way in which this particular ground has been illuminated.
The final ground is that "the Tribunal concentrated in particular fact, while ignored many other facts in this condition." Mr Potts, in his helpful written submissions, suggests that this refers to credibility and states that in focusing upon that the Tribunal did not ignore other relevant matters. Mr Potts has done the Court and the applicant a service in attempting to find some logical meaning to the ground, but in doing so risks the possibility that he is wrong. I will not make my decision upon Mr Potts' suggested basis, but on the basis that this ground is incomprehensible and is therefore not capable of being considered.
It follows from what I have said above that I am unable to find any grounds upon which the decision of this Tribunal can be reviewed. I dismiss the application. I order that the applicant pay the respondent's costs, which I assess in the sum of $4,850.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 11 June 2004
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