SZAOS v Minister for Immigration

[2004] FMCA 227

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAOS v MINISTER FOR IMMIGRATION [2004] FMCA 227

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

Migration Act 1958 (Cth), s.422B

NARV v Minister for Immigration [2003] FCAFC 262

Applicant: SZAOS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ804 of 2003

Delivered on: 16 April 2004

Delivered at: Sydney

Hearing date: 16 April 2004

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Sparke Helmore

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 $4,800.

3. The applicant is to pay the setting down fee of $327 within 14 days or obtain a waiver.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ804 of 2003

SZAOS

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 27 March 2003 and handed down on 16 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 written submissions prepared by Mr Lloyd on behalf of the Minister.  I adopt paragraphs 2 to 9 of those written submissions for the purposes of this judgment:

   The applicant, a citizen of Bangladesh, arrived in Australia on 14 December 2000.  He was an administrator associated with the Bangladeshi hockey team, which competed at the Olympics (court book, page 309.1, 315.3).

   On 26 October 2000, he lodged an application for a protection visa (court book, pages 1-28).  He claimed to fear persecution by reason of his political opinion, in particular he claimed to fear harm from other members of his own political party (the Awami League).

   On 31 October 2000, a delegate of the Minister refused that application (court book, pages 30-38).  In so doing, the delegate referred to country information which indicated that any documents in Bangladesh can be easily faked (court book, page 35.7).

   On 28 November 2000, the applicant lodged an application for review with the RRT (court book, pages 39-44).

   On 21 November 2002, the RRT invited the applicant to a hearing to give oral evidence and present arguments in support of his case.  The applicant accepted the invitation and the hearing was eventually held on 27 February 2003 (court book, page 311.4).

   On 5 December 2002, the applicant's then migration agent sent a lengthy submission to the RRT.  In it, the applicant made new claims that he feared persecution from BNP thugs (court book, page 61.8). The applicant also submitted a range of documents which purported to support a claim that he faced a false charge in Bangladesh (court book, pages 75-78, 85-86).

   On 24 January 2003, the applicant's new migration agent sent a letter in which the applicant withdrew part of his claims and no longer sought to rely upon his claims that he faced a false charge.  This untrue claim, and fabricated documents, was blamed upon unprofessional advice from the previous migration agent (court book, page 101).

   On 16 April 2003, the RRT handed down its decision, affirming the decision of a delegate not to grant the applicant a protection visa (court book, pages 308-326).  The RRT made strong adverse credibility findings against the applicant.  So much so that it was not prepared to accept the documents provided by him or the statement of a witness.

2. The applicant proceeds on the basis of his application filed on 12 May 2003 and a supporting affidavit apparently filed on the same day.  Paragraph 4 of that affidavit restates the grounds of review contained in the application.  I did not accept that paragraph as evidence of the truth of the statements contained in it.  It is in the nature of a legal submission.  The applicant also relies upon written submissions he prepared on 29 September 2003.  Although the grounds of review contained in the application are not particularised, the written submissions expand upon those grounds sufficiently for the Court and the Minister's legal representatives to understand them.

3. I gave the applicant the opportunity to give oral evidence in order to explain and expand upon paragraph 3 of his affidavit.  In that paragraph the applicant states:

   The Tribunal failed to put the adverse country information to me to enable me to have an opportunity to submit my explanations and materials in reply to the alleged adverse materials relied on by the Tribunal.

4. I asked the applicant to tell me what country information he was referring to.  He initially had some difficulty with the question but, after prompting, told me that he was concerned about country information relating to the political and social situation in Bangladesh.  In response to a further question from me, the applicant told me that there was no other adverse country information that he was concerned about.  Probably in the light of that evidence, Mr Lloyd elected not to cross-examine the applicant.

5. The application and the applicant's written submissions are dealt with by Mr Lloyd in paragraphs 10 through to 17 of his written submissions.  Subject to my following reasons from paragraph 6 below, I agree with and adopt those paragraphs for the purposes of this judgment:

   The applicant has listed 12 matters under the heading “grounds” on his application.  He has also provided an outline of submissions in support of his application.  This outline is primarily focused upon the applicant's outline of submissions.

   The applicant's first attack on the decision of the RRT is focused upon an alleged denial of procedural fairness.  The applicant says that the RRT interrogated him and deliberately looked for reasons to reject his claims ignoring his explanations and refusing him a comfortable environment to give evidence.  There is no direct evidence about what happened at the hearing.  Certainly no denial of procedural fairness arises in testing the claims of an applicant.  There is no basis for saying that the RRT ignored his explanations -- it simply did not accept them.

   The applicant also alleges that the RRT failed to appreciate that its decision could affect his life.  There is no basis for this allegation.

   The applicant claims that the RRT took isolated incidents out of context and failed to take into account the cumulative effect of his experiences.  However, the RRT found the applicant to be utterly lacking in credibility.  In light of this finding, the approach of the Tribunal reveals no jurisdictional error.

   The applicant also appears to contend that the RRT erred in failing to accept his explanation for having made incomplete claims when first contacting the Australian authorities.  This was a question of fact for the RRT and its approach reveals no jurisdictional error.

   The applicant also alleges that the RRT was biased because it failed to make proper attempts to clarify the alleged inconsistencies in his evidence.  This assertion is insupportable.  After the hearing, the RRT wrote to the applicant to give him a further opportunity to explain critical inconsistencies in his evidence.  He took up the opportunity.  No bias is revealed simply because the RRT did not believe the applicant.

   The applicant also makes an allegation that the RRT did not make a bona fide attempt to exercise its power.  It is not particularised.  It must be rejected on the same basis as the bias allegation.

   The applicant alleges that the RRT also constructively failed to exercise its jurisdiction by failing to have regard to a number of relevant considerations.  These claims must all fail because the RRT simply did not believe the applicant's evidence.

6. To the extent that the application asserts a constructive failure to exercise the jurisdiction of the RRT there is no substance to it.  To the extent that the application asserts bias or a lack of good faith, there is nothing in the evidence before me concerning the RRT proceedings to support that contention.

7. The applicant failed before the RRT because of adverse credibility findings made by the presiding member.  The adverse credibility findings are discussed at length by the presiding member in her decision.  I do not need to recite the presiding member's reasons for the purposes of this judgment.  It is, however, obvious to me from reading those reasons that the adverse credibility findings were open to the presiding member on the material before her.

8. The application, as augmented by the affidavit and written submissions by the applicant, also asserts a lack of procedural fairness in the RRT proceeding.  The applicant asserts that he was not given an opportunity to comment upon adverse country information.  This appears to be an attempt to take advantage of the decision of the Full Federal Court in NARV v Minister for Immigration [2003] FCAFC 262. I accept, on the basis of that decision that under the general law, at least up until the time of the commencement of s. 422B of the Migration Act 1958 (Cth) (which is not relevant to these proceedings), there would be an obligation on the RRT to give the applicant the opportunity to comment upon adverse country information which was to form the basis or part of the basis for the RRT’s decision.

9. However, in this case, there is no substance to the claim.  First, the applicant, in his evidence to me, stated that the only country information of concern to him was country information about the political and social situation in Bangladesh.  It appears that there was such country information before the delegate but there is nothing in the decision of the RRT to indicate that adverse country information relating to the political or social situation in Bangladesh formed any part of the RRT’s reasons.  The only country information referred to by the presiding member relating to the political and social situation in Bangladesh was information provided by the applicant or his advisers.  There could be no procedural unfairness in failing to give the applicant an opportunity to comment upon country information which he himself provided.

10. In any event, that country information did not assist the applicant and neither was it used by the RRT in order to dismiss the application to the RRT.  The applicant failed because of the adverse credibility findings, which were based on an assessment of the applicant’s evidence about his own circumstances.  The RRT did have regard to country information relating to document fraud in Bangladesh.  However, it does not appear to me that the decisions of the RRT were based upon that country information, which was adverse to the applicant's claims.  It is apparent, from what the presiding member says on page 325 of the court book, that she drew some comfort from the country information.  However, it also appears to me that documents presented by the applicant were rejected by the RRT not because of that country information but because of adverse credibility findings already made about the applicant.

11. If I were wrong in that conclusion I would, nevertheless, refuse relief in the exercise of my discretion.  There was no practical unfairness arising from the failure by the RRT, if indeed there was a failure to give the applicant the opportunity to comment on the country information relating to document fraud.  The applicant was aware of the country information from the decision of the delegate.  Indeed, the applicant's advisers took the opportunity to make submissions on the issue following the decision of the delegate.

12. Secondly, the applicant, through his then adviser, admitted submitting at least one document which was false.  This is referred to in the court book at page 101.  Finally, in his evidence before me, it was apparent that the applicant was not concerned about the country information relating to document fraud.  In the circumstances, I consider it extremely unlikely and probably impossible for the applicant to have presented anything further to the RRT, on that issue, should he have been given the opportunity to do so. 

13. I find that there is no jurisdictional error in the decision of the RRT.  The decision is therefore a privative clause decision and I must dismiss the application.

14. On the question of costs, Mr Lloyd has sought a costs order on behalf of the Minister and submits that costs should be fixed, on a party party basis, in the sum of $4,800.  The applicant did not wish to make any submissions on costs.  An issue of substance was raised in the application concerning procedural fairness.  I accept Mr Lloyd's submission that this required a fair amount of preparation on behalf of the Minister.  In addition, I accept that representation by counsel today was necessary and appropriate for the Minister. 

15. I will order that the applicant pay the Minister's costs and disbursement of and incidental to the application, which I fix in the sum of $4,800.  I also note that the applicant has not paid the setting down fee payable prior to the hearing of this matter.  I will, in addition, order that the applicant pay the setting down fee of $327 within 14 days or obtain a waiver.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  22 April 2004