SZAPB v Minister for Immigration - [2004] FMCA 243

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAPB v MINISTER FOR IMMIGRATION

[2004] FMCA 243

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution arising out of Bangladesh diplomatic service – claims rejected on credibility grounds – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), s.424A

Abebe v Commonwealth (1999) 197 CLR 510
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
W148/00A v Minister for Immigration (2001) 185 ALR 703

Applicant:

SZAPB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ816 of 2003

Delivered on:

22 April 2004

Delivered at:

Sydney

Hearing date:

22 April

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.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ816 of 2003

SZAPB

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 1 April 2003, and handed down on 23 April 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. I understand that separate visa applications were made by or on behalf of the applicant's wife and children and those have been dealt with separately.
The applicant is from Bangladesh and made claims of persecution arising out of his employment with the Bangladesh diplomatic service. The relevant background facts appear in paragraphs 3 and 4 of written submissions prepared on behalf of the Minister by Mr Riley. I adopt those paragraphs for the purposes of this judgment:
The applicant claimed to fear persecution in Bangladesh, although on what Convention ground is unclear. He claimed to have been employed by the Bangladesh High Commission in Canberra and had disputes with the High Commissioner, who hit him, punished him by cutting short his posting, and threatened that he would arrange for the applicant to be killed if he returned to Bangladesh. The applicant also claimed to be a “refugee” in Bangladesh. See generally court book, pages 25-28, 30-31, 48-57, 326-332.
The RRT found that the applicant was not credible and rejected his substantive claims. The RRT noted that the applicant’s claim that he was a refugee in Bangladesh was contrary to his Bengali ethnicity and 12 years service in Bangladeshi missions overseas, and found this claim was motivated by a desire to enhance his claim to the visa and called into question his credibility: court book, page 334.2. The RRT also noted that the applicant’s claims that he was punished by the High Commissioner were contrary to his own account of the term of his posting, and found that this again raised serious questions about the applicant’s credibility: court book, page 335.1. Given these considerations and the lack of any supporting evidence, the RRT rejected the applicant’s claim to have been hit or threatened by the High Commissioner: court book, pages 335-336, and concluded that any difficulty the applicant may have encountered was due to the reluctance of the applicant’s family and himself to return to Bangladesh at the expiration of his posting, rather than any Convention reason: court book, page 336.6. The RRT concluded that there was not a real chance that the applicant would face persecution for a Convention reason in Bangladesh: court book, page 336.7.
The applicant proceeds on the basis of an amended application filed on 20 January 2004. The applicant also prepared written submissions which were filed on 19 April 2004. Although those written submissions are extensive, they are primarily a survey of existing law. They are of very limited assistance in applying the legal principles identified to the facts of the applicant's case.
I gave the applicant the opportunity to present oral submissions to me. I asked him first about the first and fourth grounds of review in his application. Those grounds are related. Ground 1 asserts a breach of s.424A(1) of the Migration Act 1958 (Cth) (“the Migration Act”). Ground 4 asserts a failure by the RRT to put to the applicant doubts about documents containing information personal to the applicant. The applicant was not able to explain to me clearly what documents relied upon by the RRT were not made available to him.
The only documents that the applicant was able to identify were documents he himself presented to the RRT. There is, in my view, no breach of s.424A of the Migration Act established in that the RRT did not have resort to documents to support its decision which were withheld from the applicant. In that regard, I agree with and adopt paragraphs 5 and 6 of Mr Riley's written submissions:
It is apparent that the applicant was unsuccessful because of the view the RRT took of the facts, in particular its view that the applicant’s credibility was in doubt and his claims untrue. 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 RRT’s conclusions were open to it. 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 amended application claims that the RRT breached s.424A of the Migration Act by failing to provide the applicant with particulars of information forming part of its decision and not putting its doubts about documents concerning the applicant to him. As the RRT did not rely upon country information or information personal to the applicant, and did not express doubts about any documents emanating from him, these grounds do not make sense. The amended application also claims that the RRT failed to speculate about future changes in Bangladesh, but this is contrary to the RRT’s statement that it had regard to the foreseeable future: court book, page 336.7. There was no specific material or claim before the RRT indicating or claiming any particular change that may occur in future in Bangladesh. Finally, the amended application claims that the RRT’s decision was not based upon rational grounds, but this claim is unparticularised and appears to seek merits review rather than identifying any jurisdictional error in the RRT’s decision.
I am also not persuaded that the applicant was denied procedural fairness in the assessment of his claims by the RRT. The RRT obviously had some doubts about the veracity of his claims because he was invited to an oral hearing. The opportunity he was given at the oral hearing to explain his claims and discuss them with the presiding member appear to me to have been a fair one.
The second ground of review in the amended application is that the RRT did not speculate about possible future changes in Bangladesh. There is no substance to that ground. The claim made by the applicant arose out of his asserted dispute with the Bangladesh High Commission in Australia and his assertions of the discovery of corrupt practices in the High Commission. There was, in my view, nothing in those claims which required the RRT to speculate about possible future developments in Bangladesh.
The third ground of review is that the decision of the RRT was irrational. Whatever that ground of review may mean, it requires something more than a dispute about the merits of the RRT decision. The applicant plainly does not agree with the decision of the RRT but, in my view, this ground of review does not extend beyond a dispute over the merits of the RRT decision.
The applicant is concerned that the RRT did not conduct a more extensive investigation of his claims relating to the asserted admission of a servant of the High Commissioner to hospital under the applicant's name and asserted corrupt practices in the High Commission concerning the issuing of airline tickets. The applicant presented, and I accepted, an airline ticket indicating that travel had been booked for the applicant alone on 20 and 21 August 2001 between Canberra and Dhaka. However, that airline ticket was not available to the RRT at the time of the hearing because the applicant did not present it.
The applicant also sought (unsuccessfully) to tender in evidence a letter in Bengali dated 30 March 2003 which when read to me in English, on its face, asserts a dismissal by the applicant from his employment with the High Commission with effect from 14 August 2001. Again, that letter was not available at the time of the RRT hearing.
On my reading of the reasons for the decision of the RRT (court book, pages 333-336) the decision of the presiding member was not irrational. I do not rule out the possibility that the additional documents now provided or available to the applicant might have assisted him. However, even if the additional material might have led to a different conclusion on credibility, it is unlikely that the applicant would have been able to persuade the RRT that there was a Convention nexus with his claims. The general obligation was on the applicant to provide material to the RRT in support of his claims. The RRT was not satisfied on the material before it that the applicant's claims were credible. That conclusion was reasonably open to the RRT on the material before it.
There is no jurisdictional error in the decision of the RRT. Accordingly, the decision is a privative clause decision. I must dismiss the application.
On the question of costs, Mr Reilly seeks an order for costs and I am satisfied that costs should follow the event. I am told that in dismissing an application by other members of the applicant's family yesterday, Federal Magistrate Raphael made an order for costs fixed in the sum of $4,750. This is a matter of average complexity which, in my experience, would call for an order for costs on a party/party basis in the range between $4,000 and $5,000. 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 certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 30 April 2004