SZAQR v Minister for Immigration - [2004] FMCA 414

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAQR v MINISTER FOR IMMIGRATION

[2004] FMCA 414

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – claims rejected on credibility grounds – whether RRT failed to disclose information leading to its credibility concerns – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.424A, 422B

Applicant NAHV of 2002 v Minister for Immigration [2003] FCAFC 102
VEAJ of 2002 v Minister for Immigration [2003] FCAFC 678
VHAJ v Minister for Immigration (2003) 75 ALD 609
VHAP of 2002 v Minister for Immigration [2004] FCAFC 82
VNAA v Minister for Immigration [2004] FCAFC 134

Applicant:

SZAQR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ896 of 2003

Delivered on:

24 June 2004

Delivered at:

Sydney

Hearing date:

24 June 2004

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr J D Smith

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

SZ986 of 2003

SZAQR

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 9 April 2003 and handed down on 1 May 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 in that country. He claimed to have been a member of the Freedom Party. He claimed to have been attacked following a public meeting in 2000. The applicant's claims were rejected by the presiding member on credibility grounds. The presiding member said (court book, page 83):
I did not find [the applicant] to be a credible or a truthful witness. As discussed at the hearing, his claim that there were some 5,000 members of the party in his local area in 1999/2000 and that they were able to stage a demonstration attended by some 10,000 is at odds with other evidence before me which indicates that the party was virtually non‑existent by that time. Furthermore, it is not possible that someone who was active in the party in 1996 in even a relatively limited fashion would have been unaware of the arrest of the party's main leaders. Finally, as noted above, [the applicant's] evidence was confused and contradictory.
The presiding member went on to say that she did not believe that the applicant had had any involvement in the Freedom Party in Bangladesh. She rejected his claim that false charges had been laid against him because of his political views or activities. The applicant had asserted harm by political enemies in the Awami League. The presiding member did not believe that members of the Awami League had harmed the applicant in any way. The presiding member stated that she believed that the applicant's claims were all concocted in an attempt to obtain a protection visa and remain in Australia.
The applicant proceeds on the basis of an amended application filed in court by leave today. As is noted by Mr Smith in his written submissions on behalf of the Minister, there is one ground set out in the amended application. The applicant asserts that the RRT did not comply with the mandatory obligations contained in s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The particulars of that ground are that the RRT did not give the applicant notice of particulars of six pieces of information in the manner required by ss.424A(1)(a) and 424A(2)(a) of the Migration Act and did not ensure as far as reasonably practicable that the applicant understood why this information was relevant to the review. The application has clearly been prepared by someone with some understanding of the relevant legal issues.
The applicant simply relies on the amended application and chose not to make any oral submissions. Mr Smith contends that there was in reality no breach of s.424A(1) because the information that was material to the outcome of the protection visa application was disclosed. Secondly, and in the alternative, Mr Smith contends that the information identified in the amended application was excluded from the obligations of disclosure in s.424A(1) by operation of s.424A(3)(a) of the Migration Act.
I agree with Mr Smith's first submission and adopt for the purposes of this judgment paragraphs 4- 7 of his written submissions:
First, in the absence of any unfairness, the failure to convey the relevant information by the method prescribed by s.424A(2) of the Migration Act is not a jurisdictional error: Applicant NAHV of 2002 v Minister for Immigration [2003] FCAFC 102 at [23]. Accordingly, the question for the Court is not whether a letter was sent in the form required by s.424A(2) but rather, whether the substantial requirements of s.424A(1) were complied with. It is the applicant’s onus to prove that those requirements were not complied with. He has not led any evidence to suggest that the RRT did not fulfil its obligations under s.424A(1). Accordingly, the onus of proof has not been fulfilled and the application must fail. Further, it is clear from the RRT’s reasons that the RRT did put to the applicant during the hearing the particular information which it considered would be part of the reasons for affirming the decision under review.
To understand this point the reasons for the RRT must first be examined. There were three findings made by the RRT which led to its ultimate conclusion:
a)the claim that there were some 5,000 members of the Bangladesh Freedom Party in the applicant’s local area in 1999/2000 who were able to stage a demonstration attended by 10,000 is at odds with information to the extent that the Party was virtually non-existent by that time;
b)it is not possible that someone who was active in the Party in 1996 in even a relatively limited fashion would have been unaware of the arrest of the Party’s main leaders; and
c)the applicant’s evidence was confused and contradictory.
Contrary to the allegation in paragraph 1(d) of the amended application, the only information which appears to have been taken into account by the RRT in rejecting the applicant’s credit was information suggesting that the Party was virtually non-existent as at 1999/2000 and that in 1996 the Party’s main leaders had been arrested. The RRT put both of these matters to the applicant and made sure that he understood how they were relevant. It stated (court book, page 82.6):
I advised [the applicant] that I did not believe that he had been in (sic) a member of the Freedom Party prior to his departure from Bangladesh or that false charges had been laid against him as a result of his political activities. I noted that most of the leaders of the party had been arrested and charged with murder after the election of the Awami League government in 1996 and advised him that I did not believe that anyone who had belonged to the party at that time would have been unaware of this fact. I also advised him that it was my understanding that the Freedom Party had always been a relatively minor party and that it had virtually collapsed after the arrest of its leaders. By the late 1990s there were at most only a few hundred active members, most to (sic) them in Dhaka. In these circumstances I doubted that there had ever been 5,000 members in his local area and did not believe that the party would have been capable of arranging a demonstration involving 10,000 outside Dhaka in late 2000.
For these reasons the applicant has failed to establish that the RRT did not comply with any obligation under s.424A(1).
The first three items of information identified in the amended application were not determinative of the outcome of the protection visa application. They appear as background and context in the decision of the RRT. The presiding member was plainly concerned that the applicant's claims were not consistent with information derived from the fourth, fifth and sixth pieces of country information identified in the amended application.
The presiding member explained her concerns to the applicant, including an identification of the substance of the country information she found inconsistent with the applicant's claims. In so doing, the presiding member met any obligation which arose from s.424A(1).
The second leg of Mr Smith's submissions is dealt with in paragraphs 9 and 10 of his written submissions:
In VHAJ v Minister for Immigration (2003) 75 ALD 609 Kenny J held at 624 [52]:
If the information is relevant only because it concerns a class of individuals who have an attribute in common with the applicant or any other person, then the information will be “just about” a class of persons of which the applicant or other person is a member. If, however, the information is relevant to the Tribunal’s review upon some other basis then it will not fall within s.424A(3)(a), even though it does not specifically concern the applicant and it is about (but not just about) the class of persons of which the applicant or another person is a member.
See also VNAA v Minister for Immigration [2004] FCAFC 134.
While there is some dispute as to whether the test in s.424A(3)(a) is cumulative or composite: compare VHAJ v Minister for Immigration (2003) 75 ALD 609, VHAP of 2002 v Minister for Immigration [2004] FCAFC 82 and VNAA v Minister for Immigration [2004] FCAFC 134, neither of those tests is of assistance to the applicant. In this case the material was only relevant to the RRT’s decision because it related to the Freedom Party or members of the Freedom Party, a class of which the applicant claimed to be a member for the purpose of the application. All of these Full Court decisions are inconsistent with the decision of Gray J in VEAJ of 2002 v Minister for Immigration [2003] FCAFC 678 relied upon in the amended application. For these reasons the relevant information fell within the description of s.424A(3)(a) and there was no obligation upon the RRT under s.424A(1).
While there is much to be said in favour of those submissions, it is unnecessary for me to decide that issue as I have already found that there was no breach of s.424A(1).
As I indicated to the applicant during the hearing of this matter this afternoon, it is necessary for me to consider not only whether s.424A(1) of the Migration Act has been breached but also whether there was any breach of procedural fairness under the general law. I note in that regard that the applicant's application to the RRT was made before the commencement of s.422B of the Migration Act. In my view, under the general law the presiding member was under an obligation to disclose to the applicant the information which led her to the view that his claims were not credible. That is precisely what the presiding member did. It follows that there was no breach by the RRT of its procedural fairness obligations under the general law. I have identified no other jurisdictional error in the decision of the RRT.
The decision is therefore a privative clause decision. I must dismiss the application.
On the question of costs, the applicant having been wholly unsuccessful, costs should follow the event. Mr Smith seeks a costs order fixed in the sum of $4,500 on a party party basis. The applicant referred to his impecuniosity but that is not a reason for me to refrain from making a costs order. The issue of law raised in the amended application is not a simple one. It was raised rather late in the matter. The sum sought on behalf of the Minister is, in my view, reasonable. I will order that the application be dismissed and 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 twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 29 June 2004