SZAQS v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1413

FEDERAL COURT OF AUSTRALIA

SZAQS v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1413

SZAQS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1001 OF 2004

EMMETT J
13 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1001 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAQS APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	13 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

(1)The appeal be dismissed.

(2)The appellant pay the respondent’s costs in the sum of $3000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1001 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAQS APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	13 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a national of Bangladesh who arrived in Australia on 7 August 2001.  On 22 August 2001, he lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 30 October 2001, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 28 November 2001, the appellant sought review of that decision by the Refugee Review Tribunal (‘the Tribunal’). The appellant attended a hearing before the Tribunal on 8 April 2003, where he was assisted with an interpreter in the Bengali language.

2. On the same day, the Tribunal decided to affirm the decision not to grant a protection visa.  The Tribunal published its reason for that decision on 29 April 2003.  On 22 May 2003 the appellant commenced a proceeding in the Federal Magistrates Court of Australia seeking constitutional writ relief in respect of the Tribunal’s decision.  The grounds of the application were stated in bald terms without any particulars as follows: 

   ‘1.The tribunal did not take into account the conviction base[d] persecution in Bangladesh.

   2.The tribunal made his decision in bad faith.

   3.The tribunal deprived me of the natural justice.

   4.The tribunal denied the evidentiary proof of my claim.

   5.The tribunal’s decision did not reflect the material facts of my claim.

   6.The tribunal has given a decision, which was preset in the back of [its] mind.

   7.The tribunal mixed up many facts with this decision which affected the decision.

   8.The tribunal concentrated in particular fact, while ignored many other facts in this condition.

   9.I will provide more ground later.’

3. On 10 June 2004, the Federal Magistrates Court ordered that the application be dismissed and ordered the appellant to pay the Minister’s costs in the sum of $4250.  The appellant appealed to this Court from the orders of the Federal Magistrates Court.  By an amended notice of appeal filed on 24 August, the appellant specified the following grounds:

   • The Federal Magistrates Court failed to find error of law, jurisdictional error and procedural fairness.
   • The grounds and relief are very similar to the decision of the High Court in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal.
   • The Federal Magistrates Court erred in considering the real state of affairs of the appellant.
   • Section 474 of the Act is ineffective.
   • The Tribunal erred in finding that the appellant was not a member of Islami Chatra Shibir.
   • The Tribunal neglected the documents submitted by the appellant to prove those matters.
   • The Federal Magistrate failed to find that the Tribunal erred in determining that the appellant was not a member of Islami Chatra Shibir.

   ·The Tribunal did not disclose the adverse country information used against the appellant.

4. No particulars are furnished of those grounds.  The appellant also filed an outline of submissions which made general assertions without any particularity.  The appellant appeared in person with the assistance of an interpreter.  He said that the submissions were prepared with the assistance of a friend and it was apparent that the appellant had no real comprehension of the contents of his submission.  He was unable to expand on the assertions that are made in it in answer to questions that I put to him in the course of the hearing.

5. Before the Tribunal, the appellant claimed fear of persecution in Bangladesh by reason of his political opinion.  He claimed to have undertaken a total of twelve years schooling in Bangladesh.  He completed high school in 1988 when he was 18 and claims that he went on to study for two years in an Islamic madrassa.  He claimed that he lived in Bangladesh for several years before travelling to Oman and Singapore for work.  He claims to have left Bangladesh in the mid-1990s for countries in the Middle East and Singapore, although in his primary application form he claimed to have remained in Bangladesh until 1998, travelling first to Singapore and later in 2001 to Oman.

6. The appellant claimed that he joined the Islami Chatra Shibir whilst undertaking Islamic studies at the madrassa.  He claimed that he was appointed a local branch leader of Islami Chatra Shibir.  He said that his chief opponent was the Awami League, one of Bangladesh’s two main parties, both of which are secular.  The other is the Bangladesh Nationalist Party.  The appellant claimed that his work in the 1990s with the Islami Chatra Shibir made him a prime target for persecution at the hands of the Awami League and its gangs.  He claimed that he had to move around Bangladesh for eight years after leaving the madrassa in order to avoid being harmed by the Awami League.  He claimed that he left Bangladesh in order to avoid persecution by the Awami League. 

7. The Tribunal had difficulty in accepting that the appellant went to a madrassa as he claimed.  The Tribunal did not accept on the evidence before it that the appellant ever had anything to do with the Jamaat-E-Islami (‘JEI’) student wing, namely the Islami Chatra Shibir as he claimed.  While the Tribunal considered it reasonable in the circumstances to doubt that the appellant ever went to the madrassa it did not make a definitive finding on that matter since the Tribunal concluded that the appellant was never a member of the Islami Chatra Shibir.  The Tribunal also concluded confidently that the appellant was never a target for harassment by the Awami League.  The Tribunal considered that his evidence in support of his substantive assertions was vague, inconsistent, confused and grossly unreliable.  In particular, the Tribunal dismissed the appellant’s documentary evidence as a self-serving fabrication. 

8. The Tribunal considered that the appellant’s oral evidence at the hearing generally revealed an overwhelming ignorance on his part of matters in which he should have been able to display some grounding.  The Tribunal did not accept that the appellant even generally espouses conservative or fundamentalist Muslim principles.  The Tribunal considered that the appellant had no attributes that could have made him a serious Awami League political target.

9. The Tribunal found that the appellant left Bangladesh to go where the work was rather than stay alongside any of his alleged comrades in Bangladesh.  The Tribunal was overwhelmingly confident in its findings that the appellant is not a reliable witness and that the work opportunities for the appellant having dried up in Singapore and Oman, provided the real motivation for the appellant’s presence in Australia.  Thus it is apparent that the basis of the Tribunal’s conclusion is that it did not believe the appellant gave truthful evidence.

10. In her reasons for her decision of 10 June 2004, the Federal Magistrate gave careful consideration to the grounds specified in the applications to the Federal Magistrates Court.  Her Honour had regard to written submissions also provided by the appellant.  Her Honour was satisfied that the Tribunal made findings concerning the appellant’s credibility that were open to it on the material before it.  Her Honour concluded that there was no error disclosed by the Tribunal in its treatment of the appellant’s credibility. 

11. Her Honour considered that the Tribunal clearly had regard to the appellant’s claims which it set out in some detail.  In his written submissions the appellant apparently asserted that the Tribunal made its decision in bad faith, although no particulars were furnished.  Her Honour observed that the Tribunal thoroughly analysed the appellant’s claims on rational grounds and identified a series of inconsistencies and other difficulties with his evidence that ultimately cast doubt on the truthfulness of the appellant.

12. Her Honour referred to claims made by the appellant that his case was ‘on all fours’ with the decision of the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. However, the appellant apparently made no attempt to establish the factual matrix upon which such a claim could be based. Specifically her Honour observed that the appellant did not establish that he was misled into thinking that the Tribunal had considered particular information and that as a result he did not ensure that any such information was placed before the Tribunal.

13. Her Honour observed that the Tribunal had rejected documentary evidence submitted by the appellant, but did so for reasons that were open to it on the material before it.  Her Honour considered there was nothing in the material before the Court to suggest that the Tribunal was dishonest in its task or reckless in the manner of its decision-making or that its conclusion suggested a lack of impartiality.  On the material before the Court her Honour was not satisfied that there was any likelihood that a reasonable observer might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the application.

14. In his written submission on the appeal, the appellant made a number of general assertions that the Tribunal erred in law and did not follow the proper procedure required by the Act. There was a bald assertion that Muin’s case and Lie’s case are perfectly identical with the appellant’s case.  However, as I've said, no particulars were furnished and the appellant was unable to enlarge on those assertions in the course of oral hearing.  More specifically the written submissions assert that the Tribunal did not consider the supporting facts and documents and ignored relevant evidence.

15. When I invited the appellant to identify the documents and evidence, he referred to several documents that were before the Tribunal.  Those documents were submitted to the Tribunal under cover of a written submission by Kazi and Associates, Professional Immigration Consultants.  By a submission dated 4 April 2003, Kazi and Associates contended that the appellant had substantial grounds for his assertion that he would be persecuted by the Awami League because of his previous political involvement in Bangladesh.

16. The Tribunal referred expressly to the documents in question.  In the course of its reasons the Tribunal said that it had examined the appellant’s documentary evidence of an alleged assault and of false charges lodged against him.  It referred expressly to one of the documents identified by the appellant in the course of the hearing before me as a document that the appellant said had been ignored by the Tribunal.  The Tribunal observed that the evidence about the appellant being falsely implicated by the Awami League in a murder he did not commit refers to the so-called murder on 15 September 2001.  That was, in fact, a month after the appellant had arrived in Australia. 

17. The Tribunal considered that to accept the documentary evidence at face value it would be necessary to accept a number of outlandish propositions which it rejected.  The Tribunal considered that none of the explanations of the appellant was remotely plausible.  It is clear that there is no substance in the assertion made in general terms in the written submission that the Tribunal failed to have regard to relevant documents and evidence submitted by the appellant.

18. I do not consider that there is any substance at all in the appeal.  No error at all on the part of the Federal Magistrate has been demonstrated.  In my opinion the appeal should be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             1 November 2004

The Appellant appeared in person.
Counsel for the Respondent:	D. Jordan
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	13 October 2004
Date of Judgment:	13 October 2004