SZAQW v Minister for Immigration

[2004] FMCA 102

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAQW v MINISTER FOR IMMIGRATION [2004] FMCA 102

MIGRATION – Application for review of Refugee Review Tribunal decision – whether jurisdictional error – application dismissed. 

NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262
Dan v The Commissioner of Taxation [No.2] [2000] FCA
Daihatsu v The Commissioner of Taxation [2001] FCA 588
Cordan v The Commissioner of Taxation [2000] FCA 1807
Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (2001) 68 ALR 407
Kopalipillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural & Indigenous Affairs v Applicant S (2002) 124 FCR 256

Applicant: SZAQW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ909 of 2003

Delivered on: 13 February 2004

Delivered at: Sydney

Hearing date: 13 February 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms R Francis

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application is dismissed. 

2. That the Applicant pay the Respondent's costs set in the amount of $4,000 pursuant to the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ909 of 2003

SZAQW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 29 April 2003 affirming a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.  The applicant is a national of Bangladesh who arrived in Australia on 14 February 2001.  He applied for a protection visa on 26 March 2001.  It was refused on 15 May 2001.  He sought review by the Tribunal on 7 June 2001.  The Tribunal held a hearing on 20 March 2003 which the applicant attended, assisted by an interpreter and a migration agent.  The Tribunal affirmed the decision of the delegate.  The applicant sought review by this court on 23 May 2003. 

2. In his protection visa application the applicant claimed to have a well founded fear of persecution in Bangladesh on the basis of his political opinion as a member of the Bangladesh Freedom Party (the BFP).  He made a number of claims in a letter from his solicitor, in particular that he was vice president of the party in the Sabuj Bag Thana area in Bangladesh, that his seniority was ‘best assessed’ by virtue of the fact that he had personally met all the leaders, whom he named, that he was closely associated with them during the 1991 and 1996 elections, that he still supported the party and had made monetary contributions on a particularly vigorous basis for the last four and a half years before the application. 

3. He claimed to have been subject to an assassination attempt by elements of the Awami League in December 2000 and that he feared the possibility of false charges being brought against him.  He also claimed that in December 2000 he had been unofficially and improperly detained overnight at the local police station and that he was released by the intervention of a family member and had to pay bribes to obtain his passport and leave Bangladesh.  He made claims about the political situation in Bangladesh and claimed to fear the possibility of false charges being brought against him.  At the time of his protection visa application he sought time to provide further documents.  No such documents were provided and the delegate of the Minister refused his application. 

4. In connection with the application for review by the Tribunal, the applicant provided a number of documents including purported police documents such as charge sheets and other documents relating to an incident on 10 December 2000 and a letter purportedly from the secretary of the BFP dated 23 July 2001 certifying that the applicant was an active member of the BFP (albeit not stating that he was vice president in his region) as he had claimed. 

The Tribunal decision

1. The Tribunal found the applicant's claims were fabricated and that he was not a credible witness.  It did not accept as true his claims of having been a long term member and supporter of the Freedom Party.  The Tribunal gave reasons for this conclusion based on the evidence that the applicant had given in his protection visa application and to the Tribunal.  In particular the Tribunal had regard to the applicant’s lack of knowledge about the party and matters and persons associated with the party.  For example, while he had some general knowledge about the BFP, he had incorrectly stated that the BFP had not fielded a candidate in his electoral district in the June 1996 elections and that Colonel Farouk, the then president of the BFP, had been elected in 1996 when that was not the case. 

2. It is apparent from the Tribunal reasons for decision that the Tribunal concerns in relation to the answers given by the applicant on such issues were put to him and that contrary evidence was put to him.  The Tribunal did not accept as reasonable that anyone involved with the BNP at the level and in the manner claimed by the applicant, could get the answers so wrong.  It did not accept his excuse that he was not aware of these matters as he had left the day to day running of the party to the president. After he was advised that his knowledge of the elections was not correct he stated in the hearing that he had not been involved with the BFP during the 1996 elections.  This was seen by the Tribunal as a significant inconsistency with his original claim of close association with the BPP during the elections.  The Tribunal considered that the applicant’s later preparedness to disclaim that involvement indicated that he was prepared to fabricate or exaggerate his involvement in the Party. 

3. The Tribunal also had regard to other matters, including the applicant’s inability to name the coalition of parties to which the BFP had belonged, his lack of knowledge about the circumstances of the arrest and detention of Zobaida Rashid, (the wife of a BFP leader) and the fact that he had described a person who had been regarded by the BFP as a traitor by an honorific meaning ‘Father of the Nation’.  Also relevant was the applicant's initial incorrect suggestion that the BFP was a secular party and his change in answer when was put to him that that the party was religious.

4. The Tribunal concluded that, having carefully considered the claims and evidence, it did not accept as true that the applicant had ever been a member of or associated with the Freedom Party.  It found his claims fabricated and did not accept any of his claims or documents as being true.  Hence it found that the applicant did not have a well founded fear of persecution for reason of a Convention ground. 

This application

1. The applicant raised a number of largely unparticularised grounds in his application, written submission and in oral submissions today.  As he is self represented, I have considered not only the grounds that he raised but also all of the material before me to determine whether or not there is any jurisdictional error by the Tribunal. 

2. As submitted by the respondent the grounds raised are essentially that the Tribunal failed to take into account relevant claims or evidence (in particular the purported police documents indicating charges against the applicant), that the Tribunal allegedly failed to accord natural justice or that it acted in bad faith or was biased. 

3. In submissions the applicant claimed that the Tribunal failed to carry out any investigation of its own, particularly in relation to the claimed charges and the documents provided in support of the claim which the Tribunal concluded were not true.  The applicant also claimed that the Tribunal failed to take into account the reality of the present situation in Bangladesh.  In the course of the hearing today he claimed further that he had forgotten to mention certain information to the Tribunal in relation to the fact that there were two elections in Bangladesh in 1996.  He claimed further that there were discrepancies between the tapes which he had of the Tribunal hearing and what was recorded in the Tribunal reasons for decision.  He repeated his disagreement with the merits and fact finding of the Tribunal. 

4. There is nothing to support the claim that the Tribunal made a jurisdictional error in failing to take into account any relevant considerations as alleged by the applicant or in any other way.  The main claim made by the applicant relates to the purported police documents submitted to the Tribunal on 4 February 2003.  Reading the decision as a whole, it is apparent that the Tribunal did have regard to these documents in making its decision.  Its reasons record that it specifically drew to the applicant's attention in the Tribunal hearing the fact that it had evidence before it of a high level of document fraud in Bangladesh.  The documents submitted in support of the applicant's claims were not the basis for the Tribunal's finding that his claims were fabricated, although it is clear that such documents were also rejected by the Tribunal.  The applicant was unsuccessful because the Tribunal did not believe his claims for the reasons which I have referred to above.  Consistent with the Tribunal's adverse view of the applicant's credit and its conclusion that the applicant was prepared to fabricate evidence, it also rejected the supporting documentation.  In any event concerns about documentary fraud and independent information in that respect were put to the applicant in the hearing (cf NARV v MIMIA [2003] FCAFC 262).

5. The applicant makes a number of claims that might be seen as raising issues of natural justice or procedural fairness.  It is claimed, without particularisation, that the Tribunal made its decision in bad faith or was biased.  Proof of bad faith necessitates proof of extreme circumstances (Dan v The Commissioner of Taxation [No.2] [2000] FCA 752 at [34] and Daihatsu v The Commissioner of Taxation [2001] FCA 588 at [36]). It is a serious allegation which should not be made lightly, (Cordan v The Commissioner of Taxation [2000] FCA 1807). It is a rare case in which such matters will be proved simply on the basis of the record of the Tribunal decision, such as is before the Court today. There is nothing in the material before the Court to support the claim of bad faith and either actual or, indeed, apprehended bias.

6. The applicant claimed, without any supporting documentation, that there were discrepancies between the tapes of the Tribunal hearing and what is recorded in the Tribunal reasons for decision.  I asked the applicant to identify such discrepancies.  He referred to three matters.  First, he stated that he gave the correct name of the party newspaper.  This is consistent with the Tribunal reasons for decision which record that he gave the correct name of the newspaper.  Second he claimed that he mentioned that he joined the party in 1988 and that this was not correctly appreciated by the Tribunal.  However, on a number of occasions in the reasons for decision the Tribunal records that the applicant claimed to have joined the party in 1988.  Finally, the applicant claimed that he answered certain questions correctly in relation to the imprisonment of Colonel Rashid's wife.  The details which he told the Court as his correct answers in that respect are consistent with what the Tribunal recorded of the correct answers that he gave in relation to some matters relating to Colonel Rashid's wife's imprisonment.  However, as the Tribunal recorded, although the applicant knew the name and vaguely why Zabaida Rashid was arrested, he was in error or lacked knowledge in relation to other matters relating to her and her husband.  There is no suggestion that the Tribunal's record of the applicant's responses in relation to those other matters does not reflect what occurred in the Tribunal hearing. 

7. There is no substance then in any of the specific instances of discrepancies claimed by the applicant, or anything in what he has said to suggest that there were discrepancies or issues arising in the hearing that give rise to concerns about procedural fairness.  In particular, the fact that the applicant was tense and, as he told the court, forgot to tell the Tribunal about the fact that there were two elections in 1996, (in February as well as in June) does not establish any denial of procedural fairness by the Tribunal. 

8. Importantly, the Tribunal put to the applicant its concerns and the substance of why it did not believe him.  It raised with him the critical issues and he was made aware in the course of the hearing about the Tribunal concerns about his level of knowledge of the BFP's involvement in the 1996 elections.  The Tribunal also put to him that he was wrong in the evidence that he gave in relation to the 1996 elections.  No error is apparent in this respect. 

9. As to the claim that the Tribunal failed to carry out any investigation itself, there was nothing to suggest that the Tribunal undertook to make further inquiries.  In the circumstances of this case there was no obligation on the Tribunal to make such further inquiries as suggested by the applicant.  It was for the applicant to present his claims.  (Minister for Immigration & Multicultural & Indigenous Affairs v Applicant S (2002) 124 FCR 256 at [74] per Stone J).

10. The applicant also claimed that the Tribunal tried to prove the documents he provided were forged with the help of the country information and without making any inquiry.  Again the Tribunal was not under an obligation to make further inquiry.  It did bring its concerns about document fraud to the attention of the applicant.  The applicant's complaint in relation to the Tribunal's treatment of evidence in relation to the current situation in Bangladesh does not establish error because the Tribunal did not accept any of his claims. 

11. In conclusion then the applicant failed because of the view that the Tribunal took of his credibility.  Credibility is a matter for the Tribunal par excellence (Re MIMA; Ex parte Durairajasingham (2001) 68 ALR 407). The findings that the Tribunal made were open to it on the material before it. As the credibility findings were open to the Tribunal, no error is demonstrated in such conclusions (see Kopalipillai v MIMA (1998) 86 FCR 547). Mere errors in fact finding (if there were such errors) do not without more constitute jurisdictional error. Moreover, the Tribunal cannot review the merits of the Tribunal decision (MIEA v Wu Shan Liang (1996) 185 CLR 259) and in so far as the applicant seeks merits review, it is not available in this court. As no jurisdictional error is apparent, the application must be dismissed.

    
    

    I will hear submissions in relation to costs. 

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful. It is appropriate that he meet the respondent's costs. His current impecuniosity is not a reason for not ordering costs, although it may be something that is taken into account by the Minister as to when and how costs are sought to be recovered. An appropriate amount of costs in light of the nature of this and other similar cases is $4,000. I consider that costs should be fixed under the Federal Magistrates Court Rules.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  13 February 2004