SZARA v Minister for Immigration

[2004] FMCA 249

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZARA v MINISTER FOR IMMIGRATION [2004] FMCA 249

MIGRATION – Application for review of Refugee Review Tribunal decision – No jurisdictional error.

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 547
Dan v Commissioner of Taxation (C’th) [No.2] [2000] FCA 752
Kordan v Commissioner of Taxation [2000] FCA 1807
Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17
Azzi v Minister for Immigration & Multicultural Affairs (2002) 195 ALR 166
WADU v Minister for Immigration Multicultural & Indigenous Affairs [2003] FCA 1252
Minister for Immigration & Multicultural Affairs v Applicant S (2002) 124 FCR 256
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
NADR v Minister for Immigration & Multicultural Affairs [2002] FCAFC 293
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Applicant: SZARA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ924 of 2003

Delivered on: 1 April 2004

Delivered at: Sydney

Hearing date: 1 April 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms R Francois

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 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ924 of 2004

SZARA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 8 May 2003 affirming a decision of a delegate of the respondent refusing to grant the applicant a protection visa. 

2. The applicant is a national of Bangladesh who arrived in Australia on 19 October 2000 and lodged an application for a protection visa on 16 November 2000.  He claimed to fear persecution in Bangladesh on the basis of his political opinion as a member of the Freedom Party.  He claimed to have joined the party in 1985, that he was a close friend of Mehdi Hassan, a prominent member of the party and that he was active in the party. 

3. He complained that once the Awami League came into power it began laying charges against and detaining members of the Freedom Party.  In December 1997 he attended a Freedom Party protest rally and was injured when police and local military, without provocation, attacked the protesters.  He claimed to have scars as a result.  Many of the other protesters  were later arrested and tortured. He claimed he fled to Dhaka to avoid such a fate, stayed in hiding with a relative and made plans to leave the country.  When leaders of the party were sentenced to death, he decided to escape and used a passport issued in July 1999 to travel to Thailand. 

4. At the Tribunal hearing it emerged that the applicant he left Bangladesh on 11 June 1999, returned to Bangladesh on 13 June 1999, departed again shortly afterwards and thereafter made numerous short trips to and from Thailand, but spent most of his time in Bangladesh.  His most recent trip to Thailand appeared from his passport to have been in August 2000.  He then returned to and remained in Bangladesh until his departure for Australia in October 2000. 

5. The applicant claimed that whilst in Thailand he joined a committee with other Freedom Party members and became a courier for messages between members in Bangkok and Bangladesh and that this activity raised the danger of his capture by the Awami League government and so he decided to flee to Australia.  He claimed that the Awami League found out that he was acting in this way and that he could not stay in Thailand as he risked being extradited to Bangladesh as a political activist.  He believed that his life would be in danger if he returned to Bangladesh. 

6. In his application for review the applicant provided a submission to the Tribunal from his migration agent addressing material that had been before the delegate of the respondent.  The Tribunal invited him to attend a hearing and he did so. 

7. The Tribunal found, after detailing what had occurred in the hearing and matters put to the applicant during the hearing, that the applicant was not a truthful or credible witness.  It did not accept that he had ever been a member of the Freedom Party or that he experienced problems with the authorities or anyone else in Bangladesh because of his involvement in politics and therefore found that he did not have a well-founded fear of persecution. 

8. The Tribunal gave reasons for these conclusions.  In particular, it found that the applicant did not have the level of knowledge of the Freedom Party that would be expected from an active member.  Particular examples about his lack of knowledge related to the party's participation in the 1996 elections and the fate of prominent Freedom Party leaders after 1996.  The applicant’s claim that more than 5000 people attended the December 1997 rally was seen by the Tribunal as inconsistent with other information before it which indicated that the party never had a large following and that its numbers and activity had declined considerably after the arrest of its leaders in 1996. 

9. Further, and aspects of this were put to the applicant during the hearing, his own evidence about his activities was confused and contradictory.  In particular, in his written submission to the Department and evidence at the start of the hearing he had indicated that he had not experienced serious problems prior to December 1997.  Later in the Tribunal hearing he claimed that false charges were laid against him in mid 1996 and that he had been in hiding since late 1996.  Later still he said that despite the charges he had continued to live and work in the same place until 1997.  When asked for details of the charges, his evidence was confused and unconvincing as the Tribunal details at some length. 

10. The Tribunal also considered, as was raised with the applicant in the hearing, that it was implausible that he would have been able to travel regularly between Bangladesh and Thailand in 1999 and 2000 if he was in hiding from 1996 or 1997 or if there were outstanding charges against him or if more charges were likely to be laid against him. 

11. In the application for review of the Tribunal decision, the applicant raised a number of grounds.  He raised other grounds in written submissions. I have considered all of the material in assessing whether or not there is a jurisdictional error. 

12. Counsel for the respondent has helpfully, and correctly, summarised the grounds raised by the applicant.  Generally, before considering each of those grounds, it should be stated that the Tribunal findings in relation to credibility were open to it on the material before it for the reasons which it gave.  Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 547.

13. The applicant claimed first that the Tribunal ignored relevant evidence and failed to ask itself the correct question.  No particulars are provided.  On the material before the Court it is apparent that the Tribunal had regard to all of the applicant's claims raised in the initial protection visa application and in the Tribunal hearing.  It is claimed in the applicant's written submission that the Tribunal failed to investigate and, it seems, to consider a claimed ground of persecution on the basis of the applicant being a member of a Christian minority in Bangladesh.   No such claim is apparent on the material before the Court and in the hearing today the applicant indicated that he did not claim to be a Christian. Indeed any such claim would be inconsistent with his claims to be a member of the right wing Islamist Freedom Party.  Nor did he make a claim of association with a drama organisation as the written submissions suggest.  Nor is it apparent on the material before me that the Tribunal asked itself the wrong question in considering whether the claimed events occurred.  As part of considering whether or not an applicant has a well founded fear of persecution, it is relevant to commence with a consideration of what has occurred or is claimed to have occurred in the past.  Insofar as the applicant seeks merits review, such review is not available in this Court. 

14. The applicant claimed that the Tribunal hearing was a mere formality and that its findings were made in the face of contradicting independent evidence and that this indicated actual bias.  I have considered generally whether there is any lack of procedural fairness, bias, either actual or apparent, or any lack of good faith on the material before me. 

15. The law in relation to bona fides is clear.  Such a claim involves proof of extreme circumstances. It is a serious allegation which should not be made lightly.  Dan v Commissioner of Taxation [2000] FCA 752 and Kordan v Commissioner of Taxation [2000] FCA 1807. In this case there is no evidence before the Court to support an assertion that the Tribunal acted in bad faith or was biased or, indeed, that there was any real likelihood that a reasonable observer might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to resolution of the application (MIMA v Jia [2001] HCA 17). The material before the court consists of the record of the decision and the documents in relation to the applicant's application and review by the Tribunal. There is nothing in the material before me to suggest that there was any error in the manner contended or that the findings were made in the face of contradicting independent evidence in a manner constituting jurisdictional error. The applicant took issue with the Tribunal reliance on independent information about the situation in Bangladesh and the Freedom Party. However the weight to be given to particular items of evidence is a matter for the Tribunal and, in any event, in this case, the Tribunal's findings on credibility turned not only on the independent country information but also on the applicant's lack of knowledge about the Freedom Party and the inconsistencies and implausibilities in his evidence.

16. Nor has it been established that the Tribunal failed to investigate the applicant's claims in circumstances amounting to jurisdictional error.  The Tribunal put to the applicant its knowledge about the ease of providing false documents from Bangladesh.  No error is established in its treatment of independent information.  There is nothing in the material before me to suggest that the applicant asked the Tribunal to investigate any particular aspect of his claims, that the Tribunal undertook to do so or that to the knowledge of the Tribunal there was readily available factual material likely to be of critical importance in relation to a central issue for determination which had not been obtained (see Azzi v MIMA (2002) 195 ALR 166).

17. It is the case that after the applicant raised late claims of charges having been made against him, he did offer to obtain more documentation to support his claims.  The Tribunal considered this and decided not to allow the applicant further time.  It gave reasons which had regard to his failure to mention such claims at an earlier stage, the inconsistencies, vagueness and the unconvincing nature of the claims and the time that had elapsed since the making of the protection visa application.  Moreover the applicant had had the opportunity to provide documentation to the delegate as well as to the Tribunal in the course of its review.  That opportunity had not been taken up.  In the circumstances of this case, there was no obligation on the Tribunal to make further inquiries: WADU v MIMIA [2003] FCA 1252 at 34 to 36 and MIMA v Applicant S (2002) 124 FCR 256 at 74 per Stone J. It was for the applicant to establish his case.

18. The applicant also contended that the Tribunal committed a jurisdictional error of the nature identified by the High Court in Muin v RRT (2002) 76 ALJR 966. However there was no evidence put forward by the applicant suggesting that he was misled into believing the Tribunal had considered particular relevant information and as a result did not ensure that such information was placed before the Tribunal as is necessary to enliven the Muin principle.  (NADR v MIMA [2002] FCAFC 293 at [24] and [26]). Indeed in submissions from the applicant’s migration agent to the Tribunal, specific attention is drawn to country information before the delegate, which the applicant sought to rely on in other respects. The Tribunal referred to that material and to the submission of the adviser in its reasons for decision. It pointed out that the 1999 country report referred to in relation to the use of violence and other abuses by the Awami League did not, as the applicant's adviser claimed, suggest that people from the Freedom Party were particular targets for ill treatment, there being no specific reference to the Freedom Party in that part of the document relied on by the applicant’s adviser.

19. It was also claimed that the Tribunal failed to consider whether the applicant's fears of persecution were well founded in the reasonably foreseeable future.  However the Tribunal expressed no doubt about its findings, based on credibility, that the applicant was not a member of the Freedom Party and that he had not experienced any problems as claimed.  On this basis it found that his claimed fears of future persecution were not well-founded.  In these circumstances it was not necessary for it to consider if it were wrong in accordance with the principles in the MIMA v Rajalingam (1999) 93 FCR 220. It was not necessary for the Tribunal to engage in a detailed consideration of the future in the manner contended.

20. It was also claimed that the Tribunal failed to provide the applicant with information it held that, ‘persecution against political activists of Bangladesh had subsided’. However, the Tribunal decision does not turn on any such information.  Rather it is based on its conclusions that the applicant was not a truthful or credible witness and on rejection of his claims generally.  Furthermore, in so far as the Tribunal had regard to independent country information, no error is apparent in the manner in which it dealt with such information.  The information relied upon and referred to is general country information to which s424A did not apply (see section 424A(3)).  In any event, in the course of the Tribunal hearing the Tribunal brought to the attention of the applicant the substance of information relied on and issues in relation to the current situation in Bangladesh of relevance in relation to its conclusions.  No lack of procedural fairness is apparent in the treatment of such independent information.

21. The applicant claimed generally that the Tribunal failed to accord the applicant procedural fairness.  It is apparent from the Tribunal's summary of what occurred in the hearing that the Tribunal put to the applicant the critical issues, gave him an opportunity to comment and had regard to his comments.  The complaint that the Tribunal hearing was a mere formality and that the set-up was more bureaucratic than judicial, does not establish jurisdictional error.  The Tribunal is not a judicial body.  Having an inquisitorial role it has properly to put its concerns to the applicant for his comment.  No lack of procedural fairness is established on the material before me.  As no jurisdictional error is apparent, the application must be dismissed.  I will hear submissions as to costs.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful and it is appropriate that he meet the respondent's costs. In light of the nature of this and other similar matters, I consider that an appropriate amount for costs should be the sum of $4,000 and that costs should be set in accordance with the Federal Magistrates Court Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  1 April 2004