SZASB v Minister for Immigration - [2004] FMCA 496

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZASB & ANOR v MINISTER FOR IMMIGRATION

[2004] FMCA 496

MIGRATION – Review of RRT decision – where applicant claims to have a well-founded fear of persecution which is politically motivated – where applicant submitted large number of documents to the Tribunal – whether it was sufficient for the Tribunal to find that the applicant’s evidence was not credible and not reach a specific conclusion as to the genuineness of the documents – whether the Tribunal obliged to make independent investigations – whether the Tribunal erred in finding that the alleged persecutory incidents were politically motivated.

Applicant S341/2003 v MIMIA [2004] FCA 168
Dranichnikov v MIMA (2003) 197ALR 389
NAQS v MIMIA [2003] FCA 1137

Applicants:

SZASB & SZASC

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 984 of 2003

Delivered on:

6 August 2004

Delivered at:

Sydney

Hearing date:

6 August 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in Person

Counsel for the Respondent:

Mr G R Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant pay the respondent's costs assessed in the sum of $3,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 984 of 2003

SZASB & SZASC

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicants in this matter are husband and wife who are citizens of Bangladesh. They arrived in Australia on 15 October 2000. On 27 October 2000 they lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs. On 5 February 2001 a delegate of the Minister refused to grant protection visas and on February 2001 the applicants applied for a review of that decision. The applicants were interviewed by the Tribunal and they had the assistance of a migration agent. The applicants produced a very substantial amount of material in support of their case.
The proceedings were conducted by the male applicant and it would appear that his wife does not have any separate claims but is being considered as a person to whom Australia has protection obligations by virtue of her being part of the male applicant's family unit.
At [CB 314] the major issues to be considered by the Tribunal in the applicant's case were set out by his migration agent. They were five. The first involved a rivalry between the applicant and some high profile senior BNP leaders when the applicant was in charge of a commercial building construction. The second related to some fear arising out of the applicant's divorce from his ex wife and her relations who it was claimed also had connections with the BNP. The third was claimed to be a political dispute between the applicant and a former BNP member of parliament also arising out of a commercial enterprise. The fourth matter was a dispute between the applicant and his cousin who it was claimed had political connections and who was trying to blackmail him and had taken a large part of the applicant's property by unfair means. Finally, the applicant's employer was said to be furious with him because he had not been informed that the applicant was leaving the country. It was alleged that this person was a highly influential BNP businessman.
When the matter came before the Tribunal these five elements were discussed, although as set out at [CB 395], one of them appears to have taken on a slightly different colour being a claim in respect of fear of a terrorist group allied with the Awami League.
The Tribunal asked the applicant in respect of each of these matters why the persons involved would wish to harm him and received responses which the Tribunal said at [396]:
“The applicant husband states that there is a political element to all of this. It was put to the applicant that the reasons given as to why the five elements would wish to harm him are all non-political.
He responded that all five had political status or connections to harm him.”
The Tribunal's reasons for decision, after describing the five elements referred to above, go on to talk about document fraud in Bangladesh and then about independent country information concerning the political situation in that country and the status of the judiciary. The Tribunal's findings and reasons are short. It comes to no conclusion as to the truth or otherwise of the allegations, nor, importantly, does it come to any conclusion that some of the vast quantity of documents submitted by the applicant was not genuine. What the Tribunal does decide is that some aspects of the applicant's evidence were unlikely and opportunistic and that as none of the reasons given for the harm feared were political or related to the applicant's actual political opinion, or a political opinion which might have been imputed to him, the case did not fall to be considered as one in respect of which there was any convention nexus.
The Tribunal said at [CB 402]:
“The applicants state that there is a political element to the harm as all five elements have political connections and they used them against the husband. I am not persuaded that the use of political connections to cause the applicant husband harm would change the motivation of the elements in seeking to harm the applicant. That is, the use of political connections to cause harm would not mean that any harm suffered was harm for reasons of the applicant husband's political opinion.
Whilst it is possible that the motives of the elements may have some unknown political aspects, on the applicant's evidence I am not satisfied that any political motives are the essential significant motivation for the persecution feared (see section 91R(1)(a) of the Act). Rather, I am satisfied that the essential and significant motivation for the persecution feared are motivations given in evidence by the applicant husband. Those motivations are personal, commercial and not political.”
The finding by the Tribunal is a finding of fact with which this court cannot interfere.
The applicant before me today provided me with some written submissions and also spoke. He told me that he was concerned that the Tribunal had indicated to him that his case was complex and required more than one interview. He had been required to obtain translations of all the documents which he wished the Tribunal to consider, and he felt that the Tribunal should have accepted his evidence. He believed that the documents which he had submitted were sufficient to enable the Tribunal to come to the decision that he could be provided with asylum.
He also complained that the Tribunal had not made any independent attempt to verify his story or make investigations and he repeated that the motives of those persons who had persecuted him was political. The applicant made the point that the Tribunal had not debated with him the possibility that the documents which he had provided were products of document fraud. But the Tribunal made no finding that the documents were forgeries, so this was not necessary.
One of the major complaints made by the applicant that grounded his fear of persecution was the fact he had suffered a penalty of three years imprisonment in respect of certain proceedings brought, he says, by his former wife. This is a matter in respect of which the Tribunal's findings concerning the courts of Bangladesh go. But I note with some interest that in one of the documents produced by the applicant which commences at [CB 366] and which seems to be a complaint made against the applicant by his former wife and her father, there is after a lengthy discussion of the complaints a complete exoneration of the applicant and a finding that the complaint is fabricated [CB 370]. This would appear to support the view held by the Tribunal that cases heard in Bangladesh are subject to proper judicial consideration.
However, these are not matters which affect the integers of the decision. Nothing I have heard from the applicant today or seen in his submissions convinces me that the applicant has any argument to counter that put by the Tribunal and set out above concerning the lack of political motivation in the alleged persecutory incidents. I would not expect the applicant to try and persuade me in a factual manner that this was the case. I would expect him to explain why a finding such as that made by the Tribunal was contrary to law. In this he has failed and because I can see no error in the manner in which the Tribunal came to its conclusions, I will be unable to grant the applicant the review he seeks.
The applicant has not provided me with any basis upon which I could make a finding of actual bias against the Tribunal. Nor do I believe this is a case in which the Tribunal would have any responsibility to make its own independent investigations as suggested by the applicant. Whitlam J in Applicant S341/2003 v MIMIA [2004] FCA 168 -considering an appeal from a decision of the Federal Magistrates Court which also dealt with a complaint that the Tribunal had not made proper enquires in relation to claims made – said at [8]:
“Furthermore, the Federal Magistrate correctly stated the law on jurisdictional error. The Tribunal is not required to initiate additional enquires beyond the material presented by the applicant (see MIMIA v Applicant S (2002) 124 FCR 256, 257 at [1], per Whitlam J, 275 at [74] per Stone J, North J dissenting; Randhawa v MIEA (1994) 52 FCR 437, 443,451; Selvadurai v MIEA (1994) 34 ALD 347, 348; Marshood v MIMA (2000) FCA 1536 at [13]). Plainly too, Barnes FM did not err in holding that there was no denial of procedural fairness by the Tribunal because in fact there was no evidence of any refusal or failure on the part of the Tribunal to accept any documents.”
It is for the applicant to establish his own case and to satisfy the Tribunal of the grounds upon which he seeks asylum in this country: Dranichnikov v MIMA (2003) 197ALR 389. Furthermore, the assessment of evidence presented by an applicant and the weight given to such evidence is solely a matter for the Tribunal: NAQS v MIMIA [2003] FCA 1137.
The application is dismissed. I order that the applicant pay the respondent's costs which I assess in the sum of $3,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 13 August 2004