SZATH v Minister for Immigration

[2004] FMCA 453

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZATH v MINISTER FOR IMMIGRATION [2004] FMCA 453

MIGRATION – Application to review decision of Refugee Review Tribunal – whether failure to comply with s.424A Migration Act 1958 or lack of procedural fairness.

Migration Act 1958 (C’th)

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437
SKFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 142
Minister for Immigration & Multicultural Affairs v Applicant S152 of 2003 (2004) 78 ALJR 678
Minister for Immigration & Multicultural Affairs Re; Ex parteDurairajasingham (2000) 74 ALJR 405
Muin v Refugee Review Tribunal (2002) HCA 30
NADR v Minister for Immigration & Multicultural Affairs [2002] FCA 293
NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494

Applicant: SZATH

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1060 of 2003

Delivered on: 7 July 2004

Delivered at: Sydney

Hearing date: 7 July 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Respondent: Mr J D Smith

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application is dismissed.

2. That the Applicant pay the Respondent’s costs fixed in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ of 2004

SZATH

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) given orally on 19 May 2003.  Written reasons for decision were subsequently provided.  The Tribunal affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa. 

2. The applicant is a citizen of Bangladesh who arrived in Australia on 10 May 2002, and applied for a protection visa on 29 May 2002.  The application was refused and the applicant sought review by the Tribunal.  He claimed to fear death at the hands of BNP thugs, arrest by the police, detention and torture without trial, and death from Muslim terrorists based on his alleged involvement in politics, namely the Awami League Party and his support for Taslima Nasreen, a feminist author living in Europe. 

3. The Tribunal reasons for decision outline at some length the applicant’s original claims and those made at the Tribunal hearing, on 19 May 2003, including his claims of involvement with the Awami League, that he was attacked by the BNP and fundamentalist supporters, that he had been arrested and mistreated, had false cases issued against him, that he had been threatened and shot at, and that he left Bangladesh to escape the attention of the BNP fundamentalists and the police. 

4. The Tribunal found that the applicant's claims in his original protection visa application lacked credibility.  It had regard to a number of issues including the making of late claims at the hearing and the fact that the original claims were in a form that was described as part of a ‘template’ used by the applicant's adviser in this and other cases.  The Tribunal concluded that such material could not be regarded as the authentic experience of the applicant.  However it accepted, for the purpose of the decision, that the applicant was a member and office holder in the Awami League.  The Tribunal considered each of the applicant’s claims.   It found no independent evidence to indicate that this alone provided a basis for the claimed past mistreatment.  

5. The Tribunal also found no current or future Convention-related significance in a claimed 1987 injury said to have been suffered by the applicant.  It had regard to the fact that later medical documentation provided by the applicant provided no evidence of the timing or cause of injury, that the injury occurred a long time ago when neither major political party was in power and that the claim focused on more recent events.  It also considered generally the credibility of the applicant. 

6. While accepting that the applicant may have been threatened because of involvement in politics, the Tribunal noted that he had not moved from his home area at the time of the claimed threats, attacks, arrests or charges over the period from 1965 to 2002.  It did not accept an inconsistent late claim by the applicant that he had moved from time to time.  The Tribunal found the claims in relation to threats, attacks, arrests and being wanted by the police not to be credible.  It had regard to the applicant's long residence in a small area in Dhaka and concluded that he remained in Dhaka because he was not as prominent as claimed and the threats were not such as to lead him to go outside Dhaka. 

7. The Tribunal did not believe additional claims that were made at the hearing in relation to further claimed false cases and sentencing of the applicant because of his inconsistent evidence, the fact that the claims were in the form of a template used by the adviser, because there was a common text in letters submitted in support of this application and appearing in similar documents submitted in other matters by the same migration agent and because the applicant left Bangladesh legally on his own passport.  It also had regard to the unconvincing nature of explanations provided by the applicant in relation to his inability to provide documents in support of his claims. 

8. The Tribunal went on to find that if in fact there were false cases against the applicant, country information indicated that he would receive justice through the courts.  The Tribunal also considered that it would be reasonable for the applicant to relocate outside Dhaka to secure his safety.  It had regard to the claims of the applicant and to the absence of any indication in his most credible submission that he had ever lived outside Dhaka or was politically active elsewhere.  It concluded that if for any reason the applicant did not wish to live in Dhaka, country information led to the conclusion that there were other parts of the country in which it would be reasonable to expect him to be able to relocate.  The Tribunal did not accept that the applicant's profile was such as would lead him to being sought by supposed political opponents or authorities beyond Dhaka as he had contended.  It had regard to his ability to support himself in an unfamiliar country for 12 months and found that he would be able to support himself in the country in which he was born, educated, spent most of his life and had family. 

9. The Tribunal also rejected the applicant's claim to be in danger because of his support for Taslima Nasreen, first because his initial claims were simply part of the template used by the adviser, and were so brief and unrevealing that they were regarded as merely another ingredient ‘thrown into the pot’ in the hope of helping to achieve a successful application.  Second the Tribunal considered that the applicant's answers to the Tribunal's repeated questions about the nature of his support for Taslima Nasreen was so vague that they revealed no depth to his supposed position.  Third, it considered it unlikely that a male from a major Bangladeshi party would openly support someone whose views offended many male and Muslim voters.  Finally, it cited country information indicating that the authorities would protect the applicant against persecution from fundamentalists.  The Tribunal concluded that the applicant did not, and does not, have a genuine or well founded fear of persecution within the meaning of the Refugees Convention. 

10. The applicant filed an application in the Court on 13 June 2003 which lists nine unparticularised grounds and states that more details will be provided.  The applicant did not comply with the direction of the court to file and serve an outline of submissions five working days prior to the hearing but tendered two documents containing written argument and submissions at the commencement of the hearing.  Each of these documents appears to have been cobbled together from other documents and claims.  The documents make little reference to the specifics of the applicant's case.  Indeed the written argument is presented in the form of an appeal to the Federal Court from a decision of a Federal Magistrate.  Nonetheless, I have considered such grounds as are raised on the material before me. 

11. To a large extent the grounds raised in the application, and indeed in the written argument, take issue with the merits of the Tribunal decision (such is the unparticularised claims that the Tribunal did not take into account the applicant's claims, did not reflect the material facts of his claims, and that the Tribunal did not consider him to be a refugee).  Insofar as the applicant seeks merits review, merits review is not available in the court: MIEA v Wu Shan Liang (1996) 185 CLR 259.

12. The applicant claimed that the procedures required to be observed under the Migration Act 1958 were not observed. The claim is not particularised. No error is established by this general claim. The only provision of the Migration Act referred is s.424A which appears in the other document, which commences ‘Particulars of Actual Bias’ and to which I will return.

13. The applicant contended that the Tribunal ignored the merits of his claims and did not take into consideration the verdict from Bangladesh ‘only because of country report’.  This ground is somewhat unclear but insofar as the Tribunal relied on country information, the only material before the court as to the conduct of the Tribunal hearing (being the Tribunal reasons for decision) indicates the substance of critical issues arising out of country information was put to the applicant during the hearing.  The weight to be given to any material before the Tribunal was a matter for the Tribunal.  In one of the documents tendered the applicant refers to the United States State Department Country Report on Human Rights Practices for 2002, but there is no clarification of any contention sought to be made on the basis of this material or other reproduced country information.  Nor is any error apparent in the Tribunal treatment of such material. 

14. More generally in relation to this and the other claims, the findings of the Tribunal, were open to it on the material before it.  The findings in respect of relocation were in accordance with the principles set out by the Full Court of the Federal Court in Randhawa v MILGEA (1994) 52 FCR 437 at 442 and 443 per Black CJ, as affirmed by the Full Court in SKFB v MIMIA [2004] FCAFC 142 at 7. The Tribunal properly considered impediments to relocation raised by the applicant. The consideration of relocation is also consistent with the recent High Court decision in Minister for Immigration and MIMA v Applicant S152 of 2003 (2004) 78 ALJR 678.

15. Insofar as the Tribunal findings turned on credibility, such matters are essentially matters for the Tribunal Re, MIMA Ex parte; Durairajasingham (2000) 74 ALJR 405. The Tribunal gave reasons for its findings in relation to credibility which were open to it on the material before it. Moreover, while it rejected the applicant's claims in relation to false cases, it went on to consider ‘what if it were wrong’ in finding that if false cases had been laid against the applicant he would, on the basis of country information, eventually receive justice through the courts.

16. The applicant also claimed generally, without particularisation, that the Tribunal did not act in good faith and that he was denied natural justice.  One of the documents tendered is headed ‘Particulars of Actual Bias’.  It appears from this document that the particulars relied upon are that the Tribunal did not accept the applicant's claims.  No bias, either actual or apprehended, is established on the material before the court.  There is no evidence as to the manner in which the hearing was conducted other than what is said in the Tribunal reasons for decision which reveal that the Tribunal appropriately, given the inquisitorial nature of the proceedings, asked the applicant a number of questions and put to him the critical issues in relation to his claims and evidence.  There is nothing in the material before the court to support a claim of either actual or apprehended bias. 

17. The applicant also claimed generally, without elaboration, that the situation was similar to the situation in Muin v Refugee Review Tribunal (2002) HCA 30. There is nothing on the material before the court to suggest that the decision or approach taken in Muin bears any relevance in this instance.  The factual matrix present in Muin has not been established in this instance (see NADR v MIMA [2002] FCA 293). There is an absence of any agreed facts and the applicant has not established that he was misled into thinking that the Tribunal had considered particular relevant information if that were not the case and that as a result did not ensure that such information was placed before it. Such a claim is not made out.

18. The applicant makes essentially two claims in the more lengthy document; that there was a failure to comply with section 424A of the Migration Act and a denial of natural justice. The claim appears to be on the basis that information concerning the prevalence of document fraud in Bangladesh, which is said to be referred to ‘at pages 408 and 409’ of the court book, was not put to the applicant.

19. Such claim is not established on the material before the court.  In relation to natural justice obligations it has not been established that critical matters were not put to the applicant in the hearing.  On the contrary, the Tribunal reasons for decision indicate that the Tribunal raised with the applicant its concerns in relation to material tendered and the reasons for such concerns.  More particularly, however, there is nothing in the material before the court, including the Tribunal reasons for decision, to indicate that the Tribunal in this case did in fact rely on country information concerning the prevalence of document fraud in Bangladesh.  The reasons for decision do not contain any reference to the particular issue of the prevalence of document fraud in Bangladesh.  The submission refers to ‘pages 408 and 409 of the court book’.  Such pages do not appear in the court book in relation to this applicant's matter.  This is not a case which comes within the principles established by the majority in NARV v MIMIA (2003) 203 ALR 494. There is nothing to suggest that the general country information relied on in the Tribunal reasons for decision is not within the exception to the section 424A requirement in subsection (3). Nor is there anything on the material before me to establish that there has been any lack of natural justice in respect of any of the information relied on by the Tribunal.

20. There is nothing to suggest that the Tribunal concerns and relevant information were not put to the applicant such that procedural fairness was accorded to the applicant.  None of these concerns related to the prevalence of document fraud in Bangladesh.  Moreover, the Tribunal went on to find that even if there was a false case against the applicant, justice was available to him.  The independent information in relation to this issue was, according to the reasons for decision, put to the applicant as was the possibility that he could relocate.  The issues in relation to relocation and the applicant's responses in that respect were addressed by the Tribunal in its reasons for decision.  On the material before me no jurisdictional error is established in the Tribunal procedures or decision.  The application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  The respondent seeks that he meet the costs of these proceedings.  He raises his impecuniosity and lack of a job.  That is not a reason for not awarding costs although it may be a matter taken into account by the Minister in determining the timing and manner of recovery of any such costs.  It is appropriate that the applicant, having been unsuccessful meet the respondent's costs.  The amount of $4,000 is an appropriate amount in the light of the nature of this and other similar matters. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date: