SZAUU v Minister for Immigration
[2004] FMCA 663
•9 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAUU v MINISTER FOR IMMIGRATION | [2004] FMCA 663 |
| IMMIGRATION LAW – Review of RRT’s decision not to grant refugee status – objection to competency – no ground of jurisdictional error made out – application dismissed. MIAE v Liang (1996) 185 CLR 259 |
| Applicant: | SZAUU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1129 of 2003 |
| Delivered on: | 9 September 2004 |
| Delivered at: | Sydney |
| Hearing date: | 8 September 2004 |
| Judgment of: | Baumann FM |
REPRESENTATION
Solicitors for the Applicant: Mr Liu, Parish Patience Immigration Lawyers
| Counsel for the Respondent: | Mr Johnson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the objection to competency be upheld and the application be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of six thousand dollars ($6,000.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
SZ 1129 of 2004
| SZAUU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(settled from ex tempore reasons)
The applicant in this matter is of Bangladesh nationality and arrived in Australia on 7 October 1997 on an Indian passport issued in an assumed name. On 19 November 1997 the applicant lodged an application for a protection visa on the basis of his claim that he held a well founded fear of persecution because of his political opinions if he returned to his country of birth. A delegate of the Minister refused the application on 21 April 1998 and a subsequent application for review was heard and determined by the Refugee Review Tribunal (RRT) on 18 November 1999. The member affirmed a decision not to grant a protection visa. On 20 June 2003 the applicant filed an application to this court. It is clear the application was not filed within the time limit specified by section 477(1)(a) of the Migration Act 1958. The respondent has filed an objection to competency which I shall formally deal with later in these reasons.
I do record the concession made by the respondent at the commencement of the hearing before me yesterday, that although the objection is maintained the respondent does accept the applicant's participation in the Muin class action which does explain some of the delay. Furthermore, as a preliminary point the respondent objected to the further amended application filed 2 September 2004 incorporating as it did clearly for the first time two further allegations (at paragraph 1C(ii) and (iii)) of the RRT failing to ask the material question about:-
(a)The filing of false claims, and
(b)Whether there were two attacks upon the applicant, in April 1997 and then in July 1997.
The applicant has been represented throughout these proceedings by specialist immigration lawyers. The original application was prepared by that firm. That application did give some particularisation of how it was alleged procedural fairness had been denied. It raised issues about:-
(a)The process of the hearing;
(b)The unreasonable view taken on the evidence of physical assault of the applicant;
(c)The medical evidence; and
(d)The application of the law.
The first amended application filed 19 July 2004 significantly refined the grounds relied upon and abandoned issues of the process of the hearing and the application of the law to the facts, but maintained as a claim of jurisdictional error that the RRT made findings about the medical evidence and the alleged assault. I infer that the delivery of the relevant documents (filed 12 August 2004) was the catalyst for the further refining and expansion of the particulars and grounds of review in the amended application. The respondent was really on notice about the medical evidence and assault issues. The "false cases" issue was raised in the initial statement of the applicant given at the time of his application for a visa. That statement was not annexed to, and did not form part of annexure B to the affidavit of the solicitor for the applicant filed on
20 June 2003 and I infer did not come to the attention of the legal advisers for the applicant until the complete bundle of relevant documents were delivered on or about 12 August 2004.As a matter of fairness to the applicant I propose to allow him in the circumstances to rely on the amended application filed 2 September 2004. Mr Johnson, counsel for the respondent, notwithstanding his objection, had sensibly included submissions on all grounds relied upon by the applicant and, as a result, could not be said to have been unfairly prejudiced by my decision to allow reliance upon the latest amended application.
Background
I adopt as a succinct summary of the background paragraph 11 of the respondent's submissions as follows:
“The applicant was a national of Bangladesh (RD88.6) who claimed fear of persecution in that country for his political opinion. He claimed to have been a member of the Bangladeshi National Party (BNP) since 1987 and an office holder in that party with the title of 'organisational secretary' at the district level since 1988 - and that the BNP's rival, the Awami League (AL) had targeted him for persecution. Explaining by the Tribunal that RD89-90, especially at RD90.7 the applicant 'failed to persuade the Tribunal that he knew much about, or had anything much to do with any political process in Bangladesh at all'.”
The Tribunal concluded:
“The applicant is not the political figure he claims to be.”
The Tribunal found the applicant to be an unreliable witness (RD91.2) and simply was not satisfied that the applicant faced a real chance of convention related persecution in Bangladesh (RD91.4).
The issues which arise for determination in the quest of the applicant to establish jurisdictional error are as follows:
(e) “The Tribunal made an error as to the meaning and effect of the medical evidence before it and formed its own medical opinion which it was not entitled to do.
(f) The Tribunal failed to deal with a material claim made by the applicant, namely that his political adversaries had filed false cases against him.
(g) The Tribunal failed to ask whether the applicant had been attacked on two separate occasions.”
Before turning to these issues it is perhaps trite law to observe that this court cannot review the merits of the Tribunal decision (MIAE v Liang (1996) 185 CLR 259) and there is no error of law, let alone a jurisdictional error in the Tribunal making a wrong finding of fact (Abebe v The Commonwealth (1999) 197 CLR 510). The issues raised by the applicant must also, in my view, be seen in the context of a clear finding by the presiding member that the applicant “is an unreliable witness”.
The finding of credibility is a function of the primary decision maker par excellence (see McHugh J in MIMA: Ex parte Durairajasingham (2000) 168 ALR 467).
Medical Evidence
The applicant says the observation by the Tribunal (at RD78 to 80) that:
“The applicant presented with three x-rays to the Tribunal all with reports from the radiologist to whom he was referred. All three reports gave the applicant a clear bill of health. One in particular dealt with his skull. It showed that his skull, scalp and brain were normal and apparently unaffected at any time in the past by any injury at all. The Tribunal put it to the applicant that it said it was devastatingly self defeating for him to present such evidence. In reply he said his doctor had given him pain killers after reading the radiologist report. This response did not take his case anywhere (RB90).”
was not open to it. It is conceded that the Tribunal was in error in referring to three reports, when only two were offered of relevance. Nothing turns on this discrepancy.
The applicant's attack on this finding relied upon:
“The absence of any evidence that the applicant's scalp was normal or the applicant's skull, scalp and brain were unaffected at any time in the past of any injury at all. The reports do not deal with the scalp and the specialist did not give an opinion in relation to past trauma.” (Applicant's submission paragraph 5.1).
The High Court recently in MIMIA v SGLB (2004) 201 ALR 12 considered an issue of whether the RRT could infer that someone was suffering PTSD based upon a history of self harm. The Tribunal relied upon its own observations and observations relating to and made by the person's adviser relying on a psychiatric report. It is clear that this case is authority for the Tribunal being able to make a reasonable inference about medical conditions, where the material before the Tribunal founded such an inference.
This is the case here. In my view it was open on the evidence viewed within the context of the general finding on credibility for the Tribunal, to make the finding set out above. I also agree with the respondent's submissions that even if the Tribunal had made the error, it would be an error of fact which could not be categorised as a "jurisdictional fact" within the meaning of that term as described by the High Court in Corporation of the City of Enfield v The Development Assessment Commission and Another (2000) 199 CLR 135 at 28.
In the “false cases” claim, the only evidence before the Tribunal on this issue appears to be that contained in paragraph 16 of the applicant's initial statement supporting the visa application that "my political rivals filed few false cases against me to doom my political career". In the absence of any transcript to corroborate otherwise, there is no evidence there was any other attempt by the applicant before the Tribunal to put that issue before it for consideration. Certainly no mention of this issue appears in the reasons of the member.
The applicant submits that I should find the Tribunal did not consider this claim which he asserts is material to the issue and as a result has constructively failed to exercise its jurisdiction. In my view, the bland assertion, without particularisation or any evidence of the "false cases" was not so prominent as to cause the Tribunal to embark upon its own inquiries. Certainly, in appropriate cases, the RRT may and should do so, and is not limited to the case articulated by an applicant.
This is a by product of the inquisitorial proceedings to be adopted when reviewing a decision; see Sellamuthu v MIMA (1999) FCA 247. However the Tribunal is not required to investigate every unparticularised general allegation or assertion. In this case, having taken the view that the applicant was not "the political figure he claims to be" I see no reason why the Tribunal would have any obligation to prompt and stimulate further elaboration where this applicant chose himself not to do so; see Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 58.
There is no merit in the applicant's contention on this point. Leaving aside the medical evidence, the applicant contends in his submissions that the failure of the RRT "to ask whether or not the attack that the applicant claimed took place on 2 April 1997 (RB26) was the same attack that took place in July 1997 (RB89). It had to ask that question as an answer in the negative meant that the Tribunal would then have to consider if two attacks took place as claimed which it failed to do. (MIMA v Yusuf 2001 75 ALJR 1105 at 1120).”
The Tribunal clearly took the view only one attack took place and that was in July 1997. No mention in the reasons was made of the evidence of the applicant at paragraph 13 of his initial statement that after the election on 12 June 1996 Awami League armed personnel "tried three times to kill me but failed". The advocate for the applicant has never raised in the amended applications; the written submissions or the oral submissions, this issue. I infer it was not pressed by the applicant before the RRT.
For the reasons referred to above, there was no obligation for the RRT to "investigate" the allegation when it appears to have been abandoned. The fact that it was and appears to have been abandoned has some relevance to the likelihood of this applicant embellishing issues of violence.
The curious thing about the alleged two separate attacks is that the applicant neither in his first statement or his evidence to the Tribunal has ever asserted two separate attacks. Considering the attacks, on his submission, would have both occurred within eight months of his first statement, this offends logic and common sense. His description of the nature of the attacks involving:-
(a)use of a hockey stick;
(b)occurring at night;
(c)perpetrated by a gang of Awami League sympathisers;
(d)causing him to be hospitalised; and
(e)prompting his mother to leave the country
are consistent. The major inconsistency is when it occurred.
However it was open to the Tribunal to take the view on the whole of the evidence (including the "weak" and "confused" evidence as to his decision to flee to India) and he was not "beaten insensible with a hockey stick, let alone by a hostile band of AL thugs, let alone in response to his political activities". There is no merit in the applicant's submission that the Tribunal ought to have but failed to ask the applicant about these discrepancies.
Conclusion
For the reasons set out, I have formed the view that no jurisdictional error has been established. As a result the decision is a privative clause decision. In circumstances where there is no power for the court to extend time, the respondent's objection to competency must, as a matter of law, succeed. I therefore will order that the application is incompetent.
It's an appropriate case where costs should follow the event. There have been a number of amended applications filed. That, of itself, has caused,
it seems, some probably last minute preparation. In the circumstances,
I propose to make an order that the applicant pay the respondent's costs fixing the sum of $6000.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
2
7
0