SZAVF v Minister for Immigration
[2005] FMCA 313
•17 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAVF v MINISTER FOR IMMIGRATION | [2005] FMCA 313 |
| MIGRATION – Application to review Refugee Review Tribunal decision – no jurisdictional error established. |
| Applicant: | SZAVF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1144 of 2003 |
| Judgment of: | Baumann FM |
| Hearing date: | 22 September 2004 |
| Date of Last Submission: | 2 October 2004 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2005 |
REPRESENTATION
| Applicant: | Self Represented |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
That the Application for review be dismissed.
That the Applicant pay the Respondent’ costs, fixed in the sum of $4,000 within 60 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1144 of 2003
| SZAVF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The Applicant is a citizen of Bangladesh. He claims to have a well founded fear of persecution, as a result of his political opinions and he has sought protection under the Refugees Convention and Protocol.
He arrived in Australia on 12 July 1998 as a student and subsequently on 27 February 2001, applied for a protection visa. His application to the Refugee Review Tribunal (RRT) resulted in the Tribunal affirming the delegate’s decision, for the reasons delivered on 27 May 2003. The Application to this Court, filed 23 June 2003, seeks review of that decision.
The amended application filed 13 October 2003 contends the RRT made a serious jurisdictional error in 2 ways:
“1.The Tribunal made a serious jurisdictional error by deciding that” I believe that the documents provided at the hearing are fraudulent and that fraudulent documents can easily be obtained in Bangladesh”.
2.The Tribunal made further jurisdictional error by concluding that “most importantly the claims in his protection visa application are significantly different from those made at the hearing and he was unable to provide an adequate explanation for these differences”.
Furthermore, the Applicant asserts:
“1.that the Tribunal had been highly biased against the Applicant in reaching its decision on the above basis which tantamounts to serious procedural errors committed by the Tribunal”.
When the matter first came before me on 10 September 2004, the unrepresented Applicant sought a short adjournment to enable him to review his written submissions filed 12 July 2004, in light of the Respondents’ submissions filed 8 September 2004. I allowed an adjournment to 22 September 2004 when oral submissions were made by both parties. Subsequently, by a document dated 2 October 2004, the Applicant confirmed the tenor of those submissions in writing. No objection was taken by the Minister’s Advocate Mr Kenneth to this approach.
Background
The Applicant’s claim was summarised by the Tribunal as follows:
“(The Applicant) said that he had held a senior position in the Freedom Party in Bangladesh. After the Awami League came to power in 1996 they began to suppress the party. Party leaders were charged with the murder of Prime Minister Begum Sheikh Hassina’s father. As a result of his association with the party, (the Applicant) was arrested and detained. He was tortured while in detention. The authorities fabricated a false case against him and forced him to sign false statements. His said that he feared that he would be persecuted by the Awami League government or perhaps killed by rival groups if he returned to Bangladesh. (The Applicant) provided a translation of an article entitled “Culture in our Values” which he claimed he wrote. He claims it was published in a university magazine in 1992. It contains some general criticisms of the Bangladesh political system”.
Hearing Before The Tribunal
I did not have a transcript of the proceedings before the Member however it is clear from the well structured and thorough reasons delivered that the Member raised with the Applicant, who appeared before the Tribunal, that:
a)the Applicant provided a number of documents which were faxed to him from Bangladesh the day before the hearing. This included a “medical certificate dated 10 August 1995 which states that (the Applicant) had a bullet injury in his right foot and had been cut on the left finger” as well as alleged “official documents which relate the cases he claims were filed against him in 1996”. He was asked by the Member why he had not produced these documents earlier.
b)why he had waited until nearly 3 years to apply for a protection visa.
c)When he first had problems because of his membership of the Freedom Party and to tell the member “about the worst problems he had faced as a result of his political activities in Bangladesh”.
d)To explain the “worst problem he had faced with the authorities in Bangladesh” and when he raised, in reply, the case filed against him in 1995, the member asked him “what offences he had been charged with” and how “he had managed to avoid being arrested in relation to those charges”.
After a consideration of the responses the member said that he advised the Applicant that:
“… I had difficulty believing his claims. I noted the claims made at the hearing were significantly different from those included in his protection visa application… I also noted that his ability to obtain this passport and leave Bangladesh legally and his ability to have it renewed in Australia indicated that he was not of adverse interest to the authorities at the time of his departure or subsequently”.
Tribunal Decision
After hearing the responses and reviewing all the documents produced by both parties, the learned Member found the Applicant not “to be a truthful or credible witness”. Such a finding has been described as
“the function of the primary decision – marked per excellence” (see MCHUGH J in MIMA Ex parte: DURAIKAJASINGHAM (2000) 168 ALF 407).
The member gave reasons for this finding and I do not propose to repeat them in their entirety as they appear at pages 64–65 of the Court Book. It is suffice to provide a summary of those findings and reasons as:
a) the inconsistency between the claims made in the application and the hearing – in 2 significant respects.
b) The unconvincing evidence at the hearing for reasons identified by the Member.
c) The Applicant’s ability to obtain a genuine passport; to leave legally and to have his passport renewed in Australia by Bangladeshi officials.
d) The failure to apply for a protection visa until nearly 3 years after arriving in Australia “suggest that he was not fearful of persecution at the time he arrived in this country”.
The Member made an external finding that he was not satisfied that:
a) the Applicant’s membership of the Freedom Party caused him any problems prior to departure.
b) Members of the Awami League or anyone else attempted to kill him for political purposes.
c) A case was filed against him in 1995 or 1996.
d) He was detained in 1996 for political purposes.
I explained to the Applicant that it is not the function of the Court in these matters to review the merits of the Tribunal’s decision (MIEA v LIANG (1996) 185 CLR 259 at 272). I am focussed on ascertaining whether any jurisdictional error can be established which would require the Court to remit the matter back to the RRT for determination according to laws.
Submissions
Essentially the initial submission of the Applicant filed 12 July 2004 attacks the findings of fact made by the Tribunal. I am satisfied the findings were open on the evidence.
The Applicant does raise the failure by the Tribunal to raise with him the issue of relocating to a different part of Bangladesh. However as the Respondent, I believe, correctly submits in my view:
“Any such failure was not material, however, as the Tribunal did not rely on a finding that the Applicant could avoid harm by relocating within Bangladesh”.
The amended application alleges that the Tribunal’s decision was affected by actual bias. No particulars are set out in the amended application or the submission filed 12 July 2004.
In the final submission, the Applicant says the Tribunal “failed to consider my claim fairly”. It seems to me, as best I can ascertain from the submission, this assertion is founded on the Applicant’s contention that:
a) the Member relied on general country information about how fraudulent documents can be easily obtained in Bangladesh.
b) the effect of this general country information was not put to the Applicant for comment.
c) the information generalizes about Bangladesh residents and is unfair to the Applicant in particular.
d) The Tribunal should have made investigations itself of the documents tendered at the hearing by the Applicant if the Member was concerned about their authenticity.
e) The Tribunal did not “check my documents at all” and therefore failed to have “proper consideration on my documents and submissions”.
f) “due to other fraudulent documents from other Bangladeshi applications, the Tribunal was prejudiced which seriously affected my claim and I have lost the fair treatment. Therefore I can say the Tribunal was bias and pre-occupied on my decision”.
Copies of the untranslated documents referred to at Item 16 of the Court Book filed on 13 August 2003 were provided to me. I note that by letter dated 23 January 2003 the Applicant was advised to send to the Tribunal:
“any new documents or written arguments you want the Tribunal to consider; please not any documents or arguments you send should be in English or translated by a qualified translator”.
The Respondent relies on decisions such as GOMEZ v MIMA (2001) FCA 935 and WAGJ v MIMA (2002) FCAFC (277 (specifically at 24-25), to support a submission that nothing in this case imposed a duty upon the Tribunal to make further inquiry as the Applicant submits.
I agree.
The finding made by the Tribunal in response of the documents, which I am satisfied the Tribunal did properly consider (as it said it did), was expressed in these terms, namely:
“I have considered that (sic) documents provided at the hearing, but I believe that they were fraudulent. They relate to claims not made before the hearing, some of which I find implausible (the 1995 charges). Furthermore, while most of them are dated between 1993 and 1996, they were provided at the last minute, over 2 years after he first applied for a protection visa and nearly 5 years after he left Bangladesh. If there were genuine documents, I believe that they would have been provided in a more timely fashion”.
This was a factual assessment open to the Tribunal. It was, on a proper view of the Members’ reasons, a finding supportive of the 4 specified reasons for not believing the Applicant. This finding was not determinative of the principal finding, namely that the Applicant did not have a well-founded fear of persecution for a convention reason.
Similarly in my view, the further comments by the Member that from the country information he noted “that fraudulent documents can be easily obtained in Bangladesh” was not germane to the Member’s decision to any significant degree.
Conclusions
For the reasons set out and analysed about, no jurisdictional error has been established. As such the decision is a private clause decision, and I am bound, by law, to dismiss the application for review. I so order.
I propose to order that the Applicant pay the Respondent’s costs fixed in the sum of $4000.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Baumann FM
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