SZAZP v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1004

FEDERAL COURT OF AUSTRALIA

SZAZP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1004

SZAZP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD1650 OF 2004

EMMETT J
24 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1650 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAZP APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	24 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs of the appeal.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1650 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAZP APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	24 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a Bangladeshi citizen, who arrived in Australia on 26 April 2001.  On 2 May 2001, he lodged an application for Protection (Class XA) Visa under the Migration Act 1958 (Cth) (‘the Act’). On 10 May 2001, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 24 May 2001, the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision. On 28 May 2003, the Tribunal affirmed the decision not to grant a protection visa. The reasons for that decision were published on 24 June 2003.

2. The appellant then commenced a proceeding in the Federal Magistrates Court of Australia seeking Constitutional writ relief in respect of the Tribunal’s decision.  On 29 October 2004, the Federal Magistrates Court ordered that the proceeding be dismissed with costs.

3. By notice of appeal filed on 11 November 2004, the appellant appealed to the Federal Court of Australia.  The Chief Justice has directed that the appeal be heard by a single Judge.

4. The appellant does not speak English and has no legal representation.  However, on the hearing of the appeal he has been assisted by an interpreter in the Bangladeshi language.

5. The Tribunal’s reasons record that the appellant claimed to have suffered persecution in Bangladesh because he was a member of the Freedom Party.  He claimed that he had a real chance of persecution because of his activities with the Freedom Party if he returned to Bangladesh.

6. The Tribunal considered the appellant’s evidence in relation to most aspects of his claims to be vague, generalised, lacking in specific detail, and inconsistent, and unconvincing.  The lack of credibility of the appellant’s evidence led the Tribunal to conclude that it was unable to be satisfied that the appellant had faced persecution in Bangladesh or that he would face a real chance of persecution in the foreseeable future if he returned to Bangladesh.

7. The Tribunal accepted that the appellant is a Bangladeshi citizen and national, being the holder of a valid and legitimately issued Bangladeshi passport.  While the appellant claimed to have been an active general member of the Freedom Party from 1990 until 2001, he was unable to give the Tribunal a simple explanation of the Party’s manifesto, aims or objectives other than to say it was to improve the life of the people and develop the country.

8. The appellant claimed before the Tribunal that the Freedom Party had more than 10,000 members in his area alone.  However, the Tribunal referred to country information that indicated that the Freedom Party would have several hundred activists in the whole country, if at all.  The Tribunal was, therefore, unable to accept that the appellant had ever been a member of the Freedom Party.

9. The Tribunal did not accept the veracity and genuineness of documents submitted by the appellant in support of his claims.  The evidence before the Tribunal indicated that there is a very high level of document fraud in Bangladesh, with fraudulent documents able to be obtained with the assistance of the police, court officials and medical officers.  The Tribunal accepted that evidence, and considered that the documents produced by the appellant had the flavour of such fraudulent documents.  According to the Tribunal’s reasons, on an examination of the document, they were riddled with inconsistencies and implausibilities.  The Tribunal considered that the documents disclosed dates that were inconsistent with the endemic and chronic delays in the Bangladeshi Local Court system.  Documents purporting to be copies of originals were in very bad English, and the Tribunal considered that certain of the documents were inconsistent with the appellant’s claims. 

10. Since the Tribunal did not accept that the appellant was ever a member of the Freedom Party, it did not accept the claims made by him that false cases had been brought against him and that an arrest warrant had been issued for him.  The Tribunal did not accept that the appellant had been involved in political activities that had brought him to the attention of the police, as he alleged.  The Tribunal concluded that the appellant had fabricated claims in an attempt to create for himself the profile of a refugee.  Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution in Bangladesh for a Convention reason.

11. The application to the Federal Magistrates Court of 26 July 2003, set out nine separate grounds, together with a statement that more details of the grounds would be provided later.  The Federal Magistrates Court observed that no further details had been provided.  In its reasons, the Federal Magistrates Court dealt with each of the nine grounds stated in the application.  The Federal Magistrates Court also observed that directions requiring an amended application disclosing adequate grounds had not been complied with. 

12. The first ground was that the Tribunal did not take into account the court case against the appellant.  As the primary judge observed, the Tribunal simply did not accept the allegations made by the appellant.  The Tribunal dealt specifically with the alleged court case and rejected the documents relied on as being fraudulent.

13. The primary judge dealt with Grounds 2, 3 and 6 together, on the basis that they generally overlapped.  Ground 2 alleged bad faith.  Ground 3 alleged a denial of natural justice and ground 6 alleged a predetermined decision, contrary to what the Tribunal, in fact, did.   The primary Judge examined the material before him, and concluded that there was nothing in the material to indicate that the Tribunal did not have an open mind and did not ultimately reach a rational decision.  His Honour observed that there was nothing in the communications from the Tribunal to the appellant to suggest that he was in any way misled so as to give rise to a denial of procedural fairness. 

14. Grounds 4, 5, 7 and 8 generally appear to raise the merits of the Tribunal’s decision.  They were as follows:

    ‘4.The Tribunal denied the evidentiary proof of my claim.

    5.The Tribunal decision did not reflect the materials [sic] facts of my claim.

    …

    7.The Tribunal mix up many facts with this decision which affected the decision.

    8.The Tribunal ignored many other facts and claim.’

15. The primary judge assumed that those grounds referred to the rejection of various items of documentary evidence, which the Tribunal considered were fraudulent.  His Honour observed that much of the material contained inconsistent facts when compared with the applicant’s claims.  His Honour referred, in some detail, to observations made by Hill J concerning the rejection of fraudulent documents and concluded that the rejection of the documents, because the Tribunal believed them to be fraudulent by reason of apparent inconsistencies, did not constitute a denial of procedural fairness.

16. Ground 9 was that the Tribunal ‘made up its mind with the partial parts of media information’.  The primary judge, not surprisingly, did not understand precisely what the ground meant.  In the absence of any particularisation or oral submissions from the appellant in support of the ground, his Honour took Ground 9 to be a re-statement of the other grounds.

17. The notice of appeal to this Court states the following grounds:

    ‘1.The Federal Magistrates Court failed to find error of law, jurisdictional error or procedural fairness and failed to grant relief under section 39B of the Judiciary Act.

    2.The grounds and relief is very much similar with Muin v The Refugee Review Tribunal and Lie v The Refugee Review Tribunal, 2002 HCA 30.’

18. No particulars were furnished, although a written outline of submissions was filed on behalf of the appellant.  The submissions might be summarised as an assertion that, on the evidence as a whole, the findings of the Tribunal, as to various matters, demonstrated actual bias.  The submission then summarises the procedure before the Tribunal, but does not refer to any specific findings.

19. The submission asserts that, at the hearing before the Tribunal, the appellant provided oral evidence and documentary evidence to support his claims, and asserts that the Tribunal’s comments regarding his claims were generalised and were a denial of natural justice.  The submission refers to the fact that the Tribunal rejected the appellant’s claim because his written evidence was inconsistent in relation to major issues.  The submission then asserts that, despite numerous opportunities, the Tribunal did not accept the appellant’s claims, which are genuine and true.

20. After referring to the decision in Muin v The Refugee Review Tribunal and Lie v The Refugee Review Tribunal, the submission asserts that the Tribunal did not act in good faith.  It asserts that the decision maker acted in bad faith because the decision maker got the facts wrong, took into account irrelevant matter, did not take certain matters into consideration, and then says that the decision maker did not make an honest attempt to come to the right decision and intentionally made a wrong decision.  However, there are no particulars of those serious allegations.

21. Next, the submission asserts that the Tribunal ignored or failed to consider the appellant's claims, and mixed up irrelevant issues.  No particulars are furnished.

22. At the end of the submission, the appellant refers to observations made by the Federal Magistrates Court to the effect that, although the appellant had been offered the opportunity to participate in the legal advice scheme, he had failed to make initial contact until June 2004.  The appellant claims that, on contacting the legal adviser in accordance with the scheme, the legal adviser was overseas.   However, the appellant apparently made no other attempt at contact in accordance with the scheme.  In his submission, the appellant asserts that without the receipt of such legal advice, he was unable to present a submission to the Federal Magistrates Court.

23. In oral submission to me today, the appellant asserted that he could not return to his country at any cost and that it was a matter of his life and death.  He said that the Minister should be required to obtain the transcript of the proceeding before the Tribunal and that would help his case.  However, he was unable to explain to me how the transcript would support his case, other than to show that he had made the submissions and gave the evidence that are recorded in the Tribunal’s reasons.

24. The appellant reiterated that he had not participated in the pro bono legal advice scheme because the barrister he tried to speak to was out of the country when he tried to do so.  Finally, in his oral address, the appellant complained that the Tribunal did not properly investigate this case, but was not specific as to the alleged failures. 

25. The Federal Magistrates Court was unable to identify any error in the reasons of, or in the procedure before, the Tribunal.  There does not appear to me to be any error in the decision of the Federal Magistrates Court.  The submissions that I have summarised do no more than call in question the merits of the Tribunal’s decision.  In the absence of something more, there is no case of bias established.  It follows, in my opinion, that the appeal should be dismissed.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            22 July 2005

The Appellant appeared in person
Solicitors for the Respondent:	Sparke Helmore
Date of Hearing:	24 June 2005
Date of Judgment:	24 June 2005