SZAZS v Minister for Immigration - [2004] FMCA 903

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAZS v MINISTER FOR IMMIGRATION

[2004] FMCA 903

MIGRATION – Review of RRT decision – where applicant claims to have a well-founded fear of persecution for the Convention reason of political opinion – where there were inconsistencies between the applicant’s evidence and the country information before the Tribunal – where Tribunal did not consider the applicant to be a credible or reliable witness – whether Tribunal failed to comply with the requirements of s.424A – whether the Tribunal fell into jurisdictional error in not making a finding as to future political and social changes in Bangladesh – whether Tribunal had a duty to make specific inquires about the applicant in Bangladesh – where applicant essentially seeking merits review.

Federal Magistrates Court Rules 2001

Migration Act 1958 (Cth), s.424A(3)(a)

Singh v Minister for Immigration (1996) 42 ALD 271
Minister for Immigration v Singh (1997) 144 ALR 284
SGBB v Minister for Immigration [2003] FCA 709
Dranichnikov v Minister for Immigration [2000] FCA 1801
SCAL v Minister for Immigration [2003] FCA 548
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
Applicant S56 of 2002 v MIMIA [2004] FCA 444
M122 of 2003 v MIMIA [2004] FCA 1367

Applicant:

SZAZS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1417 of 2003

Delivered on:

24 November 2004

Delivered at:

Sydney

Hearing date:

24 November 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Ms S Kaur-Bains

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1417 of 2004

SZAZS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh. He arrived in Australia on 17 September 2001. On 30 October 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 27 June 2002 a delegate of the Minister refused to grant a protection visa and on 11 July 2002 he applied for a review of that decision.
On 1 April 2003 the Refugee Review Tribunal wrote to the applicant advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The letter went on to say:
We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons. [CB 91]
The applicant attended the hearing before the Tribunal which, on 10 June 2003, determined to affirm the decision not to grant a protection visa. It handed down that decision on 9 July 2003. The applicant now seeks a review of the decision of the Tribunal by way of an amended application dated 28 January 2004 and has also provided the court with some written submissions setting out his complaints about the manner in which the Tribunal reached its decision.
The applicant claimed to have a well founded fear of persecution for the convention reason of political opinion. He told the delegate and the Tribunal that he had joined the Jatiya Party in 1986 and was elected general secretary Srimangal in 1987. He claimed that he organised political activities in that area and in late 1990 had received threatening phone calls from both the major parties, the Awami League and the BNP demanding huge donations from him. He claimed that the BNP had filed false cases against him but he had escaped from Srimangal and took shelter in another town.
He claimed that he was attacked by BNP terrorists in that town in 1993 but said that when the AL came to power he had to maintain a low profile and lived in other parts of the country until in 2000 he managed to obtain a work visa for the United Arab Emirates. He left Bangladesh in May of that year. He told the Tribunal that his right to work in UAE had been withdrawn and that was why he came to Australia in September 2001.
The applicant provided the Tribunal with a series of documents which he said established or at least corroborated his evidence concerning his membership of the party his fear of returning to Bangladesh and the false cases that had been alleged against him. The Tribunal also questioned him on his political activities and his knowledge of the JP. The Tribunal raised with the applicant areas of concern including inconsistencies in his evidence with country information available to the Tribunal and in particular the existence of document fraud in Bangladesh [CB 212].
At [CB 216] the Tribunal expresses certain conclusions about the applicant's evidence:
The applicant's evidence in relation to most aspects of his claims was vague, generalised, lacked specific detail and was inconsistent and unconvincing. I do not consider that the applicant was a reliable or credible witness. The lack of credibility of the applicant's evidence leads me to conclude that I am unable to be satisfied that the applicant had faced persecution in Bangladesh or faces a real chance of persecution in the foreseeable future if he returns to Bangladesh.
…
I am unable to accept that the applicant was the subject of persecution in Bangladesh as a result of his political activities. This is so because I am unable to accept that the applicant is, or was ever a member, office holder or leader of the JP. At the hearing the applicant was asked to describe his involvement in politics and political activities in Bangladesh. He was unable to give any specific details of his political activities, other than in vague and general terms. For example, he was asked to be specific about his political activity in Bangladesh. He explained generally that he was an organising secretary, that when the BNP came to power all JP leaders were immediately arrested, and that he saved himself by hiding. He claimed that his leadership was very strong in his local area, that he had been attacked twice by BNP supporters and had scars on his body... I am unconvinced that the applicant knew of or could explain the politics of the JP, except in the most vague and generalised way. His explanation was not the knowledge that even an ordinary member of a political organisation would know, let alone a claimed active member, office-holder and leader of longstanding and duration.”
The Tribunal goes on to make adverse comments about the applicant's statement that he was in hiding for 10 years which seemed to be contradicted by his passport and then states at [CB 217]:
“ The applicant produced documents in support of his claims. I do not accept the veracity and genuineness of the documents submitted by the applicant in support of his claims. The independent evidence above indicates 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. It is also common to pay bribes to officials. In addition, lawyers will provide, for a fee, a letter advising that it is unsafe to return to Bangladesh. I accept this evidence. The documents produced in support of the applicant's case have the flavour of such documents.”
But the Tribunal did not rest there. It went on to analyse in a factual way the documents submitted by the applicant and came to the conclusion that it could not place any weight upon them.
The grounds for seeking review of the decision of the Tribunal were made firstly in the amended application. There are four grounds set out there. The first relates to the fact that the Tribunal did not provide the applicant with particulars of information that violence against political parties or groups had subsided. Although the applicant claims that this is not the type of information exempted under s.424A(3)(a) of the Migration Act 1958 (Cth) (the “Act”) I am satisfied that it is.
The application then goes on to say that the Tribunal did not put to the applicant its doubts about documents containing information personal to the applicant from the JP and the court case brought against him. It is clear from the sections of the Tribunal decision quoted by me and referred to in this judgment that the Tribunal did tell the applicant that it had doubts about this material based upon country information concerning document fraud in Bangladesh.
The applicant states that the Tribunal did not complete the exercise of its jurisdiction because it made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future and thus failed to assess whether the applicant's fear of being persecuted for being a member of a political party were well-founded in the reasonably foreseeable future.
The Tribunal made a finding of fact that the applicant was not a member of a political party. Even if the applicant had been right in suggesting that it was a jurisdictional error not to make the findings referred to and that they were not made (which I doubt) they would not be relevant in the light of this finding of fact which the Tribunal was entitled to make on the evidence before it.
Finally, the applicant says in his amended application that the Tribunal's decision was “not based upon circumstances giving a rational foundation for the belief entertained and that if the Tribunal had applied rational criteria it would have been satisfied that he had met the criteria”. This seems to me to be an argument on the merits which this court is unable to entertain.
In the applicant's written submissions he deals first with the facts of his claims matters, about which it is not appropriate to comment and then proceeds to attempt to utilise the decision of the Full Bench of the Federal Court (or more relevantly the decision at first instance) in Singh v Minister for Immigration (1996) 42 ALD 271; Minister for Immigration v Singh (1997) 144 ALR 284 to argue that the Tribunal fell into error by not verifying the documents and that as a result he was denied natural justice. Singh is an interesting case which was decided before much of the current legislation was in place but there can be no doubt that the Full Bench of Black CJ, von Doussa, Sundberg and Mansfield JJ reviewed the obligations said to be contained in subs.427(1)(d) of the Act to make inquiries about documents. The extract of the judgment which I have is regrettably not given paragraph numbers but on the sixth of the nine pages the Court says:
“The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries.”
And at the eighth of the nine pages the Court says:

“In our view the respondent has fallen short in showing that the Tribunal's failure to make inquiries through official channels about the authenticity of warrants involved a denial of substantial justice. The Tribunal gave reasons for concluding that the letters and the warrants that accompanied them were not authentic, and those were conclusions to which it was entitled to come. The Tribunal was given no information about the provenance of the warrants other than that they were forwarded with letters which it was entitled to conclude were not authentic. Moreover, although the failure to ask the Tribunal to exercise its power to make inquiries could not be decisive, there is nothing to indicate that it was ever suggested to the Tribunal by the respondent or by the migration agent who was assisting him that it should take any steps of its own to authenticate the documents in question.
Although we have concluded that there may be circumstances in which the Tribunal's obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary Judge's general proposition that where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the Tribunal through official channels, if by that her Honour intended to convey (as the respondent suggested) that the Tribunal was under a duty to verify in such cases. In a particular case the Tribunal may be indeed be obliged to verify a document in this fashion, but there is no general rule to that effect.”

I am satisfied that in regard to the documents produced by this applicant the Tribunal acted within the strictures of procedural fairness by putting to the applicant its doubts about the document and asking him to comment. The Tribunal then indicates the thought processes by which it came to its own conclusion that the documents lacked authenticity. Those findings were factual findings and the Tribunal was entitled to come to them on its own consideration of the documents themselves.
The applicant's written submissions go into some further detail of matters raised in the original amended application and they repeat a complaint that the Tribunal failed to follow proper procedures because it did not make inquiries in Bangladesh about the applicant. This was a matter raised by the applicant in his oral submissions to me as well. I think it is quite clear now that it is the responsibility of the applicant to satisfy the Tribunal that he has the requisite well founded fear of persecution and that it is the function of the Tribunal to respond to the case that the applicant advances; SGBB v Minister for Immigration [2003] FCA 709; Dranichnikov v Minister for Immigration [2000] FCA 1801; SCAL v Minister for Immigration [2003] FCA 548. If the Tribunal is not satisfied from the information provided by the applicant that he has a genuine claim to the protection of Australia, it is for the applicant to convince it, not for the Tribunal to seek out such information as can be found in his native country in order to place it in that situation of satisfaction.
Finally, in his written submissions, the applicant makes reference to the cases of Muin vRefugee Review Tribunal; Lie v Refugee Review Tribunal (2001) 190 ALR 601 and appears to be alleging that the procedures that were not followed in that case were not followed in his. Regrettably, the applicant has not provided the court with any indication of what Part B documents he says were not considered by the Tribunal, nor what he would have done had he known of this fact and how that would have led to the possibility of a different decision: see generally Applicant S56 of 2002 v MIMIA [2004] FCA 444; M122 of 2003 v MIMIA [2004] FCA 1367. I do not believe that the applicant has a claim of this nature in regard to these reasons for decision.
The Tribunal indicated that it could not be satisfied that the applicant came within the Convention because it could not be satisfied that he was a member of the political party he claimed to be a member of. As he was not a member of that party, the alleged acts of persecution either did not take place at all or did not take place for political reasons and therefore came outside the Convention definition. That is the essence of the Tribunal's decision. The decision was reached by the Tribunal upon an assessment of the facts and after discussion with the applicant. I am satisfied that the applicant was not denied procedural fairness in relation to any of these matters and therefore his application must fail.
I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 9 December 2004