SZAZT v Minister for Immigration
[2004] FMCA 845
•10 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAZT v MINISTER FOR IMMIGRATION | [2004] FMCA 845 |
| MIGRATION – Review of Refugee Review Tribunal – where applicant claims to have a well-founded fear of persecution for reason of his political opinion – where Tribunal did not consider the applicant to be a credible witness – whether Tribunal acted in bad faith – whether findings and reasons evidence jurisdictional error or lack of procedural fairness on part of the Tribunal – whether Tribunal obliged to make independent enquires. |
Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407
SBBS v MIMIA (2002) 194 ALR 749
MIMIA v SGLB (2004) 207 ALR 12
| Applicant: | SZAZT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1418 of 2003 |
| Delivered on: | 10 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 10 November 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Counsel for the Respondent: | Mr G Johnson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1418 of 2004
| SZAZT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh. He arrived in Australia on 26 April 2001. On 3 May 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 10 May 2001 a delegate of the Minister refused to grant a protection visa and on 25 May 2001 the applicant applied for a review of that decision from the Refugee Review Tribunal. The applicant was invited to a hearing which he attended with his adviser on 2 May 2003. On 2 June 2003 the Tribunal determined to affirm the decision not to grant a protection visa and it handed down that decision on 1 July 2003. On 23 July 2003 the application sought review from this court citing nine grounds.
At [CB 82] the Tribunal noted:
“The applicant arrived in Australia on the same date and under the same visa conditions as three other applicants from Bangladesh. They were part of a drama troop which had come from Bangladesh and decided to stay in Australia at the end of their engagement. They all made protection visa applications and review applications on the same date and with the assistance of the same migration adviser. Their claims were essentially in the same terms, in that they all claimed to be members of the Freedom Party, except that the names, places and some dates were different for each applicant.”
This applicant claimed to be a member and office holder of the Freedom Party from 1988 until March 2001. He originally claimed to have become organising secretary of his local area in 1992. He claimed that he organised a public meeting in January 2001 in his local area and that a huge crowd gathered. He claimed that the rally was attacked by police and Awami League supporters and that many people were seriously injured including himself. He claimed that as a well known political leader he was targeted, beaten unconscious and woke up in hospital. He claimed that as a result of this political activity false charges were filed against him and an arrest warrant was issued on 27 January 2001. These claims were made before the delegate. The Tribunal questioned him upon them.
The applicant gave slightly inconsistent answers to some of the questions but importantly as the Tribunal describes at [CB 85] the applicant was unable to provide him with satisfactory answers about the agenda, manifesto or policies of the Freedom Party. The Tribunal also questioned the applicant as to whether he had any proof that he was a member of the Freedom Party and said at [CB 86]:
“It was put to him that there were no documents proving his membership of FP. He said he gave documents. He was asked if he had documents. He said no. He claimed that the offices had been ransacked and they had destroyed the documents and it was very hard to get them. He was asked if he was saying that he was not given any documents. He claimed that he had had them with him but he forgot to submit them.”
The Tribunal considered the statements of the applicant and his responses at the hearing together with certain country information which it had about the situation in Bangladesh and in particular the situation of the Freedom Party. At [CB 89] the Tribunal says:
“It was the applicant's claim that he was an active member and leader in the FP, that there were many activities organised by the party. The independent information indicates that the FP is marginalised and has effectively ceased to exist since 1997. The applicant in his statement claimed that the party had more than 10,000 members in his area alone. At the hearing, when asked how many members there were in his branch of the FP he claimed there were about 1000. In this regard the applicant was inconsistent in his evidence. However, the country information indicates that the FP may have several hundred activists in the whole country, if at all.”
To the extent that this evidence concerning the strength of the FP was a significant factor in the Tribunal's view about the credibility of the applicant I had some concern that it did not seem to be clear that it had actually been put to the applicant. But I note at [CB 55] in the reasons of the delegate this assertion concerning the fact that the Freedom Party had ceased to function as a political party is set out. It can be said that this was a matter which was brought to the attention of the applicant and which he would have known might have been the subject of consideration by the Tribunal.
The Tribunal goes on to refer to an inconsistency in the applicant's statement concerning exactly when an arrest warrant was issued against him and when he organised a meeting and then states at [CB 90]:
“In light of the above evidence, I am unable to accept that the applicant ever has been a member of the FP. As I do not accept that the applicant ever was a member of the FP, it follows I do not accept that the applicant had false cases made against him, that an arrest warrant was issued for him, that he came to any harm or was hospitalised as a result of political activities, that he went into hiding or that he was forced to leave Bangladesh.”
This finding of the Tribunal is a finding on credibility. That has been said many times to be a matter "par excellence" for the Tribunal: Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. The Tribunal was entitled to find that from the inconsistencies both internally in the applicant's evidence and between the applicant's evidence and external information which the Tribunal had and which the applicant would have known about from the delegate's decision that he was not an entirely credible witness. To that extent I can find no jurisdictional error in the conclusion reached by the Tribunal.
The applicant's nine points in his original application were made into 10 points in a document filed on 9 November 2004. It is a familiar litany of unsubstantiated complaint, which on the most charitable reading arises out of this applicant and many other applicants in his position utilising precedent documents in the absence of being able to afford legal representation. To the extent that the complaints argue that the decision was made in bad faith that is a matter which Mr Johnson has dealt with at length in his own written submissions where after quoting from SBBS v MIMIA (2002) 194 ALR 749 at [43] - [48], he correctly says:
“There does not appear to be any basis upon which this ground could properly be contended. The material before the court certainly does not enable the conclusion that the Tribunal was dishonest in the execution of its duty.”
To the extent that the complaints are those concerning a failure to provide the applicant with natural justice by refusing to make any investigation of his claims I would say that firstly, the Tribunal did investigate his claims because it allowed him to appear at a hearing and asked him questions about them. But to the extent that the complaint is one that the Tribunal did not make its own independent inquiries of his particular and personal claims it would now seem clear from the High Court decision in MIMIA v SGLB (2004) 207 ALR 12 that there is no requirement or duty upon the Tribunal to do this.
There is an allegation concerning the evidentiary proof of the applicant's claims. As I read that it is an allegation that the Tribunal ignored the evidence that he gave. The Tribunal did not do this, it pointed out to the applicant that he had no evidence independent of his own statements.
The applicant also complains that the Tribunal solely depended upon country information. This is not correct. The Tribunal's decision was one that it was not satisfied that the applicant had a well founded fear of persecution because it did not believe that the events which he claimed to have occurred did occur. That had very little to do with country information. However, to the extent that the Tribunal tested the applicant's own evidence against country information it was entitled to do that.
The final matter raised by the applicant in his submissions was that the Tribunal ignored the fact that there were several assassination attempts on his life and that he was stabbed and shot on several occasions. Reference to these matters appears in paragraph 6 and 7 on the first page of his submissions. I have looked carefully through the green book and I could find no reference to these matters therein. That was either in the statements made by the applicant in his original application or before the delegate or before the Tribunal. I questioned the applicant about this and he conceded that he was not making these allegations. Therefore paragraph 10 is irrelevant.
In all the circumstances there are no grounds up which I can review the decision of the Tribunal. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 19 November 2004
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