SZAZZ v Minister for Immigration

[2005] FMCA 1387

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAZZ v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1387

MIGRATION – Visa – protection visa – application for review of Refugee Review Tribunal decision affirming a decision of the delegate of the Minister not to grant a protection visa.

Judiciary Act 1993 (Cth) ss.39B (1) (EA), 422(B), 424A, 474.
Migration Act 1958 (Cth) s.477 (1) (K).

NAOA and the Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 241.
Minister for Immigration and Ethnics Affairs and Wu Shan Liang (1996) 185 CLR 259.
Abebe v The Commonwealth, 199-197 CLR 510.
Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407.
Kopalapillai and Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.
W148/OOA and Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703.

Applicant: SZAZZ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 1427 of 2003

Delivered on: 13 September 2005

Delivered at: Sydney

Hearing date: 13 September 2005

Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Mr Reilly

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. I grant leave to join Refugee Review Tribunal as a Second Respondent in these proceedings.

2. The Application for adjournment is refused.

3. The Application is refused.

4. The Applicant is to pay the Respondent’s costs fixed in the sum of $6,000.00. I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1427 of 2003

SZAZZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 1 July 2003 after a hearing that took place on the same day.  The Refugee Review Tribunal published its written reasons for that decision on 15 July 2003. The decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant a protection visa to the Applicant.  The Applicant is a citizen of Bangladesh. He arrived in Australia from Malaysia on

   
   

   26 May 2002. On 14 June 2002 he applied for a protection visa claiming a well-founded fear of persecution for reasons of his political views.

2. He said in a written statement that he submitted with his application that he was a supporter of the Awami League and had been subjected to violence on several occasions by supporters of the BNP, another major political party in Bangladesh. On one occasion apparently between 1987 and 1990 he was hit on the forehead by a chopper wielded by a supporter of the Jamat-e Islami. The Applicant also stated that on 14 December 1993 he was attacked by a group of BNP activists, one of whom hit him on the left hand with a Chinese axe.  The Applicant explained to the Court that a Chinese axe is a term used in Bangladesh for a type of axe that is smaller and lighter than an ordinary axe.

3. He said at page 26 of the court book that he still bears the scars of those injuries.  The Applicant showed the Court his left forearm where it is clear that he has a scar.  In 1996 the Awami League was successful in the Bangladesh elections and formed a National Government.  The Applicant said at page 27 of the court book that a number of "bad elements" joined the Awami League. He said that he became a target of those people within his own party because he opposed their evil deeds. 

4. In January 1997 some Awami League supporters attacked and ransacked the local BNP office and one BNP activist was killed.  This incident led to the Applicant's leaving Bangladesh for Malaysia.  He explained it in this way:

   A number of cases were filed against each other group and my name was implicated in the case.  When the condition became dangerous I left the country for Malaysia.  A number of years I spent in Malaysia, but there were no provisions to lodge an application to receive refugee status.  As such during my stay in Malaysia I could not lodge any application by seeking refugee status.  (see court book page 27)

5. The Applicant remained in Malaysia until May 2002. The Applicant obtained a fresh Bangladesh passport on 30 August 2001 from the Bangladesh High Commission in Kuala Lumpur, although his application gives the obviously incorrect date of 30 August 2002, and travelled to Australia on that passport.  The Applicant claims that he was not able to return to Bangladesh to see his mother at any time.  He further says that the political situation has changed in that the BNP has returned to power in Bangladesh after what he described as "a farce election" by forming a coalition with the Jamat-e Islami.  As a result he says that the situation in Bangladesh is different and:

   Massive scale oppression is going on against the opponent political leaders and activists.  (See page 27 of the court book.)

6. The Applicant claims that if he returned home to Bangladesh he would be persecuted and his life is not safe in Bangladesh. Accordingly he said that he sought refugee status. A delegate of the Minister refused his application for a protection visa. He sought a review of that decision by the Refugee Review Tribunal. On 1 July 2003 the Applicant attended a hearing of the Refugee Review Tribunal at which he gave oral evidence.  He was assisted by a Bengali interpreter. 

   
   

   At the conclusion of the hearing the Tribunal delivered an oral decision affirming the decision of the delegate of the Minister not to grant the Applicant a protection visa.

7. The Applicant filed his original application on 24 July 2003 within the time limit specified by section 477(1) (K) of the Migration Act 1958.  He seeks essentially the same orders in each, although the grounds in the Amended Application differ significantly from the template grounds contained in his original application. The Applicant seeks orders in the nature of Mandamus and prohibition. Section 39B(1)(EA) of the Judiciary Act 1993 provides that the Federal Magistrates' Court has jurisdiction, even though the Amended Application states that the application is brought under section 39B(1)(A), which refers to the original jurisdiction of the Federal Court. The Refugee Review Tribunal was not named as a party, although it is now clear that the RRT should be joined as a Respondent. Accordingly I made an order joining the Refugee Review Tribunal as Second Respondent to the application.

8. At the commencement of the proceedings, which the Applicant attended in person with the assistance of a Bengali interpreter, the Applicant sought an adjournment of the hearing for about three or four weeks.  In support of the application he submitted a medical certificate from Dr S Simmons of the Mascot Medical and Dental Centre.  The certificate referred to the fact that he had suffered a fractured distal right radius on 6 October 2004 when he fell off two milk crates at his employment.  The certificate refers to a treatment review date of

   
   

   4 October 2005 and indicates that the Applicant is fit for suitable duties from 1 July to 4 October 2005.  The restriction placed by Dr Simmons on the Applicant's employment consists of:

   No forceful or repetitive right hand wrist actions.

9. It appears to me that this certificate did not preclude the Applicant from attending court today. The Applicant also sought an adjournment on the basis of a complaint of pain in the mouth.  He indicated that he had consulted a medical practitioner at the same practice as

   
   

   Dr Simmons and he had seen that doctor on 1 August this year.  He was advised to obtain X-rays.  He obtained those X-rays and is waiting to see the doctor with the X-rays when the doctor returns from leave on Thursday of this week.  He did not consult Dr Simmons or any other doctor in the practice about his symptoms.  The Applicant complained of symptoms of pain from an ache in his mouth, and said that he had had those symptoms for the last couple of weeks.  He sought to tender his X-rays in support of his request for an adjournment.  He says that those X-rays were performed on 4 August 2005.

10. I declined to peruse the X-rays as I have not had any formal training in the reading of X-rays and I would not be in a position to form any opinion based on those X-rays.  The Applicant also explained that his Medicare card had expired and he was seeking to obtain a new one.  The applicant complained of pain in the mouth, which he said he treated by taking a painkiller known as Panadol.  I take judicial notice of the fact that Panadol is a well-known painkiller, which is freely on sale in stores.  It is not a painkiller that requires a person to attend a pharmacist. 

11. The Applicant said that he had last taken some Panadol for the pain in his mouth last night.  He had not taken any Panadol this morning, even though he was in pain, because he had not had any food.  He said that he usually takes Panadol after he has eaten, but because he did not feel very well this morning he did not feel like eating.  He also indicated that he felt some emotional distress after having heard that his mother, who resides in Bangladesh, had recently had an operation on her eye. 

    
    

    I formed the view that the Applicant has not established sufficient grounds for an adjournment.  The Applicant had brought Panadol with him and he had left it in his car, which he had parked nearby.  I am of the view that the Applicant's pain was one which would be open to him to have treated by means of a proprietary pain killer, but the Applicant had elected not to take that pain killer this morning. I refuse the application for an adjournment.

12. The Applicant's Amended Application sets out five grounds. The Amended Application was prepared by the Applicant's adviser who did not attend court. The Applicant described that person as a solicitor.  The first ground is as follows:

    (1) The Tribunal exceeded its jurisdiction in failing to accord the applicants procedural fairness as required under section 424A (1) of the Migration Act 1958.

13. The Applicant told the Court that as far as that ground was concerned he had told his solicitor everything about his case. He knew that the facts that he had told the Tribunal were correct and feels the Tribunal had not been fair to him in arriving at an unfavourable decision.  The applicant told the Court that he had attended the Tribunal hearing and had given oral evidence and considered that he was able to answer the questions that the Tribunal had asked of him.  He agreed that he had the services of an interpreter.

14. The claim of a lack of procedural fairness was not particularised and appeared to rest largely on the Applicant's dissatisfaction of the Tribunal's decision.  For the Respondent, Mr Reilly of counsel in a written submission submitted that the Applicant's claim of denial of procedural fairness has no factual foundation as the Applicant had not filed a transcript of the hearing.  He relied on the decision of the Full Court of the Federal Court in NAOA and the Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 241 at paragraph 21, and also submitted that section 422B of the Migration Act applies. He also submitted that as far as section 424A of the Migration Act is concerned that no particulars have been provided of that claim. I am not satisfied that the Applicant has shown any failure to accord procedural fairness to him in the hearing of the case by the Refugee Review Tribunal.

15. Ground 2 of the application is in these terms:

    The RRT did not complete the exercise of its jurisdiction as it made no findings as to what socio political and religious changes might occur in Bangladesh in the reasonably foreseeable future and it thus failed to assess whether the Applicant's fears of being persecuted for being a member of a highly marginalised religious group were well founded in the reasonably foreseeable future.

16. This ground does not relate to the Applicant's case at all. The Applicant has made no claim that he is a member of a highly marginalised religious group and could not understand why his adviser had included that ground in his Amended Application.  The Applicant told the Court that he had never mentioned any religion to his adviser.  I accept his assurance in that regard.

17. Ground 3 of the application says as follows:

    The RRT's decision was not based upon circumstances giving a rational foundation for the belief entertained, as the RRT's findings when applied to the applicable criteria meant that the RRT should have been satisfied that the Applicant had meant those criteria.

18. What this ground appears to mean is that the Applicant considers that the Tribunal should have been satisfied after a consideration of his evidence that the applicant met the relevant criteria so that the RRT should have been satisfied that the Applicant had a well founded fear of persecution for a convention reason. 

19. It was submitted on behalf of the Respondent and in my view correctly, that this is no more than seeking merits review of the RRT's finding.  It is well known that a court cannot review the merits of a Tribunal decision and I refer to the decision of Minister for Immigration and Ethnics Affairs and Wu Shan Liang (1996) 185 CLR 259, at page 272. It was put to me by the Respondent, and correctly in my view, that there is no jurisdictional error or even an error of law if the Tribunal makes a wrong finding of fact. The authority for this is Abebe and The Commonwealth, 199-197 CLR 510 at paragraph 137.

20. Ground 4 of the application says:

    The Tribunal did not provide the Applicant with particulars of information which formed part of the reasons of the Tribunal's decision.

21. The fact is that there is no evidence of the Tribunal not providing relevant particulars. There is no breach of section 424A of the Migration Act. The Tribunal has given in its decision its reasons for arriving at the decision to affirm the decision of the delegate.

22. Ground 5 of the application says:

    The Tribunal did not put to the Applicant its doubts about documents containing information personal to the applicant from different sources of Bangladesh, and those doubts formed part of the reason for the Tribunal's decision.

23. I am certainly persuaded that the Tribunal did have doubts about a significant part of the Applicant's case. The Tribunal identified inconsistencies in the Applicant's case, but that is no more than the Tribunal exercising its function in deciding an application. The Applicant says that the Refugee Review Tribunal should have done its own investigation of the merits of his case.  It is trite law that the Refugee Review Tribunal is under no obligation to conduct any independent investigation.  It is up to an applicant to present evidence to the Tribunal sufficient to allow the Tribunal to be satisfied that the Applicant has established that he or she has a well founded fear of persecution, and that this fear of persecution is for a convention reason.

24. The significant factor in the decision of the Tribunal is that the Tribunal was not satisfied as to the credibility of the Applicant's claim.  At page 276 of the court book the Tribunal says:

    Given that the Tribunal does not accept as reliable the Applicant's claims about his joining the AL -

    (meaning the Awami League)

    or his becoming an office holder, it has good reason to disbelieve all the claims about the attacks the Applicant supposedly sustained for reasons of his party 'leadership' including the Chinese axe incident.  On the evidence before it the Tribunal cannot accept the one explanation the applicant provided for the injuries he described.

25. The Tribunal also, on page 276, expresses a firm view of its conclusions as to the lack of credibility of the Applicant's case. The final paragraph of the Tribunal's decision on page 276 of the court book sets out clear reasons as to why the Tribunal had serious doubts about the credibility of the Applicant's evidence.

    The Tribunal is highly confident in its conclusions, and all the more so because of the evidence of the Applicant having remained in Bangladesh so long after the events that supposedly triggered his urgent need to escape. In addition the Tribunal places weight on the fact that the Applicant left Bangladesh not just slowly, but legally, claiming no difficulty in obtaining his documents for travel in spite of serious charges against him.  Furthermore the Tribunal concludes on the evidence before it that the Applicant set himself up to work in Malaysia before he went there, which is evidence of his having other priorities ahead of simply fleeing for his life.

26. It is well known that credibility findings are matters of fact for the Tribunal and I refer to the well-known decision Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407 at paragraphs 6 and 7. The Respondent submits, and I believe correctly, that so long as the Tribunal's credibility findings were open to it no error is demonstrated - see Kopalapillai and Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pages 558 and 559, and also W148/OOA and Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at paragraphs 64 to 69.

27. In my view the Tribunal's findings as to the credibility of the Applicant's case were well and truly open to it on the evidence. The Applicant's original claim as set out in the attachment to his application for a protection visa was a relatively thin and unconvincing account on its face, and the contradictory nature of the Applicant's evidence to the Tribunal allowed the Tribunal to form a less than favourable view of the credibility of the Applicant's evidence on four of its significant issues. I am mindful of the fact that the Applicant is not legally represented. I have read through the Tribunal's decision in great detail. I have also read through the other documents contained in the Court Book. I have not been able to identify any other jurisdictional error and I am satisfied that there is no reviewable error in the Tribunal decision. The decision of the Refugee Review Tribunal that was made on1 July 2003 is a privative clause decision covered by section 474 of the Migration Act. The application is dismissed.

28. There is an application for costs. The Applicant has been wholly unsuccessful in his claim.  It is the usual situation in this jurisdiction that a party who has been successful before the Court will seek and will usually obtain an order that the unsuccessful party pay their legal costs.  In my view it is appropriate to consider whether a costs order should be made, and then and only then consider the quantum of those costs.  In my view there is nothing to distinguish this matter from other cases and I consider that it is proper and appropriate for an order for costs to be made in favour of the respondent.  As I said the Applicant has been wholly unsuccessful.

29. Having considered and decided that there should be an order for costs in favour of the Respondent I now consider the quantum of those costs.  The amount that is sought is $6000.00. That is a figure that includes counsel's fees.  Mr Reilly for the Respondent submits that this figure is higher than the Court would usually award, but has drawn my attention to the fact that there have been two directions hearings and the matter was originally listed before two of my learned colleagues. For one reason or another neither of my learned colleagues was able to hear the matter at the time and I note that one of them is on a lengthy period of leave.  In my view taking all the matters into account and noting the considerable number of documents contained in the court book, which runs to some 357 pages, I am satisfied that a lump sum of $6000.00 is appropriate.

30. The Applicant has put to me the fact that he is in strained financial circumstances as a result of the accident which he sustained in his employment in October last year.  He said that he has not been able to go back to work, notwithstanding the fact that his treating medical practitioner certified that he was fit for suitable duties from 1 July this year until a proposed date of review on 4 October. The restriction placed on his activities as far as the operation of his wrist is concerned would not appear to me to preclude his employment in a convenience store which was given as his employment in the medical certificates.

1. Nevertheless I accept the fact that the Applicant is currently not in employment and in somewhat strained financial circumstances. To my mind strained financial circumstances in this jurisdiction are not a bar to the imposition of a costs order in an appropriate amount, but are matters that should be considered by the Court in assessing whether time to pay those costs should be allowed.  In the circumstances I propose to allow six months to pay the costs.  I order that the Applicant is to pay the Respondent's costs fixed in the sum of $6000.00 and I allow six months to pay. I require a transcript of my reasons for this decision.  I will remove the application from the list of cases awaiting finalisation.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  22 September 2005