SZBCB v Minister for Immigration

[2005] FMCA 578

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCB v MINISTER FOR IMMIGRATION [2005] FMCA 578

MIGRATION – Review of decision of RRT – where Tribunal provides applicant with an opportunity to comment on matters of concern.

Migration Act 1958, s.91R

Minister for Immigration v SGLB (2004) HCA 32
SZATG v Minister for Immigration [2004] FCA 1595
Australian Capital Territory Revenue, Commissioner for v Alphaone Pty Ltd (1994) 49 FCR 576
Minister for Immigration & Multicultural Affairs, Re; Ex-parte S154/2002 (2003) 201 ALR 437
Abebe v Commonwealth of Australia (1999) 197 CLR 510

Applicant: SZBCB

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1503 of 2003

Judgment of: Raphael FM

Hearing date: 20 April 2005

Date of Last Submission: 20 April 2005

Delivered at: Sydney

Delivered on: 20 April 2005

REPRESENTATION

Solicitors for the Applicant: Applicant in person

Counsel for the Respondent: Mr R Bromwich

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1503 of 2003

SZBCB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in these proceedings claims to be a stateless Bihari living in a refugee camp outside Dhaka.  He does not, as suggested in the Tribunal's background information found at [CB 120], claim to be a citizen of Bangladesh.  He arrived in Australia on 2 July 2001.  On 30 July 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.

2. On 25 September 2001 a delegate of the Minister refused to grant a protection visa and on 21 October 2001 the applicant applied for review of that decision before the Refugee Review Tribunal.  The applicant attended a hearing before the Tribunal which, on 12 June 2003, affirmed the decision not to grant a protection visa and handed down its decision on 9 July 2003.

3. The applicant claimed to be a 27 year old Bihari Muslim who had lived in the Geneva camp until he left Bangladesh in 2001.  He claimed that as such he was a stateless person.  He claimed that as such he was denied a passport and that he did not have access to education or employment although he had indicated that he had had some 10 years of education including a year at the National University of Bangladesh.

4. The applicant claimed that he became involved with Australian Pakistani General Repatriation Committee (APGRC) and participated in demonstrations in 1991 and 1994.  He claimed that his application for Bangladeshi citizenship was not responded to by the government and that although he had received some education he had been refused it twice in years 9 and 10.  Reading the applicant's statements and the decision of the Tribunal, it would appear that he has the false impression that a stateless person is automatically a refugee.  The representations which he made to me today also indicated that belief. 

5. The applicant travelled to Australia on a Bangladeshi passport issued in his own name and bearing his photograph.  A copy of the passport is found in the court book and various pages are reproduced at [CB 37 to 51].  The applicant was well travelled on that passport.   The applicant claimed that the passport was false, that he had applied for it through a broker and that it did not indicate that he was a citizen of Bangladesh.  On the other hand the applicant asserted that certain documents produced by him in support of his claim to be a Bihari and to be living in the refugee camp he referred to, such as a ration card, an identity card and a census card, which are reproduced at [CB 87 to 91] were genuine.

6. The Tribunal took the opposite view.  It had considerable doubts about the genuineness of the corroborative documents and pointed out its concerns to the applicant and requested his response.  It also put to the applicant independent country information concerning document fraud in Bangladesh.  The Tribunal suggested that the passport had gone through so many hands that its genuineness would be difficult to impugn.

7. The Tribunal's reasons for decision commence at [CB 129].  At [CB 130] the Tribunal says:

   “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 has faced persecution in Bangladesh, or faces a real chance of persecution in the foreseeable future if he returns to Bangladesh.”

8. It is fair to say that the Tribunal does not discuss in any detail the question of whether the persecution alleged by the applicant would constitute persecution within the meaning of that word found in s.91R of the Migration Act 1958 (Cth). The reason it did not do that was because it satisfied itself that the applicant was not the stateless person he claimed to be.

   The Tribunal said:

“Notwithstanding that the applicant claimed to be a stateless person, I accept that the applicant is a Bangladeshi national.  This is so because he speaks Bengali and had a Bangladeshi passport, which appeared to have been validly and legitimately issued, and which was valid until September 2002. ...

The passport disclosed that the applicant had done extensive travel to other countries on the passport over a period from 1997 until 2001, departing and entering Bangladesh numerous times, apparently without any difficulties and without coming to the adverse attention of the authorities.”  [CB 130]

The Tribunal then went on to list its reasons for not accepting the corroborative documents at [CB 131].  At [CB 132], the Tribunal says:

“Notwithstanding that I am unable to accept that the applicant was a stateless stranded Pakistani, I accept that the applicant might be a Bihari.  However, the country information indicates that Biharis who declined to accept Bangladeshi citizenship lived in camps, including the Geneva camp in Dhaka, and were effectively stateless.  Biharis who have accepted Bangladesh citizenship could settle anywhere in Bangladesh, and it appeared that many Biharis subsequently assimilated into Bangladesh society.  I am of the view that such is the situation for the applicant.  Contrary to the applicant's claims, he has citizenship and nationality, and has had education and employment.  The country information also indicates that there has not been evidence that Biharis are specific targets of police abuse or other mistreatment by the police, authorities or Bangladeshi citizens.

I am unable to accept that the applicant has suffered persecution in Bangladesh because he is a stateless Bihari.

1. The conclusions to which the Tribunal has come seem to me to follow logically from its examination of the factual matters put to it by the applicant.  In an amended application dated 20 September 2004, the applicant cites over 5 pages grounds for claiming that the Tribunal fell into jurisdictional error in the manner in which it reached those conclusions.

2. He firstly alleges that the Tribunal failed to take steps to investigate his claims.  He does not specify in what manner that investigation should have taken place but to the extent that he is referring to some duty to inquire, it is clear from the decision of the High Court in Minister for Immigration v SGLB (2004) HCA 32, per Gummow and Hayne JJ at [43] that:

   “Whilst s.427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so.  Rather, section 426 provides that even if an applicant requests that the Tribunal take oral or written evidence from a witness, the Tribunal is under no duty to inquire.”

3. In SZATG v Minister for Immigration [2004] FCA 1595 Hely J held that there was no obligation on the Tribunal to inquire into the authenticity of documents. Section 427 conferred a power on the RRT but did not impose any duty or obligation upon it.

4. The second ground raised by the applicant is a claim that the Tribunal did not accept that he was persecuted in Bangladesh before coming to Australia.  That seems to me to be an argument as to the merits of the claim.  In any event the Tribunal came to the view that the applicant was an assimilated Bihari who had taken out Bangladeshi citizenship and thus would not be the subject of any persecution if he returned.

5. The third ground was also a due inquiry complaint but if it is read carefully it is more a complaint that the Tribunal did not accept the evidence put forward by the applicant as to the situation of Biharis in Bangladesh.  I am satisfied that the Tribunal made itself fully aware of the situation of Biharis in Bangladesh, both those who had assimilated and those who had not. 

6. The fourth ground indicates that the Tribunal failed to accord the applicant procedural fairness by failing to specify which part of his claim was not credible or give him an opportunity to respond to adverse material.  But what the Tribunal was doing was expressing in its grounds and reasons its conclusion as to the evidence that the applicant had provided. 

   In Australian Capital Territory Revenue, Commissioner for v Alphaone Pty Ltd (1994) 49 FCR 576 at [592], the Full Court said:

   Procedural fairness also extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature, or the terms of the statute under which it is made.  The decision maker is required to advise of any adverse conclusion, which has been arrived at, which would not obviously be open on the known material.  Subject to these qualifications, however, a decision maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

   In Minister for Immigration & Multicultural Affairs, Re; Ex-parte S154/2002 (2003) 201 ALR 437 at [54], their Honours said:

   “The Tribunal Member was not obliged to set out every detail of the reasoning process which he eventually employed for the prosecutrix's consideration.”

   I am satisfied that all the required matters were put to the applicant.  These included the country information concerning Bangladeshi document fraud and the Tribunal's concerns about the genuineness of the corroborating documents. 

7. Ground 5 appears to be a bare assertion of an incorrect application of the law.  It is unparticularised to the extent that it would appear meaningless.  Ground 6 indicates that the Tribunal has failed to consider the applicant as stateless notwithstanding his evidence.  That is an attack upon the merits which the court cannot entertain Abebe v Commonwealth of Australia (1999) 197 CLR 510.

8. The complaint raised in paragraph 7 of the amended particulars is a similar attack upon the factual findings of the Tribunal.  Paragraph 9 indicates that whoever wrote this document for the applicant did not read the evidence that he had given either to the Tribunal or to the delegate because it alleges a failure to allow him to give evidence which he clearly gave, a failure to take into consideration the threats to his life and liberty, about which he gave no evidence, alleges that it did not consider him as a member of the social group of Biharis, but the Tribunal found as a fact that he may well be one, and did not consider the current situation of Biharis in Bangladesh, which the Tribunal quite clearly did. The other points in paragraph 9 seem to me to be formulaic and not to require a response.

9. In making these remarks concerning paragraph 9 I took that paragraph to be a particularisation of the generalised allegation in paragraph 8 that the Tribunal constructively failed to exercise its jurisdiction in arriving at its decision, but if it was not then I would say in respect of that paragraph that it lacks all particularity and the court should not be required to guess what is meant by it. 

10. The applicant appeared in person before me today.  He told me that he had told the Tribunal all his problems, that he did not want to go back to Bangladesh because he wanted to be a citizen of a country and not a stateless person.  He wanted the next generation to be citizens of a country and not a stateless generation.  He told me that his family could now support themselves because he was in Australia and was able to send back money from this country to them in Bangladesh.  He wanted to have a chance to stay here and not to return.  He did not wish to die in Bangladesh.  These statements, whilst understandable, do not constitute allegations of jurisdictional error.

11. For the reasons expressed I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it came to its decision in this case.  The decision appears to me to be logical on its face and based upon evidence that it was clearly entitled to utilise.  I dismiss the application. 
    I order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: