SZBEV v Minister for Immigration - [2005] FMCA 164

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBEV v MINISTER FOR IMMIGRATION

[2005] FMCA 164

MIGRATION – Review of RRT decision – where applicant claimed to be a member of the Bihari community in Bangladesh and have a well-founded fear of persecution as a result – where Tribunal found that the applicant has been granted South African citizenship – whether Tribunal failed to have regard to documentary evidence submitted by the applicant – whether tribunal obliged to make inquiries with overseas authorities – whether Tribunal ought not to have had regard to DFAT information – whether applicant denied an opportunity to comment on adverse material – whether the findings and reasons of the Tribunal evidence a lack of procedural fairness or jurisdictional error.

Migration Act 1958 (Cth), s.44B
Federal Magistrates Court Rules 2001

B v The Minister [1999] FCA 1800
VCAK of 2002 v Minister for Immigration [2004] FCA 459
Hong v Minister for Immigration [2004] FCA 1308
Minister for Immigration v SGLB [2004] HCA 32
Zekiroski v Minister for Immigration [2004] FCA 1288

Applicant:

SZBEV

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1602 of 2003

Delivered on:

16 February 2005

Delivered at:

Sydney

Hearing date:

16 February 2005

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Ms R Henderson

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assess in the sum of $4,250 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1602 of 2003

SZBEV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

In this matter the applicant claims to be a Bangladeshi. But he arrived in Australia from South Africa on 5 June 1997. On

4 September 1997 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 16 September 1997 a delegate of the Minister refused to grant him a protection visa and on 8 October 1997 the applicant applied for review of that decision. The Tribunal affirmed the decision of the delegate on 29 July 1999. The applicant appealed the decision of the Tribunal to the Federal Court of Australia. On 21 December 1999 the Federal Court dismissed the applicant's appeal and upheld the decision of the Tribunal, however, on 1 June 2001 the applicant made another application for a protection visa to the department, this application was allowed pursuant to s.44B of the Migration Act 1958 (Cth) as the department viewed his original application as invalid.
On 4 September 2001 the delegate refused the application and on 4 October 2001 the applicant applied for review of that decision. It is this second review that is the subject matter of proceedings before me today. The applicant attended an interview before the Tribunal which determined on 27 June 2003 to uphold the decision of the delegate. The Tribunal handed that decision down on 24 July 2003. The applicant's claims in both Tribunal hearings and before the delegates were, in short, that he was a member of a Bihari family who was being discriminated against in Bangladesh, he had joined an organisation which supported Biharis known as SPGRP, he had been involved in some political activity with that organisation and that as a result some very serious but he says, "false charges" had been laid against him. He believed that if he returned to Bangladesh his life would be in danger.
It was part of the applicant's evidence that after graduating in science he took up training as a chef in a technical school. He was unable to find work in Bangladesh because he was a Bihari. Somehow or other he managed to find his way to South Africa in approximately 1994 and he stayed there until 1997 when he came to Australia. He travelled to Australia on a passport which was in a different name to that which he claimed was his own and to which certain documents produced by him were said to be corroborative.
The second Tribunal in its interview went over with the applicant matters discussed between himself and the first Tribunal and documents produced by him which he said corroborated his story about the false charges that had been raised against him. The Tribunal and the applicant discussed his nationality and his name and in particular the applicant's failure to provide the Tribunal with his passport which the Tribunal found had been requested from him no less than three times.
In its findings and reasons the Tribunal indicated that it had doubts about the identity of the applicant and at [CB 126] said:
“I am unable to accept that the applicant is who he claimed to be. I accept that the applicant's correct identity is that in his South African passport, the passport which he used to come to Australia and to be issued a NSW driver’s licence. I accept that the applicant is RH, an emigre Bangladeshi to South Africa, and who has been granted South African nationality and citizenship as evidenced by his South African passport. I am unable to accept that the documents that the applicant provided proved his identity as otherwise. I note the country information about the propensity of fraudulent documents provided by Bangladeshi asylum seekers. I note that the nature of the documents provided by the applicant appears to have this character and flavour. I note the exhaustive examination made by the previous Tribunal of the applicant’s documents, the finding of which was that they were fraudulent.

I note that the Federal Court upheld the previous Tribunal's findings about the applicant. (See B v The Minister [1999] FCA 1800)
The Tribunal could have stopped its decision-making at this point and indicated that as a South African citizen the applicant was not a person to whom this country owed any protection obligations. But it went on to say at [CB 127]:
“In these circumstances, I am unable to accept that the applicant was a stateless Bihari, that he was who he claimed to be, that he lived in Mirpur camp, that he was a member of the SPGRC committee or that he was of adverse interest to the Bangladeshi authorities and AL. I accept that the applicant can safely return to South Africa on his legitimately issued and valid passport, which indicates that he is a South African citizen. Consequently I am unable to accept that the applicant suffered persecution in Bangladesh because he was a Bihari or that there would be a real chance of the applicant suffering persecution because he was a Bihari if he was to return to Bangladesh.”
In his original application seeking review of the decision of the Tribunal filed on 13 August 2003 the applicant said:
“1. The RRT made a number of errors in deciding the case.
2. The Tribunal made jurisdictional errors to constitute this case.
3. There is no basis of the decision of the Tribunal.
4. The Tribunal did not provide an opportunity to the applicant to comment on material which the Tribunal relied on its decision.”
These grounds of review were fleshed out in a document entitled “Submission for the Applicant” which was filed in court at the hearing. The applicant provided four grounds upon which he believed the Tribunal erred.
The first ground notes that the Tribunal's opinion that he was a South African citizen appeared contradictory to its finding that he would not face a well-founded fear of persecution for a Convention reason in the foreseeable future if he returned to Bangladesh. As I said previously, it would have been open to the Tribunal to end its finding at the time it concluded that the applicant was a South African citizen. The fact that it did not do so but appeared to seek to cover the situation if the applicant did return to Bangladesh does not indicate jurisdictional error in the decision-making process but merely an excess of zeal. The Tribunal's actual decision can best be summed up in its conclusion found at [CB 127] which is in the following form:
“Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees' Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in 36(2) of the Act for a protection visa.”
The reason that this applicant is not a person to whom Australia has protection obligations is because he is a citizen of another country which is itself a signatory to the Convention and which would provide him with the necessary protection and will not refoul him to Bangladesh.
The second matter raised by the applicant is that the Tribunal did not pay any attention to the documents submitted by him. But this is not the case at all, at [CB 122] the Tribunal appears to go through with the applicant all the documents which he produced and which were purportedly corroborative of his assertion that he was a Bihari Bangladeshi. It was also documentation which was purportedly corroborative of his fear that when he returned to Bangladesh he would be arrested and placed on trial for the false charges which had been laid against him.
The applicant also complains that the Tribunal failed to make inquiries in relation to his documents. I take this to mean, not inquiries of him, but of the authorities in Bangladesh as to their veracity. But it is quite clear from decisions of the Federal Court in cases such as VCAK of 2002 v Minister for Immigration [2004] FCA 459 at [27] or Hong v Minister for Immigration [2004] FCA 1308 at [40] and [41]; Minister for Immigration v SGLB [2004] HCA 32 at [42-43] per Gummow and Hayne JJ and finally, Zekiroski v Minister for Immigration [2004] FCA 1288 at [33] and [34] that whilst a duty to inquire may be seen to arise in certain circumstances these are understood as being exceptional or rare. The duty would not arise in this case.
The third matter raised by the applicant is that the Tribunal made a jurisdictional error in considering the DFAT information found at [CB 132 and 133] and the two DFAT cables relating to the question of document fraud in Bangladesh. The applicant states that these are contradictory and should not be considered as an independent report. The documents are not contradictory, they are complementary and there is nothing to suggest that a report by DFAT is not independent.
Finally, the applicant argues that the Tribunal did not give him an opportunity to comment on material upon which the Tribunal relied, in particular the material found at [CB 123] where it is set out in full. This material also deals with the problem of document fraud in Bangladesh and I am quite satisfied from my reading of the Tribunal's reasons for decision as a whole that the essence of this matter was put to the applicant. There is discussion of it at [CB 122] where the Tribunal says:
“The country information about the propensity of false documentation being supplied by Bangladeshi asylum seekers was put to the applicant in the context of the applicant's evidence that he could buy anything in Bangladesh.”
The applicant did not seem to dispute this or provide evidence to the contrary from the transcript.
Before me today the applicant argued that he was not a South African citizen. It would appear from this statement and from the submissions to which I have just referred that the applicant was unaware of his responsibility to satisfy the Tribunal and he was a person to whom this country owed protection and obligations.
Whilst the applicant is not required to jump the hurdle of any burden of proof he is responsible for producing sufficient evidence to satisfy a Tribunal of the veracity of his case. This he failed to do and the Tribunal was entitled to rely on the evidence that was before it to conclude that the applicant travelled to this country on a genuine passport in his own genuine name and therefore was a protected citizen of a respected democratic country and thus not in need of this country's protection.
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.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 1 March 2005