SZBGG v Minister for Immigration

[2005] FMCA 59

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBGG v MINISTER FOR IMMIGRATION [2005] FMCA 59

MIGRATION – Application to review decision of Refugee Review Tribunal – whether breach of s.424A Migration Act 1958 or lack of  procedural fairness – whether country information about documentary fraud in Bangladesh put to applicant – no jurisdictional error. 

Migration Act 1958

Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244
Minister for Immigration v NANW [2004] FCAFC 264
NARV of 2002 v Minister for Immigration & Multicultural& Indigenous Affairs (2003) 203 ALR 494
SZANH v Minister for Immigration & Multicultural& Indigenous Affairs [2004] FCA 1280
S58 of 2003 v Minister for Immigration & Multicultural& Indigenous Affairs [2004] FCAFC 283
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 171
Abebe v The Commonwealth (1999) 197 CLR 510
Prasad vMinister for Immigration & Ethnic Affairs (1985) 6 FCR 155

Applicant: SZBGG

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 1654 of 2003

Delivered on: 21 January 2005

Delivered at: Sydney

Hearing date: 21 January 2005

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms R. Pepper

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the respondent's costs set in the amount of $4,000

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1654 of 2003

SZBGG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 29 July 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant was born in Bangladesh and came to Australia on 4 September 1997.  The application presently under consideration is the second application the applicant has made for a protection visa.  The first application was unsuccessful.  An application for review of a Tribunal decision affirming the delegate’s decision was dismissed by the Federal Court on 15 August 2000.  The applicant was, however, able to make a second application on the basis that his original application for a protection visa was invalid.  That application was lodged on 5 October 2001.  It was refused and the applicant sought review by the Tribunal. 

2. The applicant claimed to fear persecution on the ground of his ethnicity and political opinion.  In brief, he claimed that because of his Bihari descent he lost his citizenship when Bangladesh became independent in 1971, that he lived as a stateless member of the Bihari community in a refugee camp, that he became involved in repatriation programs and that he feared persecution because of his activism in relation to Bihari issues.  In particular he claimed that in 1994 he had organised a peaceful demonstration which had been attacked by Awami League terrorists and that he was the main target.  He claimed that he had been charged with a number of false offences in the 1980s and 1990s including murder.  He also claimed that his wife and daughter had been threatened and harassed, that his eldest daughter had been killed by his opponents and that he fled Bangladesh because he faced severe persecution and feared being killed by his Bengali political opponents.  He alleged that he had managed to obtain a passport in a different name through an agent who assisted him in leaving Bangladesh. 

3. The Tribunal wrote to the applicant on 6 November 2002 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 Tribunal invited the applicant to attend a hearing to give oral evidence and present arguments in support of his claims on

   
   

   5 December 2002.  That letter was sent to the applicant at the home address provided in his application for review and a copy was sent to his migration agent at the address for service provided in the application for review.  The Tribunal records indicate, and the Tribunal reasons for decision state, that the applicant's adviser asked if the hearings for the applicant and for the applicant's wife and daughter (who had filed their own application for a protection visa which was before the Tribunal) could be held at the same time on 5 December 2002.

4. The Tribunal records record that this request was accepted by the Tribunal and that this was notified to the adviser by telephone call.  The notification was that the joint hearing was to start at 10:00 am, which was the time originally fixed and already notified to the applicant for the commencement of his hearing.  The Tribunal records also record that on 5 December 2002 the applicant's adviser advised that the applicant would not be attending the hearing, but that he would provide a written submission.

5. The applicant did not attend the Tribunal hearing. A written submission was received by the Tribunal on 12 December 2002 which is addressed in the Tribunal reasons for decision. The Tribunal reasons indicate that in those circumstances, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it pursuant to s426A of the Migration Act 1958. Nonetheless the Tribunal considered at length the previous protection visa application, the documents submitted with that application and the decisions of the delegate and the first Tribunal, as well as the content of the second application and the subsequent delegate's decision. Also set out and considered at length were the submissions made by and on behalf of the applicant in connection with both his first and second applications, including the documentation provided by the applicant in support of his claims and the written submission provided by his adviser dated 4 December 2002.

6. The Tribunal also summarised independent information, in particular independent information in relation to document fraud in Bangladesh and the prevalence of Bangladeshi asylum seekers providing fraudulent documents, as well as independent information on Biharis and their position in Bangladesh.  The Tribunal summarised the applicant's claims to fear persecution as a Bihari and because of his political activities and his claim that, as a consequence, he had had false charges and convictions made against him by the police and courts.  It had regard to the fact that the applicant had made inconsistent and contradictory claims in certain respects as described at length.  It accepted that the applicant had entered Australia on a false passport but was unable to accept that this was because he was a stateless Bihari.  It accepted that he also had genuine and valid passport in his claimed name which reflected his status as a Bangladeshi national and citizen previously living in Dhaka, not as a stateless person living in a refugee camp. 

7. In light of the findings as to nationality, citizenship and passport, the Tribunal was unable to accept that the applicant lived in the refugee camp as claimed and consequently was unable to accept that he was the subject of harassment, discrimination and violence as a stateless person living in a refugee camp and a Bihari person.  It was supported in these findings by a number of inconsistencies and contradictions in the applicant's evidence given in the course of the various proceedings and in submissions.  The Tribunal also expressed concerns about the appearance of the applicant’s identity documents.  The Tribunal referred specifically to court documents provided by the applicant in support of his claims.  It noted that in the previous Tribunal hearing, after discussion about the documents he had produced at that stage, the applicant had effectively admitted that he had had documents produced at his request, an admission which the first Tribunal had accepted as tantamount to an admission of forgery.  The Tribunal also had regard to the court documents produced in the course of the application before it.  It described particular problems with those documents and the manner in which they were produced (in English and after he had sought them from friends) and had regard to the fact that the applicant initially said they were originals and that all court documents in Bangladesh were in English but subsequently changed his evidence in relation to these matters in the first Tribunal hearing. 

8. The Tribunal had serious doubts as to the veracity and credibility of the applicant’s claim he would be arrested because he had been convicted of false charges.  It noted that he had produced further documents in relation to other alleged false charges in 1982, 1994, and 1997 (beyond those relied upon in the first Tribunal hearing in relation to one incident only in 1994) despite the fact that no mention previously had been made by the applicant of any such other incidents or false cases.  It also had regard to the fact that the later documents made no mention of previous convictions, that the policeman referred to in the complaint in 1997 was described as the same officer as for the 1982 complaint and that the 1997 complaint made no mention of any previous convictions in 1984 or 1995.  The Tribunal was unable to accept that the applicant could have remained at large and conducted political activities in the 1990s if he had been convicted, as he claimed, of serious offences in 1984.  A letter from an advocate dated November 1997 informed of convictions against the applicant but did not indicate dates or any legal advice or advice other than to stay away from Bangladesh.

9. The Tribunal concluded that it was unable to accept the applicant's claims of having false cases brought against him and of being convicted of offences in Bangladesh.  It found these claims not to have any veracity or credibility.  It noted country information on the propensity of Bangladeshi asylum seekers to produce fraudulent documents in support of their claims and that the documents produced by the applicant had the character and flavour of such documents.  In light of the country information and the problems the Tribunal had with the documents as it described, it was unable to accept that the documents were genuine or that they had any credibility or veracity.  Consequently it did not accord any weight to the documents in making its decision. 

10. In light of the findings about documents and the applicant's admissions and inconsistent and contradictory evidence, the Tribunal did not accept the applicant's claims and found that he had fabricated them with a view to providing for himself the profile of a refugee.  It was unable to accept that the applicant was involved with a Bihari organisation or with political activities in support of Bihari repatriation to Pakistan, that he had false cases against him or that he was convicted and sentenced for serious offences, including murder on two occasions, in association with his claimed political activities.  Hence, it was unable to accept that he was harassed, discriminated against and had violence done to him by Awami League members, terrorists or activists.  It was unable to accept that he was persecuted or faced a real chance of persecution if he returned to Bangladesh because of being a Bihari, because of his political activism or because he was wanted by the authorities or Awami League members.  The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he returned to Bangladesh. 

11. The applicant sought review of the Tribunal decision by application filed in this court on 19 August 2003.  His application relies on a number of grounds.  He contends generally without particularisation, that the Tribunal made an error of law, denied him procedural fairness and natural justice and failed to take into account his evidence and his persecution in Bangladesh and that his wife and daughter were also victims of circumstances and severely persecuted by the Bangladeshi authority.  He also claims that the ‘RRT’s letter’ (although he does not identify which letter) and the decision by the department misled him.  He claims that he mentioned his entire claim at the interview with the department but they did not consider it, therefore he did not attend the interview with the Tribunal. 

12. The first claim is, in effect, that the Tribunal did not take into account the applicant's evidence.  Insofar as the applicant takes issue with the Tribunal's fact finding, he seeks merits review which is not available in this court.  The Tribunal reasons for decision indicate that it took into account all of the evidence before it, including the written submissions made on behalf of the applicant.  It made findings of fact concerning the credibility of the applicant's claims that were open to it on the material before it.

13. Findings on credibility are matters of fact for the Tribunal, Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407. The findings were open to the Tribunal on the material before it for the reasons it gives and no error is established in the manner in which it went about its task: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 558 to 559; WAIJ v MIMIA [2004] FCAFC 74 at [30]. The applicant has not pointed to any particular item of evidence or aspect of his claims which was not taken into account. It has not been established, nor is it apparent, that the Tribunal failed to address the elements or integers of the applicant's claims in the sense considered in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 and Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244. The fact that the Tribunal reached a conclusion with which the applicant does not agree does not establish jurisdictional error.

14. The applicant claims generally that the Tribunal denied him procedural fairness or natural justice, but does not provide any details of how it is said that this occurred. However a number of issues arise on the material before the court and were addressed by counsel for the respondent. The first of those is that the applicant did not attend the Tribunal hearing. As indicated above the invitation to the hearing was sent to the applicant at the address provided by him as well as to the address of his migration agent. He had proper notification and the opportunity to attend a hearing. The Tribunal invited the applicant to appear before it in accordance with s425 of the Migration Act 1958.

15. There is nothing to suggest that the notice of invitation failed to comply with s425A. The Tribunal therefore properly proceeded under s426A to make a decision without taking any further action to allow or enable the applicant to appear before it. Indeed, despite the applicant's failure to appear, the Tribunal took into account the submissions that were received by it on 12 December 2002 from the applicant's migration agent.

16. An issue is also raised by the Tribunal's reliance on independent information in relation to documentary fraud in Bangladesh. The applicant does not contend in his application that there was any failure to comply with s424A constituting jurisdictional error. Nonetheless I have considered this issue. While there is nothing in the material before the court to suggest that any written notice was sent under s424A(2) in relation to the information relating to documentary fraud in Bangladesh, consistent with the recent approach of the Full Court of the Federal Court in Minister for Immigration v NAMW [2004] FCAFC 264 to the interpretation of subsection (3) of s424A, such information would be within the section 424A(3)(a) exception to the requirement of notification under s424A(1). Despite earlier suggestions to the contrary in NARV of 2002 v MIMIA (2003) 203 ALR 494, the approach taken to the interpretation of s424A(3) in NAMW was also adopted by Sackville J sitting as the Full Court of the Federal Court in SZANH v MIMIA [2004] FCA 1280 at [47] – [50]. In the circumstances of this case, particularly given the absence of any detailed argument to the contrary on behalf of the applicant, this court should follow the more recent decisions of the Full Court of the Federal Court in NAMW and SZANH.  It is notable that the decision in SZANH also concerned country information in relation to the prevalence of documentary fraud in Bangladesh. It is directly in point. As Sackville J stated at [50]:

    It follows on the authority of MIMA v NAMW that the exception in s424A(3)(a) applies to the country information relating to document fraud relied on by the RRT.  The information was not specifically about the appellant.  It was about the reliability of documents produced by Bangladeshi asylum seekers.  Accordingly the RRT was not obliged by s424A(1) of the Migration Act to give written particulars of the information to the appellant. 

17. Similarly, this Tribunal was not under such an obligation.  Moreover, insofar as the applicant intended to raise the issue of whether procedural fairness required notification to him of the Tribunal concerns about the fraudulent nature of his documentation, I am not satisfied that in the particular circumstances of this case procedural fairness required such notification to the applicant.  It is relevant in this instance that the applicant was given the opportunity to attend a Tribunal hearing but did not do so.  It is also relevant that in the earlier proceedings the first Tribunal had quite clearly put the applicant on notice of issues in relation to fraudulent documentation.  That he was aware that this was an issue of some relevance is confirmed by the submissions from his migration agent dated 4 December 2002 in which the migration agent acknowledged, consistent with the information subsequently relied on by the Tribunal, a general trend for refugee applicants to submit false documents to support their claims, but went on to claim that the applicant’s claim in this instance was genuine and that the applicant believed that the department did not obtain any expert opinion but relied on generalised assumptions.

18. Counsel for the respondent drew to the attention of the court the recent decision of the Full Court of the Federal Court in S58 of 2003 v MIMIA [2004] FCAFC 283 at [25] in which the court rejected an argument that in every case in which a Tribunal doubted the authenticity of documents submitted by an applicant it was bound to notify the applicant of its suspicions and give him or her an opportunity to dispel them before a decision was made on the application. The applicant had, as in this case, failed to attend a Tribunal hearing. In relation to documentation of the same nature as the documentation in issue in this case (relating to documentary fraud in Bangladesh) their Honours stated:

    [25] In any event, whether an applicant has been accorded procedural fairness is not to be decided on a minute or fragmented examination of each step of the process by which a Tribunal has arrived at its decision.  In the present case the applicant was fully aware that the success of his application depended on an affirmative finding that he had a well-founded fear of persecution for a Convention reason if he were returned to Bangladesh.  He was given an invitation to attend a hearing before the Tribunal which, apparently on advice, he deliberately declined.  Having done so, he is to be taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of his documents would be noted by the Tribunal without his having an opportunity to explain or clarify them.  Conversely, his conduct left it open to the Tribunal to infer that had he attended a hearing and given oral evidence the appellant would not, on balance, have improved his case for the grant of a protection visa.  In our view, the duty of the Tribunal, in the circumstances of this case, was no higher than that identified in these terms by the Full Court in WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 171 at [33];

    ‘The Tribunal must give the appellant an opportunity to appear before it and give evidence: s425 of the Act.  If an appellant seeks to give evidence, the Tribunal is under a duty to raise plainly and unambiguously the critical issues on which his or her application might depend so that he or she may have an opportunity of being heard on them: Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370 at 388 (per Merkel J) and see 382 (per Einfeld J) and 383 (per von Doussa J); Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 288 at [29] – [30] per O’Connor, Tamberlin and Mansfield JJ.’ 

1. The Full Court also observed at [46]:

   ‘There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so.  An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward.’

2. As in S58 of 2003, in this instance the applicant was offered the opportunity to appear before the Tribunal and address concerns it may have had about his claims and the documents upon which he relied.  It is the case that in S58 of 2003 the Tribunal had not in terms found that any one or more of the applicant's documents were fraudulent but rather that it could not give his documents the probative effect which he desired.  However in this instance the applicant was aware from the earlier Tribunal proceedings (as acknowledged by his adviser) of the possibility of a finding that his documents were fraudulent and that their genuineness was a critical issue.  In these circumstances I am not satisfied that any lack of procedural fairness has been established.

3. The applicant also complained that the Tribunal failed to consider the claim that his wife and daughter were persecuted.  The Tribunal did consider the claims that were made by the applicant in this respect.  His wife and daughter were not part of the applicant's application for a protection visa, having their own separate application.  Given the findings made by the Tribunal about the genuineness of the applicant's claims, then insofar as his wife and daughter relied on his claims, they could not succeed.  The separate claims made by the applicant's wife and daughter were a matter to be addressed in the decision of the Tribunal addressing their application for protection visas and then for review.

4. Finally the applicant contends that the Tribunal misled him.  It is not clear in what manner he claims to have been misled by the Tribunal.  The fact that the applicant felt unhappy with the departmental interview and chose not to attend the Tribunal hearing does not establish any error on the part of the Tribunal.  It has not been established that the Tribunal misled the applicant in any way.

5. In oral submissions the applicant contended that the Tribunal erred in failing to investigate or check his claims or documents further.  This is not a case in which the Tribunal was under an obligation to inquire in the manner contended.  It was for the applicant to make his case as indicated in Abebe v The Commonwealth (1999) 197 CLR 510 and the circumstances are not those such as would bring the circumstances within the situation addressed by Wilcox J in Prasad’s case (Prasad vMinister for Immigration & Ethnic Affairs (1985) 6 FCR 155).

6. The applicant also contended that he had relied on his adviser and was in some way ignorant of all that had occurred.  The circumstances of the applicant's reliance on his adviser are not matters which establish any jurisdictional error on the part of the Tribunal on the material before the court.  In particular, as I indicated above, the notice of hearing was sent to the applicant at his address as well as a copy being sent to his migration adviser.

7. No jurisdictional error has been established.  Accordingly, the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  The respondent seeks that he meet costs of these proceedings in the sum of $4,000.  There is nothing in the material before me to warrant a departure from the normal rule that an unsuccessful applicant should meet the costs of the respondent.  The applicant's lack of funds and lack of permission to work is not a reason for not awarding costs, although such matters may be taken into account, by the respondent in determining when and how to seek to recover such costs.  The amount sought is reasonable having regard to the nature of this and other similar matters. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  4 February 2005.