SZBGG v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 371

FEDERAL COURT OF AUSTRALIA

SZBGG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 371

SZBGG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 189 OF 2005

AND

SZBGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 190 OF 2005

TAMBERLIN J
SYDNEY
29 MARCH 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 189 OF 2005 AND NSD 190 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

NSD 189 OF 2005
SZBGG
APPELLANT

NSD 190 OF 2005
SZBGH
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

29 MARCH 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeals are dismissed.

2.The appellants pay the costs of the respondent.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 189 OF 2005 AND NSD 190 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

NSD 189 OF 2005
SZBGG
APPELLANT

NSD 190 OF 2005
SZBGH
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	29 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These are two appeals from decisions of Federal Magistrate Barnes (“the Federal Magistrate”), affirming the decisions of a Ministerial delegate not to grant protection visas to a husband, wife and child.  The Federal Magistrate dismissed applications for review by the husband, wife and child of the decisions of the Tribunal not to grant them judicial review.

2. The grounds in the two Notices of Appeal are the same.  The first ground is that the Refugee Review Tribunal (“the Tribunal”) denied the appellants natural justice and therefore there was a jurisdictional error.  The second ground is that the decision was not fair and the Federal Magistrate ignored that fact.

3. The appellant husband claims that he suffered persecution in Bangladesh because he was a Bihari and because of his political activities.  He claims that, as a consequence, he had false charges and convictions made against him by the police and the courts, that he was a wanted person and was the subject of violence by the Awami League.  He claims that if he returns to Bangladesh, he has a real fear of persecution by fanatic Bengalis and political activists because he is a Bihari.

4. The Tribunal accepted that the applicant came to Australia on a false passport, however, it did not accept that this was because he was a stateless Bihari.

5. The Tribunal found that the applicant is a Bangladeshi national and citizen and is the person he claimed to be in another passport, which recorded his address as Mipawar.  This passport was submitted by the appellant to the Tribunal, together with a birth certificate and driver's licence, and was issued by the Bangladeshi High Commission in Canberra after the appellant claimed to have produced original documents to establish his identity.

6. The case before the Tribunal turned on the question of credibility.  Numerous documents were submitted by the appellant to the Tribunal, however, the Tribunal decided not to give any weight to these documents, after consideration of their nature and the inherent problems with them having regard to the country information and the findings of a previous Tribunal.  This is a reference to a previous decision of the Tribunal in November 1999 that dealt with most of the applicant's documents.  The Tribunal noted that, after a discussion about the documents, the male applicant effectively admitted that he had had the documents produced at his request.  The Tribunal treated this as being tantamount to an admission of forgery.

7. After producing court documents which he claimed proved his claims of having false cases made against him, the appellant admitted that he found it hard to obtain original documents from Bangladesh and that his friends had put the documents together later on, after he wrote home from Australia, in order to help him.  He claimed that the actual date on which the documents were created was much later than the dates that appeared on them.  This was after he had claimed that his father had produced the documents for him.

8. Accordingly, having regard to these considerations, I am satisfied that it was open to the Tribunal to take the view which it did in relation to the documents in the present case, namely, not to give them significant weight or any weight at all.

9. As a consequence of the findings of the Tribunal in relation to the present matter, the Tribunal member found that he was unable to accept that the male applicant was involved with Bihari organisations, that he was involved in political activities in support of the repatriation of Biharis to Pakistan, that he had false cases brought against him, or that he was convicted and sentenced for serious offences, including murder on two occasions, in association with his claimed political activities.  Because of this, the Tribunal concluded that the applicant had fabricated his claims with a view to providing himself the profile of a refugee. 

10. These are extremely strong credit findings, involving, as they do, conclusions of fact adverse to the applicant.  The Tribunal found that it was unable to accept that the applicant was persecuted in Bangladesh for being a Bihari for political reasons.

11. I am not satisfied that any ground has been made out for varying or overturning the decision of the Tribunal based on the submissions.

12. On the appeal before the Magistrate, there was agitated, in addition to a number of other grounds, the question of the fairness or a denial of natural justice in relation to the hearing by the Tribunal of the application.  For detailed reasons, which are set out in the Magistrate's decision in relation to the male appellant, the appellant’s submissions relating to unfairness were rejected and nothing has been advanced before me today to indicate that there was any error in this finding or that the finding was not open to the Magistrate.

13. Having regard to the findings as to nationality, citizenship, and the passport, the Magistrate pointed out that the Tribunal did not accept that the appellant lived in a refugee camp as claimed and did not accept that he was the subject of harassment, discrimination or violence as a stateless person living in a refugee camp and a Bihari prison.

14. When the matter came on before me this morning, the appellant first of all submitted a statutory declaration, which I accept, to the effect that his wife was unable to attend the hearing because she had a high fever and needed to care for the child of the marriage.  In those circumstances, the appellant asked for leave to appear for both himself and his wife and child and I granted permission for him to do so.

15. Nothing additional has been shown in relation to the wife's appeal which would cause me to reach a conclusion contrary to that which I have made in relation to the husband.

16. I note that the appellant had an adviser who made extensive submissions to the Tribunal in a letter dated 4 December 2002.  This was approximately six months before the decision of the Tribunal.  In the circumstances, I am satisfied that the appellant and his wife had adequate opportunity to present their case in a fair and proper manner before the Tribunal.  Furthermore, I consider that the Tribunal took these submissions into account and nothing has been shown to the contrary.  In addition, the Tribunal member relied on independent country information to which the appellant referred me at pages 184 to 185 of the court book.

17. For these reasons, I am satisfied that there is no substance in the appeals and I dismiss both appeals with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            7 April 2005

The Appellant appeared in person with the assistance of an interpreter
Counsel for the Respondent:	R Pepper
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	29 March 2005
Date of Judgment:	29 March 2005