SZBGO v Minister for Immigration - [2005] FMCA 373

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBGO v MINISTER FOR IMMIGRATION

[2005] FMCA 373

MIGRATION – Review of RRT decision – where Tribunal did not find applicant a credible witness – whether Tribunal made its concerns regarding lack of credibility sufficiently plain – whether questioning the applicants agent directly constitutes a lack of procedural fairness – whether failure to account for similar past circumstances when considering country information constitutes a lack of procedural fairness.

Migration Act 1958 (Cth), ss.45, 422B, 425, 426A

Kioa v West (1985) 159 CLR 550
WAJR v Minister for Immigration [2004] FCA 106
MIEA v Guo & Anor (1997) 191 CLR 559

Applicant:

SZBGO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1665 of 2003

Judgment of:

Raphael FM

Hearing date:

16 March 2005

Date of Last Submission:

16 March 2005

Delivered at:

Sydney

Delivered on:

16 March 2005

REPRESENTATION

Counsel for the Applicant:

Mr K Ginges

Counsel for the Respondent:

Ms R Francois

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,350 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1665 of 2003

SZBGO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is a citizen of Bangladesh who arrived in Australia on 16 July 2002. On 14 August 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 19 September 2002 a delegate of the Minister refused to grant him a protection visa and on 14 October 2002 he applied for review of that decision. The applicant was provided with an opportunity to attend a hearing before the Tribunal which he did together with his migration agent. On 30 June 2003 the Tribunal determined to affirm the decision not to grant a protection visa and it handed that decision down on 25 July 2003.
The factual circumstances which give ground to the applicant’s alleged well founded fear of persecution for Convention reasons are that he is a member of a politically active family and himself joined a political party known as the JSD in the 1970s. He had previously been associated with the Awami League. His membership of the JSD caused problems and in mid 1970 he went to Germany where he applied for refugee status but he later withdrew that application and returned home to Bangladesh. He left Bangladesh again in 1985 and returned in 1987. By 1989 he had gone back into association with the Awami League and moved to Dhaka. He claimed to have become an executive member of the Dhaka City committee of the Awami League and was involved in elections in 1996, which the Awami League won. He was also involved in elections that took place in 2001, which were won by the BNP, when the local member who he had supported lost his seat.
The applicant claimed that he was in fear of returning to Bangladesh because of certain false charges that had been laid against him and because of an attack that had been made upon his home. He believed that he would be targeted by the BNP and would be the subject of persecution.
The Tribunal considered the claims made by the applicant and his evidence at the hearing. I have before me two versions of the transcript of that hearing. One is annexed to an affidavit of Judith Gayton and is produced on behalf of the applicant and the other is annexed to the affidavit of Sharon Martin and is produced by the respondent. The applicant concedes that the transcript produced by Ms Martin is a reasonable attempt to complete a rather large number of gaps in the transcript prepared and annexed to the affidavit of Ms Gayton and for the purposes of this case I rely on that document. I would note, however, the transcript is not by any means perfect. There are a lot of responses from the applicant which are difficult to comprehend and a lot of areas where the transcript writer has been unable to understand what has been said clearly. However, it is obvious that the Tribunal took notes at the hearing and has herself made reference to what occurred. Her version of the interview is contained in the decision document and it was not suggested that it was significantly inaccurate or indeed inaccurate at all.
The Tribunal's findings and reasons for the decision are short. The Tribunal did not find the applicant to be a credible witness and believed that he had concocted most, if not all, of the claims contained in his application. The first paragraph of the Tribunal's findings deals with the false charges which the applicant claimed had been filed against him. It goes through the evidence and in particular deals with a letter found at [CB 66] from a lawyer in Dhaka. The Tribunal notes that there is an inconsistency between the applicant's oral evidence and the contents of that letter. The inconsistency is that the applicant in his evidence appeared to be telling the Tribunal that he was aware of false charges having been laid against him when he left Bangladesh but he had no particulars of those charges.
In a statement that he gave at an early stage in the process there is found that [CB 29] the following statement [11]:
“Since the BNP came to power I could not stay at home. During the election period my house was ransacked a number of times. After the election I could not return home. Many false cases were lodged against me to diminish my political career.”
The letter from Mr Syeed, the lawyer, states:
“I am writing this letter in relation to your cases which are pending in the Court or [sic] Bangladesh. As you know a number of false cases has[sic] been filed against you while you were in Bangladesh.
In fact, all cases against you were filed during this BNP regime. In course of time these cases are going to be ready for trial now.”
The inconsistency found by the Tribunal was that in evidence the applicant indicated that the only information he had about the cases was that contained in the letter from his lawyer and was unable to specify, except in generalities, the types of charges that had been made. The impression that is clearly given from the transcript itself is that the applicant was saying to the Tribunal that he had only been told about the possibility the cases were going to be brought against him and not that any actually had.
The Tribunal proceeds to criticise the letter from Mr Syeed, it states:
“In addition the letter from Mr Syeed does not read like a document prepared by a lawyer asked to provide information on charges pending against him. It is badly written and it gives almost no information on the nature of the charges or of anything which has or could be done to deal with them. I believe that the applicant concocted the claim that charges have been laid against him and that the letter from Mr Syeed was prepared by him or at his instructions solely for the purpose of enhancing his chances of obtaining a protection visa.”
It is this finding which the applicant attacks and claims is the subject of jurisdictional error. The applicant argues that if the Tribunal was to come to this conclusion it should have put it to the applicant and that its failure to do so was a breach of the fair hearing rule. I am satisfied that the applicant was put firmly on notice that the Tribunal had difficulty with the Mr Syeed letter.   At T28 the following exchange occurs:
T: And this is a letter dated 29 September 2002 and apart from this you’ve got no other information about these cases or about this arrest warrant.
A: This is ? ? I don't have.
T:   I find that incredibly difficult to believe. I believe if there were charges against you and you had a lawyer you would have considerably more information than that.
A: ? ? ? Information from my from my lawyer.
T:   You see I just don’t believe that. It seems to me you’re a well educated man, you have a father-in-law who you say has a high position in the bank, a well educated middle class man, you have a lawyer acting for you. I don’t believe that you could not have found out what these past cases were and taken some action to defend yourself if in fact false cases had been laid against you.
But I also point out this letter in fact says these cases were filed before you left Bangladesh. It also says that you knew about them and it also says there are a number of warrants for your arrest.”
I am satisfied that the Tribunal in this way makes its concerns sufficiently plain within the requirements to provide the substance or gravamen of any particular charge being made against a person. These requirements are explained in the dicta of the High Court in Kioa v West (1985) 159 CLR 550 at [587] as providing the applicant with sufficient notice of the Tribunal’s concerns about the content of Syeed’s letter. It is, after all, the information within the letter that the Tribunal does not believe. The Tribunal is not suggesting to the applicant that the letter itself is a forgery created by him or his friends on his behalf.
At [CB 235] the Tribunal provides reasons why it did not believe that the applicant was an executive member of the Dhaka City Committee of the Awami League. It supports this conclusion by the lack of evidence provided by the applicant. It seems to me that this is something that the Tribunal was entirely at liberty to do and did within its powers.
The Tribunal went on to say that despite the problems with the applicant's testimony in this regard it was prepared to accept that he was an Awami League activist in his local area prior to the October 2001 elections and was subject to harassment around the time of the 2001 campaign and shortly after, but it believed that the applicant had exaggerated the severity of the attacks and did not accept that local members of the BNP would have any interest in him if he returned home now.
The Tribunal provides a reason for that conclusion, the fact that the applicant had left his wife and child in the family home, even though it had allegedly been ransacked on more than one occasion, while he himself went into hiding and fled the country. The Tribunal pointed out certain other inconsistencies in the applicant's evidence concerning his conduct whilst remaining in Bangladesh before he left for Australia.
At [236] the Tribunal deals with an alleged attack on the applicant's home which the applicant corroborated by the production of an article in a newspaper or magazine found at [67]. Before dealing with that document, the Tribunal noted:
“I find the claim that his home was attacked a year after he seems to be involved in politics and nine months after the previous attack far-fetched and implausible. I believe he concocted this claim in an attempt to show that he was of continuing interest to BNP members and would be at risk of harm on his return. Furthermore, even if I were to accept this claim, which I do not, it is a year since the attack and for the reasons set out above, I do not believe the applicant would be of interest to the BNP if he returned home now. In reaching this conclusion I have considered the newspaper articles provided by the applicant which state that his home was attacked in October 2002. However, it is not difficult to obtain false documents of this kind in Bangladesh or to arrange to have articles containing untrue information printed in a newspaper and I believe that this is what happened in this case.”
The applicant challenges this finding on the grounds that s.45 of the Migration Act 1958 (Cth) (the “Act”) would require that a finding of this type be put to the applicant for comment before being made. In his helpful written submissions Mr Ginges, who appears on behalf of the applicant, cited at length from a decision of his Honour Justice Finkelstein in WAJR v Minister for Immigration [2004] FCA 106. This is a decision binding upon me as it was made by His Honour on appeal from a decision of Federal Magistrate Driver. I do not cavil with anything said by His Honour in that judgment, nor can I. But I am not prepared to say that the vice allegedly exhibited by the Tribunal did occur.
The transcript records a debate between the Tribunal and the applicant's migration agent. This commences at T46 when the Tribunal says:
“T: I would also point out to you and the applicant that I’m sure, I know from information that we’ve received from our Department of Foreign Affairs and indeed from other examples that I have had that if I wanted to get an article published saying just about anything in some magazines in Bangladesh I can pay them some money and they would do it.
A: It is a daily magazine, daily magazine, it's not published lots of that kind of document which ..
T: So you’re saying that you’ve have called the magazine and confirmed that the article and you were asking me now to take your word for that.
A: Yes.
T: And to take that as evidence that it is a genuine article?
A: Yes because when request me, then and then I rang from my office then I rang them because we don't um ...
T: I’ve made a note of that Mr Hock. I still have reservations about it. I have to admit.
A: It's up to you honourable member, if you consider that things which I have checked that matter I have like to inform you at the time I have checked it it's up to you.
T: Which one was that?
A: It was ???”
Whilst this is not the clearest of conversations I am satisfied that it refers to the article found in the court book and that the agent is saying that he has checked up and satisfied himself as to its veracity. In this regard the agent is acting as a witness. The Tribunal does not appear to have accepted this statement by the agent and prefers its own view that the document was manufactured for the purposes of the hearing. The existence of country information which would allow the Tribunal to come to that view was clearly pointed out to the agent and he was given an opportunity to comment upon it.
Mr Ginges argues that the transcript does not reveal that this exchange between the agent and the Tribunal was translated to the applicant. The way the transcript is written would seem to confirm that suspicion but it is only a suspicion and there is no evidence of it. It seems to me that even if the applicant did not know what was being said this would not constitute lack of procedural fairness on the part of the Tribunal. The Tribunal is speaking directly to the applicant's delegated agent. It is as if the bench is speaking to counsel in a case where the client has left the room temporarily and counsel responded on behalf of a party. Surely it cannot be said that the party is not bound by the responses of his or her counsel even though he or she may not have been there to have heard them.
For the reasons given above I do not believe that circumstances have arisen which would require me to consider in great detail the juxtaposition of s.422B with s.425 and possibly s.426A of the Act.
I think that in all the circumstances procedural fairness was provided to the applicant in regard to these two matters. But that is not an end of the applicant's claims. He also says that the Tribunal did not consider, when looking at the question of the likelihood of him facing persecution if he returned to Bangladesh, at the evidence which he gave concerning the situation in the mid-1990s. This, the applicant argues, represents a failure to apply the dicta of the High Court in Guo, MIEA v Guo & Anor (1997) 191 CLR 559. The court held in 479 that:
“In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”
I have referred to incidents in the 1990s although I am aware that there were also incidents concerning the membership of the JSD in the 1970s. This is dealt with in the transcript at T7 when the following exchange takes place.
T: Okay now I’ve read as I’ve said through your earlier statement and it’s my understanding that your fears relate to your political activities and in particular to your recent activities as a member of the AWAMI League. Is that correct?
A: Yes.
T: I’ve read through what you said about your earlier political involvement and affiliations with the JST but that’s not really relevant any longer is it?
A: Because not really for that reason but I was involved with the JST but when I told my story that time it came ??? reasons now.
T: Yes, I just wanted to be sure of that because in that case I am not going to bother asking you any questions about that period because it’s a long time ago and not really relevant.
In regard to the later problems that the applicant advised the Tribunal had occurred, the Tribunal deals with these at [CB 232] where it says:
The applicant said that he had first experienced problems because of his membership of the Awami League before the elections in 1996 when he was threatened by members of the BNP who said they would deal with him after the elections. However, he did not have any problems during the time the Awami League was in power. He also said that he had never taken advantage of his position in the party and had never been involved in violence of any kind.
It seems to me that it cannot be said that the Tribunal did not take into account these past occurrences which are no different in type from those about which he complains as happening to him more recently. They are attacks upon him by BNP people. In this regard the Tribunal says at [CB 236]:
“Even if his evidence regarding the attacks were accepted at face value, there is nothing in the evidence before me which suggests that he would currently be of interest to the government of the day or to BNP members other than some thugs in his local area and as he does not intend to become involved in politics in future, there is no reason to suppose he would be of future adverse interest to the Government or anyone else.”
The Tribunal then makes a gratuitous comment concerning relocation on which there is no evidence that it was ever put to the applicant. But I believe that this is otiose to the decision.
Finally, Mr Ginges makes the very intriguing submission that even if
I am not prepared to find that any of the alleged jurisdictional errors occurred I should find that “in toto” the Tribunal's reasons evidenced either a form of procedural unfairness or a failure to comply with statutory requirements that would enable me to decide that the decision itself is unsafe and should be returned to be heard and determined according to law. He has not provided me with any assistance upon this submission by way of authorities and in the absence thereof I must decline to accept his invitation.
I dismiss this 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 Magistrate's Court Rules.

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

Associate:

Date: