SZBJL v Minister for Immigration - [2005] FMCA 612

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBJL v MINISTER FOR IMMIGRATION

[2005] FMCA 612

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – no reviewable error found – application dismissed.

Applicant:

SZBJL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1785 of 2003

Judgment of:

Driver FM

Hearing date:

10 May 2005

Delivered at:

Sydney

Delivered on:

10 May 2005

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1785 of 2003

SZBJL

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) completed on 17 July 2003 and handed down on 14 August 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and had made claims of political persecution. Relevant background facts are adequately set out in paragraphs 2-4 of Mr Reilly's written submissions. I adopt those paragraphs for the purposes of this judgment by way of background:
The applicant applied for the visa on 26 April 2002: court book, pages 1-84. The delegate’s decision refusing the visa was made on 18 June 2002: court book, pages 85-93. The applicant applied to the RRT for review of the delegate’s decision on 15 July 2002: court book, pages 94-97. The RRT held a hearing on 8 July 2003.
The applicant claimed to fear persecution in Bangladesh for reason of his political opinion. He claimed to be an active member of the Awami League (AL), and that he was attacked in early November 2001 by members of the rival Bangladesh National Party (BNP), during which his left hand was partially amputated when he fell off a motorcycle after being attacked by a passenger on another motorcycle who he claimed was a BNP supporter. He claimed that immediately afterwards he went on a holiday outside Bangladesh, from which he returned in late November 2001, and also departed and returned to Bangladesh in December 2001. He denied claims made in his written application for the visa that he was a member of the “Taslima Nasrin Fan Club”. He said that he was the subject of false charges by the BNP, but had not had any difficulty leaving and returning to Bangladesh despite those charges. See generally court book, pages 134-144.
The RRT found that the applicant was not credible and his claims untrue and fabricated, noting the many contradictions between his original written claims and those made to the RRT, their implausibility and internal inconsistency and the fact that on his own claims the authorities had never troubled him despite his leaving and re-entering Bangladesh on numerous occasions when he claimed to be the subject of false charges. In the result the RRT accepted that the applicant may prefer the AL to other political parties in Bangladesh but found that he was living a normal life as a travel agent and was of no interest to the BNP or the subject of false charges. See generally court book, pages 144-145.
The applicant relies upon his application for judicial review filed on 1 September 2003. In that application he sets out nine asserted grounds of review, with a promise of details to be provided later. The grounds advanced in themselves do not assist the applicant because no particulars are provided.
The applicant attended a directions hearing on 26 November 2003 before Registrar Hedge, with the assistance of a Bengali interpreter. Among other things, Registrar Hedge ordered, by consent, that the applicant file and serve any amended application providing proper particulars of the grounds relied upon and any evidence upon which he intended to rely, no later than 26 March 2004. No amended application and no evidence has been filed by or on behalf of the applicant. The only evidence I have before me is the book of relevant documents filed on 18 December 2003.
The applicant has prepared written submissions, filed on 4 May 2005, in which he seeks to explain the grounds for review advanced in his application. The applicant also took the opportunity to make oral submissions. In doing so, he told me that he did not require the services of the Bengali interpreter that had been provided by the Court. The proceedings were conducted thereafter in English. It is apparent to me that the applicant is an intelligent and articulate young man who is well able to represent himself in the English language. While in his submissions he expresses concern about his inability to obtain legal assistance and inability to provide a transcript of the hearing before the RRT, I note that the applicant has been provided with a very generous amount of time prior to today's hearing to obtain whatever assistance he desired and has had ample opportunity to submit evidence. He has not taken advantage of that opportunity.
It is obvious from a simple reading of the decision and reasons of the RRT that the application for a protection visa was comprehensively rejected on credibility grounds. Put simply, the presiding member regarded the applicant's claims as a complete pack of lies. The applicant is concerned about issues of detail in the presiding member's reasons.
The applicant's concerns are not wholly without support. The presiding member went to a considerable effort to comprehensively dissect and reject the applicant's claims, both by reference to objective aids to analysis and the presiding member's own subjective opinion.
One may debate the question of whether a presiding member should make suppositions on a subjective basis as to what might or might not have occurred, particularly in relation to medical conditions, (I note in this case that the applicant has a serious hand injury). The presiding member on page 138 of the court book expressed views about the possible cause of that injury without the benefit of expert medical opinion. Nevertheless, there were ample objective aids to the analysis of the applicant's claims that the presiding member had resort to and which of themselves provided ample reason for the presiding member to reject the applicant's claims.
The applicant was assisted in the RRT proceedings by a migration agent, Mr Zahirul Hoq Mollah. The presiding member's reasons make clear that he took a rather dim view of the efforts of Mr Mollah on behalf of the applicant and seemed to regard his contribution as more of a hindrance than a help to the applicant. That may indeed be so as there were significant internal inconsistencies and other problems in the applicant's written claims, all of which are referred to by the presiding member in his reasons. The applicant, at the hearing before the RRT, resiled from at least one significant claim advanced in the written claims after he had previously told the presiding member that he was satisfied that the written claims were accurate.
It was open to the applicant, if he was dissatisfied with the assistance provided by Mr Mollah, to complain to the Migration Agents' Registration Authority. I do not know whether he has done so. Whether or not he has done so, the apparent deficiencies in the quality of the representation provided by Mr Mollah is not a reason for disturbing the decision of the RRT. In order to do that, I need to identify some jurisdictional error.
The applicant, in his oral submissions, asserted bad faith and procedural unfairness. While the applicant's claims were comprehensively rejected by the presiding member, that does not establish bad faith. The RRT is entitled to reject claims in their entirety where it does not believe them, and is entitled to use firm language, where appropriate, in doing so.
As to procedural unfairness, the only evidence I have as to what occurred at the RRT hearing is that appearing in the decision and reasons of the RRT. The applicant sought to make statements from the bar table as to what occurred at the hearing, but I declined to accept that as evidence. The applicant has had an ample opportunity to provide a transcript of the hearing before the RRT and none has been provided. It is not open to me to make suppositions as to what might or might not have occurred at the RRT hearing in the absence of a transcript.
In the circumstances, on the evidence before me, I am unable to conclude that the RRT proceedings were in any sense unfair. In the absence of particulars, the other grounds of jurisdictional error advanced in the application cannot be sustained.
I will dismiss the application for judicial review.
As to costs, the application having been dismissed, Mr Reilly seeks an order for costs fixed in the sum of $5,000 on a party and party basis. The applicant told me that he would be unable to pay costs of that order. As I explained to him, impecuniosity is not a reason for me to refrain from making a costs order and is a matter that can be discussed with the Minister's lawyers at a later date.
I am satisfied that counsel was reasonably retained in these proceedings, notwithstanding the lack of detail in the application and the lack of evidence to support it. Nevertheless, the issues raised in the absence of particulars were quite straightforward, which is reflected in the relative simplicity of Mr Reilly's written submissions. Consistently with matters of a similar level of difficulty, I consider that costs have been reasonably and properly incurred in an amount of not less than $4,000 when assessed on a party and party basis. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the proceedings, which I fix in the sum of $4,000.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 13 May 2005