SZBNK v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FMCA 361

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBNK v MINISTER FOR IMMIGRATION [2005] FMCA 361

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. 

Migration Act 1958, ss.424A, 424A(1) and 424A(3)

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 ALR 323
Minister for Immigration & Multicultural Affairs; Ex parte, Applicant S20/2002 (2003) 198 ALR 59
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 1
WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264

Applicant: SZBNK

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2013 of 2003

Judgment of: Barnes FM

Hearing date: 7 March 2005

Delivered at: Sydney

Delivered on: 7 March 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms M Allars

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That the application is dismissed.

2. That the Applicant pay the Respondent’s costs set in the amount of $4,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2013 of 2003

SZBNK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for a review of a decision of the Refugee Review Tribunal handed down on 18 September 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant who is a citizen of Bangladesh sought a protection visa, in essence, on the ground that he had a well-founded fear of persecution by reason of political opinion because he was a member of and associated with the Islami Chattra Mojlish (or Majlish). 

2. The applicant made a number of claims about his involvement with this organisation and the basis for his claim to fear persecution.  The Tribunal accepted that the applicant was a national of Bangladesh and had the occupation of a driver, as claimed.  In relation to the applicant's claims about particular incidents and activities, the Tribunal made a number of findings.

3. First, the applicant's claims about the duration and period of his education were inconsistent and not credible.  The Tribunal detailed in its reasons for decision its concerns about this evidence, in particular, a claim at one point by the applicant that he did not enter school until the age of 15 and that he was still at school at a time that would have had him at the age of 30 or more and also inconsistencies in the length of time that he claimed to be at school.  The Tribunal concluded that while it accepted that he started school at the age of about six, it had great difficulty with his claims about having been educated for 16 years in the absence of credible detail of when and where this occurred and in light of the inconsistencies in his evidence and the various ways in which he sought to satisfy the Tribunal that he was still associated with a Madrassa as least as late as 1996.  It was relevant in this regard that the organisation to which the applicant claimed to belong was a student group.  The Tribunal took the view that the various accounts and different information that the applicant gave about his education was aimed at placing him in the middle of student politics in the late 1990s. 

4. The Tribunal found that the Islami Chattra Majlish was an obscure student group, not clearly linked with any political party but aligned to Islamist movements and militants.  It noted that the applicant had not made clear to what party the Islami Chattra Majlish belonged.  The Tribunal accepted that the applicant may have attended a Madrassa (an Islamic school) at some stage, but did not accept that this lent credence to the substantive claims he made to fear persecution, noting that independent evidence did not support a conclusion to the effect that a sometime student at a Madrassa or even, as was variously claimed by the applicant (or by documents he submitted) a graduate of one or a teacher or principal of one, or a past or present participant in Madrassa student politics would for reasons of such identification face Convention-related persecution. 

5. The Tribunal went on to say that even if it accepted the applicant's outlandish and inconsistent claims about attending school for 16 to 19 years, there were a number of unresolved inconsistencies damaging to his credibility.  He had given inconsistent evidence about his occupation, having claimed to be a driver in his protection visa application but at the hearing to have identified himself as an Islamic teacher. The first references to that claim appeared in submissions about him from sources that the Tribunal dismissed as unreliable and fraudulent. The Tribunal noted the absence of other information in relation to this claim and inconsistencies with other evidence the applicant had provided. 

6. The Tribunal found that the applicant had, as it put it:

   “… effectively undermined all plausible basis for joining a student political movement in the late 1990s for he ultimately denied being a student after 1991.”

7. The Tribunal also had regard to inconsistencies in the applicant’s claims about when he began to be terrorised by political foes.  The applicant had claimed that he had been the subject of false charges.  The evidence provided in support of these claims were faxes of purported statements attesting to the existence of false charges.  These followed the initial claims made by the applicant that the police had filed charges against him but made inconsistent claims, in particular, that the false charges had been laid by Awami League and BNP politicians. 

8. The Tribunal described at length the inconsistencies and the absence of any other evidence to support these claims.  It dismissed the applicant's claims about false police charges as an invention perpetrated by him for the purpose of his application having regard to the inconsistency in the material referring to these claims and the absence of any plausible or consistent evidence as to how the applicant evaded arrest after the charges were supposedly laid. 

9. It dismissed a letter from the Chairman of the Bangladesh Islami Chattra Mojlish as a self-serving concoction.  The Tribunal also found the applicant's knowledge of politics in Bangladesh far from impressive and grossly inaccurate, particularly with regard to the party he claimed to have ultimately joined.  This was said to be highly inconsistent with what one would have reasonably expected of a person with an interest in the parties concerned, as he had claimed. 

10. The Tribunal also found the applicant’s claims that the Islami Chattra Mojlish was under threat to be inconsistent with independent country information.  The Tribunal found that the Bangladeshi authorities did not attempt to prevent him from leaving Bangladesh.  On the basis of the applicant’s own evidence the Tribunal concluded that the authorities would not take any relevant interest in the event of him returning to Bangladesh.  It concluded that he was an unreliable witness and was not satisfied that he faced a real chance of Convention-related persecution in Bangladesh.  His claimed fear of persecution was not well founded. 

11. The applicant relies on an amended application filed on 18 August 2004.  It contains three grounds, to some extent expanded on in the applicant's written submissions.  The first ground is:

    The Tribunal failed to take into account a relevant consideration when it assessed whether there was a real chance of the applicant being persecuted in Bangladesh.

    The particulars are:

    The Tribunal failed to consider in assessing the chance of the applicant being arrested and/or persecuted on his return to Bangladesh based on the fact that he was charged with a false case of his political engagement with Islami Chattra Majlish.

12. In written submissions the applicant claimed that the Tribunal failed to take into account or comment on the false cases filed against him.  However, reading the Tribunal's reasons for decision as a whole it is clear that the Tribunal understood and addressed the claims made by the applicant, in particular his claim that he was charged with a false case.  It outlined these claims in the course of discussion of the applicant's evidence and the document provided in support.  It described his claim made to the Department of Immigration that the local police had laid false charges against him in 1997, although he did not identify what the charges were about and his claim, through his adviser, that the police had come to arrest him but did not succeed.  The Tribunal also described the claims made in letters of support about false charges laid against the applicant.  It noted that the facsimile purportedly signed by the local village unit chairman made a contradictory claim that it was Awami League and BNP past or present politicians who had lodged the charges. 

13. In the findings and reasons part of the Tribunal reasons for decision the Tribunal found that this facsimile contradicted the applicant's claims.  It also had regard to other inconsistencies in such documentary information such as the description of him as the principal of a Madrassa.  The Tribunal concluded that the claim about false police charges was an invention made for the purposes of the application for review, being tainted by inconsistency and there being an absence of any plausible evidence as to how the applicant evaded arrest after the charges were supposedly laid.  These findings deal with the integers of the applicant's claim as originally presented and also as presented in the documentary evidence.  As it rejected this claim it was not necessary for the existence of a false charge to be taken into account in the Tribunal consideration of the future.

14. In written submissions the applicant raised another issue in relation to the question of whether the Tribunal failed to take into account relevant considerations.  He made an additional claim that the Tribunal failed to take into account that members of his family were threatened by terrorists who had killed a Moslem leader and who were now with the BNP.  Insofar as this raises a fresh claim, clearly as the claim was not made to the Tribunal then it is not a matter that it could take into account.  In his initial statutory declaration the applicant had claimed that when his home was attacked a relative was injured and that since his departure police and Awami supporters had visited his home and threatened his parents and asked them his whereabouts.  He did not make a claim in the terms of the claim made in the written submissions. 

15. If this ground is addressing the claims that were made by the applicant in connection with his protection visa application, such claims were dealt with by the Tribunal including the applicant’s claims to fear the Awami League and the BNP because of the false charges as discussed above and to fear the Awami League as it had a campaign to assassinate the Islami Chattra Majlish’s leaders.  It did not accept that the applicant was such a leader or that the body was under threat as claimed.  It rejected the applicant’s claims, finding him to be an unreliable witness.  The Tribunal is not obliged to refer in its reasons to every item of evidence but rather to deal with elements of the claim in the sense considered in MIMA v Yusuf (2001) 206 ALR 323. It has not been established nor is it apparent that the Tribunal failed to take into account relevant considerations in this sense.

16. The second ground raised in the amended application is that the Tribunal's satisfaction that the applicant is not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.  The particulars to the first ground are repeated.  The argument appears to be that there was no evidence or no logical basis for the Tribunal's finding that it was not plausible that the applicant was charged with false cases because of his political engagement with Islami Chattra Majlish.   

17. However, as Gleeson, CJ indicated in re MIMA; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [5] and [9] it is necessary to identify a particular principle or ground of review rather than simply rely upon illogicality which may be no more than a way of expressing disagreement with a decision. Also see MIMIA v SGLB (2004) 207 ALR 12 at 38, Gummow, Hayne JJ. Further, as the Full Court of the Federal Court has stated in VWST v MIMIA [2004] FCAFC 286 at 18 the current state of the law is that want of logic in the reasons of the RRT is not an available ground of review. In any event, in the present case the Tribunal findings were open to it for the reasons that it gave on the material before it, in particular in light of the inconsistencies between the applicant's evidence and the documents he relied on in relation to the false charges. No illogicality is apparent in the Tribunal failure to consider the chance of the applicant being arrested or persecuted in relation to the false charges which the Tribunal found to be an invention.

18. The third ground relied on by the applicant is the Tribunal failed to inform the applicant of the adverse information that was a reason or a part of the reason to affirm the decision that was under review. Particulars of this ground are the Tribunal did not inform the applicant about the information that the documents he provided were fraudulent. I have considered this claim both in terms of s.424A of the Migration Act 1958 and also as a claim of a lack of procedural fairness. 

19. First, insofar as this claim refers to the documents that the applicant himself provided to the Tribunal through his migration agent such material is within the exception to s.424A(1) in s.44A(3)(b) being information that the applicant gave for the purpose of the application.

20. Insofar as the claim is that the Tribunal should have informed the applicant about its reasoning or thought processes in relation to the information before it, s.424A does not impose an obligation on the Tribunal to disclose such reasoning or thought processes. Moreover, it is notable that this is not a case in which the Tribunal relied on independent information (such as information about the prevalence of documentary fraud). Rather it identified inconsistencies between the content of the letters of support and the applicant's own claims in his statutory declaration and oral information. It was these documents that made the claim that the applicant had been subject to false charges by the Awami League and BNP politicians.

21. As indicated above according to the Tribunal reasons for decision, which is the only evidence before the court of what occurred in the Tribunal hearing, the Tribunal raised a number of concerns about inconsistencies in these documents and the claims of the applicant with the applicant in the course of the Tribunal hearing. 

22. No lack of procedural fairness is apparent.  The documents submitted by the applicant as evidence that he was the subject of false charges were letters of support.  Two of these letters purported to be on letterhead from the Chairman of the Bangladesh Islami Chattra Majlish in the area of Bangladesh from which the applicant came.  Also provided was a letter addressed To Whom It May Concern from the chairman of the Shoela Union Parishad Number 4 and a notarised affidavit of support and notarial certificates from another associate of the applicant.  The Tribunal member raised difficulties that he had with the applicant's claim about false charges, not only in relation to the fact that he had avoided being arrested but also in relation to the manner in which the claims were made in the supporting letters.  The Tribunal records that it asked the applicant how he obtained letters from the chairman of the Majlish and also asked questions about the disparity between his claimed fear and the fact that other office-bearers, such as the letter writers, remained in Bangladesh and remained politically active.  The Tribunal records that when it put its concerns to the applicant he responded with further inconsistent claims. 

23. Given the evidence of what occurred in the Tribunal hearing it has not been established that there was any lack of procedural fairness in the manner contended by the applicant in the third ground relied upon or in any other way.  Rather, the Tribunal raised its concerns about the critical issue of whether the applicant had in fact been subjected to false charges as claimed. 

24. This is not a case in which documents which, on their face, appeared to be genuine were found to be forgeries without the Tribunal alerting the applicant to the fact that there was an issue as to whether they were genuine; compare WACO v MIMIA (2003) 77 ALD 1 at [42]. Nor is it a case where the applicant relied on what purported to be official documents in relation to false charges. The Tribunal raised the critical issues of inconsistency or implausibility in the documentation and other claims with the applicant. (See WAHP v MIMIA [2004] FCAFC 87 at [62] per Tamberlin and Carr JJ). It is clear that it gave the applicant the opportunity to deal with these concerns. The Tribunal dismissed the applicant's claim about false charges as an invention and dismissed one of the letters of support as an absurd, self-serving concoction, but it did not find that there was a forgery or fraudulent behaviour by the applicant in the sense that this ground appears to suggest.

25. In his written submissions the applicant claims that the Tribunal denied him procedural fairness because it did not consider the present political situation in Bangladesh.  It seems that this is a claim that the Tribunal did not raise with him the current political situation, in particular the changes in the political situation in Bangladesh after the 2001 election.  There are, however, a number of answers to this claim. 

26. First, the applicant himself provided independent country information to the Tribunal which addressed the changes in the political situation in Bangladesh.  Moreover, it is apparent from the Tribunal reasons for decision that the current situation in Bangladesh at the time of the decision was a matter that was known to and addressed by the applicant.  The Tribunal reasons for decision observed that the Awami League fell to the BNP/JEI coalition in October 2001 and that the applicant himself claimed that the Department omitted to take this significant change in the political balance into account, although he did not clarify the manner in which this was significant to his claims.  Clearly, in those circumstances, it was not necessary for the Tribunal to bring the change in the political balance to the attention of the applicant as he was already aware of it. 

27. Moreover, the applicant failed because the Tribunal did not accept his credibility and particularly the credibility of his claims to have faced false charges, whether they be expressed as false charges brought by the police or by the Awami League and BNP politicians. In those circumstances there was no obligation on the Tribunal to bring the information about political changes in Bangladesh to the attention of the applicant in the manner contended. Nor was there any obligation under s.424A(1) in light of the exception in s.424A(3)(a). (See MIMIA v NAMW [2004] FCAFC 264).

28. The applicant's written submissions and his oral submissions take issue with the merits of the Tribunal decision.  Merits review is not available in this court, nor does the fact that the applicant claims that he does not have funds to appoint a solicitor establish any jurisdictional error. 

1. It seems that he also seeks the opportunity to provide further documentary evidence in support of his claims.  Again, that does not establish any error on the part of the Tribunal.  It is notable that the Tribunal agreed to a postponement of the Tribunal hearing at the request of the applicant’s migration agent.  According to a letter from the migration agent of 31 March 2003 a postponement was requested on the basis that the applicant's relatives had already sent some documents from Bangladesh in relation to his association with an Islamic political party and his persecution but that they had not yet been received.  On 1 April 2003 the Tribunal granted a postponement from 3 April to 7 May 2003.  Thereafter, the applicant provided a considerable amount of independent country information but not documents relating to him specifically or his specific claims as had been foreshadowed. 

2. It may be that the applicant sought further time to provide more documents at the Tribunal hearing.  In the Tribunal reasons for decision, at the end of its discussion of what occurred in the Tribunal hearing, it noted that it had considered the applicant’s request for further time to provide more documents.  In light of his own remarks about the difficulty of obtaining official documents - that is the applicant's own remarks - the Tribunal said that it would not seek further documents but noted that in the three months since the hearing no further documents relevant to the matter had been provided by the applicant or his adviser. 

3. Insofar as any claim is made by the applicant in terms of procedural fairness about the manner in which the Tribunal dealt with his willingness or ability to provide further documentation, no error has been established.  The Tribunal granted the initial postponement sought.  It considered his further request but determined not to seek further documentation itself.  It did not receive any further documentation from the applicant in three months after the Tribunal hearing.  No lack of procedural fairness is apparent in this or in any other respect in the manner in which the Tribunal proceeded. 

4. Finally, in the written submissions, the applicant referred to the Tribunal taking into account irrelevant considerations in accordance with the former s.476(3)(d) of the Migration Act. It is not entirely clear what is meant by this reference to the former s.476(3)(d) as it is acknowledged that it is a former section. It seems that the applicant takes issue with the Tribunal's failure to accept his claims. The question of credibility is a matter for the Tribunal. Its findings were open to it on the material before it for the reasons which it gave. There is no particularisation of the claim that it took into account irrelevant considerations and no jurisdictional error is established in this or in any other respect. Accordingly, the application must be dismissed. I will hear submissions in relation to costs.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  The respondent seeks that he meet the costs of these proceedings.  The applicant's impecuniosity and lack of work is not a reason for departing from the normal rule that the unsuccessful applicant should meet the costs of the respondent, although it may be a matter taken into account by the respondent in determining whether and how to seek to recover such costs.  The amount of $4,250 which is sought is appropriate having regard to the nature of this and other similar matters. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  30 March 2005