SZBQS v Minister for Immigration

[2005] FMCA 1066

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBQS v MINISTER FOR IMMIGRATION [2005] FMCA 1066

MIGRATION – Application to review decision of the Refugee Review Tribunal – whether lack of procedural fairness or breach of s.424A Migration Act 1958 (Cth).

Migration Act 1958, ss.424A, 424A(3)(b)

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598
NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744
WAEJ v Minister for Immigration & Multicultural & Affairs (2002) 76 ALD 597
Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264

Applicant: SZBQS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2169 of 2003

Judgment of: Barnes FM

Hearing date: 19 July 2005

Delivered at: Sydney

Delivered on: 19 July 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr J. Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed.

2. That the applicant pay the respondent's costs set in the amount of $4,200. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2169 of 2003

SZBQS

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 (The Tribunal) handed down on 23 September 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant is a citizen of Bangladesh who arrived in Australia on 13 April 2000 and applied for a protection visa.  The application was refused.  He sought review by the Tribunal.  The Tribunal affirmed the delegate's decision and the applicant sought review of that Tribunal decision by the Federal Court.  The Federal Court set aside the decision and remitted the matter to the Tribunal for reconsideration according to law.  It is the reconsideration by the Tribunal that is now in issue.

2. The applicant claimed to be a member of the Kadiani (or Ahmadi) sect of the Muslim religion and that he had been persecuted as a result of his faith.  He claimed to have had to move localities in order to obtain an education and that he had been involved in sectarian scuffles with Sunni Muslims, insulted and injured several times and forced to give up studies because of being targeted by Sunni Muslims.  In particular, he claimed initially that on 18 March 1999 he was beaten by a group of Chatra Sibir followers because of his beliefs.  His parents were warned that he would be killed if he participated in further activities against the Sunni Muslims.  He claimed that he ignored this warning and on 20 January 2000 he was attacked and beaten by a group of people while returning home from a bus stop. 

3. The applicant also made other claims of mistreatment, including that he was attacked by classmates at college after refusing to give them a loan, that he was kidnapped by Awami League hoodlums after refusing to pay a toll in 1998 and rescued after his close relatives paid an amount to the kidnappers.  He also claimed that his family home had been ransacked and plundered by Awami League members as a result of his family's covert support for the BNP in the 1996 elections and that he and his father were severely rebuked and insulted because of their political inclination towards the BNP.  The Tribunal conducted a hearing on 5 August 2003 which the applicant attended and at which he gave evidence. 

4. In the Tribunal reasons for decision the Tribunal discussed the claims and evidence of the applicant and referred to independent information.  In the findings and reasons part of its decision it set out that the applicant claimed to fear persecution because of his religion and that he expressly excluded persecution for political reasons although he said that members of the JI Party would harm him because they would want money from him and hate people of his religion and that the BNP would condone this.  He also said that Awami League members would harm him and that people in his area of Bangladesh knew he was Ahmadi and would harm him for that reason.

5. The Tribunal found that the applicant was not a reliable witness.  It had regard to of substantial inconsistency and contradiction in the history of the evidence he had given about his claims.  It referred in particular to an inconsistency in relation to claimed assaults.  At the previous Tribunal hearing he had repudiated the earlier claims that had been made in the statutory declaration accompanying his protection visa application and indeed had suggested that a particular incident had been fabricated by his then adviser.  In contrast, at the latest Tribunal hearing the applicant had claimed the incidents did in fact happen.  The Tribunal considered the explanation the applicant gave (that he could not recollect what had happened and his memory was not working at that time).  It found this explanation implausible in the absence of any reliable evidence to show some form of incapacity at that time, noting the gravity of the incident in question, the detailed nature of the claims and the fact that the applicant had not simply said he could not remember them but went on to suggest that the adviser had actually fabricated incidents. 

6. In light of this the Tribunal did not accept the applicant's claimed history of being attacked and/or kidnapped and going into hiding before fleeing to Australia.  It also had regard to the fact that he continued to work in the family shop until his departure and found that this was not consistent with the actions one would reasonably expect of a person in fear of his life from local assailants.

7. The Tribunal was prepared to accept that the applicant was of the Ahmadi religion but was not satisfied that this alone gave rise to a well-founded fear of persecution.  This conclusion was based on independent evidence referred to by the Tribunal to the effect that although there had been some violence directed at Ahmadis and other minority groups and community violence after the October 2001 elections, the level of such violence had subsided and the Ahmadis had received and continued to receive support and protection from the Bangladeshi government and authorities.  The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for political, religious or any other Convention-related reason. 

8. The applicant sought review of the Tribunal decision by application filed in this court on 15 October 2003.  He relies on an amended application filed on 12 August 2004 and raised a somewhat different ground in a submission which he filed in court.

9. Considering first the ground raised in the written submission, the applicant contended that the Tribunal denied him procedural fairness in its treatment of the claimed inconsistency between the evidence given at the two Tribunal hearings.  In particular he claimed that at the second hearing the Tribunal did not give him the opportunity “to tell what was wrong with the first hearing” and that while it found that in the absence of any reliable evidence to show some form of incompetency at that time it did not believe him, it did not ask him for any evidence.  The applicant contended that the problems he experienced at the first hearing were real and that he had been sick and also scared.

10. However the claims made by the applicant in the written submission do not establish a lack of procedural fairness or other jurisdictional error.  The only evidence before the Court of what occurred in the second Tribunal hearing is the Tribunal reasons for decision.  Those reasons and the other material before the Court are not consistent with the claims of the applicant.  As set out above, the Tribunal had regard to what it described as substantial inconsistency and contradiction in the history of the evidence the applicant gave about his claims.  It is apparent from its discussion of the claims and of what occurred at the Tribunal hearing that a particular concern related to whether or not the applicant was attacked in January 2000.  The applicant had made such a claim in the statutory declaration accompanying his protection visa application.  The reasons for decision of the Tribunal in the first review application indicated that he told that Tribunal that he was not attacked in January 2000.  The Tribunal reasons for decision under consideration in this instance indicate that in the course of the second Tribunal hearing the applicant claimed that such attack had occurred but confirmed that he had told the previous Tribunal he was not attacked in January 2000.  He provided an explanation for his evidence to the first Tribunal being “because of so many incidents I could not recollect what had happened”.

11. The Tribunal records that it went on to point out to the applicant that he had also told the previous Tribunal that an incident claimed in his primary application about a beating received at the hands of Chatra Sibir supporters was a fabrication by his adviser.  He agreed he had told the previous Tribunal this but claimed that the incident had in fact happened.  The Tribunal asked why he had told the previous Tribunal it had not happened.  He said “Actually I didn't remember many things then.”

12. The Tribunal reasons for decision also record that in the Tribunal hearing the Tribunal told the applicant that it had concerns about his credibility in light of his inability to remember the claimed assaults at the previous Tribunal hearing and that the applicant said, “Actually, mentally, my memory wasn’t working at that time.  I couldn’t remember.  I wasn't very well mentally.”

13. In these circumstances, in the absence of a transcript of the second Tribunal hearing, the applicant's submission that he had no opportunity to address the inconsistencies is not made out.  The factual basis for any claim of procedural fairness is not established.  Indeed on the only evidence before the Court of what occurred at the Tribunal hearing, the Tribunal did in fact give the applicant that opportunity.  This makes it unnecessary to determine whether, had this claim been established, a lack of procedural fairness or denial of natural justice would have been established, although I note that in any event the evidence at both Tribunal hearings came from the applicant himself who ought to have been aware that a denial that events occurred and then an affirmation that they did, constituted an inconsistency and may lead to adverse findings. 

14. Counsel for the respondent also addressed the issue of any possible application of the principles in the recent High Court decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24. The Tribunal did rely on inconsistencies and contradiction in the history of the evidence the applicant gave about his claims. However the critical inconsistencies were inconsistencies in the evidence given by the applicant to the first Tribunal hearing and the evidence given at the second Tribunal hearing. In these circumstances s.424A(3)(b) is applicable as that information was given by the applicant ‘for the purposes of the application’ for review by the Tribunal (see s.424A(3)(b), Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 and NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744). The first Tribunal decision had been set aside by the Federal Court. The matter was remitted to the Tribunal for reconsideration. The Tribunal review, in other words, was not completed at that stage. (See Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598). On the material before me it is not established that there has been a failure to comply with s.424A(1) of the Migration Act 1958 (C’th) arising out of the manner in which the Tribunal dealt with inconsistencies in the applicant's evidence. 

15. The amended application raised a rather different ground which was not addressed by the applicant in written or oral submissions.  That ground is as follows:

    the Tribunal (at page 11 of its decision) accepted that the applicant was of the Ahmadi religion but held that on the basis of independent country information (which the Tribunal set out at pages 6 to 9 of its decision) accepted the applicant did not have a well-founded fear of persecution.  The Tribunal did not put the country information to the applicant and give him an opportunity to comment.  In these circumstances the Tribunal denied the applicant procedural fairness, giving rise to jurisdictional error: See, for example WAEJ v Minister for Immigration & Multicultural & Affairs (2002) 76 ALD 597.

16. The allegation is not made in terms of a breach of s.424A of the Migration Act 1958 but in any event that provision is inapplicable as the country information relied upon by the Tribunal did not relate specifically to the applicant or to any other individual and falls within the exception in s.424A(3)(a). (See Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264). The factual basis for a claim of denial of procedural fairness is not established. The applicant bears the onus of establishing the factual foundation for such a claim. In the absence of a transcript of the Tribunal hearing, this is not a case in which the Tribunal account of what occurred in the Tribunal hearing is such as would lead me to infer that particular country information had not been put to the applicant as alleged.

17. The applicant has led no evidence to support the allegation that he was not given an opportunity to comment on country information.  The ground has not been made out, and the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  The respondent seeks that he pay costs in the sum of $4200.  The applicant submitted that he was not working and that this amount was too much.  However there is nothing in the material before me to warrant a departure from the general principle that the unsuccessful applicant should meet the costs of the respondent.  His lack of funds is not a reason for not awarding costs although it may be a matter taken into account by the respondent in determining when and how to seek to recover any such costs.  Nor am I persuaded that the amount sought it too much having regard to the nature of this and other similar matters.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  9 August 2005