SZBUN v Minister for Immigration
[2005] FMCA 1307
•7 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBUN v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1307 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – whether RRT breached s.424A of the Migration Act in relation to protection visa claims made to the Minister’s delegate considered – applicant adopted those claims before the RRT – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 430 |
| Minister for Immigration v NAMW (2004) 140 FCR 572 NARV v Minister for Immigration (2003) 203 ALR 494 WAGJ v Minister for Immigration [2002] FCAFC 277 |
| Applicant: | SZBUN |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2332 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 7 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr J D Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal be joined as the second respondent to the proceedings.
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 $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2332 of 2003
| SZBUN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was made on 15 September 2003 and was handed down on 8 October 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. The relevant background facts are set out in the Minister's written submissions prepared by Mr Smith. I adopt as background paragraphs 2-8 of those written submissions for the purpose of this judgment:
The applicant arrived in Australia from Bangladesh on 31 August 2002 and lodged an application for a protection visa on 26 September 2002. He claimed that he was a stateless person and also a member of the Awami League and that for these two reasons was discriminated against and persecuted in Bangladesh.
On 18 December 2002, a delegate of the respondent refused to grant the applicant a visa and the applicant applied to the RRT on 7 January 2003 for review of that decision.
RRT’s decision
The RRT found that significant aspects of the applicant’s evidence were confused, internally inconsistent and implausible. It concluded that the applicant had fabricated his claims in an attempt to create for himself a profile of a refugee [court book, page 362.8].
It found that the applicant was a Bangladeshi National on the basis of his passport and the statement in his protection visa application: see court book, page 14.5 at question 20. This finding was further supported by the fact that although the applicant claimed to be able to speak Urdu, he was unable to demonstrate to the satisfaction of the RRT that he could speak more than a few words of that language [court book, page 363.5]. The applicant’s evidence in respect of his ethnicity affected the RRT’s satisfaction as to the applicant’s credibility as a whole. In addition to this, the fact that the statement made by the applicant in connection with his protection visa application was virtually identical to two other statements from other protection visa applicants (both of whom were represented by the same agent as the applicant) led the RRT to find that the claims it made in those statements were contrived either by the applicants or by their agent [court book, page 363.10].
The RRT also rejected the applicant’s claims to have been an Awami League activist on the basis of his vague evidence in that respect [court book, page 364.1]. Having rejected this claim, the RRT also rejected the claim that there were charges lodged against him for reason of his political activities [court book, page 364.2].
Finally, the RRT considered the documents relied upon by the applicant in support of his claim. In light of independent evidence relating to document fraud in Bangladesh as well as the RRT’s view of the applicant’s credibility in general the RRT did not accept that the documents were genuine and so found that they did not genuinely reflect the applicant’s circumstances in Bangladesh [court book, page 364.10].
The RRT concluded that the applicant had fabricated his claims and that he did not have a well-founded fear of persecution for a Convention reason in Bangladesh. For this reason the RRT affirmed the decision not to grant a protection visa.
These proceedings began with an application for judicial review filed on 3 November 2003. The applicant filed an amended application on 31 May 2004 on which he relies. The applicant also prepared written submissions that were filed on 6 September 2005. I also have before me as evidence the court book in two volumes. That is the only evidence I have before me.
The applicant asserts ten grounds of review in his amended application. Both he and Mr Smith addressed those grounds in their oral and written submissions. In his oral submissions, the applicant explained to me his concerns about the RRT decision. He is adamant that he is a Bihari, that is, a descendant of persons from West Pakistan who became stranded in Bangladesh at the end of the Bangladesh war of independence. He is also adamant that his claims were wrongly rejected by the RRT. I express no view on whether the correct decision was made by the RRT. That is beyond the scope of these proceedings. I am unable to review the merits of the decision. The applicant's remedy, if he wishes to pursue the issue of the merits, is to invite the Minister's intervention. I have no power either to compel or recommend the Minister's intervention.
With the exception of grounds 1, 2 and 3 in the amended application, the asserted jurisdictional errors are not particularised. In the absence of evidence and particulars, the final seven grounds advanced cannot succeed. None of the grounds has any substance in any event. Mr Smith addresses the legal issues raised in the amended application in his written submissions. I agree with and adopt for the purposes of this judgment paragraphs 9-19 of those submissions:
Ground 1 – Failure to take into account a relevant consideration
There are two particulars to this ground. The first appears to be that the RRT failed to consider the fact that the applicant was a stateless Bihari in Bangladesh and a member of a particular social group in Bangladesh. However, it is clear from the RRT’s reasons that that is precisely what the RRT considered and rejected on the basis of its findings as to the applicant’s credibility.
The second particular is that the RRT’s decision was not based on a rational or logical foundation. This particular too is misconceived. The RRT’s decision was based upon its rejection of the applicant’s factual claims. Once the RRT had rejected those claims there was nothing upon which it could have been satisfied that the applicant was a refugee and so was owed protection obligations by Australia under the Convention. Accordingly, the RRT’s decision was based upon its finding of fact namely, that the applicant had lied in his protection visa application and that there was no factual basis for any conclusion that the applicant had a well-founded fear of persecution for a Convention reason.
Ground 2 – Denial of procedural fairness
This ground is based upon an allegation that the RRT failed to afford the applicant an opportunity to deal with adverse information regarding the reliability of documents coming from Bangladesh. The applicant has adduced no evidence to support this ground. The evidence before the Court suggests that the allegation is without foundation. In its Statement of Reasons prepared under s.430(1) of the Migration Act 1958 (Cth) (“the Migration Act”) the RRT set out briefly some of the questions it asked the applicant at the hearing that was conducted on 27 August 2003 as well as the responses to those questions given by the applicant. Having done this, it then referred to some country information to which it had regard in arriving at its decision. Amongst this was reference to independent information regarding the high level of document fraud in Bangladesh. The RRT says in respect of that material, that “this evidence was put to the applicant during the hearing”. [court book, page 361.10]. There is nothing to rebut this statement in the RRT’s Reasons and it ought to be accepted. On this basis the applicant was given an opportunity to address the adverse information and the ground ought to be rejected.
Ground 3– Breach of s.424A(1)
The applicant relies in this respect on the decision of the Full Court in NARV v Minister for Immigration (2003) 203 ALR 494. In that decision it was held that country information relating to document fraud in Bangladesh was not excluded by s.424A(3)(a) because it was not just about a class of persons of which the applicant was a member. However, that decision is no longer good authority in light of the later decision of the Full Court in Minister for Immigration v NAMW (2004) 140 FCR 572. In light of that decision, it was not necessary for the RRT to give particulars of the information regarding document fraud in Bangladesh in the manner required by s.424A(2) or at all. However, as noted above in respect of Ground 2, the RRT did afford the applicant procedural fairness in respect of this material by giving particulars of it at the hearing.
Ground 4 – Failure to comply with procedures
There are no particulars to this ground. It is clear however that the RRT complied with its obligation to invite an applicant to attend a hearing and to give particulars of information that were specifically about the applicant and was not given to the RRT in connection with the application for review, namely that his statement in the protection visa application was virtually identical to two other statements made by applicants with the same migration agent. This ground ought to be rejected.
Ground 5 – Ignoring merits of the claim without investigation
This ground is misconceived. Although the RRT has powers to make investigations in connection with the review of a decision of a delegate it is not obliged to do so: see for example, WAGJ v Minister for Immigration [2002] FCAFC 277.
Ground 6 – Failure to take into account a relevant consideration
There are no particulars to this ground and it ought to be rejected.
Ground 7 – Incorrect interpretation of law
As noted earlier, the RRT’s decision turned not on any question of law but upon the rejection of the applicant’s factual claim. This ground ought to be rejected.
Ground 8 – RRT decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequence of the claim
This ground raises only questions of the merits of the RRT’s factual findings and is not a matter for the Court.
Ground 9 – The decision of the RRT was not justifiable by the evidence
This ground too raises only merits of the decision and ought to be rejected.
Ground 10 – Improper exercise of power and denial of natural justice
Once again, this ground is not particularised and ought to be rejected.
I raised in addition with Mr Smith whether there might have been a breach of s.424A(1) of the Migration Act, in relation to the question of the applicant's nationality. The RRT preferred the information given in support of the applicant's original protection visa application to what he put to the RRT at the hearing on that issue. In addition, the RRT took into account the fact that the applicant had a Bangladesh passport and spoke very little Urdu.
Mr Smith submitted to me that what the applicant put in his original protection visa application had been adopted by him or on his behalf for the purposes of his application to the RRT. First, in his application to the RRT[1] the applicant invited the RRT to refer to his statement. While it is not clear, that may well have related to his statement made in support of his protection visa application. Secondly, the applicant had appointed a migration agent, Mr Mollah, to assist him. Mr Mollah prepared a statement for the purposes of the RRT application[2]. On page 2, paragraph 2(e) of that statement,[3] Mr Mollah put on behalf of the applicant that he reiterated his earlier statement made in support of his protection visa application. I take this to be a written adoption of those claims for the purposes of the application to the RRT.
[1] court book, page 84
[2] court book, page 74
[3] court book, page 75
Further, the RRT invited the applicant to a hearing[4]. At the hearing, there was a discussion between the presiding member and the applicant about the claims made in support of his protection visa application[5]. The applicant asserted the accuracy of the claims made in support of his protection visa application. That discussion between the applicant and the presiding member also needs to be read in the light of the notice sent to the applicant by the RRT on 22 August 2003[6]. That was a notice purportedly given pursuant to s.424A(1) of the Migration Act. If I am right, in my view, that the applicant had already adopted in writing his claims made in support of his protection visa application, the notice may have been unnecessary. On the other hand, the notice may have been necessary in view of the intended reliance by the RRT on other similar applications pursued by Mr Mollah. In any event, the notice was given and directly put in issue the veracity of the applicant's protection visa claims.
[4] court book, page 88
[5] court book, pages 354-355
[6] court book, page 136
In totality, the applicant could have been left in no doubt that his protection visa claims were in issue for the purposes of his application before the RRT. He maintained the accuracy of those claims and in my view adopted them for the purposes of the RRT application. In the circumstances, there was no obligation on the RRT to issue any further notice to the applicant pursuant to s.424A(1) of the Migration Act in the light of what transpired at the hearing.
I find that the decision of the RRT is a privative clause decision as it is free from any jurisdictional error. It follows that I must dismiss the judicial review application and I do so.
On the question of costs, I am satisfied that costs should follow the event. Mr Smith seeks an order for costs fixed in the sum of $4,500 on a party and party basis. I agree that costs of at least that amount have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis. The applicant referred to his difficult financial circumstances, but as I explained to him that is a matter that he can raise with the Minister's lawyers. It is not a reason for me to refrain from making a costs order. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,500.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 September 2005
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