SZBUR v Minister for Immigration
[2007] FMCA 420
•20 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBUR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 420 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.474; pt.8 div.2 |
| Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 |
| Applicant: | SZBUR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2192 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 March 2007 |
| Date of Last Submission: | 20 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2007 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Solicitors for the Respondent: | Ms M. Jolley, Sparke Helmore Lawyers |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2192 of 2006
| SZBUR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and pt.8 div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 18 June 2006 and handed down on 11 July 2006.
The applicant arrived in Australia on 15 August 2002, having legally departed from Bangladesh on a passport issued in his own name and a visa issued in Dhaka on 23 July 2002.
On 12 September 2002, the applicant lodged an application for a protection visa with the then Department of Immigration and Multicultural and Indigenous Affairs.
In his protection visa application the applicant claimed that he was a stateless Bahari fearing persecution from the Bangladesh National Party (“the BNP”) and the Jatiya Party due to his involvement in the Awami League as a Bahari community leader.
The applicant claimed that he was physically attacked, and his family and business threatened. The applicant claimed that the government had fabricated cases against him, and for that reason feared arrest and harm or death at the hands of members of the BNP.
The applicant claimed that after the BNP came to power it took revenge on Awami leaders and workers and this caused the applicant to decide to leave Bangladesh.
The applicant claimed that if he were to return to Bangladesh he feared death at the hands of members of the BNP; arrest by the BNP where he would remain in jail and be tortured without trial; death from Bangladesh terrorists and prosecution for falsifying documents enabling him to obtain a visiting passport. The applicant provided various documents in support of those claims to the department.
On 20 November 2002, a delegate of the department refused the applicant's application for a protection visa on the basis that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 18 December 2002, the applicant lodged an application for a review of that decision with the Refugee Review Tribunal.
On 15 August 2003, the applicant furnished further documents to the first constituted tribunal in support of his claims, including a reference from an Awami League member, documents supporting his claims of alleged charges made against him and a doctor's certificate in respect of alleged injuries suffered by him at the hands of the BNP members.
On 27 August 2003, the first constituted tribunal affirmed the delegate's decision that the applicant was not a person to whom Australia has protection obligations.
On 4 November 2003, the applicant sought judicial review of the decision of the first constituted tribunal by way of application filed in the Federal Magistrates Court.
On 7 November 2005, that application was dismissed by Barnes FM.
On 28 November 2005, the applicant filed a notice of appeal to the Federal Court of Australia in respect of the decision of Barnes FM.
On 10 March 2006, the Federal Court of Australia remitted the matter to the Refugee Review Tribunal for a decision according to law.
The second constituted Tribunal hearing
On 3 May 2006, a submission was filed on behalf of the applicant by the applicant's migration agent, including a statutory declaration by the applicant. The submission included further documents alleged to be charge sheets relating to alleged false cases, a letter in support from the Awami League, and various other documents provided in support of the applicant's claims.
At the second constituted Tribunal (“the Tribunal”) hearing, the applicant stated that the claims he made before the first constituted tribunal were untrue and were made by him upon advice from his then migration agent who told him that his claims were not sufficiently strong and that he needed to improve those claims.
The applicant then made claims for the first time that he had been a member of the Awami League Youth Party and that he had gone to study in Feni where he was attacked by members of the BNP and the Jatiya Party.
The applicant claimed that a false police report was made in respect of him and that he returned to his home village and became involved in village politics. He then left for Dhaka and commenced working for the Awami League in Motijheel and became the Assistant Organising Secretary in Motijheel and Matlab Thana of the Awami League.
The applicant claimed that, after the BNP came to power in 2001, he was threatened and his business and shop eventually taken, and further false charges made against him, including one of smuggling goods into Bangladesh in the course of his import business.
The applicant then stated that he had decided to run his businesses in Singapore, Malaysia, Indonesia and Korea. However, he told the Tribunal that he only had visitors visas to those countries and was unable to obtain protection anywhere. The applicant then returned to Bangladesh and stayed with a cousin for four to five months.
The applicant said that, since his arrival in Australia, he has been told by a friend in Bangladesh not to return to Bangladesh or he would be killed. The applicant stated that his life was in danger, his political opponents wish to kill him, his business had been destroyed and he had no protection in Bangladesh.
At the Tribunal hearing on 8 May 2006, the applicant gave further oral evidence. The Tribunal noted the claims made by the applicant in his protection visa application and his evidence given at the first constituted tribunal hearing.
The Tribunal then noted with particularity the claims made by the applicant before it, both written and oral.
The Tribunal noted that the applicant stated that his untrue claims made to the first constituted tribunal were at the behest of his then migration agent, who had told him that his real story was not strong and that he would improve it for him.
The Tribunal comprehensively rejected all the claims of the applicant on the basis that it did not accept the applicant to be a witness of truth. The Tribunal found that the applicant was aware of the lies that he told the first constituted tribunal. The Tribunal found that the applicant had continued to lie to the second Tribunal consciously in the hope of obtaining a protection visa as a result of his lies.
The Tribunal found that the applicant had tried to improve upon what he said to the first constituted tribunal hearing by adding in new claims. The Tribunal found that the applicant would make any claim he believed would assist his case without regard for the truth of the claim.
The Tribunal found that the documents provided by the applicant in support of his claims were not genuine. In reaching that conclusion the Tribunal had regard to the fact that the documents placed before it were in almost identical terms to those placed before the first constituted tribunal, in circumstances where the applicant had acknowledged that what he had said to the first constituted tribunal was untrue.
Given the Tribunal’s adverse credibility finding in relation to the Applicant, the Tribunal placed no weight on a letter from a fellow Awami League member corroborating the applicant's claim to have been a member of the Awami League.
Ultimately, the Tribunal did not accept that the applicant had ever been involved in the Awami League or its student wing. The Tribunal did not accept that the applicant had ever been threatened, harassed or attacked by the BNP or the Jatiya Party or Muslim terrorists. The Tribunal did not accept that false cases had ever been brought against the applicant.
Whilst the Tribunal accepted that the applicant was a businessman in Bangladesh, it did not accept that he was targeted for extortion for reason of his membership of a particular social group of business in Bangladesh. The Tribunal did not accept that the BNP had destroyed his business in 2001.
The Tribunal concluded that:
“…there is no truth in any of the Applicant's claims and that he has fabricated the claims in an attempt to obtain a protection visa.”
The Tribunal did not accept that there was a real chance that if the applicant was to return to Bangladesh now, or in the reasonably near future, nor that he would be persecuted for reasons of his political opinion or imputed political opinion, or his membership of any particular social group.
The Tribunal, accordingly, affirmed the decision under review.
The proceeding before this Court
The applicant is unrepresented before the Court today, although has the assistance of an interpreter. The applicant appeared at a directions hearing before this Court on 14 December 2006, at which time he was given leave to file an amended application and any further evidence by 23 November 2006.
At the hearing today the applicant sought leave to file in Court and rely upon an amended application. Subject to an Order for costs in respect of costs thrown away by the first respondent in written submissions addressing the applicant's original application now no longer relied upon, the first respondent submitted that there was no prejudice suffered by the grant of leave to the applicant to rely on those grounds.
Accordingly, leave was granted to the applicant to file in Court and rely upon the amended application. That application identifies the following grounds:
“1. The Refugee Review Tribunal (“the Tribunal”) made jurisdictional error by failing to have regard to the applicant’s claim that lies admittedly previously told to the Tribunal lies have not sworn on the Koran.
2. The Tribunal made jurisdictional error by having regard to an irrelevant consideration, namely the binding force of an affirmation in relation to the applicant’s oath that he told the truth when he swore it or the Koran.
3. The Tribunal made jurisdictional error by failing to consider the explanation of the applicant that lies told to the Tribunal had been invented by his then migration agent who had later been deregistered.
4. The Tribunal made jurisdictional error in purporting to apply ExParte Applicant s20/2002 as entitling it to disregard reliable evidence from independent source.
5. The Tribunal made jurisdictional error by failing to consider the applicant’s claim to fear persecution by reason of membership of a particular social group (business in Bangladesh).
6. Further or in alternative to 5 above, the Tribunal made jurisdictional error by failing to consider the applicant’s evidence that the BNP destroyed his business in 2001.”
The applicant was invited to make submissions in respect of those grounds. The applicant provided a document entitled “Applicant's Submissions” and had nothing further to say beyond those submissions. The submissions are in the following terms:
“1. I am the applicant in these proceedings.
2. I am a Bangladeshi citizen.
3. After arrival to Australia, I went to a migration agent who invented my first application with the Department of Immigration and Citizenship. He said to me that my claim is not enough to success in protection visa.
4. Later the applicant’s judicial review was remitted to the RRT for further consideration.
5. During this time I met Parish Patience Solicitor and I told my real claim and filed a statutory declaration which submitted to the Tribunal.
6. After lodgement of the application with this Honourable Court, I tried to find a solicitor and a counsel but failed to obtain due to my inability to afford them.
7. I believe that the Tribunal miscalculated my whole case. In amended ground 3, I told the Tribunal that my ground was invented by my former migration agent. The Tribunal failed to consider this.
8. In amended ground 4, the Tribunal failed to consider the relevant evidence from reliable source.
9. In accordance with amended ground 5, the Tribunal failed to consider as a member of a particular social group.
10. The Tribunal failed to consider that my business was destroyed in 2001 (amended ground 6).
11. In order that the grounds set out in these submissions are accurately reflected in the application, I will seek leave on hearing to file an amended application.
12. It is submitted that the Tribunal made jurisdictional error. The Minister should pay the Applicant’s costs.”
Ground 1 of the amended application is a complaint that the Tribunal did not consider that the applicant's evidence made before the second Tribunal was made on the Koran whereas, the lies that he admitted he told to the first constituted tribunal had been made upon an affirmation, and that the Tribunal failed to have regard to that distinction.
It was unclear to me what ground 1 meant. The applicant however confirmed that the ground, as understood by the first respondent and as referred to above, was correct.
Even if it were a jurisdictional error that the Tribunal was obliged to have regard to the distinction, it is clear from the Tribunal's decision that in fact it did. The Tribunal stated that the applicant had said that he had told the truth at the second Tribunal hearing and noted that the applicant stated that he had sworn to tell the second Tribunal the truth on the Koran.
In the “Findings and Reasons” section of its decision, the Tribunal referred to those statements by the applicant. The Tribunal quite properly noted that there is no distinction between an oath or an affirmation in terms of its binding force. However, the Tribunal was satisfied that the applicant did not tell the truth at the second hearing, and in those circumstances observed that the applicant was just as prepared to lie on oath as to lie on affirmation.
In the circumstances, the applicant's complaint that the Tribunal failed to have regard to the fact that the applicant's evidence before the second Tribunal was sworn on the Koran whereas, his admitted false evidence before the first constituted tribunal was merely affirmed, is not made out.
Ground 2 appears to complain that it was not open to the Tribunal to have regard to the fact that the oath and the affirmation are both of binding force.
This complaint is misconceived. The Tribunal was entitled to have regard to the consequence of an oath and affirmation, particularly where the applicant himself sought to draw that distinction to the Tribunal as an explanation as to why he had given false evidence to the first constituted tribunal.
The finding of the Tribunal that such evidence led it to find that the applicant was prepared to lie on oath, and on affirmation, is a finding that was open to the Tribunal on the evidence and material before it, and for which it gave reasons.
Accordingly, ground 2 is not made out.
Ground 3 complains that the Tribunal failed to consider the applicant's explanation of his false evidence to the first constituted tribunal that, those claims had been invented by his then migration agent who was later deregistered.
It is quite clear that the Tribunal had regard to the applicant's explanation. However, the Tribunal found that the applicant himself had invented claims, the present claims to the Tribunal, in order to obtain a protection visa application.
The Tribunal noted that the changes made by the applicant in his evidence were changes that had the effect of strengthening his claims. The Tribunal noted that the applicant stated that he did not know what was good or bad for his case. However, the Tribunal found that response disingenuous and found that the applicant was aware of what he was doing, and that there is no truth in any of the applicant's claims, and that he fabricated his claims in an attempt to obtain a protection visa.
Accordingly, ground 3 is not made out.
Ground 4 complains that the Tribunal erred in having regard to Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (“Ex parte Applicant S20/2002 “) in rejecting the applicant's corroborative documents.
The Tribunal, in its decision, referred to the passage in Ex parte Applicant S20/2002 at 79 where McHugh and Gummow JJ stated that:
“…it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption…
It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration.”
That is precisely the nature of the findings made by the Tribunal in this matter where, the Tribunal found that the applicant had lied at the first constituted Tribunal hearing and, continued to lie to the second Tribunal. The Tribunal found that the applicant made a conscious decision to lie to the Tribunal in the hope of obtaining a protection visa as a result of his lies.
The applicant's credibility has plainly been poisoned beyond redemption, and there is no error on the part of the Tribunal in referring to that passage in Ex parte Applicant S20/2002.
Accordingly, ground 4 is not made out.
Ground 5 alleges that the Tribunal failed to consider the applicant's claim to fear persecution by reason of membership of a particular social group of businessmen in Bangladesh.
It is clear from the decision of the Tribunal that the Tribunal had regard to that claim in specific terms in the “Claims and Evidence” section of its decision. The Tribunal rejected that claim in specific terms in the “Findings and Reasons” section of its decision. Such a claim was also in the finding of wider generality that there is no truth in any of the applicant's claims, and that he has fabricated the claims in an attempt to obtain a protection visa.
Accordingly, ground 5 is not made out.
Ground 6 alleges that the Tribunal failed to consider the applicant's evidence that the BNP had destroyed his business in 2001. Again, it is clear from the decision that the Tribunal had specific regard to those claims made by the applicant, and in the “Findings and Reasons” section of its decision stated the following:
“At the previous hearing the Applicant also said he had been running his business until he had left Bangladesh and that when he had left Bangladesh he had passed his business on to his younger brother. At the hearing before me he likewise said that this was false and that he had told this lie because his original representative had made up the case accordingly. He said that the BNP had destroyed his business in December 2001, after they had come to power. I do not accept the Applicant's evidence that his business was destroyed. I prefer his evidence at the previous hearing that he continued to live at his home at Dhaka and to run his business until he left Bangladesh and that when he left he passed his business on to his younger brother.”
The Tribunal concluded that it did not accept that the BNP had destroyed his business in December 2001. Again, those findings form part of the finding of greater generality that there was no truth in any of the applicant's claims, and that he fabricated his claims in an attempt to obtain his protection visa.
The findings and conclusions of the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
The Tribunal otherwise complied with its statutory obligations in the conduct of its review, including the making of its decision. The decision of the Tribunal is not affected by a jurisdictional error, and is therefore a privative clause decision.
Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere, and the proceedings before this Court is dismissed.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 3 April 2007
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