SZBUR v Minister for Immigration

[2005] FMCA 1642

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBUR v MINISTER FOR IMMIGRATION [2005] FMCA 1642

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

Migration Act 1958 (Cth), s.424A

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Minister for Immigration & Multicultural & IndigenousAffairs v NAMW [2004] FCAFC 264
B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition, and Certiorari against Refugee Review Tribunal [2004] FCA 30 B41 v Refugee Review Tribunal [2005] FCAFC 4
SZDDH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1531

Applicant: SZBUR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2338 of 2003

Judgment of: Barnes FM

Hearing date: 7 November 2005

Delivered at: Sydney

Delivered on: 7 November 2005

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Mr TC Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the Refugee Review Tribunal be joined as second respondent to the proceedings. 

2. That the application is dismissed. 

3. That the applicant pay the costs of the first respondent fixed in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2338 of 2003

SZBUR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 8 October 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. 

2. The applicant, a citizen of Bangladesh, arrived in Australia in August 2002. He applied for a protection visa. The application was refused. He sought review by the Tribunal. The Tribunal invited him to a hearing. On 22 August 2003 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (the Act) inviting his comment at the Tribunal hearing on the similarity of his statement accompanying his protection visa application to those of other applicants using the same migration agent. It indicated that the information was relevant because the degree of similarity suggested the statements were contrived and this affected the credibility of his claims.

3. The applicant attended the Tribunal hearing.  The only evidence of what occurred in the hearing before the Court is the Tribunal reasons for decision, in which it is recorded that the applicant told the Tribunal that his adviser filled in the application form, that he gave his adviser the relevant information, that his adviser confirmed with him that everything in the application form was correct, that he wrote out the statement in Bengali and his adviser translated it in English and went over the statement with him before lodging it.  The Tribunal recorded that the applicant confirmed to the Tribunal that everything in the statement was correct. 

4. The Tribunal also recorded that it raised the matters in the s.424A letter and asked the applicant why he had provided a statement to the department virtually identical to two other statements. The applicant is recorded as indicating that he knew the other applicants who were from the same background and used to stay together. The Tribunal indicated that it advised the applicant that it did not consider he had satisfactorily explained the provision of identical statements.

5. The Tribunal reasons also state that it asked the adviser if he had any submissions to make, bearing in mind that credibility was the central issue in the applicant's case, and that no submissions in that respect were made. 

6. The applicant had claimed to fear persecution in Bangladesh by reason of his race and or political opinion.  He claimed to be Bihari and also a member of the Awami League and that false charges had been filed against him.  He claimed that if he returned to Bangladesh he would be arrested and mistreated because of these false charges. 

7. The Tribunal found significant aspects of the applicant's evidence to be confused, internally inconsistent and plausible.  It did not consider his evidence to be credible and was of the view that he had fabricated his claims in an attempt to create for himself the profile of a refugee.  The Tribunal elaborated on its concerns about the applicant's evidence.  It found that the applicant had not adequately explained why he claimed to be stateless or why he indicated that he was not a Bangladeshi citizen in the statement accompanying his protection visa application even though he had a Bangladeshi passport. 

8. At the hearing the applicant claimed to be a Bangladeshi national and on the evidence before it the Tribunal found that he was a Bangladeshi national.  It considered the applicant's claim that he was stateless was made because it would enhance his claim to refugee status. 

9. The Tribunal also considered the applicant's claim to be a Bihari which it did not accept.  It did not consider his explanation for inconsistencies at the hearing to be an adequate explanation.  It found the unsatisfactory nature of the applicant's evidence in relation to his citizenship and ethnicity adversely affected his credibility as a whole. 

10. A further problem which adversely affected the applicant's credibility was that the statement lodged with his protection visa application was found to be virtually identical to two other statements from protection visa applicants represented by the same migration agent.  The applicant's explanation that the other applicants were friends who had spent time with him and helped him prepare his statement was not regarded as an adequate explanation of the degree of similarity between the three statements.  The Tribunal found the fact that the statements were virtually identical indicated they had been contrived either by the applicants in concert with each other or by their migration agent. 

11. The Tribunal also had regard to the applicant's claims to have been an Awami League activist, which it did not accept.  It found his evidence as to his supposed political activities to be vague and given in generalities and without specifics.  It was of the view that if the applicant had been involved in political activities he would have been able to give more detailed evidence.  As it did not accept the applicant was involved in political activities, it did not accept that charges were lodged against the applicant for this reason.  In any event it found such evidence unsatisfactory.

12. It noted that the claim was that charges had been lodged in January 2002, yet the applicant had left Bangladesh and returned on two occasions after January 2002 prior to his departure from Australia.  It considered that the Bangladeshi authorities had ample opportunity to arrest him if they had any interest in doing so and his explanation for why this did not occur was not accepted. 

13. The applicant had provided hospital documents but the Tribunal found that even if they were genuine they did no more than establish that he was in hospital in January/February 2002.  As to other documentation, a letter from the Awami League and a lawyer, the Tribunal found in view of the seriousness of the problems it had with the applicant's credibility and in light of independent evidence before it as to a high degree of document fraud in Bangladesh, it did not accept that the documents were genuine or genuinely reflected the applicant’s circumstances in Bangladesh. 

14. In summary, the Tribunal did not accept that the applicant was Bihari or a political activist, that there were false charges against him, that he was of any adverse interest to the Bangladeshi authorities when he left Bangladesh or currently and that he had fabricated his claims in this regard to create the profile of a refugee.  Having rejected the applicant's claims on the facts, the Tribunal found that it was unable to be satisfied that he had a well-founded fear of persecution for a Convention reason. 

15. The applicant sought review by application filed in this court on 4 November 2003.  That application raised a number of general and unparticularised claims.  However, on 12 August 2004 the applicant filed an amended application and two supporting affidavits sworn by him.

16. The first ground relied upon is that the Tribunal decision was affected by jurisdictional error.  It is contended that the Tribunal erred in law in determining whether or not the applicant was stateless.  The particulars of this ground are that the Tribunal came to the conclusion the applicant was not stateless basically on the basis of his travel using a Bangladeshi passport and that the Tribunal did not have anything before it to conclude that the applicant was not a Bihari except the passport issue, that the country information before the Tribunal indicated that achieving a Bangladeshi passport was not a big deal for the Biharis and that it did not mean a Bangladeshi nationality.  Reference was made to country information in support of this proposition which was referred to in the delegate's decision. 

17. This ground takes issue with the merits of the Tribunal's findings which had regard not only to the applicant’s holding of a passport but also to inconsistencies in his claims, and the absence of an adequate explanation for why he claimed to be stateless in the statement accompanying his protection visa application given that he had a Bangladeshi passport (as he stated in that statement).   

18. The fact that there was country information before the Department relevant to this issue is not such as to establish that the Tribunal fell into jurisdictional error. The Tribunal referred in its reasons to decision to the information it relied on in relation to Biharis in Bangladesh. The findings of the Tribunal were open to it on the material before it. The applicant republished his application and statement so that it was information he gave to the Tribunal for the purposes of the review applicant in his references in the review application to submitting more “statement and supporting document” and to “evidence which was established my application that I am a refugee” and in his adoption of his statement and application in the hearing. Even if this were not the case, the Tribunal complied with s.424A in putting the “statement he provided to the department in connection with [his] claims” its concerns about contrivance and credibility to the applicant for comment. (See SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 and Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27).

19. The second ground is that the Tribunal erred in law in determining that the application was not a Bihari because of his ability to speak 11 languages.  Again issue is taken with the Tribunal's reliance on country information.  The applicant contended that there was independent country information to suggest that Biharis in Bangladesh spoke languages in addition to Bengali and English. 

20. This claim seeks merits review.  The Tribunal had regard to the applicant's claims, noted that the applicant appeared to speak Urdu with some fluency and that in some cases this would be an indication that a Bangladeshi applicant was Bihari.  Despite this the Tribunal found that given that the applicant claimed to speak 11 languages, some of them from the sub continent, it did not consider that in this case his ability to speak Urdu constituted evidence that he was Bihari.  Insofar as the applicant takes issue with the Tribunal's reliance on country information, the weight to be given by the Tribunal to particular items of country information is a matter for the Tribunal. No jurisdictional error is established by this ground. 

21. The third ground is that the Tribunal failed to allow the applicant to “contest” with the adverse country information which constituted a reason or part of the reason to affirm the decision under review.  The particulars take issue with the Tribunal's use of information in relation to documentary fraud in Bangladesh and its consequential findings rejecting the credibility of his documents.  However, in the absence of any transcript of the Tribunal hearing, the evidentiary basis for his claim that he was not given an opportunity to comment on country information is not established.  See NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21].

22. Insofar as his claim raises a contention that section 424A of the Migration Act 1958 was not complied with in relation to country information, such information is within the exception in section 424A(3)(a), Minister for Immigration & Multicultural & IndigenousAffairs v NAMW [2004] FCAFC 264. Accordingly, no jurisdictional error has been established by the applicant on this basis.

23. The next ground is that the Tribunal should not have mixed up the initial protection visa application with the evidence the applicant presented.  The particulars of this ground are that the Tribunal had “sufficient evidences in its hand to understand that the applicant's protection visa application was represented very badly.  In that case it should have concentrated on the evidences the applicant presented in a congruent manner”. 

24. In affidavits filed by the applicant in support of his application he gives evidence of his representation by the same migration agent before the Department and the Tribunal.  He claims that due to his lack of English language skill, he did not understand much of what the agent did for him.  After the Tribunal handed down its decision, he was advised to make an application to the Federal Magistrates Court.  He accepted his advice and paid him money to assist him with court proceedings.  The applicant stated that he did not know that his application to the Department and Tribunal was represented badly until he discovered what had been done to his judicial review application in the Federal Magistrates Court, although he notes that in the Tribunal hearing there were inquiries in relation to submitting his claims to several candidates. 

25. First the alleged migration agent's conduct in relation to the proceedings in this Court does not establish any jurisdictional error in the Tribunal decision.  While it provides an explanation from the applicant's perspective for the late filing of documents he has now filed an amended application and supporting affidavits and there is no issue taken about any non-compliance in these proceedings. 

26. More relevantly, the applicant complains about the conduct of his migration agent in connection with his application for a protection visa and before the Tribunal.  He claims that he was represented very badly.  The complaint does not allege any default on the part of the Tribunal and does not establish jurisdictional error.

27. It was open to the Tribunal to have regard to the similarity of the applicant's claims with those of other applicants using the same migration agent. The Tribunal complied with section 424A in this respect and there is nothing to establish that the Tribunal did not give the applicant the opportunity to comment on this issue in the Tribunal hearing. Nor is there anything to suggest that the applicant brought to the Tribunal's attention his present explanation for the similarity of the statements which involves seeking to place responsibility on his migration agent. It was open in those circumstances for the Tribunal to have regard to the initial statement as well as the evidence given at the hearing.

28. The Tribunal recognised the possibility that the statements may have been contrived by the applicants in concert or by the migration agent.  However, negligence or incompetence of an adviser does not produce a denial of procedural fairness or jurisdictional error.  (See B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition, and Certiorari against Refugee Review Tribunal at first instance [2004] FCA 30 and the decision on appeal B41 v Refugee Review Tribunal [2005] FCAFC 4. Also see SZDDH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1531 at [5]).

29. On the material before me it has not been established that there was a denial of procedural fairness or other jurisdictional error.   As no jurisdictional error has been established, the application must be dismissed. 

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.  I consider that the amount sought is appropriate in light of the history of the matter and the nature of this and other similar matters.  Consistent with the decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 the Tribunal should also be joined as a respondent.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  21 November 2005.