SZBUR v Minister for Immigration and Citizenship

[2007] FCA 1810

FEDERAL COURT OF AUSTRALIA

SZBUR v Minister for Immigration and Citizenship [2007] FCA 1810

SZBUR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 605  OF 2007

NORTH J
31 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 605  OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBUR
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	31 OCTOBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The motion, notice of which was filed by the applicant on 23 August 2007, is dismissed;

2.The applicant pay the first respondent’s costs of the motion fixed at $500.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 605  OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBUR
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	31 OCTOBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 30 July 2007, the Court dismissed an appeal brought by the applicant. The appeal was dismissed under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) on the ground that the appellant failed to attend the hearing of the appeal. On 23 August 2007, the applicant filed a notice of motion seeking that the order for dismissal be set aside. In support of the application he filed an affidavit which relevantly stated, “I was sick on that day.”

2. The applicant explained today that he had a headache on the day of the hearing and that he attended a Dr Coles at Bondi Junction who prescribed medication, but he was unable to recall the medication which was prescribed.  He later said that he also had chest pain and diarrhoea on the day.  The applicant did not produce a medical certificate and said that he was unaware of the need to notify the Court.

3. I am not satisfied that this explanation provides grounds for the applicant’s conduct on the day of the hearing.  It is reasonable to expect that, if the applicant were too ill to attend the hearing, he would have notified the Court and would have arranged for a medical certificate to be provided in the meantime.  However, that is not the end of the matter.  In considering whether the orders should be set aside, it is necessary to consider whether the appeal which the applicant seeks to bring would have any chance of success.

4. The application is opposed by the first respondent, the Minister for Immigration and Citizenship, in part because he submits that the appeal is bound to fail. 

5. The appeal is against a decision of a Federal Magistrate delivered on 20 March 2007.  Her Honour dismissed an application for review of a decision of the Refugee Review Tribunal dated 18 June 2006, which had affirmed the decision of the delegate of the first respondent not to grant the applicant a protection visa.

6. The matter has had an unusual history which is set out comprehensively in the reasons for judgment of the Federal Magistrate at [2] to [34].  I incorporate her recitation of those facts in this judgment.  It is sufficient to say that the applicant claims fear of persecution as a national of Bangladesh from the followers of the Bangladesh National Party and the Jatiya Party by reason of his involvement with the Awami League.

7. The matter was first considered by a previous Tribunal member at a hearing on 27 August 2003.  Prior to the hearing by the first Tribunal, the applicant was advised in writing that the statement accompanying his visa application was virtually identical to two other statements provided to the department by two other applicants.  Despite this background, the applicant confirmed the correctness of his statement before the first Tribunal.  The decision of the first Tribunal was ultimately remitted by the Federal Court to the Tribunal for further hearing. 

8. When the matter was heard by the second Tribunal, it had become clear that the applicant’s original statement was false and had been contrived by a migration agent who had since been deregistered.  Not surprisingly, when the matter returned to the Tribunal for the second hearing the applicant was asked which claims originally made were true and which were false.  He then revealed that a large number of the original claims were false, but maintained nonetheless his involvement with the Awami League and the consequent fear of persecution which arose as a result of it.

9. An important element in the applicant’s case before the second Tribunal was reliance upon a letter from his lawyer in Bangladesh explaining that he was subject to false case against him in Bangladesh.  The Tribunal said the following about this letter:

   At the hearing before me the Applicant said that M Nurul Hoque was the lawyer who was handling his case in Bangladesh, that this letter was genuine and that his friend Akter had sent it to him.  As I put to the Applicant, the letter is from same lawyer who supposedly wrote the letter dated 7 May 2003 produced to the Tribunal in August 2003 which the Applicant admits is false.  The letter dated 9 April 2006 is in parts the same, word for word, as the previous letter except that it refers to the smuggling case instead.  Like the previous letter it says that the Chief Metropolitan Magistrate in Dhaka has issued a warrant for the Applicant’s arrest, that ‘Bangladesh police personal [sic] is searching you all over Bangladesh’ and that the Applicant should try to take political asylum in any country ‘for safe [sic] of your life’.  The Applicant repeated that M Nurul Hoque was his lawyer in Bangladesh.  He conceded that it was true that in Bangladesh you could get any document if you paid money but he said that he had just produced what he had got to hand.  He said that he did not know what his friend had done.

   As I put to the Applicant, having regard to the fact that the letter which he produced in relation to the smuggling case is from the same person as the letter dated 7 May 2003 which he admits is false, and is in parts in almost identical terms, I do not accept that it is genuine.  I consider that the Applicant was lying when he said at the hearing before me that M Nurul Hoque was his lawyer who was handling his case in Bangladesh.  I consider that the documents from Bangladesh which he had produced through his current representatives to the Tribunal as presently constituted are no more genuine than the documents which he produced to the Tribunal (differently constituted) in August 2003 and which he says his original representative obtained.  Despite his claim at the hearing before me that what he is now saying is the truth I consider that he has continued to lie to the Tribunal and to produce false documents to the Tribunal.

10. In addition to the passages referred to by the Federal Magistrate in her summary of the proceedings before the Tribunal, it is useful to add the comprehensive rejection by the Tribunal of the applicant’s case as follows:

    Having regard to the view I have formed of the Applicant’s credibility I do not accept that he has ever been involved in the Awami League or in its student wing, the Chhatra League, or its youth wing, the Jubo League, either in Bangladesh or (as Mr Azad’s letter suggests) in Australia.  I do not accept that he has ever been threatened, harassed or attacked by the BNP, its coalition partner the Jamaat-e-Islami, the Jatiya Party or ‘Muslim terrorists’, nor that false cases have ever been brought against him.  I accept that the Applicant was a businessman in Bangladesh but I do not accept that, as his representatives submitted, he was targeted for extortion for reasons of his membership of the particular social group of businessmen in Bangladesh or ‘businessmen who are targeted by BNP extortion gangs protected by the authorities’.  I do not accept that the BNP destroyed his business in December 2001.  I consider 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.  I do not accept that there is a real chance that, if the Applicant returns to Bangladesh now or in the reasonably foreseeable future, he will be persecuted for reasons of his real or imputed political opinion or his membership of any particular social group for the purposes of the Convention.

11. The Federal Magistrate set out the grounds of review relied on before her at [37]. She dealt with each of these grounds in turn and rejected each of them.

12. The applicant filed a notice of appeal in this Court stating the grounds as follows:

    1.The applicant was deprived of receiving procedural fairness as the Tribunal was influenced by the contradictory information.  The Honourable trial judge erred in considering this issue.

    2.The applicant was not provided an opportunity to comment, the materials which the Tribunal relied on its decision.  The Honorable trial judge assessed this matter but erred in considering the tribunal’s treatment.

    3.The applicant’s political issues were not considered by the RRT.  The tribunal considered into negative sense which raised question to accord procedural fairness.

13. The grounds were explained to some degree by a written submission filed by the applicant on 18 July 2007.  Before the Court today, I asked the applicant to explain more fully his criticisms of the Federal Magistrate’s judgment and the Tribunal’s decision. 

14. It is clear from the grounds of appeal and the written submission that the applicant’s only complaint is that the Tribunal did not accept his evidence.  The applicant complained that the Tribunal member did not believe him and did not trust him.  His written submission states at [11]:

    11.My objection is that the Tribunal’s refusal to accept my amended statement already filed with the Tribunal.  During the interview I mentioned to the RRT that my initial application for a protection contained false statement and false claims.  However my statement was not considered by the RRT member.  In this respect I was denied natural justice.

15. The written submission perhaps suggests a complaint that the Tribunal did not give consideration to the written statement filed by the applicant before the Tribunal.  I doubt from the submission made to the Court that this was intended.  In any event, it is, if so interpreted, untenable.  I agree with the description by the Federal Magistrate where she said at [26]:

    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.

16. The question of credibility of the applicant was a matter for the Tribunal.  Its determination that the applicant could not be believed on any of the claims which he made is not a matter susceptible to judicial review.  To the extent that the grounds in the notice of appeal seek to raise matters which were not put before the Federal Magistrate, the applicant would require leave.  I would not grant such leave given the vague nature of the grounds and the explanation of them given by the applicant, namely that they seek to raise contention with the finding against his credibility.

17. The applicant has not provided a sufficient excuse for his failure to attend the Court on the original hearing of the appeal and he has not demonstrated that any grounds which he seeks to advance on the appeal, if permitted, have any prospect of success.  Consequently the application to set aside the orders made on 30 July 2007, should be rejected.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        21 November 2007

Counsel for the Appellant:	Appeared in person
Counsel for the Respondent:	Ms B Rayment
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	31 October 2007
Date of Judgment:	31 October 2007