SZCIN v Minister for Immigration
[2005] FMCA 1827
•16 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCIN v MINISTER FOR IMMIGRATION | [2005] FMCA 1827 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – findings of credibility – whether the Tribunal denied the applicant procedural fairness in relation to section 424A of the Migration Act 1958 – where Tribunal findings reasonably open to it – bias – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.422B, 424A, 424A(3)(a), 474
Migration Regulations 1994
SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) ALR 215
Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Ethnic Affairs (1998) 86 FCR 547 W148/00A v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 185 ALR 703
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178
NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89
| Applicant: | SZCIN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2916 of 2003 |
| Judgment of: | Pascoe CFM |
| Hearing date: | 12 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Refugee Review Tribunal be joined as a party to this proceeding.
That the application is dismissed.
That the applicant pay the respondent’s costs fixed in the sum of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2916 of 2003
| SZCIN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
In this matter the applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 10 November 2003 and handed down on 4 December 2003 affirming a decision of the respondent not to grant to the applicant a protection visa. Consistent with SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) ALR 215, I join the Tribunal as a party to the application.
The applicant, who is a citizen of Bangladesh, arrived in Australia on 28 September 2002 on a false passport. On 18 October 2002 he applied for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”). On 30 May 2003 a delegate of the respondent refused the application and on 18 June 2003 the applicant sought review of that decision with the Tribunal.
In his amended application filed 14 May 2004 it is alleged that the Tribunal denied the applicant procedural fairness and in doing so committed jurisdictional error. This ground is particularised as follows:
a)The Tribunal found that the letters, referred to at pages 186 and 187 of the Court Book, were either fraudulently produced or written to assist the applicant in making his claims in Australia;
b)The Tribunal relied on independent evidence as to the availability of false and fraudulent document in Bangladesh;
c)The Tribunal failed to afford the applicant an opportunity to deal with adverse information, contained in the independent country information relied upon by the Tribunal, that was credible, relevant and significant to the Tribunal’s decision;
d)The Tribunal relied on independent country information, referred to at pages 408 and 409 of the Court Book, which suggested that:
i)There was a very high level of document fraud in Bangladesh;
ii)That fraudulent documents were able to be obtained with the assistance of the police;
iii)That it was also common to pay bribes to officials;
iv)That lawyers would provide, for a fee, a letter advising that it was unsafe to return to Bangladesh; and
v)That other independent evidence referred to the prevalence of Bangladesh asylum seekers providing fraudulent documents.
The applicant contends that the Tribunal failed to comply with the mandatory requirements of the Migration Act 1958 (Cth) (“the Act”) and breached s.424A in that he was not provided with independent country information. This ground is particularised as follows:
a)That the procedures that were required by the Migration Act or the Migration Regulations 1994 (“the Regulations”) to be observed in connection with the making of the decision were not observed;
b)The Tribunal ignored the merits of the claim and the Tribunal gave the decision on the basis of the dated information without investigation;
c)The Tribunal failed to take a relevant consideration into account in exercising its power to determine the applicant as a refugee;
d)That the decision involved a jurisdictional error of law involving an incorrect interpretation of the applicable law to the fact of the case was found by the Tribunal;
e)The Tribunal decision was unjust and was made without taking into account the full gravity of the applicant’s circumstances and consequences of the claim;
f)The decision by the Tribunal is not justifiable by the evidence used in the decision and that the used documents indicate a clear violation of human rights;
g)The Tribunal ignored its own information in deciding the case; and
h)The decision was an improper exercise of the power confirmed by the Act or the regulations and the applicant was deprived natural justice.
The Tribunal decision
The Tribunal held a hearing on 18 October 2003. The applicant appeared and gave oral evidence. Before the Tribunal the applicant claimed to fear persecution for reason of his political opinion. He claimed that while he was at a government College in Munshigonj he was a member of the Chattra League, a student wing of the Awami League (AL) and was attacked in 1994 by supporters of the Chattradal, a student wing of the Bangladesh National Party (BNP). He claimed to have been active in AL politics since 1995 and to have campaigned on behalf of a AL candidate in the 2001 elections, to have been briefly arrested and to have had his house looted by supporters of the BNP who filed false cases against him. He claimed further that the police and supporters of the BNP were looking for him. He contended that as an AL supporter he was forced to leave the country because he feared harm from the BNP and Jamate-Islam supporters and that he would be harmed by the BNP dominated government if he were to return to Bangladesh.
The Tribunal found the applicant’s evidence to be unconvincing and did not accept that his evidence demonstrated that he had a well founded fear of persecution should he return to Bangladesh.
It accepted the independent evidence that politics in Bangladesh is marked by a high level of physical violence between supporters of opposing political parties. However the Tribunal found that the applicant was not a political activist but a businessman, as stated in the passport issued to him in his own name and tendered at the hearing. The Tribunal found that the applicant used the false passport on which he entered Australia not to evade the authorities but rather to travel to Australia because it had a valid entry visa for Australia. The Tribunal found it implausible that the applicant could have obtained a valid passport at the same time as the applicant claimed the authorities were preparing, or had even issued, serious false charges against him. As a consequence the Tribunal did not accept that the applicant did not work after completing his education so as to become a full time political activist and that he had evaded the authorities as claimed. The Tribunal found that the timing of the applicant’s departure from Bangladesh was dependent on his securing a false passport with a valid visa and that his claim in relation to his political opinion was a fabrication designed to secure a protection visa.
In reaching its findings the Tribunal had regard to the letters purportedly written by AL figures supporting the applicant’s claims but it found that those letters were fraudulently produced or written to assist the applicant in making his claims in Australia. In light of the independent evidence on the common availability of false and fraudulent documentation in Bangladesh, the Tribunal did not accept the applicant’s submission that members of the AL would not make false statements or produce letters with false information.
The Tribunal noted that the applicant claimed that he had been targeted for harassment by the authorities but found that local AL figures more prominent than the applicant and who purportedly had written letters supporting his claims had not been detained and were in fact able to operate from the publicly known addresses listed on their letterheads. This was all the more inexplicable in light of the seriousness of the harassment claimed by the applicant.
The Tribunal had regard to whether there was a real chance the applicant would face persecution by reason of his support of the AL if he were to return to Bangladesh. It found on the evidence before it that the applicant would not suffer persecution if he returned to Bangladesh because the applicant is in fact a businessman who would be free to continue to live in Bangladesh as he had in the past.
The Tribunal’s findings that the Applicant was not credible and had fabricated his claims are matters of fact par excellence (Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J). Accordingly, provided the Tribunal’s credibility findings were reasonably open to it, no error is committed (Kopalapillai v Minister for Immigration and Ethnic Affairs (1998) 86 FCR 547 at [558]-[559]; W148/00A v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 185 ALR 703 at [64]-[69], per Tamberlin and R D Nicholson JJ). Clearly the Tribunal’s conclusions were reasonably open to it for the reasons it gives.
The Applicant claims that the Tribunal denied the Applicant procedural fairness and breached s.424A of the Migration Act 1958 (“the Act”) in not disclosing country information about document fraud in Bangladesh with him. I am satisfied that at page 405 to 406 of the Court Book the Tribunal raised this information with the Applicant. Thus, this claim must fail and the claim of a breach of procedural fairness must also fail.
In any event, s.422B applies and s.424A is an exhaustive statement of the Tribunal’s obligation to provide information to an applicant (SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493 at [17]-[18], per Branson J; SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514 at [29], per Edmonds J). There can be no breach of s.424A because the said country information falls within the exception under s.424A(3)(a) as it is not specifically about the Applicant (Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 at [64]-[74], [112]-[138]; WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 at [44-46]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7]-[30]; VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 at [11]-[16]). The Full Federal Court decision of NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89 relied upon by the applicant applied a different construction of s.424A(3)(a) and has been overruled by the cases listed.
The applicant also alleges outside of his amended application that the Tribunal decision was affected by bias. As I understand it that ground alleges that the decision of the Tribunal shows actual or apparent bias against the applicant. This is a serious claim to make and cannot succeed without proper evidence which was not produced. There is no transcript of the Tribunal hearing and it would seem that the assertion is based solely on the Tribunal’s disbelief of the applicant’s claims. It is of course a factual matter for the Tribunal to believe or disbelieve an applicant’s claims.
On a fair reading of the Tribunal decision I can see no apparent error in its decision. In my view the decision reached by the Tribunal was plainly open to it on the evidence it had before it and it followed the correct law and procedures in reaching its decision. Moreover, it is plainly apparent that the decision of the Tribunal was properly reached and took into account all relevant considerations. I am satisfied that the Tribunal regard to information that was before it. It follows then that as no jurisdictional error has been disclosed and the decision is a “privative clause decision” within the meaning of s.474 of the Act.
Thus, I am satisfied that the application should be dismissed with costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Legal Associate: Peter Smith
Date: 16 December 2005
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