SZCKX v MIMA & Anor
[2005] FMCA 1810
•6 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCKX v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1810 |
| MIGRATION – Review of Refugee Review Tribunal – refusal of a protection visa – applicant claiming political persecution in Bangladesh – whether the RRT breached s.424A of the Migration Act 1958 (Cth) considered – no reasonable error found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.424A |
| Minister for Immigration v NAMW (2004) 140 FCR 572 |
| Applicant: | SZCKX |
First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG60 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 6 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2005 |
REPRESENTATION
| Counsel for the Respondent: | Mr D Jordan |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal is joined as the second respondent to the proceedings.
The judicial review application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG60 of 2004
| SZCKX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was handed down on 17 December 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. I adopt as background paragraphs 2 and 3 of the Minister's written submissions:
The applicant is a national of Bangladesh. He claimed to fear persecution from supporters of the Bangladesh Nationalist Party (BNP), for reason of political opinion, arising from his activities as a senior official in the Awami League. He claimed that he had been targeted by BNP thugs shortly before the election of the BNP to government in October 2001 and that a false charge had been laid against him. The applicant also claimed to fear persecution from Islamic fundamentalists and Jamaat-e-Islami because, as a secularist, he had been an active member of the “supporter club” for the feminist author, Taslima Nasrin.[1]
On several bases, the tribunal found that the applicant’s claims were unconvincing:[2]
i)The claim that a false charge was brought against the applicant, in August 2001,[3] was inconsistent with the applicant’s ability to obtain a passport on 18 September 2001[4] and depart through immigration control shortly thereafter.[5]
ii)Independent evidence of endemic document fraud in relation to Bangladeshi asylum claims provided further support for the tribunal’s finding that the documents produced by the applicant were fraudulent.
iii)The RRT did not accept that an active party official, as the applicant claimed to be, would have made preparations to depart from Bangladesh in the midst of a national election campaign.
iv)The applicant’s oral evidence of his support for Taslima Nasrin was unconvincing[6] and the claim that he was a member of a supporter group was inconsistent with country information which suggested that no such organised group existed after 1996.
v)Significant parts of the applicant’s claims repeated, verbatim, claims lodged by other applicants. This provided further evidence that the applicant’s claims had been fabricated.
[1] The applicant’s claims are set out at court book (CB) 17-21; see also CB 36-44, 67-76, 133-141; the applicant’s evidence at hearing is summarised by the tribunal at CB 152-153
[2] CB 162-163
[3] CB 77
[4] CB 21(a)
[5] CB 21(e)
[6] CB 153
The applicant relies upon his amended application filed on 18 June 2004. The only respondent to that application is the Minister. In the light of the decision of the High Court in SAAP v Minister for Immigration (2005) 215 ALR 162 the RRT is a necessary respondent. I will, therefore, order that the RRT be joined as the second respondent to the application.
Mr Jordan summarises the amended application and makes submissions in relation to it in his written submissions from paragraphs 4-10. I agree with those submissions and adopt them for the purpose of this judgment:
These proceedings were commenced by an application for review filed on 9 January 2004. An amended application was filed on 18 June 2004.
Ground one of the amended application contends that the applicant was denied procedural fairness because he was not given an opportunity to deal with the country information relied upon by the RRT in relation to document fraud in Bangladesh.
This contention is without any substance because the tribunal disclosed particulars of the relevant country information, pursuant to s424A of the Migration Act 1958 (Cth) (“the Migration Act”), in a letter to the applicant dated 22 September 2003.[7] The prevalence of document fraud was specifically referred to in the response from the applicant’s adviser, dated 4 November 2003,[8] and that response was taken into account for the purposes of the tribunal’s decision.
In relation to this ground, the applicant draws no support from the Full Federal Court decision in NARV v Minister for Immigration because, in that case, the country information in relation to document fraud was not disclosed to the appellants.[9]
Ground two of the amended application asserts that the tribunal failed to comply with s424A of the Act because the country information in relation to document fraud fell outside the exception in s424A(3)(a). Again, the applicant relies upon NARV v Minister for Immigration but, in relation to this ground, seeks to draw support from the reasons of Ryan and Finkelstein JJ on the interpretation of the exception in s424A(3)(a).[10]
At a factual level, the complaint in relation to s424A of the Act is misconceived because the tribunal did give the required particulars of the relevant country information in the letter dated 22 September 2003. Moreover, it is now clear from subsequent Full Federal Court authority that the exception in s424A(3)(a) did apply to the country information, and that the interpretation of that provision in NARV v Minister for Immigration by Ryan and Finkelstein JJ should not be followed.[11]
The amended application also includes several further contentions which are generic in form, some of which traverse the merits of the tribunal’s decision. Expressed at this level of generality, none of these grounds can be sustained.
[7] CB 130-131(a)
[8] CB 133-141; in relation to the country information concerning document fraud, see CB 134.
[9] NARV v Minister for Immigration (2003) 133 FCR 89 at [19], [36]
[10] NARV v Minister for Immigration (2003) 133 FCR 89 at [30]-[33]; contrast the dissenting judgment of Downes J at [52]-[54]
[11] Minister for Immigration v NAMW (2004) 140 FCR 572 at [66]-[74], [125]-[138]; see also WAJW v Minister for Immigration [2004] FCAFC 330 at [43]-[46]; QAAC v Refugee Review Tribunal [2005] FCAFC 92 at [20]-[30]; VHAP of 2002 v Minister for Immigration (2004) 80 ALD 559 at [12]-[14]; VHAJ v Minister for Immigration (2003) 131 FCR 80 at [50], [71]-[72]; contrast NARV v Minister for Immigration (2003) 133 FCR 89 at [30]-[31]
I invited the applicant to tell me whether there was anything of additional concern to him about the RRT decision. He told me that he has been assisted by Mr Zahirul Hoq Mollah. Mr Mollah was the applicant's migration agent before the RRT. The applicant told me that his amended application and written submissions filed on 29 November 2005 had been prepared by Mr Mollah. It does not appear that the applicant has paid Mr Mollah money for his assistance. Unfortunately for the applicant, however, he has no independent understanding of the issues Mr Mollah has raised. The applicant simply repeated his protection visa claims and drew attention to the disadvantage he has undoubtedly suffered through not being legally represented in these proceedings. Nevertheless, he has had ample time to arrange legal representation should he have preferred that to the assistance offered by Mr Mollah.
The applicant's written submissions raise some issues additional to those in the judicial review application. The submissions assert that the applicant's claims in relation to his membership of the Taslima Nasrin support group were not properly considered. I reject that submission in the light of the RRTs reasons, in particular at pages 162 and 156 to 159 of the court book.
The submissions also appear to assert procedural unfairness in the way the applicant was questioned at the hearing conducted by the RRT.
I have no transcript of the RRT hearing. I accepted the green book of relevant documents as evidence. There is nothing in those documents that points to procedural unfairness in the manner in which the applicant was questioned. I reject the applicant's submission.
The submissions also draw attention to the comparison the RRT drew between his application and other similar applications. The presiding member said at pages 162 and 163 of the court book:
The Tribunal further finds that significant parts of his claims reproduce verbatim the claims lodged by two other applicants before this currently constituted Tribunal.
The presiding member referred to two case references in cases previously decided and continued as follows:
The Tribunal takes this as further evidence that his claims have been fabricated. In making this finding the Tribunal has considered the final submission made by his adviser but finds that there are sufficient identical and verbatim features of the claims in all three cases such that it raises such serious doubts as to the veracity of the claims in the Tribunal's mind that the Tribunal cannot be satisfied that the claimed events occurred.
Plainly, the similarity of the applicant's claims with certain other applications was a factor which was in part determinative of the outcome of the applicant's case before the RRT.
Both under the general law and under s.424A of the Migration Act, this was adverse information that required disclosure to the applicant. The information was disclosed to the applicant in the letter from the RRT dated 22 September 2003, in particular at page 131 of the court book. In making that disclosure the RRT complied with s.424A of the Migration Act and its procedural fairness obligations under the general law, if any.
The submissions also refer to the issue of document fraud but those submissions did not materially add to the assertions in the amended application. I have already rejected those assertions.
Finally, the submissions assert that it was not open to the RRT to reject the applicant's credibility. I disagree. I find that there was ample material before the RRT to support its adverse credibility findings.
I find that there was no jurisdictional error in the decision of the RRT. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
As to costs, the Minister seeks an order for costs. I agree that costs should follow the event. Mr Jordan notes that under the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) as they apply from 1 December 2005, costs of $5,000 are prescribed after a final hearing in the migration jurisdiction. The applicant sought a lesser sum and also sought time to pay. On Mr Jordan's instructions, not less than $5,000 has been incurred on behalf of the Minister when assessed on a party and party basis.
I agree. It may be inappropriate to simply apply the prescribed rate of costs in applications that were commenced before the amendment of the Court rules. In any event, Part 21 of the Federal Magistrates Court Rules provides substantial flexibility in the determination of costs.
I have decided in this matter that costs should be fixed in the amount of $5,000. I will so order.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 December 2005
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