SZDBT v Minister for Immigration
[2005] FMCA 312
•7 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDBT v MINISTER FOR IMMIGRATION | [2005] FMCA 312 |
| MIGRATION – RRT decision – Bangladeshi fearing political persecution – Tribunal found claims fabricated – no error found. |
| Migration Act 1958 (Cth), ss.424A, s.483A, Part 8 Judiciary Act 1903 (Cth), s.39B Migration Legislation Amendment Act (Judicial Review) Act 2001 No.134, 2001 (Cth) |
| Minister for Immigration v NAMW (2004) FCAFC 264 SZAWW v Minister for Immigration (2003) FMCA 479 |
| Applicant: | SZDBT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 821 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 7 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 7 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr C Mantziaris |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed
Applicant to pay the respondent’s costs in the sum of $4500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 821 of 2004
| SZDBT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Refugee Review Tribunal dated 24 May 2000 and handed down on 7 June 2000. The Tribunal affirmed a decision of a delegate refusing the applicant a protection visa on an application which had been filed on 11 May 1999.
The applicant has filed no evidence explaining his delay in coming to this Court between June 2000 and March 2004 when his present application was filed. Prima facie, the length of time is unwarranted, and in the absence of an acceptable explanation I would have refused relief even if I had found grounds established.
Some information about what happened in that period appears in an affidavit filed by the respondent in recent days. It discloses that soon after the Tribunal decision, the applicant filed an application for review in the Federal Court of Australia. Shortly before the matter was listed for hearing before Katz J on 12 March 2001, the applicant sent a letter to the respondent indicating that he wished to withdraw his matter. The applicant did not attend the hearing, and his application was dismissed under O 32 r 2 (1)(c) of the Federal Court Rules with costs. This history confirms my opinion that the present application is probably an abuse of process, and that in the absence of an explanation for his delay, including his earlier discontinuance, I should refuse relief if a ground of judicial review were made out. However, as will appear below, I am able also to deal with the matter on its substantive merits.
The Court's jurisdiction under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. That jurisdiction includes jurisdiction under s.39B of the Judiciary Act 1903 (Cth), which under current legislation is subject to limitations under Part 8 of the Migration Act. These limitations apply if the decision under review is a “privative clause decision”.
The transitional provision in the legislation which inserted these provisions, the Migration Legislation Amendment Act (Judicial Review) Act 2001 (Cth), were contained in Sch.1 Pt.2 cl.8 of the amending Act. This applies the provisions in relation to judicial review of decisions made before its commencement on 2 October 2001 only if “as at that commencement, an application for judicial review of the decision had not been lodged”. A decision of Driver FM in SZAWW v Minister for Immigration (2003) FMCA 479 at paragraph [4] accepts concessions made by the Minister that the effect of the transitional provision is that Part 8 does not apply if previous judicial review proceedings had been commenced and finalised before the commencement date, even where on that date there was no outstanding judicial review application. I have some doubts about that interpretation, but the Minister's concessions have been made in other cases and, as far as I am aware, the point has never been argued. Consistently with this approach, in the present case the Minister does not argue that limitations under Part 8 apply, and I propose to deal with the merits of the matter on the basis that the applicant is entitled to relief if he can make out a ground for the issuing of a writ of certiorari quashing the decision of the Tribunal.
The applicant arrived in Australia on 22 April 1999, on a visitor's visa which he had obtained on the basis that he was participating in karate competitions. He lodged an application for a protection visa on
11 May 1999 assisted by migration agent. The application provided no details in its body as to his claims to protection as a refugee, but attached a two page statement, and his agent indicated that other relevant documents would be forwarded to the department “shortly”.
In his statement the applicant made vague claims about having participated in politics as a student, and subsequently as a member of the Jatio Party. He said he had become an important leader in Dhaka politics. He said he had been targeted by political opponents and a false case was filed against him to harass him. He also said:
12. The Awami tried a number of occasions to kill me. On 27 January 1999 at 6 pm while I was returning home from Mouchak shopping centre, a group of local Awami men tortured me inhumanly. They left on the street; I was near to death. A street person sent me to a local hospital. I was a few weeks later.
13. After that incident I was in shocked. I was advised by my parents, relatives and friends, to leave the country as soon as possible. I had an Australian visa before but I did not avail it. As such I appeared for the second time and I obtained a visa to come to Australia.
No further information was lodged with the Department before the delegate refused the visa on 31 May 1999.
Assisted by his agent, the applicant lodged a Refugee Review Tribunal application on 23 June 1999. It contained no additional supporting information. The Tribunal invited the applicant to a hearing which was held on 10 May 2000. Very shortly before the hearing, the agent forwarded to the Tribunal six documents, being purported statements by people in Bangladesh corroborating claims made by the applicant, and purported Court documents corroborating the issue of a warrant of arrest for the applicant.
The applicant attended the hearing. In its statement of reasons, which shows a careful analysis of the matter, the Tribunal describes its questioning of the applicant about his claims. No transcript has been put in evidence before me, and in the absence of any other evidence, I accept the Tribunal's description as accurate.
In the course of his evidence the applicant said that, after the
27 January 1999 incident referred to in his statement, he had led a procession or demonstration on 12 February 1999 which was attacked by police, and which gave rise to the arrest warrant which he now claimed to be fearing. The Tribunal questioned him about that claim.
The Tribunal put to the applicant foreign country information concerning the situation of the Jatiya (Jatio) Party (JTIO) and the situation of politics in Bangladesh. The Tribunal also discussed the recent documents provided to the Tribunal and questioned him about why it had taken so long for them to have been received.
The Tribunal put to the applicant information that fraudulent documents could readily be obtained in Bangladesh, that there was a very high level of document fraud in Bangladesh, and that fraudulent documents were able to be obtained with the assistance of the police. The information was that it was common to pay bribes to officials. In addition, lawyers would provide, for a fee, a letter advising that it was unsafe to return to Bangladesh. The applicant was allowed an opportunity to respond to that information, and I am satisfied he was made aware that the Tribunal might act upon it.
Under the heading "Finding and Reasons" the Tribunal referred to the applicant's claims and then addressed his credibility. It found that there was cause to question the applicant's credibility for a number of reasons, which the Tribunal analysed. In particular, the applicant had given conflicting accounts of the incident on 27 January 1999 and, in the Tribunal's opinion, had tailored his responses in the course of his questioning to attempt to answer inconsistencies that were put to him. I do not need to describe the Tribunal's reasoning in more detail in that respect. The Tribunal concluded on grounds which, in my opinion, were cogent and indeed compelling, that the applicant had fabricated and added to a concocted claim.
The Tribunal's conclusions about the applicant’s claims to have suffered harm in the course of political activity was as follows:
For the reasons discussed above I reject the applicant's claims to have been targeted in an attack on 27 January 1999 and to have subsequently led a political demonstration on 12 February 1999 when he was too weak to undertake any normal work activities and to have had an arrest warrant issued against him on
14 February 1999.
I find these claims to have been fabricated for the sole purpose of providing a basis for a protection visa application.
In regard to the document the Applicant has provided at the eleventh hour I find these to be variously false in the case of the court documents and fraudulent in the case of the letters from friends and associates of the Applicant and accordingly give them no weight.
The Tribunal then discusses how it has used the foreign country information about fraudulent documents and, in my opinion, its discussion reveals no error of law. I can discern no ground of procedural fairness arising from the Tribunal's use of that information.
The Tribunal then addressed other parts of the applicant's narrative concerning matters prior to the incidents which he claimed had caused him to flee Bangladesh. The Tribunal dealt with each of them and reached conclusions that, based significantly on the Tribunal's adverse view of the applicant's credibility, it was satisfied that he did not face prospective harm arising from previous events. The Tribunal said:
In summary, I find the applicant travelled to Australia to take part in a karate competition as he planned for some time. He opportunistically fabricated a set of claims for the sole purpose of gaining residency status in Australia.
While I have serious doubts that he is associated with the Jatiya Party at all, I find that even if he is, his association is of such a level that he is not of concern to any opposition political group in Bangladesh and does not face harm amounting to persecution for reasons of his political opinion or his claims to have spoken out against corruption and illegal activities. This being the case, I find the applicant does not have a well founded fear of persecution for any Convention reasons.
I can find no error of law or of fact which would allow the issue of a writ of certiorari or mandamus or prohibition, arising out of the Tribunal's decision or its procedures leading to that decision.
The applicant has filed three documents in this Court and relies on them. He made no oral submissions to me today when invited to do so.
His application filed on 19 March 2004 recites nine un-particularised grounds for review. In the absence of any particulars for any of them, I can find no substance in allegations that there was bad faith, deprivation of natural justice, or a failure to address evidence that was before the Tribunal. Allegations that the Tribunal's decision did not reflect material facts, that it was biased, that it mixed up facts and ignored other facts, also have no substance which I can discern.
An amended application filed on 27 October 2004 contains nine paragraphs of alleged grounds for review. The first alleges a denial of procedural fairness, and does contain what purport to be four particulars.
There is a criticism of the Tribunal's finding that the applicant was not credible, but I cannot understand what the criticism is.
There is a claim:
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.
This allegation is not particularised as to what was the adverse information with which the applicant was not allowed to deal, and I therefore cannot give meaning to it. For myself, I cannot identify adverse information that the applicant was not given the gist of in the course of the hearing and allowed to respond to.
A fifth paragraph claims that there was a failure by the Tribunal to follow procedures required under s.424A of the Migration Act, and cites a judgment which was subsequently considered in Minister for Immigration v NAMW (2004) FCAFC 264. NAMW now provides authority binding upon me which establishes that there is no basis for finding a breach of s.424A(1) because the applicant was not allowed to comment on general country information not specifically about the applicant.
The same complaint is made in Ground 2 of the amended application, and fails for the same reason.
Grounds 3, 5, 6 and 9 allege procedures required by the Migration Act were not observed; that there was failure to take a relevant consideration into account; that there was jurisdictional error involving an incorrect interpretation of the law; and the decision was an improper exercise of power. None of these claims is particularised and I can give them no meaning or application to the present decision of the Tribunal.
Grounds 4, 7 and 8 attack the Tribunal's assessment of the merits of the case. Although they are framed in language which may, if properly particularised and argued, be able to be viewed as giving rise to jurisdictional error, I consider that they are baseless and have no relevance to the present Tribunal's decision.
The applicant's written argument filed shortly before today's hearing contains paragraphs which are familiar to the Court in a standard submission which seems to be growing. It is a document that now contains six paragraphs, each of which purports to raise a separate argument.
I am unable to find relevance to the present decision of the Tribunal in any of the arguments presented. They are, in essence, repetitive of the points that I have already dealt with above, or patently inapplicable to the present Tribunal's decision. Some of them amount to no more than new claims by the applicant to be a refugee.
On all the material presented to the court by the applicant, I am unable to find jurisdictional error affecting the Tribunal’s decision.
For all the above reasons, I dismiss the application.
RECORDED : NOT TRANSCRIBED.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 22 March 2005
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