SZDIX v Minister for Immigration - [2007] FMCA 1419

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDIX v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1419

MIGRATION – Review of decision of Refugee Review Tribunal – adverse credibility finding open to the Tribunal – no bias and no apprehension of bias on the part of the Tribunal – no absolute obligation on Tribunal to make enquiries – no jurisdictional error – application dismissed.

Migration Act 1958, ss.65, 36, 91R, 427, 424, 424A

SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 166 ALR 407
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425
SZILK v Minister for Immigration and Citizenship [2007] FCA 185
Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92

Applicant:

SZDIX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 227 of 2007

Judgment of:

Nicholls FM

Hearing date:

17 August 2007

Date of Last Submission:	17 August 2007
Delivered at:	Sydney

Delivered on:

17 August 2007

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Ms S Kaur-Bains

Solicitors for the Respondents:

Blake Dawson Waldron Lawyers

ORDERS

The application made to this Court on 24 January 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 227 of 2007

SZDIX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

I have before me an application filed in this Court on 24 January 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal), signed on 5 December 2006 and handed down on 4 January 2007, affirming the decision of a delegate of the respondent Minister to refuse to grant a protection visa to the applicant.
By way of background, I note that the applicant is a citizen of Bangladesh who arrived in Australia on 23 September 2003.

On 30 October 2003, the applicant made an application for a protection visa. (The application is reproduced in the Court Book (“CB”) at CB 1 to CB 31, with annexures.) This application was refused. On 28 November 2003, the applicant applied to the Tribunal for review of that decision (reproduced at CB 43 to CB 46).
On 23 March 2004, the Tribunal (“the earlier constituted Tribunal decision”) handed down its decision signed on 29 February 2004 (reproduced at CB 335 to CB 354). The applicant was unsuccessful in April 2006 before this Court. On 10 August 2006, orders were made by consent, setting aside the orders of the Federal Magistrates Court and remitting the matter to the Tribunal for reconsideration. Ultimately, the Tribunal was differently constituted and I note that, by letter dated 21 September 2006, the applicant was invited to a hearing before the Tribunal on 25 October 2006. The applicant responded by indicating that he wanted to attend the hearing, and also enclosed further evidence, which was received by the Tribunal on 10 October 2006 (reproduced at CB 362 to CB 384).
The applicant appeared before the Tribunal on 10 October 2006. The Tribunal’s account of what occurred at the hearing of 10 October 2006 is set out in its decision record, reproduced at CB 402 to CB 406.

I also note that the Tribunal wrote to the applicant, by letter dated 26 October 2006, seeking his comment on certain information and certain matters of relevance to its consideration. The hearing before the Tribunal was held on 25 October 2006, and the letter seeking the applicant’s comments was sent on 26 October 2006.
Simply, the applicant’s claims to protection arise from circumstances of claimed persecution arising from his membership of the Awami League in Bangladesh. The applicant claimed that he had suffered both physical and psychological abuse at the hands of political opponents, that his home had been ransacked, that he and his family had been beaten, that the police, acting under the influence of his political opponents, had arrested him and other Awami League members, and that a false case had been filed against him. The applicant maintained that he continued his affiliations with the Awami League in Australia through its Australian branch.
The Tribunal’s findings and reasons are set out, relevantly, at CB 408 to CB 414. The Tribunal made a very clear finding that, as it had put to the applicant at the hearing and in its letter, it considered that there were good grounds not to believe the applicant’s evidence. The Tribunal comprehensively set out its reasons for this view, and these are reproduced at CB 409 and following. In particular, the Tribunal found inconsistencies in the applicant’s claims, particularly inconsistencies between what he had said at the hearing before the previously constituted Tribunal and before the Tribunal at the second hearing. I note in this regard, relevant Full Federal Court authority (SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107) provides that in relation to information provided to an earlier constituted Tribunal, is for the purposes of Division 4 of Part 7 of the Migration Act 1958 (“the Act”), still information provided to the Tribunal.
The Tribunal also found that the applicant’s evidence as to knowledge of relevant elections cast doubt on his claim to have been involved in campaigning in October of 2001 in these elections. The Tribunal found the applicant’s evidence difficult to reconcile with subsequent explanations provided to the Tribunal, both at the hearing and in response to the Tribunal’s letter, and ultimately, the Tribunal found that these difficulties with the applicant’s evidence were relevant to the applicant’s overall credibility.
I should note, given the reference in the applicant’s application to this Court, the Tribunal’s finding that it was difficult to reconcile the explanation advanced by the applicant with what he said at the hearing before the Tribunal in relation to the claims of a false case having been made against him and that this cast doubt “on whether he is telling the truth about these false cases” (CB 411.8).
The Tribunal found that the problem with the applicant’s evidence, in addition to being relevant to his overall credibility, was that the applicant was extraordinarily “vague” at the hearing before the earlier constituted Tribunal, and at the hearing before it, and that this was said to be the case particularly in relation to his involvement in politics as an activist, given his claim that he was in full time paid employment as an Awami League activist after leaving college.
The Tribunal also found that documents that the applicant had produced to the Tribunal appeared to, amongst other things, have a common origin and all appeared to be fabricated, and also found that the evidence points overwhelmingly to the documents all being fabrications from the same source. Because of this, and on the basis of independent country information available to it which the Tribunal identified in its decision record and which, I should note, the Tribunal put to the applicant at the hearing that it conducted with him, the Tribunal found that the documents that had come from Bangladesh were fabrications and as a consequence it gave them no weight.
The Tribunal accepted that the applicant had become a member of the Australian branch of the Awami league but it did not accept that the Vice President of this branch, who had provided support to the applicant, had personal knowledge of the applicant’s involvement with the Awami League in Bangladesh, and therefore it did not consider this evidence outweighed the concerns the Tribunal had with the applicant’s own evidence, to which it had already referred. As a consequence of this, the Tribunal did not accept a number of specific claims made by the applicant. These were claims of having been involved with the Awami League and the Chhatra League in Bangladesh, and having been elected as organising secretary of college committees of the Chhatra League. It did not accept that the applicant had been involved in campaigning in elections in Bangladesh. It did not accept that his home had been ransacked or that he and members of his family had been beaten. It did not accept that false cases had been brought against him or that he had been in hiding from political opponents before leaving Bangladesh.
In all, therefore, the Tribunal was not satisfied that the applicant had a well founded fear of being persecuted for a Convention reason if he were to return to Bangladesh. The Act requires that, before a protection visa can be granted, the Tribunal must attain a requisite level of satisfaction that the applicant does have such a well founded fear. As the Tribunal could not be so satisfied, it affirmed the decision to refuse the applicant a protection visa.
The applicant puts forward three grounds by way of amended application filed on 3 May 2007. With particulars, the three grounds are as follows:
“1. The Refugee Review Tribunal constructively failed to exercise its jurisdiction under the Act:
Particulars:
A. The Tribunal gave no weight to the following documentations that:
i) A letter from Bangladesh Awami League of Charbhadrason (Charbhadresion) Upojilla dated 23/12/2003;
ii) A photocopy of case details in Bengali language which was filed against me to the Charbhadrason Police Station in relation to occurrence on 26 October 2002; and
iii) A letter from Mr Gausul Alam, Vice President of Bangladesh Awami League, Australia (Inc).
2. The Refugee Review Tribunal acted in excess of its jurisdiction:
Particulars:
A. There was no evidence to support the Refugee Review Tribunal’s finding that:
i) there is no real chance that the applicant will be persecuted for reasons of his real or imputed political opinion based on his claimed past involvement in the Chattra League or the Awami League if he returns to Bangladesh
3. The Refugee Review Tribunal made a wrong assumption by making the following comment:
Particulars:
A. The Tribunal made the following comment without made any inquiry which adversely affected my interest that:
i) I consider that the documents which he produced from Bangladesh in purported corroboration of his claims are fabricated and I give them no weight.” (Errors in Original)
At the hearing before the Court the applicant appeared in person with the assistance of an interpreter in the Bengali language. Ms S Kaur-Bains of Counsel appeared for part of the hearing for the first respondent. I should note for the record that, due to illness, I excused Ms Kaur-Bains at the conclusion of the submissions and the Minister was then represented by Ms Kaur-Bains’ instructing solicitor, Ms Radich. I also have before me the Minister’s written submissions filed on 10 August 2007. I also note that the applicant has filed written submissions on 8 August 2007.
The applicant’s first ground is that the Tribunal gave no weight to three documents that the applicant had provided to the Tribunal. Before me today the applicant submitted variously that the Tribunal believed that everything that he gave it was false, that it made a one-sided decision which was an injustice to him, and, in relation to its finding that all the documents were false, that the Tribunal could have confirmed the genuineness of the documents by contacting the authors.
First, in relation to the complaint that the Tribunal gave no weight to these documents, it is clear that in relation to two of the documents, that is, the first named two documents from the particulars in the amended application, the Tribunal found them to have been fabricated. As Ms Kaur-Bains, in my view correctly, submitted, the applicant is not correct in claiming that the Tribunal gave no weight to these documents, in the sense that the Tribunal did not consider the presentation of these documents. What is plain from the material before the Court now is that the Tribunal considered these documents. It is plain that the Tribunal discussed these documents with the applicant at the hearing that it conducted with him. They were the subject of an opportunity for the applicant to respond to the Tribunal’s concerns, and further, the Tribunal put to the applicant, during the course of the hearing, information that was available to it about forged or fraudulently obtained documents being readily available in Bangladesh.
I should note that the applicant cannot complain, as he appears to complain in written submissions, that the Tribunal did not raise any question about its doubts of the documents. Such a complaint is not made out on the only evidence before the Court now, which is the Tribunal’s account of what occurred at the hearing with the applicant. The applicant has not provided any evidence to contradict or to challenge the Tribunal’s account of what occurred, and the Court can only proceed on the evidence that is put before it. It is plain that the Tribunal raised with the applicant not only its concerns about the letters but also the independent information that was available to it in relation to forged or fraudulently obtained documents. Plainly, having in mind what the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592, the Tribunal clearly discharged its obligation to put to the applicant at the hearing, in relation to these documents, what it saw as at least one of the determinative issues in the applicant’s case.
In relation to the third document, that is, the letter from Mr Alam, the Vice President of the Bangladesh Awami League in Australia, it is not correct to say that the Tribunal gave no weight to the document. Rather, what the Tribunal plainly found was that, while it accepted that the letter was genuine to the extent that it asserted that the applicant had become a member of the Australian branch of the Awami League (I note that the letter was not rejected as a fabrication or a forgery), the Tribunal simply found that what Mr Alam said about the applicant’s renown as a political leader in Bangladesh was such as not to outweigh the concerns that the Tribunal had with the applicant’s own evidence.
In relation to all three documents, as I explained to the applicant during the course of the hearing today, it is the function of the Tribunal to assess all of the evidence put before it and to assess the evidence in relation to the claims advanced by an applicant. In the sense that the applicant may seek to argue that the Tribunal failed to consider relevant or probative evidence, that plainly is not the case. On what was before it, it was open to the Tribunal to find that, in relation to the first two documents, no weight could be given to them because it found the documents to be fabrications. In relation to the third document, it was open to the Tribunal to place on it the weight that it did, noting of course that it is squarely within the function of the Tribunal to do so.
To the extent also that the applicant complains that the Tribunal believed everything he gave the Tribunal was false, in relation to the first two documents that is certainly the case. In relation to the third document, the Tribunal did not make such a finding. But even if the Tribunal had believed that everything that the applicant gave was false, this does not, on its own, reveal jurisdictional error on the part of the Tribunal. Findings of fact, including findings on credibility, are as McHugh J stated in the often quoted reference from his judgment in the matter of Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 166 ALR 407 (at [67]), for the Tribunal as the decision maker “par excellence”. The critical issue, as I put it to the applicant, in terms of discerning legal error in what the Tribunal has done, is that in relation to these findings, they were open to the Tribunal to make on what was before it and it gave reasons for these findings. I should just note, as I am reminded by submissions made by Ms Kaur-Bains, that the documents which the applicant complains of were documents provided by the applicant himself for the purposes of the review and as such, they fall within the exception contained in s.424A(3)(b) of the Act from the requirements set out in s.424A(1) of the Act. In all, therefore, this ground does not succeed.
I should just also deal with the applicant’s statement made during the hearing that the Tribunal gave a one-sided decision and that this was an injustice to him. To the extent that this may be some reference to the Tribunal being biased, or that it may be apprehended that the Tribunal acted with bias, or that the Tribunal acted in bad faith, then with reference to relevant authorities (Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 and Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 and relevant authorities in the Federal Court in relation to the relevant tests and standards and the evidence that an applicant is required to put before the Court to make out such allegations), there is simply no evidence before the Court to support any such allegation. That the Tribunal rejected much of what the applicant said and made adverse findings about the applicant’s credibility goes nowhere near to establishing any bad faith, bias or an apprehension of bias on the part of the Tribunal.
The second ground asserts that there was no evidence to support the Tribunal’s finding that there was a real chance that the applicant would be persecuted, based on claims of past harm. This ground also is not made out on what is before the Court. As Ms Kaur-Bains submitted at the hearing today, the Tribunal set out in great detail why it was unable to be satisfied that the applicant faced a real chance of persecution if he were to return to Bangladesh.
In my view, the Tribunal’s decision record, in its presentation of the applicant’s claims, its presentation of the hearing that it conducted with the applicant, and in the setting out of its analysis and reasoning, can only be described as comprehensive. Simply, the inconsistencies in the applicant’s evidence, to which I have already made reference, and the vague nature of his claims, led the Tribunal to not believe that he was involved with the Awami League in Bangladesh. It is not clear in what sense the applicant asserts that there was no evidence to support the Tribunal’s ultimate conclusion.
It is for the Tribunal, with reference to ss.65 and 36(2) of the Act, to reach a requisite level of satisfaction that the applicant meets the definition of “refugee”, and this is with reference to Article 1A(2) of the Refugees Convention (“the Convention”). The Tribunal is not required to look for evidence to disprove an applicant’s claims. It is required to consider all of the applicant’s claims and all of the integers of the applicant’s claims, to consider the evidence that is relevant to those claims, to make findings of fact and then, based on those findings of fact, to either reach or not reach the requisite level of satisfaction. For the very comprehensive reasons that this Tribunal gave, it could not reach that level of satisfaction and in those circumstances, the Act mandates that the protection visa must not be granted.

I should just also note that in relation to the applicant’s claims relating to his Awami League activities in Australia, s.91R of the Act provides a legislative basis for the application of Article 1A(2) of the Convention in relation to the issue of persecution, as it is understood by that Convention. Section 91R(3) of the Act provides that in determining whether a person has a well founded fear of persecution for one or more of the reasons set out in Article 1A(2) of the Convention, the Tribunal must disregard any conduct engaged in by an applicant in Australia, unless that person satisfies the Tribunal that such conduct was engaged in otherwise than for the purpose of strengthening that person’s refugee claims.
In relation to the applicant’s claims to be a member of the Awami League in Australia, the Tribunal accepted (as set out at CB 414), on the basis of the letter from Mr Alam, that the applicant had joined the Awami League in Australia but, for the reason that it gave, it could not be satisfied that the applicant’s conduct in joining the Awami League in Australia was for any other reason other than strengthening his claim to be a refugee. The Tribunal found that it was required to disregard this conduct, in accordance with s.91R(3) of the Act. On what is before the Court, I cannot see any error in how the Tribunal has approached that aspect of its task. I should also note that this issue was also raised with the applicant at the hearing that the Tribunal conducted with him, and the applicant was given an opportunity to address that issue.
The applicant’s third ground is, in effect, that the Tribunal should have made further enquiries before finding that the documents that he had produced from Bangladesh were fabricated. There is, of course, no absolute obligation on the Tribunal to make further enquiries. There are a number of Federal Court authorities that support this proposition and I note that SZILK v Minister for Immigration and Citizenship [2007] FCA 185 (at [18]), for example, is recent authority for this proposition. There are some Federal Court cases where it has been found that there was some duty to make enquiries, for example, Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16, but I cannot see that the circumstances that the Full Court addressed in that case are of such nature as the circumstances of the case before me.
The Tribunal examined what was stated in the documents and put the applicant on notice, both as to its specific concerns about the documents and generally about the frequency of document fraud in Bangladesh. There is nothing before me to show that the applicant requested of the Tribunal that it make further enquiries. The Tribunal specifically records (at CB 405 and CB 406) that the applicant was given an opportunity to respond to the Tribunal’s concerns and that he did respond. There are no circumstances to reveal that the Tribunal was compelled to have conducted the enquiries that the applicant now claims the Tribunal should have made. Nor can I see that the Act imposes any duty or obligation on the Tribunal to make enquiries that the applicant now says it should have made. I note Ms Kaur-Bains’ reference to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, and in particular, reference to ss.427(1)(d) and 424 of the Act, where the High Court noted that while the Tribunal has the power to make enquiries, it is not a condition to the exercise of those powers that in fact the Tribunal use those powers.
I also note Ms Kaur-Bains’ submissions that in relation to country information, that is, the country information that the Tribunal relied upon in part to make the finding that the documents were fraudulent, there was no obligation on the Tribunal to proceed pursuant to s.424A(1) of the Act, given the exception to that requirement set out in s.424A(3)(a) of the Act. It is now settled by the Full Federal Court that country information such as that relied on by this Tribunal is not required to be put to the applicant by way of notice pursuant to s.424A(1) of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92). I again emphasise that the issue as to the forged and fraudulently obtained documents, and the country information, was specifically raised with the applicant during the course of the hearing.
In all, therefore, the grounds put forward by the applicant are not made out. Nor can I otherwise discern jurisdictional error in what the Tribunal has done. Nor can I discern jurisdictional error in the Tribunal’s decision. This application is therefore dismissed.
It is appropriate that a costs order be made. There is nothing before the Court today to argue against such an order being made. I am satisfied, based on what has been submitted to me and based on the material that is before the Court, that the amount sought is, in all the circumstances, a reasonable amount.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: A Douglas-Baker

Date: 4 September 2007