SZDIX v Minister for Immigration - [2006] FMCA 548

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDIX v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 548

MIGRATION – RRT decision – Bangladeshi claiming political persecution – disbelieved by Tribunal – conclusions concerning document fraud – delay in making visa application – no failure to comply with s.424A – no error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1), 424A(3)(a), 424A(3)(b), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
VWFP and VWFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231

Applicant:

SZDIX

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1144 of 2004

Judgment of:

Smith FM

Hearing date:

10 April 2006

Delivered at:

Sydney

Delivered on:

10 April 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms S Kaur‑Bains

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1144 of 2004

SZDIX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 19 April 2004 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 February 2004 and handed down on 23 March 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act, and the Acts Interpretation Act 1901 (Cth), s.8).
The Court’s powers under s.483A are the same as the Federal Court jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act which have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal, unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claim should be believed, nor can I decide whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant arrived in Australia on 23 September 2003. An application for a protection visa was lodged on his behalf by a migration agent, Mr Haque, on 30 October 2003.
The application presented the applicant’s claims for protection in Australia in a two‑page typed statement without any supporting documents. The statement indicated that the applicant was a young Bangladeshi national. He claimed that while at college in 1996 he had been “elected as the organizing secretary of the college committee”, and “made significant contribution towards a national movement led by the Awami League”. He said he worked for a local candidate, by leading campaigns and processions. His candidate for the Awami League won his seat, and the League won a majority of seats in the parliament.
He said: “in 1998 I was elected as the joint secretary of the Awami League [at a local branch]”, and: “in 2000 I was elected as the executive member of the [district] committee Awami League”. He claimed that he had made a significant contribution to an election held in October 2001 in support of a local candidate, but his party did not win the election generally. He claimed:
After this election on 2 October 2001 our house was ransacked and they beat me mercilessly and they also wounded all the members of our family. We did not receive any help from law enforcement authority at all. My father went to a local police station to file a case but he failed to lodge any complaint against the BNP terrorists. …
On 26 October 2002 while I led a procession at [location] at 5 pm, a group [of] BNP hoodlums attacked our procession and they were backed by the police. A number of our activists were wounded by their attacks. Police also arrested a few leaders including me. After this incident a number of false cases were filed against me to destroy my political image in society. A number of times they tried to kill me.
I have no other alternative but to leave the country. If I return home I will be persecuted.
The delegate refused the application on 4 November 2003, and the applicant appealed to the Tribunal on 1 December 2003. His application was filed by Mr Haque, who was appointed as his agent to act in the case. No documents were forwarded to the Tribunal in support of the application for review, until after the applicant was invited to a hearing on 12 January 2004.
On 6 January 2004 the Tribunal received a submission from the applicant’s agent, to which I shall refer below. It attached a copy of a letter from an advocate in Bangladesh which was dated 22 December 2003 and “attested” by a Bangladeshi notary public on 24 December 2003. It said:
My best wishes to you and inform hereby you to sorrowly that a criminal case No.## has been lodged against you in your local P.S. U/s.147/148/149/323/302/34 of B.P.O and U/s. 3/4 of the Explosive Substance Act. The Ld. Court issued W/A against you to arrest. Policemen are searching in everywhere. On the other hand, your anti‑party workers are also finding you, they are trying to doom your life. Your case is serious in nature. If you arrested by the Policemen, then they will must keep you into the jail custody for a long time. One the other hand, if you found by your anti‑party worksers, they will kill you. So that, I advise you that not to come‑back to Bangladesh in this moment. Your life is not safe in Bangladesh in this moment. Further I inform you that I am moving the case in the court on your behalf. So you not come‑back to Bangladesh until further my instruction.
The agent also submitted to the Tribunal what it described as “a bound document comprising over 300 pages, various downloads from the internet of articles and media reports purportedly of the persecution being perpetrated against the AL in Bangladesh”. No submission was made that these made any specific reference to the applicant.
The applicant attended that hearing with his agent. Although the agent had previously unsuccessfully asked the Tribunal to postpone the hearing, no point has been taken in the application before me as to the Tribunal’s refusal to adjourn the hearing. I can also see no unfairness in relation to that decision.
The Tribunal gave an extensive description of its questioning of the applicant. Although a transcript of the hearing is not in evidence before me, I have no reason not to accept the Tribunal’s description. The Tribunal questioned the applicant concerning his claims and his travel, which had included a period of residence in Kuwait before coming to Australia. The Tribunal also questioned the applicant as to why he had not sought protection as soon as he arrived in Australia. It also questioned him about the letter from the advocate in Bangladesh, and there was a discussion with the applicant and his agent concerning “country information about the propensity of Bangladeshi asylum seekers producing fraudulent documents”.
On 27 January 2004, after the hearing, the agent forwarded to the Tribunal further documents in English. These carried an “attestation” by the Bangladeshi notary which is identical to that on the “advice” from the Bangladeshi advocate, including its date: 24 December 2003. The documents purported to support the claim that the applicant was the subject of charges, including an arrest warrant in relation to an incident on 26 October 2002.
In its statement of reasons, the Tribunal referred to the background which I have summarised above and set out country information generally concerning “Document fraud in Bangladesh”.
Under the heading “Findings and Reasons”, the Tribunal stated its conclusion near the commencement of its discussion. It said:
57.The applicant’s evidence in relation to most aspects of his claims was vague, generalised and lacked specific detail. I do not consider that the applicant was a reliable or credible witness. The lack of credibility of the applicant’s evidence leads me to conclude that I am unable to be satisfied that the applicant had faced persecution in Bangladesh for a Convention reason or faces a real chance of persecution for a Convention reason if he returns to Bangladesh.
The Tribunal then referred to the applicant’s evidence at the hearing and its questioning of the applicant concerning his claimed political activities. It concluded:
62.The applicant’s descriptions of his duties, responsibilities and his explanations of the politics of the AL were vague and generalised, and did not include any detail at all of what, how and when the AL stood for or how it proposed to implement its manifesto, agenda and policies. The applicant did not display the knowledge of even an ordinary member of the party, let alone a person who claimed to have been a leading political activist and office holder at thana, area and district level. In light of his evidence, I am unable to accept that the applicant is, or ever has been a member, political activist and office holder of the AL.
63.… In light of my findings with regards to his membership and activity on behalf of the AL, it follows that I am unable to accept that the applicant ever was the target of the BNP activists, that they wanted to kill him, that he was injured, that there were false cases and warrants of arrest filed against him or that he was arrested, detained and bailed. I am of the view that these claims were fabrications to provide for the applicant the profile of a refugee.
The Tribunal then referred to the letter from the advocate in Bangladesh and pointed to its apparent defects. It also considered the other documents “attested” by the notary, and pointed to various problems appearing on their face. The Tribunal said:
66.I note the country information which indicates the propensity for Bangladeshi asylum seekers to provide fraudulent documents in support of their claims, including letters from lawyers not to return to Bangladesh. The letter produced by the applicant has the same characteristics as the documents described in the country information. This was discussed with the applicant at the hearing. His response was that it might have happened in the past that people could be bribed but that fraudulent documents could no longer be obtained. However, notwithstanding that some of the country information is dated some years ago, there is nothing in the sources available to the Tribunal that indicates that it is out of date or that the practices of Bangladeshi asylum seekers have changed since the time that the advice was provided. In light of the evidence, I am unable to accept that the documents are genuine, and consequently I am unable to put any weight on them.
The Tribunal then referred to the applicant’s travel history and delay in applying for protection:
67.I am supported in my findings as to the applicant’s lack of political activism by his travel history. Notwithstanding that the applicant claimed to have been the subject of cases in court against him (ostensibly serious cases of exploding bombs and subverting of the country) and of outstanding warrants of arrest, the applicant was able to obtain a legitimate and valid passport in February 2003 without difficulty and leave the country legally for Kuwait without difficulty in July 2003. He came to Australia travelling on a visitor visa, valid for three months, on 23 September 2003 and did not make a protection visa application until 30 October 2003, almost 6 weeks after arriving. He was asked why, as it was his claim that he came to Australia to save his life and flee persecution in Bangladesh and to seek asylum in Australia, he did not make a protection visa application as soon as he arrived in Australia. His explanation was that he did not know the law and needed time to know it. When he was asked why he had not asked for protection at the customs barrier on arriving in Sydney, he claimed that he suspected that he would be refused and sent home. I am unable to accept these are the actions of a person who has a genuine subjective fear of persecution in his own country.
It then concluded:
68.Accordingly, I am not satisfied that the applicant had a well founded fear of persecution in Bangladesh by reason of his political opinion or for any other Convention reason, nor am I satisfied that the applicant has a well founded fear of persecution in the foreseeable future if he returns to Bangladesh by reason of his political opinion or for any other Convention reason.
The application for review originally filed in this Court consisted of general heads of jurisdictional error, without any particulars allowing them to be meaningfully applied to the particular matter.
The applicant’s amended application filed on 10 November 2004 in effect contained only one particularised ground. This is that the Tribunal’s reliance on independent information as to the availability of false and fraudulent documents in Bangladesh was attended by a failure on its part to comply with the procedure required under s.424A(1) of the Migration Act. This requires the Tribunal to serve a written invitation for written comments on an applicant, setting out “particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.
In his written submission, the applicant argued that the Tribunal’s reliance on general information about the propensity of Bangladeshi asylum seekers to provide fraudulent documents should have been put to him in a s.424A(1) notice. However, in my view the law is now clear in relation to the use of such general information. It is that there is no obligation under s.424A(1), by reason of the exclusion in s.424A(3)(a) of information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”. A previous diversity of opinion was clarified by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572. I therefore do not consider that this ground was made out.
The applicant’s amended application also contains a list of further grounds, including that procedures required by the Migration Act were not followed, that the merits of the applicant’s claims were ignored, that relevant considerations were not taken into account, that there were incorrect interpretations of the law, and that the Tribunal’s decision‑making was otherwise improper. However, no details of any arguments in support of these general contentions is shown in the amended application nor in the applicant’s written submissions, and I am unable for myself to give them meaningful application.
The applicant appeared today, and was content to rely on his written submission without seeking to develop it.
At the commencement of the hearing I raised with the Minister’s representative whether the applicant might have an argument as to a different failure by the Tribunal to comply with s.424A(1), arising from its reference to the date of the applicant’s visa application in its paragraph 67 which I have extracted above at [17]. It appears to me that the Tribunal has drawn upon the date of that application, and a consequent finding as to the delay in its making after the applicant’s arrival in Australia, as a supporting reason for its adverse opinion about the applicant’s claims to have been a persecuted political activist and to have had subjective fear of persecution.
The Tribunal plainly had many other reasons which it presented in support of those conclusions, but a duty under s.424A(1) can arise even where reference to prior information is only “a subsidiary and minor” reason or does not “play a central or integral role in the reasoning process” (see SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) at [158] per Weinberg J, and at [225] per Allsop J. See also Young J in VWFP and VWFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231 at [50]).
Counsel for the Minister did not concede that the date of the protection visa was a part of the Tribunal’s reason for affirming the delegate decision, but relied more strongly upon her submission that I could not be satisfied that this information was not information “that the applicant gave for the purpose of the application” so as to be covered by the exclusion in s.424A(3)(b). She did not contend that the Tribunal had in fact served a notice in relation to that information.
She argued that there was, at least, doubt as to where information as to the bringing of the visa application was given to the Tribunal. The information would, of course, have been found in the Department file. However, it was also information presented to the Tribunal by the applicant, through his agent, in the opening paragraphs of the written presentation of the applicant’s case to the Tribunal. This document lodged on 6 January 2004, said:
I act for the above‑named applicant. I am making this submission in regards to his review application to the Refugee Review Tribunal. The grounds of refusal of the applicant’s protection visa given by the delegate of the Minister are not based on facts and legal contemplation and hence not maintainable for the following reasons:
1.The applicant filed an application with the Department of Immigration and Multicultural Affairs on 30 October 2003 based on the fact that he has a well‑founded fear of persecution and subsequently the delegate of the Minister finalized the application on 4 November 2003. As such the applicant filed a review to the RRT to set aside the decision of the DIMIA.
2.[The applicant] was a leading activist of the Bangladesh Awami League. In 1998 the applicant was elected …
The submission then proceeded to state the applicant’s factual claims and to relate them to the general situation in Bangladesh.
I accept counsel’s submission. In my opinion, the date of the application was undoubtedly information “given” in the agent’s submission to the Tribunal. I am unable, in this case, to find that it was information which was not taken by the Tribunal from that source, when arriving at his calculations about delay. I consider that the situation falls within the reasoning followed by Moore J in SZEEU in relation to appellant SZEEZ at [51]‑[52]. Allsop and Weinberg JJ did not need to consider that point in that case. It also has similarity with Moore J’s reasons in relation to appellant SZDXA at [83], with which Weinberg and Allsop JJ agreed generally at [173] and [264]. I am therefore not persuaded that there was a jurisdictional failure by the Tribunal to serve a notice under s.424A(1) in relation to the date of the applicant’s visa application in this case.
The situation is the same in relation to the other information relied upon by the Tribunal in its discussion in paragraph 67 of the applicant’s travels. This information appears in the applicant’s passport and his original visa application. However, the applicant was also asked in its letter inviting him to a hearing: “if you have a passport you should bring it to the hearing”. I can make a firm finding that he did present it to the Tribunal, since the copies of the passport contained in the Court Book are noted as having been made for the Tribunal on the day of the hearing. I therefore consider that this information was also “given” by the applicant to the Tribunal for the purposes of his review application.

For the above reasons I have been unable to identify jurisdictional error affecting the decision of the Tribunal. It is therefore a privative clause decision for which relief is barred under s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 26 April 2006