SZDNJ v Minister for Immigration
[2004] FMCA 970
•12 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDNJ v MINISTER FOR IMMIGRATION | [2004] FMCA 970 |
| MIGRATION – Review of decision of Refugee Review Tribunal – fraudulent documents – Bangladesh – failure to attend hearing – Muin claim – opportunity to comment on adverse information – submission made after decision – no error of law – privative clause decision – application out of time – incompetent – application dismissed. Migration Act 1958 (Cth) Muin v Refugee Review Tribunal (2002) 190 ALR 601 |
| Applicant: | SZDNJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1350 of 2004 |
| Delivered on: | 12 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 12 November 2004 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | R Beech-Jones |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1350 of 2004
| SZDNJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) handed down on 24 February 2000.
The applicant who is a citizen of Bangladesh arrived in Australia on
20 September 1997 on a Temporary Business Visa (Subclass 456). On 17 October 1997 he applied for a protection visa which was refused by a delegate of the Minister on 14 November 1997. The applicant applied on 9 December 1997 to the Tribunal for review of the primary decision. A hearing was held on 25 November 1999.
On 24 January 2000 the Tribunal wrote to the applicant through his migration agent. It informed him that it had had the documents which he had provided to the delegate examined and that the Document Examination Unit of the Department had confirmed that the documents were fraudulent.
The Tribunal said that, as had been discussed at the hearing, it had serious concerns as to the credibility of the applicant and invited him to comment on the document findings and the findings in relation to his credibility. The Tribunal gave him 14 days to reply. However the Tribunal did not receive any response until after it had signed its decision on 8 February 2000 and had notified the applicant that the decision had been made and was to be handed down. The decision of the Tribunal was handed down on 24 February 2000 affirming the decision of the delegate of the Minister.
Claims before the Department and the Tribunal
The applicant’s claims before the delegate and before the Tribunal centred upon his concerns arising from his alleged membership of the Jamarti Islami Party. The claims are set out in the Court Book at pages 26 to 27 and 80 to 81.
The applicant claims he is a member of the Chatra Sibir which is a student wing of the Jamarti Islami. He joined that group in 1988 or 1990 (in one of his documents he said 1988 and in another 1990) and became the secretary of the school committee. He says that:
In my branch there were 5 hundred members who were devout Muslim children, inspired by me.
In Bangladesh on 6 December 1990 President Ershad was forced to resign and Jamarti Islami obtained 18 parliamentary seats and helped the BNP to form government. In 1991 the applicant went to Donia College in Dhaka. He got to know lots of people in Chatra Sibir. He claims that as a leader of that organisation and as a sportsperson he was well known all over the College and local area.
In 1993 the Jamarti Islami members of Parliament stopped supporting the Government. The applicant claims that “as the Secretary-General of Demra Thann of Jamat-Sibir” he had lots of work and responsibilities. He claims that he was arrested a few times and threatened by the “local BNP armed personnel”. He claims he was arrested and put into custody and then released after ten days. He further claims that “After that torture I physically and mentally became ill.”
In 1996 the Awami League “won most of the seats”. The applicant claims that his house was then looted, doors broken and his family members threatened. He says that he was personally attacked twice. The applicant says that if he returned to Bangladesh the Awami League leaders would kill him. He further claims that already a number of false cases had been made against him.
At the Tribunal he made additional claims, particularly that on
3 February 1997 he was attacked by members of the Awami League, stabbed, bashed and “pushed … down a bridge”.
The Tribunal’s decision
As the respondent has noted, the Tribunal set out in its decision the constituent elements of the definition of a refugee, the claims and evidence put forward by the applicant in support of his application and the findings and reasons for decision. It is clear from the decision of the Tribunal that its conclusion flowed from its finding that the applicant lacked credibility:
The applicant claims to be a member of the Jamate Islami and that there are false cases against him dating from an incident (about which he knew little) in June 1997, he claims there is a warrant for his arrest, and that the police and Awami League continually searched for him. He departed Bangladesh on a temporary Business Visa in late September 1997. He continued working as a chef at a hotel until departure. As discussed with the applicant at hearing the Tribunal has serious concerns as to his credibility. His application is identical to that of another applicant, and the documentation relating to his membership of the Jamate Islami, the letter from his lawyer, and the police and court documents are fraudulent. The Tribunal’s opinion relating to these documents has been confirmed by the DEU examination of the documents. The applicant was invited to comment on the DEU findings and the Tribunal conclusion relating to them. He has not. [He later presented comments, but only after the Tribunal’s decision had been signed]. The other document presented by him is from Donia College, the Tribunal put its concerns to the applicant that it too was fraudulent, in particular that it talked of him as if he were still at the college though he had departed several years beforehand and it also had unusual characteristics in that it had “dat” instead of date and was headed “Principal Office” instead of Principal’s Office. Having considered the DEU evidence, the independent evidence relating to document fraud in Bangladesh, and the absence of a response from the applicant and his adviser I find that the applicant’s documentation is fraudulent. It is apparent that the applicant must have known this and that he has knowingly presented false documents to the Department and to the Tribunal. His original application is identical to that of another applicant. Having considered all of the evidence I do not accept any of the applicant’s claims relating to membership of the Jamate Islami, false cases, being harmed by or wanted by the Awami League, nor being wanted by the police as being true. I find that he has totally manufactured a set of claims and a history for the purposes of advancing his protection visa application. I find he was not a credible witness.
The applicant’s case
In his amended application filed on 17 September 2004 the applicant set out a number of grounds. The first appears to be that the Tribunal failed to take into account relevant considerations. Following this there is a list of five other grounds. The first of these relates to his membership of Jamarti Islami Party, the second that the applicant filed a submission before the decision was handed down but the Tribunal did not take it into account. The third ground is that the Tribunal did not give any weight to documents which the applicant submitted to the Tribunal. The fourth ground is that the applicant invited the Tribunal to investigate the authenticity of his documents, but the Tribunal did not. As to the fifth ground the applicant claims he was a leading activist of his political party a fact which was not considered by the Tribunal.
The applicant set out another series of four grounds which in two cases related to provisions of the Migration Act 1958 (Cth) (the Act) which have long been repealed. He further set out claims that the Tribunal took irrelevant considerations into account and did not take into account a submission which he had provided after the hearing. He gave particulars as follows:
The tribunal to consider in assessing the chance of the applicant being arrested and or [sic] persecuted on his return to Bangladesh based on the fact on [sic] my political opinion.
The Tribunal’s satisfaction that the applicant is not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
In further “particulars” the applicant “repeats the particulars to ground”.
The applicant also provided an outline of submissions to the Court which referred, amongst other things, to the Muin decision ((2002) 190 ALR 601).
At the hearing his oral submissions were solely directed to his dispute with the factual findings of the Tribunal, in particular his claim that he is a member of the Jamarti Islami Party, his assertion that his documents were not fraudulent and his fear of returning to Bangladesh.
Consideration
The applicant’s submissions were directed essentially towards seeking merits review by this Court. This is something which, as I pointed out to the applicant on a number of occasions, I cannot do. I pointed out that the Court was here to determine whether or not there were any legal errors and in particular any legal errors going to jurisdiction. Nothing was presented by the applicant at the hearing which in any way suggested an error of law and certainly not a jurisdictional error.
It is unnecessary to consider in detail most of the applicant’s grounds because he was not able to advance them at the hearing. However, there are three matters which merit further attention.
The Muin claims
In his outline of submissions the applicant refers to the Muin case and says that his matter is comparable. To the contrary his case is very similar to that considered by the Full Court of the Federal Court in NADR (2002) 124 FCR 465 and by Hely J in NADZ [2003] FCA 118. For the reasons given in those cases Muin does not apply here. The applicant has not developed an evidentiary foundation which would allow him to rely on the Muin decision. In NADR Kiefel J said:
At a factual level the present case differs substantially from Muin. It is not agreed that the documents were not physically provided to the Tribunal. It is not agreed that the appellant was misled by the letter, or that he would have taken any particular steps had he been told, if it was the case, that the Tribunal had not been provided with them. It was submitted that the Part B documents can be seen to relate to the appellant’s case. So much can be expected. Beyond that the appellant sought to utilise the findings of fact in Muin to make out his case. Needless to say, that is not a course which is open. Each case must be considered on its own facts.
In NADZ Hely J said:
As the Full Court made plain in NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 at para [24] Muin does not establish that the sending of letters in terms of the letter of 12 August 2002 would amount to a denial of procedural fairness in circumstances where the RRT has not referred to the Part B documents in its later decision. Rather, Muin holds that there is a want of procedural fairness where an applicant before the RRT is misled into thinking that the RRT has considered particular relevant information favourable to the applicant, and as a result, the applicant does not ensure that such information is placed before the RRT, or drawn to its attention. The later decision of the High Court in Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) HCA 6, confirms that an applicant in a case such as the present must show that he relied to his disadvantage upon communications from the RRT before there is any question of a want of procedural fairness.
I note also that in his outline of submissions the applicant quoted a number of paragraphs from the NADR decision in their entirety without going on to refer to the one paragraph which was most critical to his case. The Muin ground must be rejected.
Provision of adverse information to the applicant
It appears that three documents in the Court Book were not provided to the applicant during the course of the Tribunal’s consideration of this matter. These are the documents set out at Court Book pages 87 to 105: the Bureau of Democracy, Human Rights and Labor report, “Bangladesh Profile of Asylum Claims and Country Conditions” (February 1998), a DFAT cable from Dhaka (24 December 1995), and Dow Jones and Reuters report, “Tribunal Rejects Deportation Appeal” (13 May 1998).
Was there a breach of section 424A of the Act as a result of the failure to provide these documents? For the reasons given by the respondent Minister through her counsel I think not.
First, in the absence of the transcript of the Tribunal hearing it cannot be said for sure whether or not the official information on bogus documents was put to the applicant.
Second, these documents fall within the exception in section 424A(3)(a) which provides that the requirement to disclose information does not apply to 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.
(See SZANH v Minister for Immigration [2004] FCA 1280 and Minister for Immigration v NAMW [2004] FCAFC 264).
Third, the issue of fraudulent documents and claims was clearly and squarely raised with the applicant at the Tribunal’s hearing. One of the three documents that the applicant claims not to have received was in the Part B documents and the issue relating to official information on fraudulent and bogus Bangladeshi documents was mentioned in the earlier decision of the delegate.
In my view, there was no breach of s 424A and nor can it be said that there was any want of procedural fairness in this respect.
The failure to consider the 14 February 2000 document
The applicant, through his migration agent, denied that he has submitted fraudulent documents to the Tribunal in a document dated
14 February 2000.
The chronology relating to this document is as follows. On 24 January 2000 the Tribunal wrote to the applicant seeking his comments upon the findings of the Document Examination Unit in relation to the documents he provided. He was asked to respond within 14 days; that is, by 7 February 2000. The Tribunal’s decision on his case was signed on 8 February 2000. On 11 February 2000 the applicant was advised that the decision had been made. On 14 February 2000 the applicant’s response was submitted to the Tribunal and was received on 15 February 2000. The decision of the Tribunal was handed down on 24 February 2000.
The respondent submits that even if the Tribunal was not functus officio when the submission was received, as suggested by Higgins J in Semunigus v Minister for Immigration (2000) 96 FCR 533, in any event there was no denial procedural fairness by the Tribunal’s failure to consider this particular document (per Spender J at 536 to 537 in Semunigus). I agree with the submissions of the respondent which I adopt.
Conclusion
The amended application and applicant’s supporting submission are both deficient. They do not identify anything in any substantive sense about the decision of the Tribunal or the proceedings before the Tribunal that would assist the Court in determining whether any reviewable legal error is disclosed. I invited the applicant at the hearing to put to me anything that might assist in identifying a legal error as opposed to a factual error. But apart from reiterating his dispute with the findings of fact made by the Tribunal, the applicant was not able to expand upon his application and what was contained in his outline of submissions.
As the applicant was unrepresented I have also carefully read the decision and the material relating to the course of the Tribunal’s hearing and consideration. I can find no reviewable error in it. It is apparent the Tribunal formed a strong adverse view about the credibility of the claims made by the applicant. These findings by the Tribunal were reasonably open to it on the material before it. I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision.
In the circumstances I find that the decision of the Tribunal is a privative clause having regard to the decision of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
As the application was made to the Court well outside the 28 day period set down in section 477(1A), it is incompetent and must be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 7 February 2005
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