SZDNV v Minister for Immigration
[2004] FMCA 965
•22 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDNV v MINISTER FOR IMMIGRATION | [2004] FMCA 965 |
| MIGRATION – Review of Refugee Review Tribunal decision – citizen of Bangladesh – fraudulent documents – opportunity to comment on adverse information – duty to conduct investigations – no error of law – decision affirmed – application dismissed. Migration Act 1958 (Cth) NARV v Minister for Immigration (2003) 203 ALR 494 |
| Applicant: | SZDNV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1384 of 2004 |
| Delivered on: | 22 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 22 November 2004 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Ms Henderson |
| Solicitors for the Respondent: | Blake Dawson Waldron |
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 |
SYG1384 of 2004
| SZDNV |
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 (Tribunal) made on 16 March 2004 and handed down on
8 April 2004.
The applicant who is a citizen of Bangladesh, born on either 1 January 1979 or 17 June 1969 (there are two dates in the documents), arrived in Australia on 19 November 2003.
He lodged an application for a protection visa on 18 December 2003 and this application was refused by a delegate of the Minister on
23 December 2003.
On 25 January 2004 the applicant lodged an appeal with the Tribunal. He was invited to and attended the hearing which was held on
11 March 2004 after which the Tribunal affirmed the decision of the delegate of the Minister on 16 March 2004.
Claims before the Department and the Tribunal
The applicant’s claims before the delegate and the Tribunal centred upon his concerns arising from his membership of the Awami League in Bangladesh and related student bodies. His claims are set out in the Court Book at pages 7 to 10 and 34 to 39 (the claims before the Department) and pages 79 and 87 to 99 (the claims before the Tribunal).
The Tribunal summarises the claims at Court Book pages 106 and 107. The Tribunal’s decision also refers to the documents which were submitted in support of the applicant’s claims (pages 107 and 108) and the applicant’s oral evidence which was given at the hearing (pages 108 to 111).
Decision of the Tribunal
The Tribunal’s decision is summarised at paragraph 9 of the respondent’s submissions
The Tribunal made no finding regarding the applicant’s passport or his identity. It found that:
·the documents submitted by the applicant were fabricated
·the photographs had been altered
·it was not satisfied that the applicant was involved in the Chattra League and Awami League as he claimed, nor that he held the positions he claimed to have held
·the applicant failed to supply any documents from the Awami League, as the Tribunal would have expected him to do
·the applicant’s evidence was frequently evasive, particularly in relation to his claim of having lived in hiding before he came to Australia
·the applicant’s evidence regarding the number of people who attacked his family home was at odds with his father’s statement to the police
·if false charges had been laid against the applicant, he would have been able to obtain evidence regarding those charges
·if the applicant’s passport is false, it was not obtained for the reasons which the applicant claimed
·mere support for the Awami League, without more, does not give rise to a well-founded fear of persecution
·the applicant’s request for more time in which to make submissions and lodge further documents should be declined as he had already been given the opportunity to present his case
·the applicant does not have a well-founded fear of persecution with [in] the meaning of the Convention.
Applicant’s case
The applicant’s case is set out in his amended application filed on
5 October 2004 and his written argument dated 12 November 2004 which was received by the Court today. Only two of the ten grounds in the amended application provide any supporting detail and one of the claimed grounds is clearly not a ground at all.
The applicant’s main ground was that the Tribunal denied him procedural fairness in the handling of the material, including country information, relating to fraudulent documents.
The applicant’s written argument received by the Court today adds little in support of the material in the amended application. Together with the amended application it makes clear that the applicant’s main dispute is with the findings of fact by the Tribunal.
Consideration
Did the Tribunal treat the applicant unfairly on the fraudulent documents issue
The applicant denies that the documents were fraudulent. He says that the Tribunal failed to give him an opportunity to comment on adverse material in relation to document fraud in Bangladesh.
He seeks to rely on the decision of the Full Court in NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494. He is unable however to explain how that decision assists him.
From a reading of the Tribunal’s decision it is clear that it had before it documents concerning the availability of fraudulent documents in Bangladesh. It is equally clear that the Tribunal raised the issue of fraudulent documents with the applicant at the hearing. But it is readily apparent from the Tribunal’s decision that in the end it came to its view on the fraudulent nature of the documents after its own examination and consideration of the documents.
As the respondent says in its submissions:
11. The reasoning process followed by the Tribunal in the present case differs significantly from that which was applied in NARV. During the hearing the Tribunal methodically examined the documents and photographs upon which the applicant relied. It described the process which it followed at RD109 to RD111. The Tribunal questioned the applicant about the two deponents of the affidavit, and discovered that he could not identify either of them even though they claimed in the affidavit to know him. The applicant could not account for the fact that various documents, which purport to relate to the alleged false charge laid against the applicant contained dates which are inconsistent with – and actually pre-date – the times that the applicant says the relevant events occurred. The Tribunal described in considerable detail the irregularities in the appearance of the photographs which prompted it to conclude that the documents had been altered and that the applicant’s image had been superimposed on them.
12. It is apparent from a reading of RD109 to RD 111 that the Tribunal afforded the applicant natural justice. The deficiencies in the applicant’s evidence were brought to his attention, and he was given an opportunity to explain them. It is also evident that the Tribunal relied upon defects which were apparent on the face of the material. It placed little, if any, reliance on “country information”. The Tribunal did make reference to “country information”, but it did so merely in passing in the first paragraph on RD 110. Moreover, it is clear that the Tribunal brought that country information to the applicant’s attention, and that he responded by acknowledging the correctness of the country information, and by asserting that his documents were genuine.
I adopt these submissions as well as those made at the hearing in relation to this issue, including the fact that the country information falls outside the requirements under section 424A of the Migration act 1958 (Cth) (the Act) for adverse material to be provided to the applicant.
I agree that NARV has no application to the applicant’s claims and can find no merit in his assertion that he was denied procedural fairness in relation to the fraudulent document issue.
Was the Tribunal obliged to carry out further investigations
The applicant said that the Tribunal, having found on the face of the documents that they were not genuine, should have investigated the matter further.
In my view this claim is misconceived. It is not for the Tribunal to make out an applicant’s case. As was said by Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether the claim is made out.
Furthermore, although the Tribunal has certain powers to obtain additional evidence “the Act does not impose any duty or obligation to do so” (Minister for Immigration v SGLB (2004) 207) ALR 12 at [43] per Gummow and Hayne JJ).
This ground must also be rejected.
The other grounds
As I mentioned earlier the applicant listed a series of other grounds in his amended application without any particularisation. These must also be rejected.
Conclusion
The amended application and the written argument submitted at the hearing are both deficient in that they do not identify any viable concerns in relation to the decision of the Tribunal or the proceedings before the Tribunal other than the two issues that I have already considered.
I invited the applicant on a number of occasions at the hearing to put to me anything that might assist in identifying a legal error. But apart from reiterating his dispute with findings of fact made by the Tribunal he was not able to expand upon his amended application and the written argument.
As the applicant is unrepresented I have examined the Tribunal’s decision closely and have been unable to find any reviewable legal error.
It is apparent that the Tribunal did not accept the claims made by the applicant, particularly in relation to the documentary evidence that he sought to put before it. The findings made by the Tribunal which I have outlined earlier were reasonably open to it on the material before it.
The applicant’s dispute is with the factual findings made by the Tribunal and he has asked me to review on their merits those findings. This is something that I pointed out to the applicant at the hearing that I cannot do.
I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision. The decision of the Tribunal is therefore a privative clause decision having regard to the High Court authority in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the Act and related to the powers conferred on the Tribunal.
In the circumstances the application must be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 8 February 2005
0
4
0