SZDXA v Minister for Immigration
[2005] FMCA 842
•9 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDXA v MINISTER FOR IMMIGRATION | [2005] FMCA 842 |
| MIGRATION – RRT decision – Bangladeshi member of Awami League – disbelieved by Tribunal – no error found. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424(1), 424(2), 424A, 424A(1), 424A(3)(b), 483A, Pt 8
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
| Applicant: | SZDXA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1908 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 9 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 9 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms S McNaughton |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1908 of 2004
| SZDXA |
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) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 5 May 2004 and handed down on 27 May 2004. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In a matter such as the present, the jurisdiction is under s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error.
I do not myself have power to decide whether the applicant’s claims should be believed, nor whether he qualifies for a refugee visa. I do not have power to order that any other visa be granted to the applicant, nor to make any other order just for the purpose of protracting the applicant’s stay in Australia.
In the present case, the applicant arrived in Australia from Bangladesh on a temporary business visa in December 2003. He lodged an application for a protection visa on 9 January 2004, assisted by an agent, Mr Haque.
The application attached a statement signed by the applicant, in which he said that he had been a member of the political party known as the Awami League for many years, and had held positions in the party. He had led demonstrations and worked on behalf of the party at elections held in 1991 and subsequently. He said he had been attacked in the course of elections by activists from rival parties, and that after an election held in October 2001, in which the rival party BNP‑led coalition won a landslide victory:
IX.… my house was ransacked and looted by the BNP and Jamat‑e activist. They also threatened my wife that they will kill me.
X.For a number of months I did not return home and I took shelter in Dhaka. In the meantime a number of our activists has lost their lives in the hands of the BNP of Jamat‑e‑people. On 27 June 2003 while I led a procession at XX Bazaar against the atrocities of the government. When our procession reached at the main street of the Bazaar a large group of the BNP and Jamat‑activists attacked our procession and beat us mercilessly. Police backed them. I was admitted into a local clinic and later I was released after six days.
XI.After that incident we declared a protest gathering but our protest gathering was disrupted by the BNP and Jamat‑e‑Islami activist. They were backed by police. They seriously wounded me and I was admitted into a private clinic again. I was released from the clinic after a few days.
XII.After the above incident the BNP activists file a number of false cases against me to destroy my political future.
I had no other alternative but to leave the country. Somehow I managed a visa to come to Australia.Mr Haque’s covering letter when lodging the application said:
The applicant is obtaining more corroborative evidence from Bangladesh. As such, the applicant requires a few weeks to furnish documents to support his case …
However, corroborative evidence was never presented to the delegate nor subsequently to the Tribunal.
The delegate refused the visa in a decision made on 14 January 2004, and the applicant appealed to the Refugee Review Tribunal on 21 January 2004. In the section headed, “Your reasons for making this application”, the applicant said:
My statement and claim was not considered by DIMIA. DIMIA did not took my oral evidence. I have still more information to provide.
DIMIA’s decision and my statement enclosed.
The applicant’s application showed no appointment of an agent, but subsequently Mr Haque notified the Tribunal that he was engaged to act for the applicant. In that capacity he responded on behalf of the applicant on 25 February 2004 to a request made by the Tribunal under ss.424(2) and 424A(1) for further information and comment on aspects of his claims. Mr Haque also accompanied the applicant to a Tribunal hearing held on 15 April 2004.
The applicant has not tendered a transcript of the hearing before the Tribunal, although he tells me he was given the tapes. The only evidence as to what transpired is found in a five‑page summary contained in the Tribunal’s statement of reasons.
The Tribunal said that an initial discussion took place as to the applicant’s identity because he appeared different than the person shown in the photograph of his passport. The applicant then explained that he had been ill and lost weight, and appears to have explained his desire to get medical treatment in Australia.
The applicant’s statements to me today presented at the forefront of his submissions his desire to remain in Australia to obtain medical treatment for a condition he is suffering from. He tendered a recent medical certificate from the Director of the Endocrinology and Metabolism Centre at Royal Prince Alfred Hospital. This discloses that in December 2004, after the Tribunal’s decision, the applicant was diagnosed with severe hyperthyroidism secondary to Grave’s Disease, and has been receiving treatment since that time. The applicant, however, has made no claim to me that his medical condition prevented him understanding and responding to the questions the Tribunal asked him at the hearing. There is no evidence to this effect, and the applicant told me the contrary.
The Tribunal’s description of the hearing then referred to questions concerning discrepancies between the material and statements presented with his visa application, and what was revealed by his passport produced in response to the Tribunal’s s.424(2) request.
It said:The Tribunal asked the applicant about his original application and its content. He said that he had in fact travelled outside of Bangladesh previously and had been to South Korea on business. He had sold his other business in about January 2003 – it had been a retail and wholesale shoe concern. He had sold the business and invested the money in another business. He was asked why he had said in his original application that he had never previously travelled anywhere. He said it was a mistake. He was asked to explain why he had only submitted 4 double pages of his passport to the Department (the 4 double pages omitted any of the ones with visas or indicating travel out of Bangladesh). It was discussed with the applicant that the Tribunal was concerned that the provision of the four double pages only was misleading and may have been to hide the fact of his overseas travel. He said that he had not known what to give and so only gave those 4 pages. He was asked about the other visas in his passport and said that he had planned to go to India (visa issued on 9 April 2003) but had become ill and he had planned to go to Thailand (visa issued 12 November 2003 and valid until 11 February 2004) but his wife had contacted him to tell him not to as he may encounter problems with the police at the airport and so he should go somewhere else – he clarified this to mean at the airport in Bangladesh. He said that the police would be interested in him as there were false cases filed against him that he had made bombs. The case was filed on 27 June 2003. He claimed not to have obtained any of the court documents relating to this case as he couldn’t bring any with him as he only has his wife in Bangladesh and she cannot leave the house as the police “disturb her and ask about me and want money”.
The applicant was asked to explain why he had put “N/A” for question 38 concerning prior employment. He claimed not to have understood the question and “I was really sick” and so decided not to put anything.
According to the Tribunal’s narrative of the hearing, the applicant then expanded upon his claims as to what had happened during 2003, leading to his travel to South Korea and later to Australia. According to the Tribunal, it clearly put to the applicant inconsistencies in what he had said in his statement and also in what he told the Tribunal. According to the Tribunal, he contradicted himself significantly at several points in his evidence to the Tribunal, and it drew attention to this.
The only other aspect of the hearing which I should note is the following paragraph in the Tribunal’s description of the hearing:
The applicant was asked about his involvement with the Awami League in Australia and said that though he had heard there is an association here he had not visited them. He said that up until 15 days ago his health was okay but it is again deteriorating. He has nearly used up the money he bought with him and in Bangladesh his family live off the investments he has left there. He has been working for a week only though has been sick for three days.
The Tribunal recorded that the applicant’s adviser, Mr Haque, made submissions to the Tribunal. The Tribunal then set out some country information concerning the situation in Bangladesh, and then presented its findings and reasons. In my view, this part of the Tribunal’s statement of reasons, as with the other parts, revealed the Tribunal making a careful and considered assessment of the case before it.
It presented its conclusion at the start of its findings and reasons:
The applicant claims to be a member of the Awami League and to have experienced problems over the years from his political opponents. Whilst I accept that he has some knowledge of the Awami League I do not accept that his knowledge is anything more that an intelligent and educated member of society would know in a country which is highly politicised. I do not accept that he was in fact a member of the party. I do not accept that he has experienced the problems as claimed and consider that he has manufactured evidence and exaggerated his claims for the purpose of advancing his claims for a protection visa. I consider that his answers to the many inconsistencies in his evidence were unsatisfactory and indeed usually did not answer or in any way explain the inconsistencies as discussed. In particular: …
The Tribunal then, in a series of dot points, identified what in my view were rational and even cogent reasons for not being satisfied as to the truth of the applicant’s claims. It is unnecessary for me to detail these, although I shall refer to some of them below when dealing with points made by the applicant.
The Tribunal’s final conclusion was:
Overall I consider that the applicant’s evidence is inherently unreliable and I find he was not a credible witness. I find that his claims of political association and injury by political opponents and false charges against him are false. I do not accept any of his claims as being true. I find he does not have a well‑founded fear of persecution for reasons of a Convention ground.
The applicant has been referred for legal advice to a member of the Legal Advice Scheme Panel, but has otherwise received no apparent legal assistance. He has filed three documents making a series of points, and I shall deal shortly with each of them.
In his application, there are two contentions. First that “the Tribunal fell into jurisdictional error” by making a finding that the applicant was not a credible witness and that his claims were not true. No particulars were given to explain this contention, and I am unable to give it substance.
The second contention was that “the Tribunal was influenced by the country information including the DFAT information, which is contradictory”, and therefore “fell into jurisdictional error”. I do not understand this contention since, on my reading of the Tribunal’s reasons, they are based on a finding about the applicant’s credibility and are not based upon country information.
The applicant’s amended application contains three grounds. The first is that the Tribunal failed to consider country information in relation to the applicant’s claims prior to making its decision. This is true, in my view, but the Tribunal was not bound to consider country information in circumstances where it decided the case upon a finding on credibility.
The second ground was that “the Tribunal, by failing to give the applicant an opportunity to comment on materials which the Tribunal relied on its decision and the Tribunal was denied to procedural fairness”. I have not been able to identify a point at which the applicant was denied procedural fairness, but shall address some more specific complaints in this respect below.
The third ground was that “there are no evidences to justify” the Tribunal’s finding that the applicant’s claims of political association and injury by political opponents and false cases against him were false. However, in my view there was evidence which, as a matter of law, permitted the Tribunal to reach those conclusions.
Shortly before today’s hearing, the applicant filed a written submission which makes complaints more specific than those appearing in his applications, and I shall address them separately.
The first point criticises the Tribunal’s reasoning based on inconsistent answers the applicant had given as to the dating and reasons for his South Korean travel. The complaint is: “It did not consider that I might have made a mistake about dates”. I am not satisfied that the Tribunal did not weigh up the applicant’s explanations which he gave when his contradictory evidence was drawn to his attention. In any event, this was within an area of fact‑finding by the Tribunal, and in my view, the criticism does not give rise to jurisdictional error.
The second point is: “The Tribunal said I tried to mislead the Department and Tribunal. It never gave me the chance to answer the allegation”. This is a reference to the following particular given by the Tribunal when supporting its general conclusion on credibility:
There are many aspects of his original application and later evidence which were not answered or which were answered incompletely or incorrectly (such as his never having travelled overseas prior to the trip to Australia; detail of his wife and children; his work history; where he lived and his never having held another passport (as stated in the letter of 25 February 2004). I do not accept as reasonable the explanations offered that he was not well at the time or misunderstood questions or had not thought to give the correct information. He had the assistance of a migration agent. The applicant speaks, reads and writes in English. He is well educated. From the evidence given I am of the view that aspects of the evidence were omitted or incorrectly given so as to mislead the Department and Tribunal.
I am not satisfied on the evidence before me that the Tribunal did not sufficiently alert the applicant that it might make a finding that there had been a deliberate holding back of evidence, in particular from his passport when his visa application was made. I have above at [12] set out the Tribunal’s summary of a relevant part of its hearing in which it put to the applicant:
… the Tribunal was concerned that the provision of the four double pages only was misleading and may have been to hide the fact of his overseas travel.
The Tribunal also shows in this and other passages that it drew attention, and allowed the applicant to respond, to its concerns about incomplete and incorrect responses in the original visa application. I therefore do not consider that there was any breach of any obligation of procedural fairness in relation to this matter.
I should also record that, although submissions have not been put to me by either party concerning s.424A(1) obligations on the Tribunal, I have considered this issue in the light of the recent High Court decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24. In my view, the Tribunal at this part of its reasons did not base its decision upon information which was not provided by the applicant “for the purpose of the application” within s.424A(3)(b) and which had not been raised by way of a written invitation for comment under s.424(1). This is because the matters the Tribunal relied upon arose out of the applicant’s response to the Tribunal’s ss.424(2) and 424A(1) request dated 4 February 2004, and from the applicant’s evidence when responding to the Tribunal’s questions in the course of the hearing. To the extent that the Tribunal referred to the applicant’s original visa application, it was not to take information from it, but to perform an appraisal of its defects (see VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24](iii)).
The applicant’s third point in his written submission was:
The Tribunal asked me questions about Awami League. Then said my knowledge was nothing more than would be expected of an intelligent member of society in a country which is highly politicized. What more am I supposed to do than give intelligent answers? Are Bangladeshis to be at a disadvantage because the Tribunal thinks Bangladesh is highly politicized?
I think this concern is no more than an argument about the Tribunal’s fact‑finding, and does not identify jurisdictional error.
The applicant’s fourth point was:
It was wrong of the Tribunal to say I should have been involved with Awami League in Australia because my migration advisor plays a prominent role in the Awami League in Australia. The Tribunal did not ask me about this.
This is a reference to the following particular provided by the Tribunal in support of its finding about credibility:
The claims of political association and involvement are vague and unconvincing. Whilst he knows of political party members and people who stood for election and who won I do not accept that his level of explanation of what he did for the party displayed an actual involvement. Apart from this he states that he has made no contact with the Awami League in Australia though had heard about them. This is somewhat strange in itself as it is known to the Tribunal that the applicant’s adviser – Mr. Sirajul Haque – plays a prominent role in the Awami League association in Australia. I consider it reasonable to assume that if the applicant had wanted to make contact with his claimed political party he could easily have done so. The fact that he has not further indicates that he was not involved.
In my view, nothing arises out of this paragraph which the applicant did not have a reasonable opportunity to address. The point made by the Tribunal arose from the applicant’s own evidence to the Tribunal, which I have referred to above at [14], where he said that he was aware of a local Awami League Association and that he had not visited them. The Tribunal’s reference to Mr Haque’s involvement in the Association was, in my view, a side comment only, and was not used adversely to the applicant in a manner requiring special attention. In any event, I am not satisfied that Mr Haque himself did not make reference to his involvement in the course of his submissions to the Tribunal.
The fifth point was:
The Tribunal just tried to put me down. It was not interested in my claims about bashings and false charges.
I reject the suggestion that the Tribunal did not properly address the applicant’s claims upon which he based his protection visa application. I also reject the suggestion that the Tribunal’s proceedings were affected by actual or apprehended bias under the tests set out in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425. The applicant has not referred me to any evidence supporting such a contention.
The sixth point in the applicant’s written submission was:
The Tribunal took no note of the fact that I had been so sick.
As I have indicated above, the Tribunal shows that it was aware of the applicant’s concerns about his health and his desire to get medical treatment in Australia, but it has properly treated those claims as not directly bearing on its assessment of his qualification under the definition of refugee adopted by the Migration Act. I think no jurisdictional error arises from how the Tribunal has dealt with the applicant’s health concerns.
The seventh point was:
The Tribunal said I did not provide independent evidence in support of my claims. The Tribunal just make fun of my English that my wife could not get such evidences for me in Bangladesh because of police harassment.
This appears to be a reference to the passage from the Tribunal’s description of the hearing which I have set out above at [12]. I cannot read in this passage, nor indeed elsewhere in the Tribunal’s decision, any inappropriate reference to the applicant’s abilities in English. The Tribunal, in my view, was entitled to assess the applicant’s explanation for not having independent evidence, and to include in its particulars of its concerns about the applicant’s credibility the following finding:
The applicant has provided no independent evidence in support of any of his claims. He has had ample opportunity to do so. I do not accept that this is because his wife is unable to leave the house for any reason.
The applicant attempted to give me more evidence supporting his explanation, but it is not my function to assess whether the Tribunal’s finding was correct at a factual level.
The applicant’s final point was more of the nature of comment than specific contention:
I did not get justice from the Tribunal.
Unfortunately, my task is to decide whether the Tribunal’s decision was affected by jurisdictional error according to principles of administrative law identified in authorities of superior Courts, and I have been unable to identify any such error in the proceedings before the Tribunal.
For the above reasons I must dismiss the applicant’s application.
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the respondent’s costs in the sum of $4500.
I certify that the preceding forty‑five (45) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 28 June 2005
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