SZECF v Minister for Immigration - [2004] FMCA 1033

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZECF v MINISTER FOR IMMIGRATION

[2004] FMCA 1033

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse a protection visa to the applicant – applicant a citizen of Bangladesh – where RRT did not find the applicant a credible witness – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.475A

Applicant:

SZECF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG2410 of 2004

Delivered on:

14 December 2004

Delivered at:

Sydney

Hearing date:

14 December 2004

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Mr Leerdam

Solicitors for the Respondent:

Phillips Fox

ORDERS

The application is dismissed.
The applicant is to pay the respondent's costs of these proceedings fixed in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2410 of 2004

SZECF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal which was handed down on 20 July 2004. The Tribunal affirmed a decision by a delegate of the Minister not to grant a protection visa to the applicant. The applicant filed an application in this Court seeking a review and has raised a number of issues. In his application which was filed, I note, on 29 July this year, the applicant begins by saying that he is a genuine refugee. He was persecuted by activists of a political party in his home country called the BNP. He said that he was tortured due to his involvement with a leading political figure in a party called the Awami League. The applicant is a citizen of Bangladesh.
The applicant sets out in his application a detailed account of the facts which he presented to the Refugee Review Tribunal. He has made complaints about errors which he said the Tribunal has made. He takes issue with the fact that the Tribunal found that the documents which he produced in support of his claim were in the opinion of the Tribunal false. He said and I quote:
I am strongly opposing this comment made by the Tribunal. It amounts to bias towards the current government and bad faith against my party and my application.
The applicant also says that the Tribunal made a decision which was deficient as far as natural justice is concerned. At paragraph 2 he says:
The Tribunal fails to identify the issue of natural justice and to make a proper order.
The applicant filed an application which contained a detailed statement of some six pages setting out his claims. He was born in Bangladesh, he is 37 years of age. He came to Australia in the year 2003, he had previously visited Dubai, Singapore, India and Saudi Arabia. He describes some issues concerning things that happened in 1983 but the basis of his claim relates to his involvement with a powerful and wealthy man in Bangladesh, one Dr H E M Iqbal. Dr Iqbal had been involved in politics and had set up a private airline. The applicant worked for Dr Iqbal as his personal assistant for a number of years and it appears that the difficulties which the applicant complains of arose out of his association with Dr Iqbal. The opponents of Dr Iqbal in the Bangladesh National Party (or the BNP) had filed a false case against Dr Iqbal charging him with murder. The applicant was not so charge d, but he was advised by Dr Iqbal that if he did not leave his employment Dr Iqbal's political enemies might lay similar charges against him. Indeed, the applicant says that they did and he was kidnapped, beaten and when he went to the police he found that the police would not help him.
The applicant attended the hearing of the Refugee Review Tribunal and submitted a number of documents along with copies of letters from various people including Dr Iqbal himself. He gave oral evidence and submitted a number of documents in support of his case.
The Refugee Review Tribunal did not accept his case. The findings and reasons of the Tribunal are set out in the Court Book beginning at page 110. The Tribunal member referred to the independent information known as country information and said:
The independent information referred to above indicates that depending on the circumstances, a person who is a member or a supporter of the Awami League may have a well founded fear of persecution in Bangladesh.
She goes on to say however:
I am not satisfied however on the evidence before me that the applicant is such a person.
Whilst it appears from the finding of the Tribunal that country information to which the Tribunal member referred could well indicate that a person who had been a member of the Awami League could have a well founded fear of persecution, the Tribunal's findings have not placed the applicant in the category of persons who could make that claim. The Tribunal's findings which do not assist the applicant were based not on the country information but on the applicant's own evidence. In the final paragraph of page 110 of the Court Book the Tribunal says:
I find he has fabricated this claim and the documents submitted in support of it. I accept that an incident occurred in October 2000 in which the applicant was attacked, requiring medical treatment. However I am not satisfied that this incident had anything to do with his political opinion or any other Convention ground. I do not accept that the applicant is a member of the Awami League.

I accept that he may be a supporter of the party but I am not satisfied that mere support without more gives rise to a well founded fear of persecution.
As far as the applicant's documents are concerned, the Tribunal member was equally critical. At page 111 of the Court Book shows here saying, in the third paragraph:
I do not accept that any of the documents purporting to relate the charges against the applicant as genuine. I find they have all been fabricated in order to support a claim which is itself untrue. I find they were fabricated following the rejection by the delegate of his application.
In the next paragraph the Tribunal member says:
The independent evidence makes clear that fraudulent documents of all sorts are readily available in Bangladesh. This does not mean every document submitted by an applicant from Bangladesh is necessarily fraudulent, but it does mean that those documents should be scrutinised with care.
The Tribunal member says in the last paragraph on page 110 [sic]:
I do not accept that the applicant was detained for some months as he claimed in oral evidence.
At page 112 of the Court Book the Tribunal member says in the second paragraph:
I do not accept that the applicant reported the October 2000 attack to the police. He stated clearly in oral evidence when first asked that he did not report it.
As to the applicant's membership of the Awami League, the Tribunal member says at the bottom of page 112:
The applicant claims to be a member of the Awami League but I do not accept this claim.
Turning again to the applicant's documents on page 113 of the Court Book in the second paragraph, the Tribunal member says:
I do not accept that any of the letters purporting to be from the Awami League is genuine.
She refers to the fact that the documents are in identical terms which suggests that they were not written separately and some months apart but were all produced at the same time. She has clearly studied the letters and arrived at that conclusion.
The Tribunal member then looked at the situation which might exist that - she was satisfied the applicant was a supporter of the Awami League. She says:
Even allowing that the applicant might have been a supporter of the Awami League, I do not accept that this gives rise to a well founded fear of persecution in the future.
In the conclusion she says that:
As set out above, I find that the applicant has fabricated or exaggerated significant aspects of his claims.
Those there are the findings, severe findings I would have to say, made by the Tribunal.
The applicant attended Court today and made oral submissions. I asked him about the claim in his application about bias and bad faith. The applicant told, through the assistance of the interpreter, that he had worked with Dr Iqbal for the last ten years in Bangladesh but the Refugee Review Tribunal did not believe his documents. The Tribunal said that they were false. He said that people could check with Dr Iqbal as to whether they were false or not. As far as natural justice is concerned, when I asked the applicant about that, he said that Dr Iqbal was facing the death sentence in Bangladesh. He said there was a miscommunication between himself and the people at the Department of Immigration & Multicultural & Indigenous Affairs. They simply did not believe what he was saying at all. He said that he thought it was a criminal action that he faced but did not understand that it was political. It was a very common practice in Bangladesh he said that one can obtain big donations from big companies. He in fact worked at one stage for the airline that Dr Iqbal was involved in. He had given evidence to the Refugee Review Tribunal and said that the Department could make inquiries in Bangladesh about his working for Dr Iqbal and this would corroborate his case. And he had brought some newspaper clippings with him to set out what he said was the current situation in Bangladesh. I did not accept the tender of the newspaper clippings as these were not documents that were before the Tribunal.
In any event, it is clear that the Tribunal accepted that from the country information that it is possible for a member of the Awami League to have a well founded fear of persecution for Convention reasons. What she said however was that the applicant was not such a person.
For the respondent, Mr Leerdam relied on a written submission in which he said at paragraph 29 that:
The RRT decision ultimately turned on adverse credibility and the finding that the applicant's documents were fraudulent. The RRT's finding of adverse credibility where such findings are reasonably open on the evidence before it, is properly the function of the decision maker and generally not susceptible to judicial review by the Court.
He referred me to the decision of NARD v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 27. He also referred me to re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Durairajasingham (2002) 168 ALR 407, particularly the judgment of McHugh J. It was submitted on behalf of the respondent that the conclusions upon which the RRT based its findings were open on the evidence and did not show an error of jurisdiction. I was further referred to Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547.
In oral submissions Mr Leerdam put to me that there is no evidence of bias or bad faith in the applicant's case and made the proposition that there is no general obligation to put country information before the applicant as set out in s 424 of the Migration Act. Information may be given to an applicant during the hearing. In this case I would point out that country information upon which the Tribunal relied tended to support the basic tenets of the case and the finding was that it was possible for a member of the Awami League to face persecution on political grounds. What the Tribunal found on the fact was that the applicant was not a member of the Awami League and did not face this persecution.
The decision of the Refugee Review Tribunal, Mr Leerdam further submitted, did not place its main reliance on the country information insofar as any decision adverse to the applicant was concerned but on the applicant's own evidence which the Tribunal did not accept. In reply, the applicant reiterated that the Department of Immigration was not satisfied with the documents that he had put to them, he reiterated his documents were correct. He reiterated that he had been working for Dr Iqbal for the past two years and that it would be quite possible for inquiries to be made to obtain that corroboration. He referred to newspaper clippings because newspapers will tell one clearly what is happening in Bangladesh rather than country information upon which the Refugee Review Tribunal may rely. He says that the violence which he suffered was not criminal as the Refugee Review Tribunal appeared to think, but politically based.
The problem that the applicant faces is, to put it bluntly, that the Tribunal did not accept his evidence. It is up to the applicant to make a case, it is not up to the Refugee Review Tribunal to conduct its own independent inquiries in support of the applicant's case. As to whether or not the Refugee Review Tribunal accepts the credibility of the applicant's evidence is a matter for the Tribunal and not for the Court. As long as there is evidence upon which findings can be made and as long as the findings are open to be made on the evidence available before it the Court will not go behind those findings and in fact the Court will not reassess the evidence and substitute its own view of the evidence for that of the Tribunal. It follows then that the application must be dismissed.
The fact is that the applicant has been unsuccessful and it is the usual practice that where a party has been unsuccessful that the successful party can make a claim for its legal costs. In my view, this is an appropriate situation for an order for costs. I note that the amount sought in the sum of $4000 is within the range of costs as set out in schedule 1 of the Federal Magistrates Court Rules. I make the following orders as set out at the commencement of this judgment.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 10 January 2005