SZFIR v Minister for Immigration - [2006] FMCA 1451

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFIR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1451

MIGRATION – RRT decision – Bangladeshi claiming political persecution – disbelieved by Tribunal – reliance by reconstituted Tribunal upon evidence from earlier hearing – no breach of s.424A – no duty to inquire in Bangladesh about court documents – application dismissed.

Migration Act 1958 (Cth), ss.424A(3)(b), 474(1), 476, 476(1)

Azzi v Minister for Immigration & Multicultural Affairs (2002) 120 FCR 48
Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107
SZEPZ v Minister for Immigration & Anor [2005] FMCA 1614
SZGNY v Minister for Immigration & Anor [2006] FMCA 1142
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant:

SZFIR

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1082 of 2006

Judgment of:

Smith FM

Hearing date:

21 September 2006

Delivered at:

Sydney

Delivered on:

21 September 2006

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Counsel for the First Respondent:

Ms L Clegg

Solicitors for the Respondents:

Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1082 of 2006

SZFIR

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 11 April 2006 under s.476 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 21 February 2006 and handed down on 14 March 2006. The Tribunal affirmed a decision of a delegate made on 18 May 2004 which refused to grant a protection visa to the applicant.
Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) so that I do not have power to set aside the Tribunal’s decision unless I am satisfied that it was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed nor whether he qualifies for a protection visa.
The present decision of the Tribunal is its second decision. The first decision, handed down on 1 December 2004, was set aside by writs of certiorari and mandamus under consent orders of this Court made on 14 November 2005. Upon the remitter, the reconstituted Tribunal invited the applicant to attend a further hearing, and the present member has prepared a very carefully considered statement of reasons.
Because the two grounds of review relied upon by the applicant’s counsel do not challenge how the Tribunal identified and addressed the applicant’s substantive refugee claims, it is unnecessary for me to do more than give a brief outline of the nature of the matter.
The applicant is a national of Bangladesh who in February 2004 at the age of 23 arrived in Australia on a student visa. About one month later, on 18 March 2004, he lodged an application for a protection visa assisted by a migration agent. The application contained general claims to fear persecution in Bangladesh as “an activist of Bangladesh Awami League”.
A statutory declaration attached to the application claimed that the applicant had held the post of organising secretary in the Awami League youth student branch while at college, and that after leaving college he “joined Awami League and actively worked in Chittagong City”. He claimed to have obtained a post in a branch of that party. He also claimed to have suffered assaults and economic penalties at the hands of BNP thugs and supporters before leaving his country.

His statutory declaration referred generally to “the government is filing numerous criminal cases against Awami League leaders and activists”, but did not suggest that he was the subject of such charges. Such a claim was, however, made when the applicant attended a hearing before the Tribunal as initially constituted on 1 November 2004.
The present Tribunal said in its statement of reasons that it had “listened to the audio tape of that hearing, and summarises below the key points presented in his oral evidence”. Its summary of the evidence given to the first Tribunal member is an almost exact replication of the summary of the evidence included in the first Tribunal’s statement of reasons. In short, it appears to be largely a “cut and paste” from the earlier decision.
It appears that when the challenge to the first decision was in the Federal Magistrates Court in early 2005, the applicant filed an affidavit referring to documents newly obtained from Bangladesh. He then presented these documents to the Tribunal as presently constituted towards the end of a hearing which he attended on 19 January 2006. These included what were claimed to be court‑related documents in English translation, certified by a Bangladeshi advocate, which purported to corroborate the applicant’s involvement in criminal charges relating to incidents occurring on 1 February 2004. They also showed his involvement in separate proceedings in relation to an incident which had occurred on 11 October 2003. Other documents relating to his claimed association with the Awami League were also presented to the reconstituted Tribunal.
The Tribunal’s description of the part of its hearing where these documents were referred to includes:
The Tribunal asked about the false charges against the Applicant, and the circumstances in which he left Bangladesh. The Applicant said that his mother organised his travel and visa through a Bangladeshi company. When he left Bangladesh, he did not know whether there were false charges against him or not. The Applicant said that false cases had been filed against him in the past, but they were ‘successfully cancelled’. Asked how this occurred, he explained that the police had come to his home some time before December 2003 looking for him pursuant to some false cases. The Applicant’s father had given the police some money, and the matter was regarded as settled. The Applicant said that he had had to pay the local police to obtain a ‘no objection certificate’, i.e. expunging the false charges. The Tribunal asked whether he had required this certificate to obtain a visa or to depart Bangladesh. The Applicant said he had needed it in order to depart the country.
Responding to the Tribunal’s questions, the Applicant said he had first learned about the false cases against him from a (named) friend around January 2005. [The Applicant was confused as to dates. The Tribunal notes that the Applicant’s affidavit to the Federal Magistrates Court, which has attached to it the court‑related document, was filed on 7 April 2005. This is therefore consistent with the Applicant’s having learned in early 2005 of the legal action; which he claimed to have occurred in late 2003/early 2004.] The Applicant said that he wanted to forget all these matters. His friend had obtained the documents at the Applicant’s request, stating that access can be granted to court documents.
The Tribunal asked if the Applicant maintained contact with party colleagues. The Applicant said he did not wish to. The Tribunal asked if the Applicant had with him contact details for any family members, party colleagues or anyone else who could confirm his claims. The Applicant said that his family were now in Saudi Arabia, and he did not have with him or know by heart any telephone numbers of others. He offered to send these to the Tribunal later. The Tribunal explained that ‘spontaneous’ evidence from the Applicant’s contacts may have been of real assistance to its enquiry, but that it did not propose to initiate any post‑hearing approaches.
The Tribunal then described the documents produced to it. It said:
The Tribunal noted that it had not previously sighted these documents, and that it would wish to examine them in further detail. It undertook to let the Applicant know of any specific concerns.
The Tribunal put to the Applicant country information concerning document fraud in Bangladesh, including in relation to court documents. It advised that it would examine the documents in the light of all the evidence before it. In doing so, it flagged its particular interest in the provenance of the documents, as this would be one factor influencing what weight it could place on them. The Applicant said that he asked his friend to obtain documents from the court for him. He said with confidence that anyone with a case against them can obtain court documents for free, and a registered translator can be engaged to translate them. He did not have further details of how and when his friend obtained them. He insisted that the documents were genuine, and that he had only received them after the first Tribunal decision had been finalised.
The Tribunal did write to the applicant, who at all times was represented by a migration agent. It invited the applicant to comment on various points of concern in relation to the contents of the documents which it is unnecessary for me to address. It also made requests for additional information, including:
§The particulars of when you first learned about these false charges (the timing, what you were told, who told you, etc.);
§Details of your contact with your friend to obtain these documents on your behalf;
§Your friend’s identity and interests (at the first Tribunal hearing you said that your friend knew about the charges because he was involved in politics with you, whereas at the second hearing, you said only that he had a small business), including how, if he is politically active, he manages to stay out of harm’s way;
§Details of your friend’s access to the court documents, including: (a) particulars of his approach to the courts, (b) his access to the originals and/or Bengali language transcripts and (c) whether, if he is acting on your behalf in relation to such serious charges, he has been subject to any action; …
The applicant’s migration agent responded on 11 February 2006:
Unless otherwise stated all information provided in this submission is based upon the instructions from the said applicant.
·The applicant came to know about false charges at the end of January 2004. He was told false charged filed against him are politically motivated. One of his friends told him about these false charges.
·The name of his friend is [name] [address] [telephone numbers].
·He is one of applicant’s good friends. [The friend] is a well wisher of [the applicant]. So he informed him for his well‑being.
·His friend got access to the documents through his solicitor. Applicant’s solicitor acted for him, not [the friend].
Under the heading “Findings and Reasons”, the Tribunal carefully summarised the applicant’s claims and the evidence he had given to the Tribunal. It said:
The Tribunal found the Applicant to be a witness of low credibility. On a range of matters – set out below – the Applicant made assertions which, on closer examination, proved to be misleading, incomplete or internally inconsistent.
The Tribunal accepted that the applicant had been a supporter of the Awami League, but did not accept that he had held prominent positions in its student wing. It concluded:
In view of all these concerns, the Tribunal is not satisfied that the Applicant was more than a local supporter and member of the AL, and occasionally low‑key campaigner. It does not accept that he was an ‘activist’, or that he gained a political profile in any other capacity.
The Tribunal illustrated various points of unreliability in the applicant’s evidence, including by comparing evidence that he was reported to have given at the first hearing with evidence he gave at the second hearing concerning his family’s circumstances.
In relation to the claimed assaults, the Tribunal did not accept that he had ever been assaulted as claimed, and gave cogent reasons for that view. Nor did it accept that he had suffered in his business affairs for the essential and significant reason of his political opinion.
In relation to the false charges, the Tribunal rejected the probative weight of the documentary material, and also the applicant’s oral evidence in respect of false charges. Its discussion includes:
The Applicant’s oral evidence and the advice in his letter of 12 February 2006 provide incomplete and vague information on matters relevant to the Tribunal’s assessment of what weight it can accord to the court‑related documents. First, the Applicant’s information as to the role of his friend (whose political role, if any, was subject to contradictory evidence) and his solicitor in accessing and providing the documents remains obscure. Second, the Applicant’s knowledge of the false charges was patchy. For instance, he referred at the first hearing to knowing of false charges filed only after his departure from Bangladesh, adding that his political opponents had done this to prevent his return. This presumably refers to the charge sheet filed on 25 February 2004. However, he did not mention at that stage the earlier false charges against him which were dismissed as politically motivated in December 2003. His 12 February 2006 letter does not address the court’s willingness to dismiss such charges, or what meaning should be attached to it – instead, it appears to restate that the courts are politically corrupt. Also of concern is that the Applicant appears not to be familiar with the content of the court‑related documents, particularly the curious circumstance that in both sets of charges, there was a complaint of murder (with a named victim) which has not been reflected in subsequent documentation. Finally, the Tribunal notes that the significant interval between the issuance of the documents, and the Applicant’s access to them, remains unexplained. All these circumstances – taken together with independent information concerning document fraud in Bangladesh – lead the Tribunal to conclude that none of the court‑related documents are genuine, and that they can therefore be given no weight to support the Applicant’s claims to be subject to false charges.
The Tribunal also does not accept the Applicant’s oral evidence in relation to the false charges. First, the Applicant’s profile does not establish him as a political figure who would warrant such adverse attention. Even if the Tribunal were to accept that the Applicant has been subject to serious harm for mixed business/political reasons (which, for the reasons stated above, it does not), he does not have the personal profile which might in other circumstances motivate his opponents to also seek his incarceration. Second, it finds that the Applicant’s credibility is so impaired that it finds his oral claims generally unreliable.
The Tribunal has also considered the letter from [the applicant’s solicitor] (document 6) and the purported arrest warrant. For the reasons stated above – and taking into account the concerns put to the Applicant in the Tribunal’s letter of 20 January 2006 – the Tribunal also accords these documents no weight.
The Tribunal considered the situation the applicant would face if he returned to Bangladesh by reference to such of his circumstances as it was ready to accept, and was not satisfied that he was a person to whom Australia had protection obligations.
I have considered the Tribunal’s reasoning and the material that it addressed, and have been unable to identify any jurisdictional error affecting its decision. In particular, I consider that its examination of the applicant’s claims was impeccable.
It would seem that counsel for the applicant reached a similar view, because those parts of the amended application which he now relies upon challenges only two procedural aspects of the matter. Counsel relied on Grounds 1 and 3, which provide:
1.The applicant gave evidence to the Tribunal on 1 November 2004 (the first Tribunal) and 19 January 2006 (the second Tribunal). There was information the applicant gave to the first Tribunal which was “part of the reason for affirming the [delegate’s] decision” by the second Tribunal. The information included the fact that the “the applicant did not know the month of the elections” (CB 214.1 and 202.4) and the “highly variable” difference between the evidence given by the applicant to the first Tribunal and second Tribunal concerning his family’s financial circumstances. (CB 214.4) Section 424A applies to such information, in which case there was a failure to comply with the notification requirements of s 424A, resulting in jurisdictional error.
…
3.The applicant provided the Tribunal with telephone contact details of his friend who provided him with information about and documents concerning false charges lodged against the applicant. (see CB 113.8) The Tribunal had an opportunity to contact the friend, but chose not to do so. In limited circumstances, a Tribunal has a duty to make its own enquiries. Those circumstances existed in the present case. The Tribunal’s failure to make such enquiries (ie contact the friend) resulted in jurisdictional error.
In counsel’s written and oral submissions addressing Ground 1, he conceded that “the applicant’s argument on this issue must fail in the Federal Magistrates Court”, by reason of the Full Court judgment in SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107. In that judgment, the Full Court upheld my own decision in SZEPZ v Minister for Immigration & Anor [2005] FMCA 1614.

It supported reasoning which would bring within the exclusion in s.424A(3)(b) any evidence given to a Tribunal as constituted at any time subsequent to the filing in the Tribunal of an originating application for review. I subsequently applied that reasoning when upholding a reconstituted Tribunal’s reliance on information taken by way of “cutting and pasting” from a statement of reasons for a decision which was quashed (see SZGNY v Minister for Immigration & Anor [2006] FMCA 1142 at [15]‑[25]). I consider my reasoning has the support of the Full Court, and I see no reason to depart from it in the present case.
In relation to Ground 2, counsel did not seek to make any oral submissions additional to those in his written submission. They were:
25.The circumstances in which a Tribunal has an obligation to inquire are limited. In Azzi v MIMA (2002) 120 FCR 48 at [112] Allsop J, after reviewing the authorities, concluded:
“It may be, notwithstanding prevailing authority, that a duty to inquire may exist or be seen to arise in certain circumstances, but these are understood as being exceptional or rare ... Before the High Court’s decision in Eshetu it had been said by the Full Court of this court in Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 in relation to s 420 that any such duty that might exist would arise only in rare cases.”
26.In the present case the applicant (through his migration agent) provided the Tribunal with the phone number of a friend in Bangladesh who could assist in corroborating or verifying the authenticity of false charges the applicant claimed were laid against him by his opponents. (see CB 113)
27.If the Tribunal had contacted the friend of the applicant, this aspect of the applicant’s claims could have been clarified.
28.It is open to the Court to conclude that a duty to inquire existed in the present case. If so, the Tribunal’s failure to make such inquiry resulted in jurisdictional error.

In my opinion, the weight of authority is clearly against the applicant’s counsel in relation to this ground also. Not only does Allsop J’s judgment in Azzi v Minister for Immigration & Multicultural Affairs (2002) 120 FCR 48 indicate the need for exceptional circumstances to arise before an administrative decision‑maker is found to have a duty to do more than address the evidence presented by an applicant for a benefit, but the authorities concerning the duties of this particular Tribunal in that respect are clear. In Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], Gummow & Hayne JJ, with whom Gleeson CJ agreed, said:
… whilst s 427 of the Act confers power on the tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s 426 provides that, even if an applicant requests that the tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the tribunal is not required to obtain such evidence. Thus, the tribunal is under no duty to inquire.
That passage has been referred to in numerous cases (and c.f. WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73], Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20], and Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 at [200]‑[201]).
Moreover, I accept the submissions by counsel for the Minister that the present circumstances are completely lacking in features which might support the exceptional duty referred to by Allsop J.
The Tribunal at the hearing expressly informed the applicant that it did not intend to “initiate any post‑hearing approaches”. It did not request telephone details of a witness with any implicit promise that it proposed to obtain evidence from a witness. The applicant’s response to the request for additional information did not request the Tribunal to obtain evidence from the person whose telephone details were given to it. The applicant did not suggest what evidence that witness could provide to advance his case. There would have been obvious difficulties in relation to the obtaining and giving weight to any evidence obtained from such a witness.
In my opinion, there is no substance to this ground.
For the above reasons, neither of the grounds relied upon by the applicant’s counsel are made out. The Tribunal’s decision is therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding twenty‑eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 16 October 2006