SZFYK v Minister for Immigration - [2006] FMCA 1949

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFYK v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1949

MIGRATION – Review of Refugee Review Tribunal decision – application dismissed.

Migration Act 1958 (Cth), s.474

Applicant:

SZFYK

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent

REFUGEE REVIEW TRIBUNAL

File number:

SYG 730 of 2006

Judgment of:

Turner FM

Hearing date:

15 December 2006

Date of last submission:

15 December 2006

Delivered at:

Sydney

Delivered on:

15 December 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Mr D. Bell of Blake Dawson Waldron

ORDERS

The application before this Court is dismissed.
The applicant pay the costs of the first respondent fixed at $7,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG730/2006

SZFYK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 23 March 2005 seeking to review a decision of the Refugee Review Tribunal which affirmed a decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 24 May 2005.
The applicant was born on 30 December 1977 and claims to be from Bangladesh and of Bengali ethnicity and Islamic faith.
The applicant arrived in Australia on 11 February 2000 on a student visa which had been issued in Dakar on 5 January 2000. The applicant lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs on 22 March 2000. In this application he claimed fear of persecution based on his political opinion and activities as a member of the Jatio Party (Court Book “CB” 26).
This application was refused by a delegate for the first respondent on 3 May 2000.
On 31 May 2000 the applicant filed an application for review of the decision of the Minister's delegate by the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on 25 July 2002 at which time he maintained the claims made in is original protection visa application.
The applicant has stated to the Court that he was given the opportunity to make comments on the documents he submitted in support of his application. The applicant claims, and has stated to the Court, that the Tribunal was incorrect in deciding that some of the documents might have been fraudulent. The Court notes that that is not what the Tribunal found about the documents, which stated at page 243 of the Court Book:
The Tribunal cannot give any weight to the documents submitted by the applicant.
On 20 August 2002 the Tribunal handed down its decision, dated 25 July 2002, affirming the decision of the Minister's delegate refusing to grant the applicant a protection visa. The applicant sought review of the Tribunal's decision by the Federal Magistrates Court and on 29 May 2003 the Court dismissed the application.
The applicant sought a review of this decision by the Federal Court of Australia, and on 19 February 2004 the Court set aside the decision of the Federal Magistrates Court and remitted the matter back to the Tribunal to be determined according to law (CB 224).
A new hearing by the Refugee Review Tribunal occurred on 1 March 2005. The applicant gave oral evidence at this hearing in which he maintained the original claims made in the application for a protection visa. In considering the applicant's claims, the Tribunal found that the applicant was a citizen of Bangladesh as supported by his passport issued by the Bangladeshi government and sighted (sic) at the hearing.
The Tribunal found that the applicant's knowledge of the Jatiya Party was negligible. It found the applicant was unable even to state its date of establishment, when it splits occurred, its ideology and basic principles and more telling, given the applicant's claims of electoral involvement, the applicant could not give details about election results. The Tribunal found further that there are significant inconsistencies between the applicant's claims and his evidence and the documents he submitted to the Tribunal, in addition to which he was unable to give any vestige of a reasonable explanation for these inconsistencies.
The Tribunal stated that:
In light of the applicant's complete lack of knowledge about the party of which he claims to be a member and his lack of knowledge and glaring inconsistencies and contradictions in the evidence regarding his uncle, his claimed mentor and guide in his political career, the Tribunal found that it cannot be satisfied that the applicant has been truthful about his involvement in the Jatiya Party and it cannot be satisfied that the applicant has ever been involved in political activities in Bangladesh (CB 243).
The Tribunal continued:
The applicant submitted a number of documents in support of his application but again numerous inconsistencies and contradictions arose in relation to these documents to which the applicant gave no reasonable explanation. Bearing in mind the Tribunal's finding above and about its grave adverse credibility finding in relation to his membership of the Jatiya Party and the independent's evidence regarding documents brought in Bangladesh, the Tribunal cannot give any weight to the documents submitted by the applicant (CB 243).
The Tribunal stated:
Also of significance was his inability to provide any details about his lawyer and his lawyer's activities on his behalf, the names of his co‑accused, the actual charges against him and when the incident giving rise to the charges occurred (CB 243).
The Tribunal continued:
The Tribunal finds that the applicant has not been truthful in his claims and evidence to the Tribunal and it cannot be satisfied that he has any claim to have a well founded fear of persecution for Convention reasons. Finally, given the applicant's lack of political activity in the past in Bangladesh and the lack of any activities or meetings in Australia he has failed to provide any evidence of genuine, committed or consistent political activity since his arrival five years ago. The Tribunal cannot be satisfied that the applicant would become involved in any political activity on return to Bangladesh (CB 243).
The Tribunal affirmed the decision not to grant a protection visa. The applicant then filed the application in this Court seeking judicial review of the Tribunal's decision pursuant to the Migration Act. The basic challenges in the application are against findings of fact and credibility. The Court does not find any finding of fact or credibility that was not properly open to the Tribunal.
In his application to the Court the applicant sets out four grounds as follows:
The Tribunal made an error of law to put a negative attitude about my claim in relation to my involvement with the Jatiya (sic) Party politics.
Ground 2: The Tribunal made an error of law in relation to my credibility. The Tribunal heard because it did not consider my claim as a whole, rather it consider only a few matters that in favour for my real persecution.
Ground 3: I submitted a number of documents before the hearing to the Tribunal. The Tribunal did not accept the authenticity but the Tribunal only depended the DIMIA's independent evidence to make the decision that being a jurisdictional error.
Ground 4: I had denied natural justice.
In his amended application filed on 24 May 2005 the applicant set out the following grounds and particulars:
Ground 1: The Refugee Review Tribunal identified the wrong issue in relation to my involvement with the politics and made wrong assumption about my uncle.
A. The Refugee Review Tribunal made conclusion in its decision that I describe myself as an ordinary member of the Jatiya Party but there was no evidence to support the Refugee Review Tribunal's above findings.
(i) I never described myself as an ordinary member of the Jatiya party.
(ii) I only told at the hearing that I have got the inspiration of involvement with politics from my uncle.
(iii)My political persecution in Bangladesh created from my own involvement with the politics and my activities to implement the party policy.
In relation to the complaint about “ordinary membership” the Court has regard to the finding on page 234 of the Court Book that the Tribunal noted that the applicant has described himself as an ordinary member and not very serious.
Ground 2: The Refugee Review Tribunal acted in excess of its jurisdiction in the following context:
A. The Refugee Review Tribunal made a comment in its decision that Bangladeshi asylum seekers providing fraudulent documents and it asked me to make a comment in this matter.
The Court notes that on the applicant's very own grounds he was asked to make comments in relation to the fraudulent documents before the Tribunal. The Court continues to quote from ground 2 as follows:
I submit that the Refugee Review Tribunal acted in excess of its jurisdiction in the following ways:
(i)The question the Tribunal asked me was not relevant to my case;
(ii)To ask me this question the Tribunal put a negative attitude about my documents and me, those I submit in support of my claims.
Ground 3 reads:
The Refugee Review Tribunal relied on irrelevant material and asked me a lot of irrelevant questions at the hearing:
A. The Refugee Review Tribunal asked me a lot of irrelevant questions at the hearing. I submit that the following questions were irrelevant in the context of my claim:
(i) Jatiya Party policy in regard to health matters;
(ii)Jatiya party policy in relation to religion.
The Court notes that from the decision of the Tribunal that those questions were asked by the Tribunal in order to test the credibility of the applicant. Those questions were therefore relevant to the issues before the Tribunal.
Ground 4 of the amended application is that:
The Refugee Review Tribunal ignored relevant material and failed to ask material questions that were required to ask.
That ground continues:
I made a claim before the Refugee Review Tribunal but I was locked and tortured during the parliamentary election in 1996 and some false cases lodged against me by my political opponent. However the Tribunal failed to ask me the material questions in the following context:
(i) Whether the persecution occurred during or after the election;
(ii)There are any court cases pending against you;
(iii) What is the present condition of those charges.
As to ground 1 of the application, (here the Court is referring to the original application not the amended application), that ground alleges that the Tribunal put a negative attitude about the applicant's claim to be involved in the Jatiya Party politics. After extensive review of the evidence the Tribunal was not satisfied that the applicant had been truthful about his involvement with that party (CB 243). The Court finds that the conclusion was properly open to the Tribunal on the evidence before it. No error of law or denial of natural justice is raised by this ground. The Court rejects ground 1.
In ground 2 the applicant questions the adverse finding as to the applicant's credibility. That was a finding of fact properly open to the Tribunal. The Court notes the extensive analysis by the Tribunal in reaching that conclusion. The Court rejects that ground.
Ground 3 complains that the Tribunal did not accept the authenticity of some documents produced by the applicant. The material, or the decision, relating to the examination of the documents is set out in CB at page 233 and 234. That consideration is extensive. As a result the Tribunal decided that it could not give any weight to the documents submitted by the applicant.
The finding of the Tribunal that it did not accept the documents was properly open to it on the evidence. There is no error of law or denial of natural justice. The Court rejects that ground.
Ground 4 of the original application is denial of natural justice. The Court finds no denial of natural justice. The Tribunal considered all the material evidence and heard evidence from the applicant, and gave extensive consideration to his claims. The Court rejects that ground.
As to the amended application, it is alleged that the Tribunal considered the wrong issue. The Court finds there is nothing to show that the Tribunal considered the wrong issue.
The applicant alleges that the Tribunal made the wrong assumption about his uncle. The Court finds that the comments by the Tribunal about the applicant's knowledge of his uncle's affairs were properly open to it. The Tribunal gave extensive consideration to that issue from page 231 of the Court book to 233 and again at 240. The Court finds no error of law or denial of natural justice involved and the Court rejects those assertions.
Ground 1 of the amended application complains that the Tribunal described the applicant as an ordinary member of the Jatiya Party. The Court has already referred to the finding of the Tribunal at page 234 of the Court book that the applicant “has described himself as an ordinary member and not very serious”. The applicant has today stated to the Court that he has some imprecision with the English language and that it was not his intention to state he was an ordinary member. The Court does not find that submission credible as the Tribunal noted that the applicant had described himself as an ordinary member, and critically the applicant added, "and not very serious" The Court finds that the description of himself to the Tribunal as an ordinary member is consistent with the statement that he was not very serious. That ground of review is, in any event, against a finding of fact by the Tribunal which was properly open to it. That ground is rejected.
Ground 2 alleges the Tribunal acted in excess of its jurisdiction by asking the applicant questions about fraudulent documents. The Court finds that those questions were relevant to the case before the Tribunal and highly relevant to the question of credibility. The examination in relation to the applicant's documents commences at page 241 of the Court book and continues throughout the remainder of the decision. The Court finds now error or law or denial of natural justice involved in this ground. That ground is rejected.
Ground 3 of the amended application alleges the Tribunal relied on irrelevant material and asked irrelevant questions. There is nothing before this Court to demonstrate that that was so. There was no error of law or denial of natural justice. The Court rejects that ground.
Ground 4 alleges the Tribunal ignored relevant material. There is no evidence before this Court as to what that relevant material is alleged to have been. There is no indication that the Tribunal ignored any relevant material. The Court rejects this ground.
The applicant has contended to this Court that the Tribunal failed to ask him questions which it should have asked so as to establish his case before the Tribunal. It is not for the Tribunal to establish the applicant's case for him, the applicant must prove his case to the Tribunal. The Tribunal found that his case was not proved and the decision of the delegate for the Minister was affirmed.
The Court finds that the decision of the Tribunal is a privative clause decision that has not been affected by jurisdictional error. In such circumstances and pursuant to s 474 of the Act there is no jurisdiction for this Court to interfere. Accordingly the application is dismissed.
The Court has heard from counsel for the first respondent that it seeks $7,000 costs being three-quarters of the costs actually incurred. The original application was commenced on 22 March 2000 before the insertion of Rule 44.15 and of Part 2 of Schedule 1 of the Federal Magistrate Court Rules. The first respondent has a solicitor and counsel acting for her in this case and the Court finds that to be appropriate. The amount of $7,000 is justified.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Sarah James

Date: 23 January 2007