SZGIZ v Minister for Immigration
[2005] FMCA 1144
•29 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGIZ v MINISTER FOR IMMIGRATION | [2005] FMCA 1144 |
| MIGRATION – RRT – Bangladeshi claiming religious and other persecution – nine year delay in lodging visa application – no error found. |
| Migration Act 1958 (Cth), ss.424A, 424A(3)(a)(b), 474(1), 483A, Part 8 Judiciary Act 1903 (Cth), s.39B |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZGIZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1310 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 29 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr Kennet |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $3750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1310 of 2005
| SZGIZ |
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) seeking orders by way of judicial review of a decision of the Refugee Review Tribunal dated 22 April 2005 and handed down on 26 April 2005. The Tribunal affirmed the decision of a delegate made on
18 March 2005 which refused 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”. The relevant jurisdiction in a matter such as the present 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 (2003) 211 CLR 476 the limitations on my powers have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied the decision was affected by jurisdictional error. I do not have power myself to decide the truth of the applicant's claims nor whether he qualifies for a refugee visa or any other permission to stay in Australia.
In the present case, the applicant arrived in Australia in January 1996 and, at least for his first few years, worked as a chef in Indian restaurants. He appears to have been taken into immigration detention and, while there, an application for protection visa was lodged on his behalf by a Migrant Agent, Mr Mollah, on 11 March 2005.
The application has at various places signatures which purport to be those of the applicant, but he has disputed before me today whether they were his or whether they were inserted by somebody else. For reasons which I shall explain below, I do not need to reach conclusions about this assertion, but consider that the proceeding should be dealt with on the same basis that they were dealt with by the previous decision makers, i.e., that there was a valid visa application before the Department. I note, however, that comparing the signatures with the signature on the application before this Court, which the applicant accepts is his, it is not apparent to me that the signatures were not those of the applicant.
Attached to the visa application was an eight page statement which set out factual claims upon which protection was sought under the Refugees Convention. In short, the applicant claimed to have become interested in Christianity as a young man in Bangladesh and after his arrival in Australia to have “decided to convert myself from Islam to Christianity”. The statement said that he had been introduced to a priest in late 2000, and “currently I am following this priest's advice and is hoped to be baptised by him in his priesthood office at Sydney.”
The statement said that the applicant’s interest in Christianity had come to the attention of the Bangladesh community in Sydney and Australia, including a business partner and his friends. It said that “some of my friends here in Sydney also threatened me” and “are trying to hit me physically. They always threaten me over telephone”. The statement said:
Recently I've come to know that some Muslim Fundamentalists from my own area (in Dhaka) threatened my family in January 2003. A fanatic Muslim group also attacked our house (in Dhaka).
The statement contained an unclear reference to events in Bangladesh in 1995, and made further claims supporting a fear to return to Bangladesh based on concerns about Muslim extremists and “a growing threat of terrorism from my known enemies at Sydney and Dhaka”.
The delegate refused the decision on 18 March 2004. The applicant then appealed to the Refugee Review Tribunal on a form which appointed Mr Mollah as an advisor authorised to act for him in relation to the application.
The Tribunal invited the applicant to a hearing which he attended on
8 April 2004. According to the Tribunal, Mr Mollah also attended but arrived after the start of the hearing. In the course of the hearing the applicant gave to the Tribunal various documents which the Tribunal described and considered in the course of its reasons. The applicant had the assistance of an interpreter. A transcript of the hearing is not in evidence before me, but I have no reason to doubt the summary given by the Tribunal in its reasons.
The Tribunal’s statement of reasons generally appears to be a careful and very thorough investigation of the applicant's claims, and provides a fair and balanced assessment of them. It indicated at the start of its description of the hearing:
The Tribunal discussed with the Applicant (prior to his adviser’s late arrival) the preparation of his protection visa application. The Applicant said that he had outlined his claims by telephone in Bengali, and they had been prepared and submitted by the adviser with just brief checking by the Applicant. This was in response to the Tribunal’s observation that the alleged criminal case (as documented) appeared to be a new claim and potentially significant which had not been referred to in the protection visa application. The Applicant said that he had referred to his allegedly being subject to an arrest warrant. The Tribunal expressed surprise that such a significant matter would be overlooked in a preparation of a refugee application. On his arrival, the adviser said that the Applicant had confirmed by telephone the text of his protection visa application statement, and suggested that the police matter had been raised by the Applicant only after its completion.
At the end of the hearing, the Tribunal also noted that the Applicant had not sought protection until after his arrest by DIMIA compliance officials. The Applicant said that he had talked to a friend about seeking protection earlier, but had been deterred at that time because of the cost of lodging the application and engaging a lawyer. The Tribunal alerted him to the possible adverse conclusions which could be drawn from the circumstances in which he had sought protection.
Regarding his refugee claims, the Applicant referred to the following claims during the course of the hearing. His presentation was unfocussed, and the Tribunal has identified four distinct claims (which are partly interrelated):
(1) Fear arising from a perceived lack of respect for Islam, at the hands of fundamentalist Muslims. They would pursue and kill him following the incident in Kensington in 1999 (outlined in his written statement, doc. 4). This had occurred in Australia, but people in Bangladesh knew about it, too.
(2) Political profile - journalism: - In Bangladesh, he had been beaten up for distributing a magazine with a headline calling for the abolition of capital punishment.
(3) Political profile – arrest of terrorist friend. This arose out of the arrest of the ‘number one terrorist’, an acquaintance of the Applicant, who had in turn allegedly named him to police. The Applicant claimed that there was now an arrest warrant out for him as a result.
(4) Christianity: - During the latter part of the hearing, the Tribunal reminded the Applicant that his protection visa application had stated a claim of religious persecution based not on these factors, but rather his Christianity. The Applicant confirmed that this remained a claim.
The Tribunal then described the course of its questioning about the applicant in relation to each of the four matters which it distilled from his claims made at the hearing.
One of the documents was presented by the applicant in support of his claim that he feared persecution due to a perceived political profile as an associate of with “a terrorist friend” named B. It was a letter on the letterhead of a Dhaka advocate, dated 24 March 2005 and authenticated by a notary public. The letter informed the applicant that there was a criminal case lodged against him and that the Court had issued a warrant of arrest. The letter said:
Your case is serious in nature. I am trying to defend in the Court in your favour. In this moment the political situation of our country is not so good. Your anti workers are trying to doom your life. Your life is not safe at this stage in Bangladesh. So, I advise you not to come back to Bangladesh.
Concerning this document, the Tribunal described the following discussion at the hearing:
Regarding document #1 (the letter from Mr Rahman advising the Applicant through his father of the existence of a warrant for his arrest), the Tribunal alerted the Applicant to the prevalence of document fraud in Bangladesh, and advised that it may write to him to comment on this information following the hearing. The Applicant produced the envelope in which his father had on-forwarded the letter from Mr Rahman. Asked as to why Mr Rahman had written only in March 2005, with respect to an arrest warrant issued in 2001, the Applicant said that he (the Applicant) had contacted his father from detention only after his arrest. The Tribunal observed that the alleged charge was serious, and queried why – if the warrant really existed – it would not have come to the attention of the Applicant’s family earlier, and why his father would not then have mentioned it to the Applicant prior to March 2005. The Applicant said that there had been no need for his father to mention it earlier, and that possibly he had wanted not to inform the Applicant. The Tribunal questioned the credibility of this account, noting that such serious charges would normally have led the authorities to at least enquire after the Applicant at his last known address, and to his father or legal adviser consequently warning him of the danger awaiting him if he were to return.
The Tribunal then also questioned the applicant about B, and the applicant's association with him. The Tribunal also referred to evidence from a witness who called by the applicant.
Following the hearing, the Tribunal wrote to the applicant on 11 April 2005 inviting him to comment on general information concerning the prevalence of document fraud in Bangladesh, and general information in relation to arrest warrants in Bangladesh. Although the letter was referred to by the Tribunal in its reasons as being made under s.424A of the Migration Act, I do not consider that it was under any obligation to send it under that provision. This is because the matters raised in the letter came within the exclusion in s.424A(3)(a). For that reason, I do not find it necessary to explore whether the giving of the letter satisfied the provisions of the Migration Act and regulations in relation to service and other formalities required to be followed for an invitation which is mandatory under s.426A(1).
In relation to general requirements of procedural fairness concerning the Tribunal’s assessment of the documents presented by the applicant, the evidence does not establish that there was any unfairness in the Tribunal's subsequent findings which I shall set out below. The description by the Tribunal of its hearing suggests that the Tribunal sufficiently canvassed the evidentiary weight of the documents with the applicant in the course of the hearing, including concerns about whether it was “fraudulent”.
Under the heading “Findings and Reasons”, the Tribunal commenced by addressing the discrepancies between the statement attached to the Visa application and the claims made by the applicant to the Tribunal. I consider that the Tribunal adopted an approach which was not adverse to the applicant, in response to his claim that he was not responsible for those discrepancies. It said:
The Tribunal noted significant discrepancies between the statement attached to the Applicant’s protection visa application and his oral evidence. The Applicant and his adviser accounted for these differently. It was common ground that the Applicant had communicated his claims to his adviser or a representative by telephone in Bengali, that these had been recorded and that the statement had been checked with him by telephone.
The statement consisted of eight pages of specific personal claims (all relating to Christianity), a reasoned account of his attraction to Christianity (including aesthetic and philosophical elements which appeared to be at odds with his simple, pragmatic approach to religion as explained at hearing) and specific country information. The degree of detail in the statement suggests that it would have been difficult to record and check all these matters by telephone alone. The Applicant’s inability at hearing to respond meaningfully to (indeed, his occasional surprise at) specific claims contained in it raise further questions about the reliability of the written statement.
Also of concern is the omission from the statement of the Applicant´s key claims as presented at the hearing. The statement refers only to the Applicant’s claims concerning Christianity, and attributes his problems – such as threats and physical violence in Australia, and follow-up action by Muslim fundamentalists in Dhaka – to this cause. By way of contrast, at hearing the Applicant placed emphasis on other claims relating to religion and politics, and mentioned his interest in Christianity only at Tribunal’s prompting. Whilst the Applicant claimed at hearing that he had mentioned the other claims (which he now described as his most important claims) to his adviser, it was the adviser’s evidence that these post-dated preparation of the Applicant’s written statement. The Tribunal finds the Applicant’s evidence on this dubious, as it is difficult to imagine an adviser or anyone else completely omitting claims relating to serious criminal charges if these had in fact been mentioned.
In sum, the Tribunal finds that the statement appended to the Applicant’s protection visa application contains both embellishments and omissions which, viewed in their totality, render it an unreliable record. The Tribunal does not attribute responsibility for these errors. Although the Tribunal finds credible the adviser’s account that the Applicant had failed to mention his claims other than his intended conversion to Christianity, its concerns about the production and contents of the document are such that it is unable to rely on it in any case. However, it does not rely on the mere fact of the discrepancies between it and the Applicant’s oral evidence to draw any adverse inferences with respect to the Applicant´s claims.
The Tribunal then noted the fact that the applicant had presented refugee claims more than nine years after his arrival in Australia and only after arrest, and made the point that this "raises serious questions." It regarded the applicant's explanations for the delay to be unsatisfactory, and concluded overall:
These circumstances cast serious doubt on the credibility of the applicant's claims, but do not of themselves permit the Tribunal to dismiss his claims conclusively.
The Tribunal then dealt with each of the four matters which the applicant put forward at the hearing in a careful and very thorough fashion.
It addressed the applicant's claim to fear returning to Bangladesh by reason of an incident in Kensington in 1999, in which he claimed that his friends had been upset by some comments he made in a butcher's shop concerning a Muslim inscription. The Tribunal concluded that the incident:
does not give rise to a real chance of any harm, including acts of violence, intimidation or employment discrimination from fundamentalist Muslims, from the broader Muslim community in Bangladesh or from anyone.
In relation to the claim for refugee status on the basis of his activities as a journalist in Bangladesh in the early 1990s, the Tribunal said that it was not satisfied that the applicant had a genuine subjective fear of future harm on the basis of his work and, in particular, the publication of an article by him in 1992.
In relation to the claim that there were outstanding charges based on a perceived association with a terrorist, the Tribunal said it was not satisfied as to the veracity of his account for several reasons which it examined. In the course of its discussion, the Tribunal addressed the letter from the advocate which I have referred to above. It said:
The Tribunal places no weight on the letter from Mr Rahman. It accepts for the purpose of this decision that the letter is genuine, taking into account the notarial certificate from Mr Mohiuddin and notwithstanding country information concerning the prevalence of document fraud in Bangladesh. However, it is not satisfied as to the veracity of its contents. According to the Applicant, it was written at his father´s request following advice of the Applicant’s arrest and subsequent protection visa application. This raises the possibility – but does not of itself prove – that the letter was written by the lawyer for a fee, for the express purpose of assisting the Applicant´s case. The Tribunal put to the Applicant for comment country information reporting this as a known phenomenon in Bangladesh.
The contents of the document raise questions which lead the Tribunal to conclude that it is not reliable. First, the Tribunal does not accept that a lawyer would write to the Applicant in 2005 via his father to ´inform´ him of an arrest warrant issued some four years earlier, in 2001. Second, it also does not accept that the lawyer would be actively engaged in defending the case without having previously sought at least the advice or cooperation of the Applicant. Third, it doubts that a lawyer would jeopardize his client’s interests by alluding in writing to the political motivations behind such charges. The Tribunal has considered whether the English text might be misleading, eg. whether the lawyer means not to be ‘informing’ the Applicant (ie. bringing to his attention for the first time) but rather ‘confirming’ such information. However, this cannot be reconciled with the Applicant’s evidence that he did not know previously of these charges and for that reason did not previously seek protection in Australia. All the above leads the Tribunal to be unable to accord weight to the letter in considering whether the Applicant is subject to any criminal charges.
In view of the above factors – the unreliability of the documentary evidence because of its contents and because of country information, and the implausibility of the Applicant’s account – the Tribunal is not satisfied that the Applicant is not subject to criminal charges or any other related harm.
Although the applicant did not raise in his application nor in submissions any concern about the Tribunal's reasoning in relation to this letter, this topic was explored in the submissions of counsel for the Minister. He argued that the Tribunal’s reasoning showed a permissible weighing process such as was found by the Full Court in WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597 at [56]. I accept his submission that no jurisdictional error arises from the Tribunal's procedures or reasoning in relation to this document.
The Tribunal then dealt with the applicant's claim in relation to his Christianity. In the light of its questioning of the applicant at the hearing, it found that: “the applicant does not have a genuine association with or interest in Christianity, and that he would not be so perceived by anyone.”
The Tribunal then indicated that it had considered all other aspects of the applicant's claims, and reached the general conclusion:
The Tribunal therefore finds the applicant has never been subject to past persecution in Bangladesh or Australia, for reasons of his religion, political opinion, or for any other reason. It does not have before it any credible material to indicate that he faces a real chance of being subject to persecution for these or any other reasons in Bangladesh. The Tribunal is therefore not satisfied that he has a well founded fear of Convention-related persecution in the reasonably foreseeable future if he returns to Bangladesh. It is not satisfied he is a refugee.
The applicant's application to this Court uses a precedent frequently seen, which contains a list of general heads of judicial review and some propositions going only to factual merits without any particulars allowing the Court to give the complaints meaningful application to the present decision of the Tribunal. Counsel for the Minister attempted to deal with each of them and made valid points in rebuttal, but I do not consider that it is necessary for me to go through them and address hypothetical arguments which have not been put by or on behalf of the applicant.
I invited the applicant today to identify in the list of complaints those which he wished to address the Court on. He identified the contention that “the Tribunal made his decision in bad faith” as reflecting his first concern. He explained that his concern was that he was not believed by the Tribunal, and had no response when I pointed out that it was the function of the Tribunal to assess his claims. He could point to no aspect of the proceeding before the Tribunal which might establish bad faith. I do not consider that his submission has done so.
The second complaint of the applicant was that he had been asked a lot of questions by the Tribunal, and that this had made him nervous. However, his submission did not extend to claiming that he was incapable of responding satisfactorily to the Tribunal and putting forward his claims to it. The Tribunal's description of the hearing satisfies me that, in fact, he was given a full and fair opportunity to put his claims to the Tribunal at the hearing, if not earlier.
The third complaint of the applicant was that his agent had lodged his statement in support of his visa application without his signature on it. As I have indicated, I have not found it necessary to resolve the factual basis of this contention. I did not understand the applicant to be seeking to deny that an application for refugee visa had been made by him and determined by the delegate and Tribunal.
His complaint made the implicit submission that it would be unfair for his claims to have been addressed on the assumption that he had adopted the written statement. However, in my view, the Tribunal has been alive to his concern about this and has given him the benefit of any doubts. In the passages which I have extracted above, it showed that it explored the issue at the hearing, and that it decided the applicant's case giving him the benefit of doubt about who was responsible for inconsistencies between what he said at the hearing and what was in his original application form. I can find no jurisdictional error based on how the Tribunal dealt with the statement attached to the visa application.
In reply to submissions made by the Minister’s counsel, the applicant's only point was a new complaint that he did not think that the Tribunal member was physically fit. However, he has presented no proper evidence to me to establish this contention, and I think it is without substance.
For the above reasons I have not been persuaded that the Tribunal’s decision is affected by jurisdictional error. I find that it is a privative clause decision for which relief is barred by s.474(1), and I dismiss the application for that reason.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 16 August 2005
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