SZGLC v Minister for Immigration
[2006] FMCA 1849
•20 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGLC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1849 |
| MIGRATION – Review of a Refugee Review Tribunal decision – where the Tribunal failed to accept much of the applicant’s evidence – no reviewable error – application dismissed. |
| Migration Act 1958, ss.36(2), 65(1), 424A(1), 424A(3)(a), 474 |
| W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 Abalos v Australian Postal Commission (1990) 171 CLR 167; 96 ALR 354 |
| Applicant: | SZGLC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 530 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 20 November 2006 |
| Date of Last Submission: | 20 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2006 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondents: | Ms. L Clegg |
| Solicitor for the Respondents: | Ms Griffin of Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 530 of 2006
| SZGLC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 20 February 2006, seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the 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 8 May 2006.
The applicant was born on 30th September 1959 and claims to be a citizen of Bangladesh, of Islamic faith. In his protection visa application form, the applicant noted two addresses at which he lived between 1994 and 2003, and also that he lived in “various parts in Bangladesh” from January to August 2004.
The applicant claims to have received a total of sixteen years formal education, graduating with a Master of Science from Dhaka University in 1983. In his application he also noted that he had been employed as a program organiser from 1998 until 2001 and as a field co-ordinator from 2001 to 2003.
The applicant claims to have been married and lists his wife and ten year old daughter living in Bangladesh as his only family.
The applicant arrived in Australia on 15 August 2004, on a visitor’s visa.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 10 September 2004. In this application he claimed fear of persecution for his political opinion as a member of the Awami League.
This application was refused by a delegate of the first respondent on 7 December 2004.
On 31 December 2004 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on 15 April 2005, at which time he maintained the claims made in his original protection visa application.
On 15 April 2005, the Tribunal made a decision affirming the decision of the delegate. The applicant sought judicial review of the Tribunal’s decision, and on 7 October 2005 this Court ordered that the Tribunal’s decision be set aside and that the matter be remitted to the Tribunal to be determined according to law.
On 1 November 2005, the Tribunal wrote to the applicant, advising him that it was unable to arrive at a decision in his favour on the material before it. The applicant was invited to attend a hearing, which was held on 6 December 2005. The applicant gave oral evidence at the hearing.
The Tribunal had before it a number of documents which had been furnished before the first Tribunal hearing (Court Book (“CB”) pp. 66-69, 74-82 and also 87-103). Additional documents were considered at the second Tribunal hearing (CB 130-149). The applicant also furnished the second Tribunal with his passport at the hearing (CB 152-163).
On 31 January 2006 the second Tribunal, differently constituted, handed down its decision, dated 17 January 2006 affirming the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found:
a)The Tribunal accepted that the applicant is a citizen of Bangladesh on the basis of his passport.
b)The applicant claims to fear persecution because of his political opinion as a member of the Awami League.
c)The Tribunal was not satisfied that the applicant’s account of his political activities in Bangladesh and the harm he claimed to have suffered as a result could be relied upon for the following reasons:
i)The false statements made by the applicant in connection with the application he made for his visitor’s visa for entry to Australia (which the applicant had admitted were false). The Tribunal comprehensively analysed the applicant’s explanation and concluded that there was no apparent reason why a man in his position could not have obtained a visitor visa by stating the simple truth about the circumstances;
ii)The Tribunal was not satisfied as to the authenticity of the documents submitted to the Tribunal by the applicant in connection with his application. The Tribunal gave reasons as to why it rejected the authenticity of the letter from the President of the AL Ward 47 and the hospital report. The Tribunal noted that the letter from the General Secretary of the Dhaka City AL did not provide any significant support for the applicant’s claims. The Tribunal gave further reasons why it was not satisfied that the charge sheets and first information report were authentic;
iii)The Tribunal was not satisfied about the truth of the applicant’s claims concerning his visit to Nepal and India in May, 2004, rejecting the claim that the trips had been undertaken in order to seek protection;
iv)The Tribunal was not satisfied as to the accuracy of the applicants claim that he was forced to live in hiding from January to August 2004;
v)The Tribunal also noted that the applicant’s claim to fear death or harm was not consistent with the applicant delaying his departure from Bangladesh for three weeks after he had obtained his visitor’s visa to Australia.
The Tribunal concluded that it was not satisfied that the applicant was a political leader of the Awami League in his local area, or that he had any political profile in Bangladesh. The Tribunal was not satisfied the applicant had been targeted for his political opinion or that he had been attacked and hospitalised. The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution because of his political opinion or for any other Convention related reason.
The applicant then filed the application in this court, seeking judicial review of the Tribunal’s decision handed down on 31 January 2006 pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out six grounds as follows:
1. The Tribunal denied procedural fairness, and error of law and so doing, made breach of natural justice (sic).
2. The procedure that was required by the Migration Act and Migration Regulations to be observed in connection with making decision was observed (sic).
3. The Tribunal ignored the merit of the claim and the Tribunal gave the decision on the basis of the imaginary information without making any investigation though the Tribunal was qualified to make an investigation.
4. The Tribunal failed to take relevant consideration into account in exercising its power to determine me as a refugee.
5. That the decision involved with jurisdictional error which led an incorrect interpretation of the applicable law to the fact of the case.
6. The Tribunal decision was unjust and was made with taking in to account the full gravity of the circumstances and consequences of the applicant’s Review Application.
Amended application
In his amended application filed on 8 May, 2006 the applicant set out the following grounds and particulars:
1. The Refugee Review Tribunal denied procedural fairness making with the decisions and doing so made a jurisdictional error.
Particulars:
a)that the Tribunal found the letters, referred to at pages 66,67, 70 and 131-132 of the Court Book, were fraudulently produced, collected or written to assist me to making my protection visa application in Australia and for that;
b)the Tribunal relied on independent evidence as to the availability of false and fraudulent documents in Bangladesh;
c)the Tribunal afford me an opportunity to deal or make comment about adverse information, contained in the independent country information relied upon by the Tribunal, that was credible, relevant and significant to the Tribunal’s decision;
d)that the Tribunal has a lack of understanding about criminal proceeding in Bangladesh;
e)that the Tribunal made a comment about criminal proceeding in respect of uneven date between First Information Report and Charge Sheet is absurd;
f)that the applicant is not being facing fear of persecution in his own country otherwise he would not take one month to lodge the protection visa application.
Particulars
g)The Tribunal did not relied upon any Human Rights and US Country Information Repost and DFAT Reports in respect of indiscriminate persecution and massacre carried out by the BNP and it and others Coalition Partners after the election held in October 2001.
h)The BNP led Coalition Govt. create a controversial security force from early 2004 named as Rapid Action Battalion (RAB) in the name of controlling terrorism. It’s only made to eradicate Awami League supports and demonstrator.
i)The RAB meanwhile killed more than 3 hundreds young Awami League men among them grassroots leaders to medium ranking leaders who are the diehard worker of the party. The Tribunal failed to consider any information about horrific killing by the RAB and the applicant fled from the country to escape from the RAB and BNP terrorists at the time of making its decision.
Particulars
1. The Tribunal denied the applicant procedural fairness and, in so doing, made a jurisdictional error.
2. The procedures that were required by the Migration Act or the Regulation to be observed in connection with the making of the decision were not observed.
3. The Tribunal ignored the merits of the claim and the Tribunal gave the decision on the basis of the out-dated information without any investigation though the Tribunal was qualified to do it.
4. The Tribunal failed to take relevant consideration into account in exercising its power to determine me as refugee.
5. That the decision involved a jurisdictional error, involving an incorrect interpretation of the applicable law to the fact of the case.
6.The Tribunal decision was unjust and was made without taking into account the full gravity of the circumstances and consequences of the Review Application.
7. [blank]
8.The decision made by the Tribunal is not justifiable by the evidence and assumption used in the decision.
9.That the information used by the 2nd Respondent indicates a clear violation of the human rights, which are amounts to persecution. The Tribunal ignored its own information in deciding the case.
10.The decision was an improper exercise of the power confirmed by this Act or the Regulation and I was deprived to attain natural justice for the RRT member.
11.That the Tribunal remarks about my (applicant) credibility as a witness is amounts to bad faith which led the Tribunal to make an error of law to making its decision.
12.That the Tribunal’s comment about me as a low profile leader and I would not be targeted by the BNP if I go back to Bangladesh is breach of natural justices. As most of the leaders killed by the current BNP regime and it allied forces called the RAB are low profile AL leaders like me.
Under s.65(1) Migration Act a visa may be granted only if the decision maker is satisfied that the prescribed criterion for the visa have been satisfied.
Having given the case detailed consideration, the Tribunal concluded that it was “not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa” (CB pg. 189).
The applicant’s case before the Court is mainly that the Tribunal erred in rejecting much of the applicant’s evidence. The Tribunal gave detailed consideration to the applicants evidence and formed the view that he was not a credible witness, and that much of his documentary evidence was not authentic.
The Tribunal found that:
·The applicant made a number of false statements when he applied for a visitors visa in Dhaka (CB 186);
·The applicant claimed that he had a married daughter in Australia, which was untrue (CB 186);
·It was not satisfied as to the authenticity of the documents submitted by the applicant in support of his application for protection (CB 187);
·The Tribunal was not satisfied as to the authenticity of the First Information Report and Charge sheets (CB 187-8);
·The Tribunal was not satisfied that the applicant, had he in fact been charged with serious offences, would not have engaged the services of a lawyer to defend himself (CB 188);
·The Tribunal was not satisfied as to the truth of the applicant’s claims concerning his visit to India and Nepal in May 2005 (CB 188);
·The Tribunal was not satisfied as to the accuracy of the applicant’s claim to have been forced to live in hiding from January to August 2004 (CB 188);
·The Tribunal was not satisfied that the applicant’s evident ability to continue to earn an income during this period (above) was consistent with his claim to have been living in hiding (CB 188);
·The Tribunal was not satisfied that the applicant’s claims to have returned to his home at various times in order to engage once more in political activity were plausible if, as he claims, he was fearful of being killed or harmed during this period (CB 188);
·The Tribunal was not satisfied that the comments in the advisor’s letter of 27 December 2005 satisfactorily resolve its doubt as to the truth of the applicant’s claims to have been in hiding for the eight months preceding his departure for Australia (CB 189);
·The Tribunal was not satisfied that the applicant’s claimed fear of death or harm is consistent with the fact that, after he received his visitor visa for Australia in late July 2004 he did not immediately try to leave Bangladesh, but instead stayed on for nearly three weeks (CB 189);
·The Tribunal was not satisfied that the applicant was a political leader of the Awami League in his local area as he claims, or that he had any particular political profile in Bangladesh (CB 189);
·The Tribunal was not satisfied that he had ever been targeted for his political opinion by the BNP, Jamaat e-Islami, the police or anybody else in Bangladesh or that he was attacked or hospitalised for this reason (CB 189);
·The Tribunal was not satisfied that false charges had been laid against him, or that the applicant is wanted by the police (CB 189);
·The Tribunal was not satisfied that the applicant’s claim of future harm in Bangladesh has any basis in objective fact (CB 189);
·The Tribunal was not satisfied that the applicant has a well-founded fear of persecution because of his political opinion or for any other Convention-related reason (CB 189).
The above are all findings of fact which were properly open to the Tribunal. It is not the function of judicial review by a Court to review the findings of fact by the Refugee Review Tribunal unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage”, or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence”, or which was “glaringly improbable”. In W148/00A v Minister for Immigration and Multicultural Affairs(2001) 185 ALR 703, Tamberlin and R D Nicholson JJ stated at paragraph 64:
“The tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge's finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge ``has failed to use or has palpably misused his advantage'’ or has acted on evidence which was ``inconsistent with facts incontrovertibly established by the evidence'’ or which was ``glaringly improbable.'’
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 ; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.”
The Court finds that the Tribunal did not act on evidence that was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable.
The applicant gave oral evidence before the Tribunal. He was invited by the Court to comment on and support the grounds in his application and amended application. His explanations did not demonstrate that the Tribunal had failed to give him a fair hearing or had made any errors of law.
Referring to his application
Ground 1: The applicant complained that the Tribunal did not accept his evidence.
Ground 2: The applicant explained that an acquantance had helped him draw the documents and that he did not understand what was meant by the ground.
Ground 3: The applicant complained that the Tribunal did not accept the validity of documents he produced to the Tribunal.
Ground 4: The applicant stated that the Tribunal ignored his claim that if he went back to Bangladesh he would be in fear.
Ground 5: The applicant was unable to add anything in support of this ground.
Ground 6: The applicant was unable to add anything in support of this ground.
Referring to his amended application
Ground 1: The applicant was unable to add anything in support of this ground.
Particular (a): The applicant was unable to add anything in support of this particular.
Particular (b): The applicant admitted inventing information he provided in support of his visa application in Dhaka, and complained that the Tribunal should not have taken that admission into account in deciding not to accept other evidence from him.
As can be seen from reading the decision of the Tribunal, it gave careful consideration to the evidence presented by the applicant, and relied on factors including his admissions in relation to the visa application, to reject much of his evidence.
Particular (c): The applicant complained that he had no opportunity to comment on the adverse information contained in the independent country information.
Section 424A Migration Act 1958 requires the Tribunal to give an applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. Section 424A (3)(a) provides that s.424A does not apply to information that is not specifically about the applicant or another person…
To the extent that the Tribunal’s findings as to lack of authenticity might have been based on independent country information, the Tribunal was not required to comply with s.424A(1), because that information fell within the exception in s.424A(3)(a). Although it was unnecessary for the Tribunal to comply with s.424A(1) in connection with the fraudulent documents, it did in fact provide the applicant with an opportunity to comment on the prevalence of document fraud in Bangladesh (CB 182 and transcipt 16-17, 20-21, 24, 28, 29 and 30).
The Court finds that the applicant did have the opportunity to comment on “the adverse information contained in the independent country information”.
Particular (d): The applicant complained that the Tribunal did not understand criminal proceedings in Bangladesh. Even if that is so, it was open to the Tribunal to not be satisfied as to the authenticity of the first information report and charge sheets. The Tribunal commented on the strong appearance of improvisation given by the applicant at the hearing (CB 188) in his responses as to how he obtained the documents.
Particular (e): The applicant complained again that the Tribunal did not understand criminal proceedings in Bangladesh. The Court repeats its’ comments under (d) above.
Particular (f): The applicant did not add anything in support of this ground. The Tribunal found as a matter of fact that the applicant’s claims of future harm in Bangladesh did not have any basis in objective fact (CB 189). The Tribunal was supported in this conclusion by its finding that it was not satisfied that the applicant’s claimed fear of harm was consistent with the facts that, after he received his visitors visa for Australia, he did not leave Bangladesh but instead stayed on for nearly three weeks (CB 189).
Particular (g): The applicant did not add anything to support this ground. The applicant’s claim was that he feared persecution in Bangladesh because he was a high profile Awami League politician. He claimed that he had been targeted for this reason. The Tribunal did not accept this (CB 189).
Particular (h) & (i): The applicant did not add anything in support of these particulars. The Tribunal had no duty to enquire into the matters raised in those grounds, as it is for the applicant to make out his case: Azzi v Minister for Immigration and Multicultural Affairs(2002) 195 ALR 166 per Allsop J (Paragraph 107); Minister for Immigration and Multicultural and Indigenous Affairs v SGB(2004) 207 ALR 12 per Gleeson, Gummow and Hayne JJ at [1], and [43].
Particulars 1 to 6 on page 3 of the amended application: are the same as the grounds in the application. The applicant did not add anything to the particulars. The Court has dealt with these issues in the application and does not do so again. The Court finds that the grounds in the application do not demonstrate any error of law by the Tribunal.
Particular 8: The applicant complained that because he had invented one document (being the provision of fake information in support of his visitor visa) the Tribunal had rejected his other documents. Clearly that is not the only reason the Tribunal found his other evidence unacceptable, as demonstrated in its’ decision (CB pp. 186-189).
Particular 9: The applciant did not add anything to this ground. He said he did not understand it. Nevertheless the Court has analysed it and does not find anything in the Tribunal’s procedure or decision to indicate a “violation of human rights, which amounts to persecution”.
Particular 10: The applicant added that his complaint was that the Tribunal concluded his docuemnts to be fake. They were conclusions of fact properly open to the Tribunal on the material before it.
Particular 11: The applicant was not able to say what error of law was involved. The adverse finding of the Tribunal about the credibility of the applicant was open to it, and was based in part on the applicant giving “a strong appearance of improvisation” in answering questions (CB 188).
Particular 12: The applicant did not add to this ground. The Tribunal was not sitisfied that the applicant would be targeted by the BNP if he returned to Bangladesh (CB 189).
The Court rejects all grounds in the application and amended application and it finds no errors of law have occurred and that there was no denial of natural justice.
Conclusion
The Tribunal’s decision is a privative clause decision, and 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 Court orders that the application and amended application are dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Dian Neligan
Date: 20 December 2006
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