SZGMF v Minister for Immigration - [2007] FMCA 1172

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGMF v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1172

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Tribunal complied with s.424A of the Migration Act 1958 (Cth).

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(3); 474; pt.8 div.2

SZGMF v Minister for Immigration and Multicultural Affairs [2006] FMCA 283
Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138

Applicant:

SZGMF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG595 of 2007

Judgment of:

Emmett FM

Hearing date:

5 July 2007

Date of last submission:

5 July 2007

Delivered at:

Sydney

Delivered on:

20 July 2007

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Mr I. Muthalib, Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG595 of 2007

SZGMF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated

17 January 2007 and handed down on 8 February 2007 (“the Tribunal”).
The applicant was born on 2 December 1976 and claims to be from Bangladesh and of Muslim faith (“the Applicant”).
On 17 September 2001, the Applicant arrived in Australia, having legally departed on a passport issued in his own name and a visitor visa issued on 9 September 2001.
On 30 October 2001, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by the Bangladesh Nationalist Party (“the BNP”) and its supporters in Bangladesh due to his being a supporter and activist for the opposing political party Bangladesh Awami League. The Applicant claimed that an incident in which he was not involved but which resulted in some BNP supporters being injured by Bangladesh Awami League supporters subsequently resulted in a false case being brought against him while his political party was in power. The Applicant claimed his family members were searched and at such time asked him to leave the country. The Applicant claimed he then left Bangladesh to work in the United Arab Emirates (“the UAE”) but as his employment was terminated and there “was no system of seeking political asylum in UAE” the Applicant organised to travel to Australia.
On 17 June 2003, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 1 July 2002, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. The Applicant provided no further material in support of the review application.
On 28 March 2003, the Refugee Review Tribunal, differently constituted, affirmed the decision of the Delegate not to grant a protection visa.
The Applicant sought review of the Refugee Review Tribunal decision of 28 March 2003 in this Court and, on 22 June 2004, that decision was set aside by consent and the matter remitted to the Refugee Review Tribunal for determination according to law.
On 5 May 2005, the Refugee Review Tribunal, again differently constituted, again affirmed the Delegate’s decision not to grant a protection visa. The Applicant sought review of that Refugee Review Tribunal decision. On 1 March 2006, Federal Magistrate Driver set aside that decision and remitted the matter to the Refugee Review Tribunal again for determination according to law (SZGMF v Minister for Immigration and Multicultural Affairs [2006] FMCA 283).
The First Respondent (then the Minister for Immigration and Multicultural Affairs (“the Minister”)) appealed to the Federal Court of Australia. On 7 September 2007, Branson, Finn and Brennan JJ dismissed the appeal and the matter was returned to the Refugee Review Tribunal for determination according to law (Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138).
On 17 January 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 21 February 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 17 January 2007.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

On 31 October 2006, the Tribunal invited the Applicant to come to a hearing on 12 December 2006.
On 5 December 2006, the Tribunal received a letter from the Applicant, dated 1 December 2006 in which the Applicant expanded on the claims in his protection visa application.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources as well as the application for review.
The Applicant gave oral evidence before the Tribunal in which the Applicant discussed with the Tribunal the various claims that had been made both to the Department in support of his protection visa application and the previously constituted Refugee Review Tribunals. The Tribunal noted that it questioned the Applicant on the following:
a)The claims in his protection visa application;
b)His current fears of persecution on return to Bangladesh in the current political and social climate and what he believed would happen should he return;
c)The Applicant’s claim that his brother “was being tortured by the BNP”;
d)His family, travel and employment history and his movements internally within Bangladesh before leaving;
e)The history of his involvement with the Bangladesh Awami League and his political role within the organisation;
f)The Applicant’s claims that he had been falsely charged. The Applicant claimed “it was alleged that he had been involved with a group of Awami League people who attached a BNP office after a political rally” and that he had been falsely charged with “looting the office and beating the BNP staff, ‘those kind of charges’”;
g)The current status of the Applicant’s claimed false charges and whether or not he had been sentenced; and
h)The credibility of documents provided to the Department by the Applicant.
The Tribunal found the Applicant not to be a credible witness.
On 12 December 2006, the Tribunal wrote to the Applicant, pursuant to s.424A of the Act, identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it.
The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:
“7.The Tribunal found that the applicant was not a credible witness: his evidence was vague, lacked supporting detail, was highly generalized and his account of the work he claimed to have undertaken for his party was confused and sketchy. For these reasons, it found that the applicant had never been the Welfare Secretary of the Awami League as claimed and had never been the subject of false charges. It considered the letters of support provided by the applicant and placed no weight on them because of information from DFAT to the effect that, whilst they were genuine, many Awami League members were prepared to offer such documents to support former supporters of the party and also because several of the letters mentioned false cases which the Tribunal had found did not exist.
8.While the Tribunal accepted that the applicant may have supported the party and voted for it, it did not accept that any harm would come to him for reason of his political opinion and so affirmed the decision under review.”

The proceeding before this Court

The Applicant was unrepresented before this Court although had the assistance of a Bengali interpreter.
The Applicant confirmed that he relied upon the ground identified in the application filed by him on 21 February 2007, that being a breach of s.424A of the Act. The Applicant’s ground and the particulars in support are long and rambling and difficult to distil to reviewable grounds. I understand the following extraction from the application to be at the heart of the Applicant’s complaints:
“(a) There was certain adverse information used by the Tribunal to affirm the decision under review.
(b) The Tribunal did not disclose the information in accordance with S 424A(1).
(c) The adverse information was:
I. Many members of the Awami League are prepared to offer such documents on request in a humanitarian way to help former supporters. They are worded in a way to offer support to obtain economic refugee status, rather than to verify any particular status within the Awami League.
II. The purported police documents do not match with the original case documents held at the Moulvibazar Additional District Magistrates Court and are not authentic.”
The s.424A letter dated 12 December 2006 relevantly stated the following:
“The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.
The information is as follows:
In your submission of 29 August 2004 you sent to the Tribunal six letters which are said to have been written by political leaders in Bangladesh in support of your claims. You also submitted a number of police and court documents which you claim relate to false charges brought against you in Bangladesh.
The Tribunal sent these documents to the Department of Foreign Affairs and Trade (DFAT) for verification and on 5 November 2004 DFAT responded in the following substantive terms:
This Report contains a partial response to RRT Information Request BGD17048 which is the same as BDD16985. A site visit out of Dhaka may be required to complete advice on this case. However this visit may not be possible until mid to late-November, after Eid-Ul-Fitr.
2. A reliable senior Awami League member has advised us that the Awami League documents attached to these referrals are genuine. However, our contact further advised that the content of these documents are worded in such a way as to offer this applicant support to obtain economic refugee status abroad, rather than to verify any particular status within the Awami League. He said many members within the Awami League, are prepared to offer such documents on request from such applicants, in a humanitarian attempt to help their former supporters. Our contact advised that while he does not have the competency to authenticate the court documents he believes, because of the dates involved, that this applicant was not charged for political activities. He believes the applicant may, at the time have left the Awami Lleague (sic) because of personal disagreements with certain Awami League members.
3. We may need to make a site visit to authenticate the court documentation provided because of Rahmadan and the upcoming Eid festival in Bangladesh it may not be possible to verify these documents until after mid-November, ie after the Eid Ul-Fitr festival.
On 20 January 2005 (incorrectly stated as 20 January 2004 on the document on the Applicant’s Tribunal file) DFAT provided further information to the Tribunal, as follows:
Further to para 3 of RRT report 340 dated 5 November 2004 and Australian High Commission staff member visited the Additional District Magistrate’s court – Moulvibazar on 18 January 2005. Together with the Additional District Magistrate we found that the documents provided to the Australian Government and referred to us regarding this case do not match with original case documents held at the Moulvibazar Additional District magistrates’ Court. We conclude that the documents provided to the Australian Government are not authentic.
This information is significant for the review of your case because, if true, it may indicate that the six letters you submitted cannot be relied on as evidence that you were a political activist in Bangladesh as a member of the Awami League, and that you are at risk of harm for this reason, as you claim. It is also significant because it may indicate that the police and court documents you submitted are not genuine. If the Tribunal were to find that these police and court documents are not genuine this could raise doubts about the overall credibility of your evidence and could be a reason for a finding that you are not a refugee.
You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received by 27 December 2006.
IF YOU DO NOT GIVE COMMENTS BY 27 DECEMBER 2006 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.
If you have any questions you can call me on the number below. You can also call our information line on 1300 361 969 (local call charges apply from anywhere within Australia, except when calling from mobile telephones). For assistance in your language, please contact the Translating and Interpreting Service (TIS) on 131 450. You can also obtain general information from our website at >
On 19 December 2006, the Applicant responded to the Tribunal’s s.424A letter as follows:
“I have received your letter dated 12 December 2006 where you have advised me to provide further comments in relation to the documents provided for my protection visa application. The matter you have raised is nothing new as I have previously provided my responses on this matter. And the court has remitted back my file to you again and again as the procedure of investigation undertaken by the Department of Foreign Affairs and Trade (DFAT) was not appropriate. However, I like to mention here that they have investigated this matter without my representation. It is my understanding that their investigation was biased and it needs to be investigated again through an independent authority.
In the above circumstances, I would be grateful if the matter is again investigated through an independent authority before making a decision by the tribunal.”
In the Findings and Reasons section of its decision, the Tribunal noted that it asked the Applicant about the history of his political involvement with the Awami League at the hearing on 12 December 2006. The Tribunal found that, having regard to the Applicant’s claimed political involvement between 1992 and 1998, it was reasonable to expect the Applicant to be able to provide a “more or less detailed and circumstantial account of his political activities.” The Tribunal concluded that his oral evidence was “far from this”. The Tribunal noted that his description of his activities was marked by “a very noticeable vagueness and lacked supporting detail.” The Tribunal found various aspects of the Applicant’s evidence “highly generalised” and “confused and sketchy”.
The Tribunal rejected the Applicant’s claim of having been the Welfare Secretary of the “Awami League Jubo League” in 1995. In making its adverse findings and concluding that the Applicant had never been the Welfare Secretary of the Awami League or the Awami League Jubo League in his area, as he claimed, the Tribunal noted that it had considered supporting letters by the Applicant in respect of his claims.
The Tribunal noted that, in accordance with DFAT information, it was prepared to accept that the letters were genuine in that they were written by the persons whose signatures appeared upon them. However, the tribunal had regard to further DFAT information that disclosed that “many Awami League members are prepared to offer such documents on request from applicants in a humanitarian attempt to help their former supporters.” The Tribunal noted that it put this information to the Applicant in its s.424A letter dated 12 December 2006. The Tribunal found that the Applicant did not offer any “substantive comment” on the information in his response to the Tribunal’s s.424A letter.
The Tribunal concluded that it was not satisfied that any weight could be placed on the truth of the matters alleged in those letters as supportive of the Applicant’s political involvement, having regard to the DFAT information and the Tribunal’s adverse credibility findings in respect of the Applicant. The Tribunal found that it was strengthened in that conclusion by the fact that three of the letters mentioned “false cases” that had been brought against the Applicant, which the Tribunal was satisfied had not in fact occurred.
That finding by the Tribunal was made after the Tribunal had informed the Applicant in its s.424A letter, dated 12 December 2006, of the general information it had from DFAT that Awami League members were prepared to write letters of support on request from Applicants “in a humanitarian attempt to help their former supporters.”
The Tribunal further advised the Applicant in its s.424A letter that information disclosed that the content of the letters provided by the Applicant were worded in such a way as to offer the Applicant “support to obtain economic refugee status abroad, rather than to verify any particular status within the Awami League.”
The s.424A letter then advised the Applicant that the information was significant to the review of his case because if true, it may indicate that the letters of support provided by the Applicant could not be relied upon as evidence in support of the Applicant’s claim to have been a political activist in Bangladesh as a member of Awami League or that the Applicant was at risk of harm for that reason.
In relation to the Applicant’s allegation in his application that the Tribunal did not give to the Applicant information it had that “the purported police documents do not match with the original case documents held at the Moulvibazar Additional District Magistrate’s Court and are not authentic”, the Tribunal gave to the Applicant that information in terms of the information provided to it by DFAT in its letter dated 12 December 2006 as follows:
“Further to para 3 of RRT report 340 dated 5 November 2004 and Australian High Commission staff member visited the Additional District Magistrate’s court – Moulvibazar on 18 January 2005. Together with the Additional District Magistrate we found that the documents provided to the Australian Government and referred to us regarding this case do not match with original case documents held at the Moulvibazar Additional District magistrates’ Court. We conclude that the documents provided to the Australian Government are not authentic.”

The Tribunal informed the Applicant in the s.424A letter that this information was significant because it may indicate that the police documents and court documents submitted by the Applicant were not genuine and that, if the Tribunal were to find that the documents were not genuine, such a finding could raise doubts about the overall credibility of the Applicant’s evidence and may be a reason for finding that the Applicant is not a refugee.
In its decision, the Tribunal noted that it had put the DFAT information about the authenticity of the court documents and police documents to the Applicant at the hearing and noted the Applicant’s response that “the magistrate who assisted an officer of the Australian High Commission in Dakah to check the authenticity of the documents was afraid to tell the truth because the case was a political one. He claimed the magistrate would have been dismissed or killed had he confirmed that the documents were genuine.” The Tribunal noted that it had considered this explanation but rejected it. The Tribunal found that it was not plausible that a simple request to match documents in a court would have the consequences asserted by the Applicant. The Tribunal was also not satisfied that such documents would not be a matter of public record. Further, the Tribunal noted that in evidence given before the Refugee Review Tribunal, differently constituted, on 5 March 2003 the Applicant had claimed that his case had already been heard and he had been convicted and sentenced.
The Tribunal noted the Applicant’s response to the Tribunal’s s.424A letter inviting his comment on this information. The Tribunal noted that the Applicant provided a “new explanation by accusing DFAT of having carried out a biased and inappropriate investigation.” The Tribunal found that the Applicant’s comment was no more than an unsupported assertion and did not provide any grounds for impugning the information provided by DFAT.
In the circumstances, the Tribunal rejected the Applicant’s claim to have ever been subjected to false charges.
It is clear from the terms of the s.424A letter that the Tribunal gave to the Applicant the information which it had received from DFAT about the authenticity of the court documents and police documents and invited the Applicant to comment upon it. It is also clear form the terms of the s.424A letter that the Tribunal told the Applicant why that information may be the reason that it would affirm the decision under review.
The Tribunal complied with its obligations under s.424A(1) of the Act
In light of the findings made by the Tribunal arising from the Applicant’s evidence and the DFAT information, including both the general DFAT information and the DFAT information about the Applicant in particular, those findings were open to the Tribunal on the evidence and material before it and for which it provided reasons.
In making its findings and reaching its conclusions, the Tribunal complied with the statutory regime in the making of its decision including the conduct of its review.
Accordingly, ground 1 of the application is dismissed.

Conclusion

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 21 February 2007, is dismissed with costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 20 July 2007