SZGMY v Minister for Immigration
[2008] FMCA 21
•15 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGMY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 21 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZGMY”
| Migration Act 1958 (Cth), ss.91X, 424A, Division 4 of Part 7 |
| Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 340 Minister for Immigration & Indigenous Affairs v NAMW [2004] FCAFC 264 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 Re Minister for Immigration & Multicultural Affairs; Ex ParteS20/2002 (2003) 198 ALR 599 SZBNQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1003 VHAP v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559 VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 |
| Applicant: | SZGMY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3400 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 14 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 January 2008 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Bengali interpreter |
| Counsel for the Respondents: | Mr M P Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 17 November 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3400 of 2006
| SZGMY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant claims to be a married man who was born in Dhaka, Bangladesh in 1975. He claims to speak, read and write Bengali, speak English and that his religion is Islam. His wife and one son remain in Bangladesh. He claims to have been an Awami League activist and to have worked for the Awami League Member of Parliament - the late Ahsanullah Master. The applicant was present at a meeting in May 2004 where Ahsanullah Master was shot and killed. He claims he participated in protests after the murder and that the police subsequently raided his home in search of him. The police showed his wife an arrest warrant in connection with the murder. Since then, the applicant has gone into hiding. The applicant seeks protection in Australia based on his fear of arrest and detention if he returns to Bangladesh. He also fears that a delay in the Bangladesh Court system would mean that he may be detained in jail for a long time before his matter goes to trial. He states that he could be killed by the political wing of the Bangladesh government before his case goes to trial if it was publicized that he had been arrested.
The applicant arrived in Australia on 3 August 2004 and applied to the Department for a Protection (Class XA) visa on 16 August 2004.
A delegate of the Minister refused to grant the visa on 30 November 2004 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 21 April 2005 but that decision was quashed by the Federal Magistrates Court and returned to the Tribunal to be determined according to law. A second Tribunal rejected the applicant’s claims on the basis that when considering the claims cumulatively, it was not satisfied that the applicant had a real chance of persecution for a Convention reason in Bangladesh. The current application to this Court seeks a review of the decision of the second Tribunal made on 10 October 2006 (reference number 060588026).
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence.
At first Court date directions, the applicant said that he wished to participate in the Court’s independent legal advice scheme. He was allocated a panel adviser and given leave to file an amended application containing complete particulars of each ground of review. He complied with this order and filed an amended application on
12 March 2007with three particularised grounds of review.
The amended application is a composite document with grounds of review and submissions. It appears to propound five grounds of review asserting the Tribunal committed jurisdictional error. Those grounds are:
Ground oneThe Tribunal denied the applicant natural justice or procedural fairness.
Ground two
The Tribunal failed to identify the informational messages of Protection visa application.
Ground three
The Tribunal did not give any importance to the Court documents and police information, and gave more importance to the newspaper reports in regard to the assassination of Ahsanullah Master.
Ground four
The Tribunal identified a wrong issue and ignored relevant materials or relied upon irrelevant materials and committed the error identified by the full Court of the Federal Court in Lu v MIMIA (2005) FCAFC 340.
Ground five
The Tribunal did not provide the applicant with the independent country information as such did not fall within s. 424A(3)(a) of the Migration Act.
Consideration
Despite the applicant being ordered to file written submissions, he confirmed that he had not done so. However, he said that he wished to make a number of oral submissions.
The applicant claims that the Tribunal should have investigated the law and order situation in Bangladesh, particularly the practice of political parties filing false cases against opponents. The applicant claims that the Tribunal did not go through the merits of charges against him or analyse their impact. The applicant claims that with the recent changes to the members of parliament, a large number of old cases would be re-opened and that he would be arrested, held in custody and face trial on the false murder charge if he returned to Bangladesh. He states that he will be subject to brutal torture while in custody awaiting trial. The applicant claims that the Tribunal could have considered the operation of the judicial system and the prevalence of false cases in Bangladesh through the Australian High Commission. He states that false members of the Awami League would place his life at risk.
Ground one
The Tribunal denied the applicant natural justice or procedural fairness.
The applicant provided five particulars to ground one but made no written or oral submissions addressing the ground generally or any of its particulars. Mr Cleary, for the first respondent, filed written submissions and made oral submissions at the hearing.
Particular one
That the Tribunal found the letters, referred to at page 54-56 and 57-81 of the Court Book, were fraudulently produced, collected or written for helping the applicant’s Protection visa in Australia
Mr Cleary indicates that the applicant seems to be asserting that he was denied procedural fairness in relation to the findings that the letters and newspaper articles provided with his review application were “fraudulently produced” (CB 54-81). The Tribunal made the following comments in respect of those letters:
Regarding the letters from Awami League persons, the previous Tribunal informed the applicant the Australian High Commission in Dhaka had been informed “at a senior level” by the Awami League that it was its custom to provide supporting letters for members overseas to help them gain refugee status. The previous Tribunal understood this to mean that such letters may have been provided falsely; ie merely for the purpose of enhancing refugee protection claims. The previous Tribunal was not therefore prepared to give these letters much if any weight. The previous Tribunal continued that “even if they were genuine, [it] would have to assess their content against other information.” In the case of these letters, for example, one claimed that he was “the most wanted person by Bangladesh police” (RRT file N04/50412 folio 49) which the previous Tribunal found was a “gross exaggeration”. The letters referred to multiple charges being laid against the applicant (including at RRT file N04/50412 folios 49, 50, 53), whereas he had claimed “only one such charge”. The two letters claimed the applicant had been attacked several times, which he had not claimed. The writers of the letters claimed if he returned, he would be subject to “life imprisonment and torture”. (CB 144-145)
In light of the Tribunal’s observations and the independent country information concerning document fraud in Bangladesh, it was not prepared to give the documents provided by the applicant “much if any weight” (CB 144.10). Mr Cleary submits that this was a factual finding open to the Tribunal on the material before it. It is submitted that the Tribunal did not or when approached the question of the applicant’s documents as it is well established that the Tribunal may reject corroborative evidence where the Tribunal is confident that a witness has not been truthful: Re Minister for Immigration & Multicultural Affairs; Ex ParteS20/2002 (2003) 198 ALR 599 at [12] per Gleeson CJ. The Tribunal rejected the applicant’s claims on the ground of credibility and no procedural fairness issue arises in relation to that finding.
Particular two
The Tribunal relied on independent country report or evidence as to the availability of false and fraudulent documents in Bangladesh.
Mr Cleary further submits that the independent country information referred to by the Tribunal falls within s.424A(3)(a) of the Migration Act 1958 (Cth) (“the Act”) and that there is no obligation to provide that material to the applicant for comment under s.424A(1): Minister for Immigration & Indigenous Affairs v NAMW [2004] FCAFC 264; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.
Particular three
That there were incompatibly between newspaper reports and police and court documents in respect of Ahsanullah Master killing.
As set out above at [10], the Tribunal is under no obligation to provide these documents to the applicant for comment. The documents were submitted by the applicant and attached to his application to the Tribunal. They were provided by the applicant as corroborative evidence for his claims and the Tribunal made no error in rejecting the documents due to obvious inconsistencies and errors in their context.
Particular four
The Tribunal afford me an opportunity to deal or making comment about the adverse information, contained in the independent country information relied upon by the Tribunal, that was credible, relevant and significant to the Tribunal’s decision.
This particular effectively repeats particular two and should be rejected on the same basis.
Particular five
That the applicant is not being facing fear of persecution in his own country otherwise he would not able to leave Dhaka International Airport using his own passport etc.
Particular five does not contain an allegation that the applicant was denied procedural fairness and is nothing more than an assertion in support of the applicant’s claim. The amended application then contains a further two paragraphs with general assertions which repeat the particulars.
Ground one and its supporting particulars do not identify any jurisdictional error and should be dismissed.
Ground two
The Tribunal failed to identify the informational messages of the Protection visa application.
Mr Cleary submits that this ground is not supported by any particulars and the complaint in isolation is meaningless. The Tribunal carried out its review process under Division 4 of Part 7 of the Act and considered all the claims and evidence put to it by the applicant. A review of the Court Book, and in particular the Tribunal decision, does not make apparent that the Tribunal breached Division 4 of Part 7 of the Act.
I agree with Mr Cleary that this ground of review is meaningless and should be dismissed.
Ground three
The Tribunal did not give any importance to the Court documents and police information and gave more importance to the newspaper reports in regards to the assassination of Ahsanullah Master.
Mr Cleary contends in his written submissions that the weight and importance the Tribunal gives to evidence and independent country information is a matter for it. These are factual issues and cannot be covered within a judicial review application.
Mr Cleary contends that if this ground of review complains of the correctness of the context of the independent country information referred to and relied upon by the Tribunal, then there is clear authority that the Tribunal is not bound by the rules of evidence in conducting its review and may obtain information it considers relevant, see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ:
11.… It is not,… an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
See also QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [26] and SZBNQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1003 at [16].
Whether the applicant is complaining in respect of the use of country information or alternatively to the correctness of its contents, neither of these claims be sustained and the ground is rejected.
Ground four
The Tribunal identified the wrong issue and ignored relevant materials or relied upon irrelevant materials and committed errors identifying by the full Court of the Federal Court in Lu v MIMIA (2005) FCAFC 340.
This ground is nothing more than a broad assertion that the Tribunal ignored relevant material and relied upon irrelevant material in coming to its decision. As the only two categories of material referred to in the decision are claims and material supplied by the applicant and independent country information, it has to be assumed that the complaint is in respect of these two categories. The ground is difficult to understand and is not particularised, and the only inference that can be drawn is that the applicant complains about the use of the independent country information. This has been considered above and the ground appears to be an attempt to further press the issue of independent country information referred to in the earlier grounds. This cannot be sustained and the ground should be rejected.
Ground five
The Tribunal did not provide the applicant with independent country information, as such information did not fall with s. 424A(3)(a) of the Migration Act.
Particulars – the applicant supports this ground with the following particulars:
Particular one
Papular Awami League Lawmaker Ahsanuallah Master Assassination in Broad daylight;
Particular two
Genesis of the incident;
Particular three
Protest –Agitation and widespread condemnation;
Particular four
Concocted story of Home Ministry – a ploy to protect the killers and mislead people;
Particular five
Three days programme to mourn the death of Ahsanullah Master; and
Particular six
The Tribunal made its decision on the basis of US country reporting depending on the availability of fraudulent documents in Bangladesh.
Although not stated, it appears that the applicant asserts that the matters identified at [1] to [6] above should not have been relied upon by the Tribunal. This appears to be an attempt to review the merits of the Tribunal decision.
Mr Cleary also contends that the assertion that the independent country information relied on by the Tribunal did not fall within s.424A(3)(a) of the Act should be rejected. The information relied upon and reproduced in the Tribunal decision under the heading “Country Information” (CB 141-144) clearly falls within s.424A(3)(a) and there is no obligation to disclose any independent country information: VHAP v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559; NAMW; WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330; QAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 92; VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178. I agree with Mr Cleary that the material identified as independent country information falls within s.424A(3)(a) of the Act and that this view is clearly supported in the authorities referred to above. This ground should be rejected.
Conclusion
The applicant appeared at the hearing with the assistance of a Bengali interpreter. The applicant filed an amended application which appears to have been prepared with the assistance of a third party with very little knowledge of migration law. The applicant relied primarily on that amended application. He also made oral submissions which, in effect, re-stated selected parts of his overall claim and advocated their merits. Mr Cleary assisted the Court with written and oral submissions in response to the amended application and I accept Mr Cleary’s submission that none of the five grounds pleaded in the amended application can be sustained. I have reviewed the Tribunal decision and the Court Book and have not been able to identify any jurisdictional error on the face of those documents. Consequently, the application must be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 15 January 2008
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