SZHBF v Minister for Immigration
[2007] FMCA 1465
•23 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHBF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1465 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of a show cause application – no arguable case. |
| Migration Act 1958 (Cth), s.424A Federal Magistrates Court Rules 2001 (Cth) |
| SZBEL v Minister for Immigration [2006] HCA 63 SZBYR v Minister for Immigration (2007) 235 ALR 609 |
| Applicant: | SZHBF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2145 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 23 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr O Young Blake Dawson Waldron |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $2,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2145 of 2007
| SZHBF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 31 May 2007 and was handed down on 26 June 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Bangladesh and had made claims of political persecution. The procedural history is somewhat lengthy. The applicant arrived in Australia on 1 December 1999. He applied to the Minister's department for a protection visa on 30 December 1999. A delegate of the Minister refused that application on 3 March 2000. The applicant sought review of that decision before the Tribunal. The Tribunal affirmed the delegate's decision on 12 June 2002. The applicant sought judicial review of that decision in this Court.
I dismissed that application on an interlocutory basis on 16 January 2003[1].
[1] See file SZ 813 of 2002
The applicant was also unsuccessful in 2003 in an appeal to the Federal Court against my orders and a further application to the High Court for special leave to appeal was deemed abandoned. The applicant instituted a further proceeding in the High Court in 2004. That application was also dismissed. On 31 August 2005 the applicant instituted a further proceeding in respect of the first Tribunal decision in this Court[2]. On 22 March 2006 Lloyd‑Jones FM made orders remitting the matter by consent to the Tribunal on the basis, it appears, of an assumed breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). That may have been an unduly generous concession by the Minister given that a breach of s.424A was not obviously raised on the application and given the applicant's litigation history the issue could have been raised in one of the earlier proceedings. Further, the interpretation of s.424A has since been clarified by the High Court[3] and the “information” relevant to the concession, which appears to have been inconsistencies in the applicant’s evidence and protection visa claims, would not now warrant the concession. Nevertheless the Tribunal was called upon to conduct a second review.
[2] See file SYG2437 of 2005
[3] See SZBYR v Minister for Immigration (2007) 235 ALR 609
The applicant was invited by letter dated 2 April 2007 to attend a hearing before the Tribunal on 10 May 2007[4]. By letter dated 18 April 2007 the applicant informed the Tribunal that he would be unable to attend a hearing due to what he described as a poor health condition[5]. However, he invited the Tribunal to consider a written submission. That submission addressed concerns expressed by the first Tribunal in its decision.
[4] Court book, page 118
[5] Court book, page 121
The second Tribunal dealt with the procedural history and the applicant's claims and proceeded on the basis that the applicant did not wish to give oral evidence and had consented to the Tribunal making a decision on the review without taking any further action to allow or enable the applicant to appear before it[6].
[6] Court book, page 163
The Tribunal referred to the decision of the delegate and of the first Tribunal. The Tribunal noted that the applicant's central claim was that he was a leading activist in the Chetra League and in the BNP. The Tribunal rejected those claims. The Tribunal also rejected documents presented by the applicant in support of his claims. The Tribunal notes that on 17 May 2007 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act inviting comment in relation to the Tribunal's concerns about the documents he had submitted. The applicant responded on 31 May 2007. The Tribunal considered that response, but rejected it. The Tribunal concluded that the applicant's claims of political involvement were false. It followed that his assertions of harm by reason of that political involvement were untrue. The Tribunal found that the documents relied upon by the applicant were fabrications.
These proceedings began with a show cause application filed on 11 July 2007. In that application the applicant asserts notification of the Tribunal decision on 26 June 2007. I find that the application was filed within time. The application asserts a failure to accord natural justice and a failure to realise the genuine issue of the applicant's persecution. The particulars take issue with the merits of the Tribunal decision. As I explained to the applicant, the merits of the Tribunal decision are beyond the scope of this proceeding.
In my view the Tribunal was entitled to regard the applicant's response to the hearing invitation as declining that invitation. In addition to his letter the applicant completed a hearing invitation response form which expressly declined the invitation[7]. There was no indication that the applicant was seeking an adjourned hearing. In the circumstances the Tribunal was entitled to proceed in the applicant's absence.
[7] Court book, page 149
The Tribunal met or exceeded its statutory obligation to disclose in writing and invite comment on adverse information pursuant to s.424A. The Tribunal considered the applicant's claims. There was no misunderstanding of them. The adverse credibility findings made by the Tribunal were open to it on the material before it. In my view the only possible issue in this case arises out of the decision of the High Court in SZBEL v Minister for Immigration [2006] HCA 63. At page 169 of the court book, which I have before me in evidence, after identifying the central claim of the applicant that he was a leading activity in the Chetra League and in the BNP the Tribunal stated:
The Tribunal notes that in considering the applicant's application in March 2000, the delegate accepted ‘as plausible the applicant's claim to be a member of the BNP Party which may have caused him some problems, particularly after the 1996 election.’ The delegate however added that the applicant had not provided corroborative information to assist his claims. The Tribunal as presently constituted does not share the delegate's confidence in the plausibility of the applicant's claims.
The Tribunal went on to find that it did not accept that the applicant was a member of the BNP or the Chetra League. The Tribunal said[8]:
In the absence of any credible corroborative information that the applicant was associated with the BNP or the Chetra League, the Tribunal is not satisfied that he was a member of the party let alone a leading activist. The Tribunal accordingly rejects his claim.
[8] Court book, page 170
The question is whether it is arguable that the applicant was not put on notice that the fundamental credibility of his political claim was in issue. In my view, having regard to the first decision of the Tribunal, it is not arguable that the applicant was not sufficiently on notice of that fundamental issue of credibility. The first Tribunal decision is reproduced in the court book from page 76. At page 81 of the court book the presiding member in the first Tribunal states that he was not disposed to accept the applicant's claims of persecution as being credible. The Tribunal referred to inconsistencies in the applicant's evidence and stated that given the major inconsistency it was open to the Tribunal to assume that the applicant had invented his claims of having made his name politically during the 1996 election campaign and having made enemies during that time which resulted in harm afterwards. The presiding member further stated that he could not be satisfied that the applicant worked for the BNP in the manner claimed and that he faced consequent harm.
The first Tribunal dealt with the issue of the applicant's documents in similar terms to the second Tribunal[9]. On page 83 of the court book the first Tribunal again stated its lack of satisfaction that the applicant's claims of persecution were credible. The first Tribunal concluded with the view that the applicant had invented claims of political work and a political vendetta to support an application for a protection visa. I conclude from that that the applicant would have been on notice that the credibility of all of the applicant's claims was in issue before the second Tribunal.
[9] Court book, page 82
I find that the applicant has failed to disclose an arguable case of jurisdictional error in the decision of the second Tribunal. I therefore dismiss the application pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The application having been dismissed costs should follow the event. The Minister seeks an order for costs in the sum of $2,250. Scale costs in this instance would be $2,500. The applicant asked if costs might be waived. I informed him that I thought that a costs order was warranted but that he would have the opportunity to ask the Minister for costs to be waived or written off as irrecoverable. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to an application fixed in the sum of $2,250.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Deputy Associate:
Date: 24 August 2007
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