SZIFV v Minister for Immigration
[2007] FMCA 367
•22 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIFV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 367 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 476 |
| Kopalapilliai v Minister for Immigration (1998) 86 FCR 547 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 SZECD v Minister for Immigration [2005] FMCA 554 |
| Applicant: | SZIFV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 312 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 2 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 March 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Bengali interpreter |
| Advocate for the Respondents: | Mr B Cramer |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 1 February 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 312 of 2006
| SZIFV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 1 February 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 12 December 2005 and handed down on 5 January 2006, affirming a decision of the delegate of the first respondent made on 26 September 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZIFV”.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrate Court Rules 2001 (Cth) (“the Rules”), I dispense with a hearing under r.44.12 of the Rules and set the matter down for a final hearing.
A Court Book ("CB") prepared by the respondents’ solicitors was filed and served on 28 March 2006. I have marked it Exhibit “A” and it was read into evidence.
The applicant in these proceedings filed the following affidavits:
(a)affidavit of [SZIFV] affirmed 31 January 2006 (first affidavit of the applicant);
(b) affidavit of [SZIFV] affirmed 1 February 2006.(second affidavit of the applicant) Attached to this affidavit is a copy of the Tribunal decision.
(c)affidavit of [SZIFV] affirmed 5 July 2006.(third affidavit of the applicant) Attached to this affidavit are a number of documents with English translations filed as evidence in support of the applicant's claim.
Background
The Tribunal decision of Andrew Jacovides, reference N05/52504, provides the following background information. The applicant, a citizen of Bangladesh, arrived in Australia on 3 August 2005. On 13 September 2005, he lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 26 September 2005, a delegate of the Minister refused to grant a protection visa. On 18 October 2005, the applicant applied to the Tribunal for a review of the delegate's decision.(CB 78)
The applicant claims he was born in Sylhet, Bangladesh. He claims he is fluent in Bengali and English and speaks Arabic. He had completed 10 years of education in 1997 and then worked as a salesperson until 2003. He lived and worked in Abu Dhabi, United Arab Emirates, UAE, from December 2003 until he came to Australia.
He entered Australia on a Temporary Business visa issued in Dubai on 7 July 2005, which was valid for a three month stay from the date of arrival.(CB 80)
The applicant stated he suffered persecution in Bangladesh as a result of his political activities and he feared similar difficulties in the future for that reason.
In 1997 the applicant became a member of the Chatra League, the student wing of the Awami League (AL), while he was in secondary school. After he left school, he worked for his father in Beani Bazaar, Sylhet, and continued his involvement in politics. He claims he became a member of the Awami Jubo League (AJL), the youth branch of the AL, in 2000. The applicant claims he became joint convenor of the Beani Bazaar AJL in 2002 and was widely known to the leaders and workers of the AL.(CB 81)
The applicant claims that on 20 February 2001 during an election campaign, he and other members of the AJL were attacked by armed members of the Bangladesh National Party (BNP). He said he was seriously injured and required two weeks in hospital to recover. The applicant further said that he resumed political duties after he was released, but his party was defeated by the BNP in a general election.(CB 81)
The applicant claims he was again attacked and beaten by “BNP thugs” after the election. He later learned that a false case had been filed against him. He was accused of involvement in the murder of a local BNP activist. The applicant stated he did not know this person. A warrant for his arrest was issued by a local Court.(CB 81)
The applicant claims he fled to Dhaka and then to Abu Dhabi. He departed the UAE in December 2003 coming directly to Australia without returning to Bangladesh. The applicant claims that his family and the Beani Bazaar AJL convenor told him after he arrived in Australia that he was still wanted by the authorities regarding the murder charge. He claims “BNP thugs” would seek to harm him in the future.(CB 81)
Tribunal’s Findings and Reasons
A summary of the Tribunal's findings is contained in the respondent's written submissions, prepared by Mr McInerney, and I adopt paragraphs 8 to 16 of those submissions:
8.The Tribunal rejected the applicant's claims on a credibility basis. The Tribunal was not satisfied that the applicant presented a truthful account of his circumstances in Bangladesh and found that his core claims lacked credibility [CB 85.9].
9. The Tribunal found that, notwithstanding that the applicant claimed to have been an active and committed member of the AJL in Bangladesh, he had no documents to support the claim, no knowledge of the group's leadership, or any contact for the group in either Dhaka or Sydney [CB 86.7]. It followed, therefore, that the Tribunal could not be satisfied that the applicant was a member of the AJL or any political group in Bangladesh [CB 86.9].
10. As to the applicant's claim that a politically motivated false case was pending against him in Bangladesh, the Tribunal did not accept as credible the applicant's claim that a false case was lodged against him by BNP political opponents in 2001, that a warrant for his arrest was issued in 2001, or that a murder case was currently pending against him in Bangladesh [CB 87.5].
11.The Tribunal considered it significant that the applicant had no meaningful knowledge regarding the arrest warrant, or the alleged Court case against him, and had made no attempt to obtain documents regarding those matters in the four years since the case was allegedly lodged against him [CB 87.2].
12.The Tribunal found that, if indeed the applicant was accused of murder, and a case had been mounted against him in Bangladesh, he would have had access to documents relating to those matters [CB 87.4].
13.Finally, the Tribunal rejected the applicant's claim that he will be targeted by the BNP government and BNP “thugs" in Bangladesh because of his involvement with the AJL, for the reason that the Tribunal had already rejected the applicant's claim that he had been involved with the AJL [CB 87.8].
14.It followed, therefore, that the Tribunal found that the applicant did not have a well-founded fear of persecution in Bangladesh for reasons of a political opinion or any other Convention reason [CB 87.8].
15. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.
16. The Tribunal's decision turned on the Tribunal's adverse assessment of the applicant's credibility.
Application for Review of the Tribunal’s Decision
On 1 February 2006, the applicant filed an application for review under s.39B of the Judiciary Act. In accordance with orders made at first directions, the applicant filed an amended application on 16 May 2006 setting out the following grounds:
1. The Refugee Review Tribunal constructively failed to exercise its jurisdiction under the Act:
Particulars:
A. There was no evidence to support the Refugee Review Tribunal's finding that:
(i) the applicant fabricated a claim to enhance his protection visa application.
2. The Refugee Review Tribunal acted in excess of its jurisdiction:
Particulars:
A. There was no evidence to support the Refugee Review Tribunal's finding that:
(i) the applicant could easily obtain documents regarding the arrest warrant or the case if sought to do so; and
(ii) higher levels of judiciary displayed some degree of independence and often ruled against the government.
3. The applicant was denied procedural fairness or natural justice by the Refugee Review Tribunal:
Particulars:
A. There was no evidence to support the Refugee Review Tribunal's finding that:
(i) The Tribunal is not satisfied that this associated claim is credible without any search warrant; and
(ii) The Tribunal did not extend any time to provide documents in relation to the applicant's claim after made keen request (copied without amendment or correction.)
On 1 September 2006, the respondents’ solicitors filed a response stating that the application ought to be dismissed because:
(a) The Tribunal is not affected by jurisdictional error;
(b) grounds 1, 2 and 3 are an attempt to seek impermissible merits review;
(c)the second respondent complied with section 424A of the Act.
Submissions and Reasons
The applicant is a self-represented litigant and appeared with the assistance with a Bengali interpreter. The applicant told the Court that his third affidavit was in support of his claim that a false murder charge had been filed against him. He stated that he was not aware, until he attended the Tribunal hearing of 6 December 2005, that he would be required to provide documentary evidence to support this claim. Once he became aware of this requirement, he requested his father to obtain the relevant documents.
The Tribunal decision records the following details in respect of these documents:
The Tribunal discussed with the applicant the warrant for his arrest. He stated it was issued in 2001 after the election. He did not know when it was issued. The applicant did not know with what offence he was charged or who was murdered. He stated he was told that a BNP "martyr" was murdered and he was accused of committing the crime. However, he had no other details of granting the case against him or the person who was murdered. The applicant stated he had not seen the warrant and he had no documents or details regarding the case against him. He stated his father was trying to get a copy of the warrant from the Court but at 65 he was too old to travel from his village to Beani Bazaar to Central Sylhet. The Tribunal commented that Beani Bazaar was a suburb of Sylhet and the Court was not far from his home. The Tribunal also commented that he had other members of his family living in Bangladesh who could obtain documents for him. The applicant replied that his father was trying to 'remove' the case from the Courts. The Tribunal asked him if he had a lawyer defending him against the charge. He stated that he did not have a lawyer and he did not know exactly what his father was doing to have the case withdrawn. The Tribunal asked the applicant why he did not get copies of documents relating to the warrant and the case against him when he knew that he would be seeking asylum for these reasons after he left Bangladesh. He stated he did not think he needed them. He asked the Tribunal for more time to get the documents. He stated it will take a long time because his father was old and he will be slow in making the necessary arrangements. The Tribunal commented that the applicant already had sufficient time, almost four years, to obtain documents relating to this claim. The Tribunal rejected the applicant's request for more time.(CB 82)
The applicant filed his third affidavit in response to the order made at first directions:
The applicant must file and serve any additional affidavits by 17 May 2006.
In that affidavit, the applicant repeated the statements he made to the Tribunal – that the delay in obtaining the documents was due to the fact that his father was elderly. The applicant also said that because of his impecunious situation, he was unable to retain a migration agent or lawyer to assist in the preparation of his case. He was also unable to forward money to his father in Bangladesh to obtain the relevant documents.
Mr Cramer, for the respondents, said in respect of ground one that he relied upon the written submissions filed. He submits that there was ample evidence to support the Tribunal's finding that the applicant had fabricated his claim as he had "no documents to support the claim, no knowledge of the group’s leadership, or any contact with the group in either Dhaka or Sydney.”(CB 86)
The Tribunal also made the following observation:
The Tribunal has formed the view that if indeed the applicant was a member of the AJL he would have had some documents relating to his membership, some knowledge of the Central Committee, and he would have had some contact with the group regarding the case against him. On the available evidence the Tribunal cannot be satisfied that the applicant was a member of the AJL or any political group in Bangladesh.(CB 86)
The Tribunal only had before it the facts as alleged by the applicant and contained in the papers, including a letter from his migration adviser, and claims made during the Tribunal hearing. These were the only material upon which it could proceed. The relevant facts pertaining to the application need to be supplied by the applicant himself in as much detail as necessary to enable him to establish the facts. It is for the applicant to make out his case: Minister for Immigration v Guo & Anor; Minister for Immigration v Pan & Anor (1997) 191 CLR 559 at 596 per Kirby J. I am satisfied that this ground cannot be sustained.
In respect of ground two, the Tribunal commented that the applicant had sufficient time, almost four years, to obtain documents relating to his claim.(CB82.9) Having regard to the evidence, the applicant's argument to the Tribunal was premised on the assumption that there was no difficulty in obtaining the relevant documents. It follows, therefore, that there was clear evidence to support the Tribunal's finding that the applicant could easily obtain documents regarding his arrest warrant or his case if he had sought to do so.
Further, as to the applicant's contention that there was no evidence to support the Tribunal finding that the judiciary was independent and often ruled against the government, the Tribunal made no finding to that effect. Mr Cramer submits that the country information would support such a finding if it had been made.(CB 84.5)
In respect of the third ground, Mr Cramer submits that there was no denial of procedural fairness by the Tribunal. It was open to it to find that the applicant's claim was not credible on the material before it. In respect of the claim that the Tribunal erred in law by failing to extend any time to the applicant to provide documents to the Tribunal, it was submitted that the Tribunal made no error in this regard. The applicant had sufficient time, almost four years, to obtain documents relating to his claim.(CB 82.9)
The first respondent submits that the application filed in this Court amounts to nothing more than a plea for merits review, which is not available in this Court: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [31] per Brennan CJ, Toohey, McHugh, Gummow JJ:
…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
As I indicated in SZECD v Minister for Immigration [2005] FMCA 554, merits review is an assessment of the appropriateness of the decision as distinct from judicial review which focuses on the lawfulness of an earlier decision. Judicial review asks whether the earlier decision-maker was authorised to do what he/she did under the prevailing law, not whether the actual decision was the best decision which could have been made in the circumstances. Merits review provides a complete rehearsal of all of the issues relevant to the application.
As indicated above, the Tribunal decision turned on its adverse assessment of the applicant's credibility. An adverse finding of credibility is a finding of fact par excellence: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. I am satisfied that the Tribunal’s reasons, under the heading ‘Findings and Reasons’, were open to it on rational grounds based on the material available to it. There does not appear to be any error in the treatment of the applicant’s credibility: Kopalapilliai v Minister for Immigration (1998) 86 FCR 547.
The Tribunal made the following finding in respect of the applicant’s credibility:
The Tribunal is not satisfied as to the applicant’s general credibility. He claims he has been an active and committed member of the AJL in Bangladesh but he has no documents to support the claim, no knowledge of the groups leadership, or any contact with the group in either Dhaka or Sydney. The Tribunal has formed the view that if indeed the applicant was a member of the AJL he would have some documents relating to his membership, some knowledge of the Central Committee, and he would have had some contact with the group regarding the case against him. On the available evidence the Tribunal cannot be satisfied that the applicant was a member of the AJL or any political group in Bangladesh. The Tribunal finds that the applicant fabricated the claim to enhance his protection visa application.(CB 86.6)
I am satisfied that this finding clearly identifies the vagueness, inconsistencies and unreliability of the applicant’s evidence. The Tribunal then considered the arrest warrant and alleged court case claims. The Tribunal did not accept the claims as credible and formed the view that they were fabricated to enhance the applicant’s visa application.
During the hearing before this Court, the applicant sought to have admitted into evidence a bundle of documents that had been filed with his third affidavit, which he said complied with an order made at first directions: see [19] above. This order was taken by the applicant as an invitation to file all documents in support of his protection visa application. These documents were not in his possession at the time of the Tribunal hearing and the applicant states that he was unaware that he was required to submit any documentary evidence in support of his claims. He requested further time from the Tribunal in which to obtain the documents from Bangladesh. The Tribunal declined the request because the applicant had been in Australia four years prior to the hearing, had not obtained any supporting material and was vague about their existence. I refused to accept the material into evidence as it was material that was not before the Tribunal.
Conclusion
I am satisfied that none of the grounds of review contained in the amended application can be sustained. The application should 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 thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 15 March 2007
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