SZIFV v Minister for Immigration and Citizenship

[2007] FCA 1265

FEDERAL COURT OF AUSTRALIA

SZIFV v Minister for Immigration and Citizenship [2007] FCA 1265

SZIFV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 601 OF 2007

NORTH  J
30 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 601 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIFV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH  J
DATE OF ORDER:	30 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed;

2.the appellant pay the first respondent’s costs of the appeal fixed at $2100.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 601 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIFV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH  J
DATE:	30 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an appeal against an order of the Federal Magistrates Court made on 22 March 2007.  The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal made on 12 December 2005, which affirmed a decision of a delegate of the then named Minister for Immigration and Multicultural Affairs, the first respondent, not to grant a protection visa to the appellant. 

2. It is unnecessary to refer in detail to the appellant’s claims which are set out in the Tribunal’s decision.  The appellant is a citizen of Bangladesh and claims fear of persecution on political grounds. 

   THE CLAIMS

3. The essential components of the appellant’s claim were that he was a member of the youth branch of the Awami League and that he was active as a joint convener of the organisation.  He claimed that, he was attacked by people associated with the Bangladesh National Party (BNP) both during the election campaign and after the 2001 election.  He claimed that a few weeks after the election a false case of murder was filed against him and a warrant for his arrest was issued by the local court.  Several years later in 2003, the appellant left Bangladesh for Abu Dhabi and came to Australia on 3 August 2005.

   THE DECISION OF THE TRIBUNAL

4. In relation to the appellant’s claim of membership of the Awami Jubo League the Tribunal said:

   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.

5. The Tribunal then dealt with the appellant’s claim that there is a false case pending against him: 

   The Tribunal considered the applicant’s associated claim that a politically motivated false case is pending against him in Bangladesh.  In view of the above finding, the Tribunal is not satisfied that this associated claim is credible.  In addition to the above considerations, the Tribunal considers it is significant that the applicant has no meaningful knowledge regarding the arrest warrant, or the alleged court case against him, and he made no attempt to obtain documents regarding these matters in the four years since the case was allegedly lodged against him.  The Tribunal finds 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 these matters.    The applicant claims his father is old and unable to travel to the relevant office to obtain the documents.  The Tribunal finds that the applicant could easily obtain documents regarding the arrest warrant or the case if sought to do so.  In addition to his father he has other members of his family and friends who could assist.  The Tribunal is satisfied that the applicant does not have any documentary evidence, and has not sought to obtain any before the hearing, because the arrest warrant was never issued and a court case is not pending against him in Bangladesh.  The Tribunal finds that the applicant fabricated these claims to support his protection visa application.  The Tribunal does 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 is currently pending against him in Bangladesh.

   THE APPLICATION TO THE FEDERAL MAGISTRATES COURT

6. The appellant sought review of the Tribunal’s decision in the Federal Magistrates Court.  The grounds of the application were as follows:  

   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 the 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.

7. The Federal Magistrate dealt with each of the grounds of the application.  In relation to the first ground, the Magistrate concluded that there was evidence to substantiate the conclusion that the applicant had fabricated his claim.  The Federal Magistrate referred to the Tribunal’s conclusion extracted in [4] of these reasons, which outlined the evidence upon which it relied to conclude that the claims were fabricated. 

8. In respect of the second ground, the Federal Magistrate concluded that there was evidence to support the Tribunal’s finding that the appellant could have obtained documents concerning any arrest warrant or the alleged case pending against him.   The Federal Magistrate observed that the appellant’s argument to the Tribunal was premised on the assumption that there was no difficulty in obtaining the relevant documents.    The Tribunal’s reasoning in this regard is set out in [5] of these reasons.  

9. The Federal Magistrate dealt with the second part of the second ground which contended that there was no evidence to support the Tribunal’s finding that the higher levels of the judiciary displayed some degree of independence and often ruled against the government as follows:  

   The Tribunal referred to the US Department of State, Country Reports on Human Rights Practices – 2004 (‘Bangladesh’, 28 February 2005 at ).  The Tribunal noted advice that the “higher levels of the judiciary displayed some degree of independence and often ruled against the Government in criminal, civil, and politically controversial cases” (ibid, section 1e).  The Tribunal commented that the lower courts were inefficient and subject to the influence by the executive.  He was asked if he could defend himself against the murder charge in the courts, particularly the higher court.  The applicant stated his case was in the lower courts.  He stated that he could not defend himself because the BNP was in power.  The applicant stated in Bangladesh whoever has control of government also controls the courts.

   By reference to this paragraph, the Federal Magistrate concluded that the Tribunal did not make a finding to the effect suggested by the appellant, but that the country information referred to would have supported such a finding in any event.

10. The Federal Magistrate then dealt with the third ground which alleged a denial of procedural fairness or natural justice.  The first element of this ground alleged that there was no evidence to support the Tribunal’s finding that the appellant’s claim regarding the pending case was not credible in the absence of evidence of the existence of the arrest warrant.  The Federal Magistrate rejected this challenge to the Tribunal’s decision on the basis that it was justified given the general rejection of the appellant’s credibility.  Whilst this conclusion is no doubt valid, more cogent support for the Tribunal’s decision can be found in the extract in [5] of these reasons.  There the Tribunal set out its reasoning concerning the absence of documentary evidence of a politically motivated pending case, which followed from its conclusion that the appellant had no political background at all. 

11. Finally, the Federal Magistrate dealt with the second limb of the third ground, namely that there was no evidence to support the Tribunal’s refusal of an extension of time for the provision of documents.  The Federal Magistrate found that the Tribunal had made no error and referred to the Tribunal decision as follows:  

    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 his claims.  The Tribunal rejected the applicant’s request for more time.

12. The Tribunal later stated:

    The Tribunal stated that it had doubts whether the applicant presented a truthful account of his circumstances in Bangladesh.  The Tribunal commented that the applicant had no documents to verify his involvement in political activities in Bangladesh and he also had no meaningful information regarding the court case against him or documents to verify that such a court case existed.  It commented that those documents were easily accessible to him while he was in Bangladesh and in the two years since he left.  The Tribunal further noted that he had no knowledge regarding the AJL leadership in Bangladesh, despite his claim that he was a committed and active member of the group, and he made no attempt to contact the AJL or the Awami League in Sydney.  The Tribunal commented that the applicant’s lack of knowledge regarding the group’s leaders and his lack of contact with the group in Dhaka and Sydney, raised questions for the Tribunal as to whether he was a committed member of the group or if indeed he was even a member of the group.  The Tribunal considered the applicant’s reasons for the deficiencies in his evidence.  It commented that the reasons he provided did not adequately explain his lack of knowledge regarding the AJL or the lack of documentary evidence regarding his membership and court case.  The applicant did not comment directly on the credibility issues.  He repeatedly stated that he could get any document the Tribunal wanted if he was given enough time.  The Tribunal rejected his request noting that he had ample time, and the assistance of a Migration Agent, to prepare his evidence before the hearing.  It also commented that more documents would not provide an explanation for his lack of meaningful information regarding the case against him and the AJL leadership.  The Tribunal stated that more documents would also not explain his apparent lack of interest in contacting the AJL in Dhaka or Sydney.  The applicant repeated his request for more time to obtain documents.  The Tribunal did not consent to the request and indicated to the applicant that it would proceed to a decision on the information it had.      

    THE APPEAL

13. On 10 April 2007, the appellant filed a notice of appeal in this Court.  The grounds were identical to the grounds of the application to the Federal Magistrates Court.  The appellant and the first respondent filed outlines of submissions prior to the hearing.  The appellant’s written submission canvassed the same arguments which were raised before the Federal Magistrates Court.  It raised an additional matter not foreshadowed in the notice of appeal, namely that the Federal Magistrate failed to have regard to documents and an affidavit filed in the Federal Magistrates Court.  These documents were said to support the appellant’s application.  The Federal Magistrate refused to accept the material into evidence and said:

    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: …  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.

14. The appellant appeared at the hearing on his own behalf with the assistance of a Bengali interpreter.  The Court explained the limited role of the Court in judicial review.  The appellant nonetheless made a lengthy and heartfelt submission which primarily outlined his very strong desire to stay in Australia.  He explained that he had been away from Bangladesh for 10 years, that he missed his parents terribly, that he was unable to work in Australia, that he felt completely helpless and had contemplated ending his life by reason of the hardship which he faced.  He said that he could not pay the costs ordered by the Federal Magistrates Court because he is not permitted to work.  He claimed that when he mentions that he is a refugee he is unable to receive any assistance from anybody.  He pleaded with the Court to do something to enable him to stay in Australia. 

15. In relation to the pleaded grounds of appeal, he reiterated the complaint that the Tribunal had failed to grant him additional time to submit documents in support of his case and complained that the Federal Magistrates Court did not accept the additional documents which he had obtained by the time of the hearing. 

16. The appellant has not demonstrated that the Federal Magistrate erred in any of the ways set out in the notice of appeal.  With the additional explanation referred to in dealing with each ground, I agree with the conclusions of the Federal Magistrate.  In relation to the further complaint, not referred to in the notice of appeal but raised in the written submission that the Federal Magistrate should have accepted the documents filed in support of his case before the Federal Magistrates Court, I agree that the documents could not impugn the decision of the Tribunal because the documents were not before the Tribunal.  The appeal must therefore be dismissed.  The humanitarian and compassionate grounds urged by the appellant are, however compelling, not matters which the Court might consider in an application such as this.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       17 August 2007

Counsel for the Appellant:	Appellant appeared in person
Counsel for the Respondent:	Ms L Clegg
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	30 July 2007
Date of Judgment:	30 July 2007