SZIKG v Minister for Immigration

[2007] FMCA 337

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIKG v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 337

MIGRATION – Review of RRT decision − where the applicant provided a statement to the Tribunal but did not provide corroborating evidence − where the Tribunal found the applicant’s claims not to be credible − where the Tribunal informed the applicant at the hearing that it had conducted internet searches and that it had failed to find any independent evidence of the applicant’s claims − whether the transcript of the hearing evidences bias on the part of the Tribunal − whether the Tribunal failed to comply with s.424A in not writing a letter to the applicant about the adverse information found in its independent searches − whether the Tribunal complied with s.430 − whether if the Tribunal failed to comply with s.424A there is an independent ground upon which the Tribunal upheld the decision of the delegate to refuse the application.

Migration Act 1958, ss.424A, 430

SZEEU v Minister for Immigration (2006) 230 ALR 1
SZCDA v Minister for Immigration [2006] FCA 1374
SZCJH v Minister for Immigration [2005] FCA 1660

Applicant: SZIKG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 584 of 2006

Judgment of: Raphael FM

Hearing date: 9 March 2007

Date of Last Submission: 9 March 2007

Delivered at: Sydney

Delivered on: 9 March 2007

REPRESENTATION

Applicant in Person

Counsel for the Respondents: Mr T. Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,750.00.

3. The name of the First Respondent be amended to the “Minister for Immigration and Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 584 of 2006

SZIKG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh.  He arrived in Australia on

   
   

   21 July 2005. On 29 August 2005, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 31 August 2005, a delegate of the Minister refused to grant a protection visa and on

   
   

   21 September 2005 the applicant applied for a review of that decision by the Refugee Review Tribunal.  The applicant attended a hearing before the Tribunal on 7 December 2005.  On 18 January 2006, the Tribunal affirmed the decision not to grant a protection visa.  It handed that decision down on 2 February 2006.

2. The applicant's claim to be a person to whom Australia owed protection obligations is best found in a statement which he made that is contained at [CB30] to [33]. It tells how the applicant, an Awami League supporter, but not a person who took active part in politics, ran a restaurant in his home town. On 19 January 2005, there was a violent meeting held by the BNP in front of his restaurant. During the course of the violence, a brick was thrown from an area adjacent to the applicant's premises. The BNP leader, who was named, was injured and later died. The applicant claimed that he was blamed for this murder. His shop was ransacked and burnt. The crowd then moved towards his home, where his father was beaten unconscious, and revenge was threatened upon him for throwing the brick. The applicant left his town on 27 January and went to Dakar, where he remained until he left for Dubai, where an uncle lived. On 4 May 2005, whilst in Dubai, he obtained a visa for Australia and utilised it to travel to this country on 21 July.

3. The applicant provided no corroborating evidence of the matters contained in his statement.  Although it had no duty to make inquiries, the Tribunal appears to have been intrigued enough by the statement to put in hand an internet search.  The search did not reveal any information. 

4. The fact of the search was revealed to the applicant at the hearing.  The Tribunal noted at [CB69] that

   “The applicant did not depart Bangladesh for several months.  Although he claims to have been the subject of an arrest warrant, and although the police have evidently failed to find him, his passport was never cancelled and he was allowed to leave Bangladesh legally.  He claims he resided in Dakar until he was able to leave for Dubai in May 2005.  He claims this is how he evaded arrest.”

5. The Tribunal's findings and reasons itself are found at [CB70].  The essential finding is:

   “The Tribunal finds that it cannot accept the appellant's substantive claims on the basis of the scant material before it.  He claims this is a matter of life and death, and yet he appears not to have tried to substantiate any of his claims.  The Tribunal could find no independent evidence of the public events to which he has referred and finds it reasonable to assume what ultimately became a local political assassination would leave some tract in the Bangladesh media, and even among foreign political reporters and human rights observers.  Even assuming, for argument's sake, that the killing did occur as claimed, the Tribunal finds it implausible that the applicant, who was not even in the confrontation, would be the only person imputed on the day to have thrown the brick.” [Emphasis added]

6. The applicant has filed a submission.  The first issue contained in that submission is that, "It is very hard to understand the decision of the Tribunal that how the Tribunal made this decision."  The submission goes on:

   “Firstly, the Tribunal mentioned adverse information against the applicant under different headings, but the Tribunal did not inform the applicant any adverse information which is the reason, or part of the reason, to reject his claim, and the Tribunal also did not ask any written comments about those adverse information.”

   There are then provided a series of details of the information, which the submission goes on to say were given under the Claims and Evidence headings but not under the Findings and Reasons headings, so the applicant did not understand why his claim was rejected.

7. It seems to me that the matters that the Tribunal commented upon in its Claims and Evidence are those things which the Tribunal relied upon to come to its eventual conclusion that it could not be satisfied that the claims made the applicant were genuine.  If one reads the paragraph of the Tribunal's decision which I have extracted, it will appear clear that this is really a case of lack of satisfaction rather than a case in which applicant's credit is being specifically impugned.

8. The evidence given by the applicant was not corroborated in any way, and the Tribunal felt that such a serious matter would require some corroboration, particularly where an applicant who has been allegedly charged with murder managed to leave the country some five months after the murder of an apparent political opponent was alleged to have taken place.  In part of the recorded Tribunal hearing which was played to this Court, there is a detailed discussion between the applicant and the Tribunal concerning his passport, and the Tribunal noted that, between the time of the alleged incident and the time the applicant departed, two changes to his passport had occurred.  The concerns the Tribunal had surrounding the applicant's ability to leave Bangladesh are found in the last paragraph of the Claims and Evidence section of the decision.

9. The second matter raised by the applicant in the written submissions was that the Tribunal did not comply with s.424A of the Migration Act 1958 which requires the Tribunal to give notice of the adverse information to the applicant and failing to do that constitutes jurisdictional error.

10. The information referred to is the lack of any evidence from the searches carried out by the Tribunal of the existence of the politician named by the applicant, of the riot, or of his murder.  Mr Reilly argued for the Minister that this is information is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.  The information is clearly not about the applicant.  It is about the incident at which the murder allegedly took place.  Mr Reilly says it is not about another person because there is no evidence that this person existed.  It may have been an attempt to identify another person, but that attempt failed.

11. The “information” seems to me to be no more than the fact that there was no information, and if there had been some, a trace might have been found. I had some difficulty in accepting Mr Reilly's argument that this falls under s.424A(3)(a). The Tribunal had no need to commence the investigation that it did, but, having done so, it evidently regarded it as something of importance, and although it, quite fairly, raised the matter with the applicant, it did not send the letter which s.424A requires.

12. The applicant also argued in his second written submission that the Tribunal did not comply with s.430 of the Act. Section 430 requires the Tribunal to record its decision and its reasons and findings. It is clear from the fact that I have been discussing such a document for some time that s.430 was complied with. There was another claim under s.424A, but that is not particularised, and then there is some general claim about the manner in which the Tribunal hearing took place. At the callover of this matter, which the applicant attended on 23 March 2006, he was ordered to file any additional evidence relied upon, including a transcript of the Tribunal hearing, by 31 May 2006. He did not do so, and it is not appropriate for him to raise these sorts of matters at the heel of the hunt without even attempting to provide a transcript.

13. The applicant had with him in court the tape recording of the Tribunal hearing which had been given to him. He made some oral submissions suggesting that the Tribunal was angry and rude and, as a result, he was unable to answer its questions and frightened to express his beliefs. I agreed to hear part of the tape.  The Court heard approximately 20 to 25 minutes of the tape.  It seems to me that, at all times, the Tribunal was polite and courteous.  There was no indication of an overbearing attitude and certainly nothing that could be described as angry or rude.  After 25 minutes, I stopped the tape and I asked the applicant whether he could point to any other areas within the recording which might bear out the allegations he made.  He was unable to do so.  In those circumstances, I would reject any suggestion that the Tribunal acted in a way in which a reasonable person familiar with the nature of the proceedings would consider the Tribunal to have been committed to a view about the matters that it was intended to be deciding. 

14. Mr Reilly argues that, even if a technical breach of s.424A has occurred, as I believe it has, the decision should still stand because the Tribunal has found an independent ground for coming to the conclusion that the applicant was not owed protection obligations by Australia. This is contained in the following paragraph at [CB70]:

    “Again, even assuming, for argument's sake alone, that the killing did occur as claimed, the applicant has failed to argue that his claimed predicament has anything to do with the Convention.  His claimed identification with the AL is not the essential and significant factor in the matter.  It is the assumption, as he put it, that the brick came from where he was standing.  He provided no evidence of facing persecution in Bangladesh for reasons of his political opinion alone – ie, his opinion as expressed or manifested before the alleged murder, or in any other way separate from it.”

    This non-Convention nexus was raised with the applicant by the Tribunal as well as by the delegate.  It is constituted by a finding of fact that the anger of the crowd and the alleged filing of a murder charge were not by reason of the applicant's membership of the Awami League but because the brick appeared to have been thrown from his premises.  That finding of fact is one for the Tribunal.  Whether or not the Tribunal has correctly expressed the law in the last sentence of the extracted portion of the reasons is, to my mind, irrelevant given the finding of fact of the claim before it.  There is no Convention nexus between a crowd believing that a brick was thrown from a particular place and the fact that the person who is alleged to have thrown the brick from that place happens to hold a political opinion contrary to that of the crowd.

15. In those circumstances, I would take the view that there is a separate ground for upholding the decision of the delegate and refusing to grant a visa that is entirely independent of the failure by the Tribunal to give the appropriate notice under s.424A: SZEEU v Minister for Immigration (2006) 230 ALR 1 per Allsop J at [233]; SZCDA v Minister for Immigration [2006] FCA 1374 per Conti J at [22]; SZCJH v Minister for Immigration [2005] FCA 1660 per Sackville J at [23]. I will dismiss the application.

16. I order that the applicant pay the respondent's costs in the sum of $4750. I also order that the name of the first respondent be amended to the Minister for Immigration and Citizenship.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: