SZIKV v Minister for Immigration
[2006] FMCA 1384
•30 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIKV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1384 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming the decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of Bangladesh – applicant claims fear of persecution because of his political opinion – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36, 424A, 474 |
| Applicant: | SZIKV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 608 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 August 2006 |
| Date of Last Submission: | 30 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Ms Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 608 of 2006
| SZIKV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 16th January and handed down on 31st January 2006. The Tribunal affirmed the decision of a delegate of the minister not to grant a protection visa to the applicant.
The applicant now seeks writs of certiorari quashing the Tribunal’s decision, mandamus compelling the Tribunal to re-hear his application, and prohibition addressed to the first respondent minister, preventing the minister from taking any steps to implement the decision of the delegate which was affirmed by the Tribunal.
The background is that the applicant is a citizen of Bangladesh.
He arrived in Australia in May 2003, and on 14th November of that year applied for a protection (class XA) visa. For reasons that are not clear the applicant’s application for the visa is dated 14th November 2003, but the delegate’s decision refusing the visa is dated
4th November 2003. It appears to me that that is a typographical error as the letter to the applicant advising him of the refusal of the visa is dated 24th November 2003. In any event, the applicant sought a review of that decision from the Refugee Review Tribunal by means of an application lodged at the Tribunal on 21st December of that year.
The following year in March 2004 there was a Tribunal hearing which affirmed the delegate’s decision. The applicant sought judicial review of that decision, and on 14th January 2005 whilst the Federal
Magistrate dismissed the application for a hearing, on appeal on
9th September 2005 the Federal Court, exercising delegation from the Full Court of the Federal Court, allowed that appeal, set aside the orders made by the Federal Magistrate, ordered a writ of certiorari to issue to quash the decision of the Tribunal, and remitted the application to the Tribunal for reconsideration.
The Tribunal wrote to the applicant and invited him to attend a hearing. The applicant attended the Tribunal and gave oral evidence on
13th December 2005. He was represented by an adviser and was assisted by an interpreter in the Bengali language. The applicant claimed a fear of persecution for a convention reason, namely political opinion. He claimed to have been a member of a political party called the Awami League and told the Tribunal of the recent killing of a Member of Parliament of the Awami League, and the killing of two other leading figures in the Awami League in August 2003.
At the previous hearing the applicant had produced a letter from the General Secretary of the Madaripur District Committee stating that the applicant was a reputed Awami leader and that he had been appointed to various positions in the Awami League. The applicant told the Tribunal of his involvement in student politics and explained to the Tribunal why he had delayed making an application for a protection visa, indicating that in the beginning he had no intention of staying in Australia. The Tribunal asked the applicant a number of matters about the applicant’s case.
At the later hearing the applicant produced a letter dated 11th October 2005 from a Member of Parliament, being the General Secretary of the Awami League, and a letter dated 8th October 2005 from another Member of Parliament, stating that the applicant was a leading activist in the Awami League. The production of those letters is recorded at page 153 of the court book. The applicant told the Tribunal that he and his wife had separated about three months after he had arrived in Australia, and he told how he had obtained a Master of Arts degree and became involved in political activity in Bangladesh when he was a student. The Tribunal asked the applicant a number of questions about his political activities, and questioned him about what appeared to the Tribunal to be certain discrepancies in his evidence.
The Tribunal’s finding and reasons are set out on pages 160 through to 162 of the court book. The Tribunal expressed reservations, to say the least, about the applicant’s evidence. At page 161 of the court book the Tribunal said:
In the present case the applicant was not an impressive witness. He was unable to add the sort of details to the claim set out in his original application which could persuade one that he was telling the truth.
The Tribunal then went on to set out reasons why the Tribunal had some reservations about the truth. The Tribunal member referred to letters that the applicant had produced about the applicant’s claims to have been Joint Secretary of the Kalkini thana Awami League and an executive member of the Madaripur District Committee, and the Tribunal expressed doubt that if the applicant had held those positions that he was not able to provide details of when he was campaigning for the Awami League candidated elections, and had difficulty even recalling the name of his local constituency.
The Tribunal referred to the questioning of the Tribunal by the applicant as to the timing of his application for a protection visa, having been dictated by his separation from his wife. The Tribunal went on to say, again at page 161:
I accept that the applicant’s claims are supported by the letters which he produced referred to above, but I give greater weight to the impression I formed on the basis of his oral evidence to the Tribunal, the fact that he did not leave Bangladesh until May 2003, and the fact that he did not apply for a protection visa until after he had separated from his wife. For those reasons I do not accept that his claims are credible.
At page 162 of the court book the Tribunal sets out that the Tribunal did not accept that the applicant had any involvement with the Awami League or the Chhatra League since he graduated from university.
The Tribunal did not accept that the applicant left Bangladesh to escape persecution, either because of his own involvement in the Awami League or because he came from an Awami League family.
The Tribunal did not accept that if the applicant were to return to Bangladesh at that stage or in the reasonably foreseeable future that there would be a real chance that he would be persecuted for reasons of his real or imputed political opinion, or his membership of a particular social group for the purpose of the Refugees Convention, constituted by his family.
The Tribunal was not satisfied that the applicant had a well founded fear of being persecuted for a convention reason if he were to return to Bangladesh, and found that the applicant did not satisfy the criteria set out in s.36(2)(a) of the Migration Act for the grant of a protection visa. The Tribunal affirmed the decision not to grant a protection visa to the applicant.
The applicant seeks review of that decision, and in an amended application provides one ground that the second respondent, i.e. the Tribunal, failed to afford the applicant procedural fairness in circumstances where he was not given an opportunity to respond to adverse findings and inconsistencies in accordance with the requirements in s.424A of the Migration Act.
The particulars of that claim were four in number. First, that part of the reason for affirming the delegate’s original decision was that the applicant could not add to the sort of details to the claim set out in his original application. Second, that the Tribunal found it difficult to reconcile the applicant’s claims of holding political positions as set out in the letters dated 11th October 2005 and 8th October 2005. Third, the amended application said neither letter referred to at paragraph (b) above was produced by the applicant. Fourth, the second respondent was obliged to give the applicant notice in writing of the particulars, that is reconciling representation made by applicant’s witnesses and letters at paragraph (b) with the applicant’s evidence at the hearing.
The applicant provided a written set of submissions which he filed on 29th August. Those submissions in paragraphs 1 to 22 set out the applicant’s history, and at paragraph 19 complained:
The Tribunal member did not believe my claims as credible.
At paragraphs 23, 24 and 25, the submissions from the applicant were that the Tribunal had said that it was difficult to reconcile the claims made in the letters with his oral evidence, alleged that the Tribunal was obliged to give the applicant notice in writing of those particulars under s.424A of the delegate’s decision, and was further required to give him notice in writing that it would draw adverse inferences from the fact that he had applied for a protection visa after he had separated from his wife.
At the hearing before me the applicant made oral submissions in which he was not able to add to his claims for breach of s.424A of the Migration Act. He claimed that the Tribunal did not believe his documents and asked, perhaps rhetorically, why did the Tribunal not believe him? He had told the Tribunal what the truth was. What the applicant did say to the Court was that he had submitted the letters referred to in his amended application to the Tribunal, and he had produced them on the date of the hearing. That, of course, supports what the Tribunal set out and contradicts the particular (c) set out in his amended application.
The reliance on the provisions of s.424A of the Migration Act by the applicant is, in my view, misconceived. In respect of particular (a), the complaint that the applicant could not add to the sort of details at the hearing to the claim set out in his original application, refers to information which was the applicant’s own evidence to the Tribunal, or as the respondent’s solicitor points out, the inadequacy of his evidence. The Tribunal made an adverse credibility finding on the basis that if the applicant’s claims had been true you would expect that he could have provided more detailed evidence to the Tribunal about those claims.
That is not a matter to which s.424A of the Migration Act applies.
It does not extend to the Tribunal’s thought processes and subjective assessment of the information. In any event, the information or the lack of it was information provided by the applicant to the Tribunal for the purpose of the review. It could be nothing but in that it was information that the applicant gave for the purpose of the application which comes under s.424A (3) (b), which provides that s.424A does not apply to information of that sort.
In respect of particulars relating to the two letters which the applicant now admits that he did produce, both the Tribunal decision records and the applicant’s own statement to the Court are that those letters were produced by the applicant at the Tribunal hearing. They are clearly items of information that the applicant gave for the purpose of the application. Again, they fall within the exception contained in s.424A (3) (b) of the Act.
The Tribunal did not, as the applicant claimed, not believe his letters. What the Tribunal did do was give greater weight to the applicant’s oral evidence. Weighing of the applicant’s evidence is a matter for the Tribunal. The information given by the applicant upon which the Tribunal rely comes clearly within the exception in s.424A (3) (b) of the Act. The basic reason why the Tribunal rejected the applicant’s claims was because of the finding that it made at the outset of the applicant’s lack of credibility. This lack of credibility was decided by the Tribunal on the basis of the applicant’s evidence to the Tribunal.
A credibility finding is a finding of fact. It is a matter for the Tribunal. So long as there is evidence upon which the Tribunal can make a factual finding, it is a matter that is entirely within the province of the Tribunal. The Tribunal did not grant the applicant’s application because it was not satisfied that he was a credible witness. There is no breach of s.424A of the Migration Act. There has been no jurisdictional error made out.
I am mindful of the fact that the applicant is not legally represented, and I have considered the decision myself in order to see whether there was any arguable case for any other jurisdictional error not referred to by the applicant. I am unable to discern any. As there is no jurisdictional error I am satisfied that the decision is a privative clause decision as defined by s.474(2) of the Migration Act. Because it is a privative clause decision under s.474(1) it is not subject to prohibition, mandamus, certiorari which are the orders that the applicant seeks, or indeed injunction or declaration in any Court on any account.
The application must be dismissed.
There is an application for costs. The applicant has been wholly unsuccessful in his claim, and in my view this is an appropriate matter where costs should follow the event. I propose to make an order for costs in favour of the first respondent. The amount sought is $3,700.00 and in my view that is an appropriate amount. The applicant has not sought to make any submissions in opposition to that.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 11 September 2006
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