SZILU v Minister for Immigration

[2007] FMCA 1195

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZILU v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1195

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant not believed – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958, ss.424, 424A

Abebe v Commonwealth (1999) 197 CLR 510
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Minister for Immigration v Eshetu (1999) 197 CLR 611
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
Minster for Immigration v SGLB (2004) 207 ALR 12
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
NAIS v Minister for Immigration (2005) 223 ALR 171
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
SZBYR v Minister for Immigration [2007] HCA 26
SZEPZ v Minister for Immigration [2006] FCAFC 107
W148/00A v Minister for Immigration (2001) 185 ALR 703

Applicant: SZILU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1294 of 2007

Judgment of: Driver FM

Hearing date: 23 July 2007

Delivered at: Sydney

Delivered on: 23 July 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1294 of 2007

SZILU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was signed on 8 March 2007 and apparently handed down on 29 March 2007.  The Tribunal affirmed a decision of a delegate of Minister not to grant the applicant a protection visa.  Background information relating to the applicant's protection visa claims and the Tribunal decision are set out in the Minister's written submissions filed on 17 July 2007.  I adopt as background for the purposes of this judgment, with necessary amendments, paragraphs 2 to 4 of those written submissions:

   The applicant applied for the visa on 9 August 2005: court book (CB) 1-30. The delegate refused the visa on 9 September 2005: CB 33-45, and the applicant applied to the Tribunal for review on 25 September 2005: CB 46-49. The Tribunal (differently constituted) wrote to the Applicant pursuant to s.424A of the Migration Act 1958 (Cth) (the Migration Act) on 13 December 2005: CB 62, and after the decision of the Tribunal differently constituted was set aside by consent on 6 November 2006 (CB 115.3), the Tribunal again wrote to the applicant pursuant to s.424A on 2 January 2007: CB 67-72. The Tribunal held a hearing on 30 January 2007: CB 79.

   The applicant claimed to fear persecution in Bangladesh for reason of his religion.  He claimed to have been born a Sunni Muslim but to have converted to the Ahmadi Muslim faith since September 2004.  He claimed he was attacked for this reason by Sunni Muslims on 12 November 2004, 5 December 2004 and 17 January 2005 and required hospitalisation on each occasion.  He claimed to thereafter be in hiding until leaving Bangladesh for Australia in July 2005.  See generally CB 117-119.

   The Tribunal found that the applicant was not credible, noting that the applicant had remained in Bangladesh for three months after receiving an Australian visa despite claiming to be in fear of his life; his lack of contact with the local Ahmadi community in Sydney; and information from that community that the applicant was not a genuine Ahmadi.  The Tribunal concluded that the applicant was not an Ahmadi; that his documentary evidence to the contrary (CB 78) was false; and that the applicant had fabricated this claim to be granted the visa: CB 124.3, 125.2.  The Tribunal rejected all the applicant’s material claims as false: CB 125.3. .

2. These proceedings began with a show cause application, filed on 23 April 2007. The applicant asserts actual notification of the Tribunal decision when it was handed down. I find that the application was filed within time. The application was supported by a short affidavit by the applicant, which I received as evidence. I also received as evidence the court book filed on 22 May 2007 and an affidavit by Andrea Jane Nesbitt, filed on 6 June 2007. Attached to that letter is a complete copy of an annexure to the second letter written to the applicant by the Tribunal pursuant to s.424A of the Migration Act.

3. There are five grounds of review in the show cause application. There first appears to be an assertion of a breach of s.424A of the Migration Act but in his oral submissions it became apparent the applicant was intending to refer to s.424 of the Act. The applicant contends that the Tribunal should have made enquiries by telephone to Bangladesh in relation to a document he submitted. The document is reproduced on page 78 of the court book. It purports to be authored by an ex president of the Ahmadiya Muslim Jamat, Rajshahi in Bangladesh and is dated 20 January 2007. The document states that the applicant is a member of that branch of the Ahmadiya Muslim Jamat.The Tribunal deals with the document and the applicant's invitation to the Tribunal to seek verification of it by telephone in its reasons (CB 124).  The presiding member says:

   Immediately before the present Tribunal hearing the applicant provided further written evidence (by letter of 29 January 2007).  This letter attached a second letter dated 20 January 2007, and purported to be from a person (here-in-after the witness) in Bangladesh, who the applicant claimed was a president of the Ahmadi faith in Bangladesh.  The witness had invited further enquiries by telephone (a number had been provided). The Tribunal explained to the applicant it had the discretion to phone the witness if it believed that this course may be helpful.  The Tribunal then asked the applicant to advise it what the witness may tell the Tribunal.  He claimed the witness would corroborate his claims (that is, repeat the claims already provided by him).  After further discussion, the Tribunal ultimately decided not to call the witness.

4. The Tribunal then went on to record the presiding member's further discussion with the applicant about the presiding member's concern that, while the applicant had been able to produce a single letter from someone in Bangladesh, he had not asked that person to influence the Australian Ahmadiya groups who had provided information that the applicant was not an Ahmadiya.  The Tribunal was concerned that the applicant had been only able to gain the support from a single individual and had also had regard to the incidence of document fraud in Bangladesh.  The Tribunal concluded (CB 125):

   Accordingly, the Tribunal is satisfied the document of 20 January 2007 is false and submitted for the sole purpose of enhancing the applicant's claim to invoke refugee protection obligations in Australia.  This is a further reason that ultimately led the Tribunal to conclude the present applicant is not a witness of truth.

5. Section 424 of the Migration Act confers a discretion on the Tribunal to make its own inquiries but does not impose an obligation to do so: Minster for Immigration v SGLB (2004) 207 ALR 12. The Tribunal explains in its reasons why it did not take up the invitation of the applicant to make a telephone call to some person in Bangladesh who would most likely have stated that he was the author of the letter proffered by the applicant and that its contents were true. The Tribunal was apparently not confident that it would be able to satisfy itself that the person it may have phoned was who he claimed to be or that the contents of the letter were true. Indeed, it appears from the Tribunal's reasoning that the presiding member had concluded that the reverse was probably the case. I see no error in the Tribunal's approach. There was nothing in the circumstances that compelled the Tribunal to make the inquiry it was invited to make. The Tribunal was entitled to rely upon the information submitted to it by the applicant and the other inquiries it had made. There is no substance to the asserted breach of s.424 of the Migration Act.

6. The second ground in the application is an assertion that the Tribunal failed to have regard to the applicant's corroborative documents.  The particulars identify the same letter reproduced on page 78 of the court book.  That ground must fail.  It is obvious from the passages in the Tribunal reasons I have referred to above that the Tribunal both identified and considered the applicant's document. 

7. The third ground is an allegation that the Tribunal failed to provide particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. That appears to be an assertion that the Tribunal breached s.424A of the Migration Act. However, the applicant in his oral submissions made clear that he misunderstands the impact of that section. His concern is that the Tribunal did not explain to his satisfaction its reasons for not taking up his invitation to make the telephone call he requested. The Tribunal's reasons are adequately reproduced in its statement of its decision. There was no obligation under s.424A of the Migration Act for the Tribunal to disclose its reasoning process in declining the applicant's request.

8. The fourth ground is that the Tribunal was biased by country information.  There is no evidence to support the assertion of bias either actual or apprehended.  The Tribunal did have regard to country information both about the Ahmadiya Muslim sect and about document fraud in Bangladesh.  The Tribunal was entitled to do so. 

9. The final ground is that the Tribunal failed to accord substantial justice in this case.  The applicant, in his oral submissions, said that this again related to the failure by the Tribunal to make the enquiry by telephone that he had requested.  No jurisdictional error is established in relation to that ground. 

10. In other respects I agree with and adopt for the purposes of this judgment paragraphs 5 and 6 of the Minister's written submissions:

    The Tribunal’s credibility conclusions are findings of fact par excellence: Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai vMinister for Immigration (1998) 86 FCR 547 (FC) at 558-559; W148/00A vMinister for Immigration (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and R D Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].

    The application contains five grounds. The first claims that the Tribunal breached s.424A of the Act, but without particulars. In the absence of identification of what information was said to be “the reason or part of the reason” for the Tribunal’s decision (having regard to SZBYR vMinister for Immigration [2007] HCA 26 at [17], [21]) and not provided in either of the Tribunal’s s.424A letters this ground is meaningless. It may be noted that the first s.424A letter remained effective despite the previous Tribunal decision being set aside: SZEPZ v Minister for Immigration [2006] FCAFC 107 at [37-43]. The second ground claims the Tribunal failed to have regard to the document at CB 78, but as already stated the Tribunal did have regard to this document and found it was false. The third ground appears to be a repetition of the first. The fourth ground claims that the Tribunal was “biased by country information”; whatever this is intended to mean there is no evidence of bias by the Tribunal. While it obviously had some preliminary concerns before the hearing, as evidenced by its s.424A letter, this is no evidence of bias: Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [72], [186]. The final ground claims that the Tribunal failed to accord substantial justice, but if this is intended to rely upon s.420(2)(b) of the Act it is contrary to Minister for Immigration v Eshetu (1999) 197 CLR 611 and NAIS vMinister for Immigration (2005) 223 ALR 171 (HCA) at [34-36].

11. The applicant has failed to demonstrate jurisdictional error by the Tribunal.  Neither is any such error apparent to me from my own reading of the material.  The decision is, therefore, a privative clause decision and the application must be dismissed.  I so order.

12. The application having been dismissed, costs should follow the event.  The Minister seeks scale costs in the sum of $5,000.  The applicant expressed concern that I would not make the inquiry he had previously requested the Tribunal to make.  He did not make any submissions on costs.  I see no reason to depart from the Court scale in this matter. 

13. I order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  25 July 2007