SZIZX v Minister for Immigration - [2007] FMCA 1483

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIZX v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1483

MIGRATION – Review of Refugee Review Tribunal decision – where Tribunal concluded the applicant was not credible – whether there was no evidence to support findings – whether it was open to Tribunal to make findings in relation to credibility – whether procedural fairness.

Migration Act 1958, s.424A

W148/00A v Minister for Immigration (2001) 185 ALR 703
SZAKF v Minister for Immigration [2004] FCA 1719
VJAD v Minister for Immigration [2004] FCA 468

Applicant:

SZIZX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1848 of 2006

Judgment of:

Raphael FM

Hearing date:

24 August 2007

Date of last submission:

24 August 2007

Delivered at:

Sydney

Delivered on:

24 August 2007

REPRESENTATION

Applicant in person

Counsel for the Respondent:

Mr Bevan

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4800.00.
The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1848 of 2006

SZIZX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh. He arrived in Australia in February 2004, having jumped ship in Fremantle. On 15 March 2004 he applied for a protection (class XA) visa. On 18 June 2004 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant him a visa and the applicant applied for review of that decision before the Refugee Review Tribunal.

A Tribunal differently constituted affirmed the decision under review in a decision signed on 5 November 2004 and handed down on

7 December 2004. The applicant sought review of that decision in the Federal Magistrates Court and on 21 December 2005 the Federal Magistrate ordered by consent that constitutional writs issue quashing the decision of the Tribunal. The matter was referred to the Tribunal, differently constituted, which listened to the tapes of the first Tribunal and arranged a hearing with the applicant on 15 February 2006. On 6 April 2006 the Tribunal determined to affirm the decision under review and it published that decision on 2 May 2006.
The grounds upon which the applicant sought the protection of Australia were a combination of religious and political concerns. The applicant claimed that he had a relationship with a Hindu woman to whom he was engaged and that this had caused considerable problems in his strictly Islamic family. The problems were exacerbated because the applicant was a prominent member of the Awami League and when the BNP Coalition came to power in 2001 they began to make life very difficult for him, threatening him and on one occasion he claimed that he was actually injured by a knife or sword.
The Tribunal in its review of the claims and evidence deals with all these matters in some detail and sets out quite clearly areas in which it had concern about consistency in the applicant’s evidence in regard to both his relationship with the Hindu woman and his political activity. It is not necessary to say more than that as a reading of the decision, particularly that section entitled “The Applicant’s evidence at the hearing on 3 November 2004” [CB110-120] reveals a considerable quantity of inconsistencies and matters of concern to the Tribunal which would go to the applicant’s credibility.
On 3 March 2006 the Tribunal wrote to the applicant a letter pursuant to the provisions of s.424A of the Migration Act1958 (“the Act”). This letter is found commencing at [CB97] and concludes at [CB101]. It sets out in detail the major concerns that the Tribunal had arising out of inconsistencies in the applicant’s evidence given to the Tribunal, as contained in his original application and as given to the first Tribunal. The document ends with a lengthy extract from the application of another person who had utilised the services of the same migration agent as the applicant. The Tribunal has placed in bold areas in which this application and that of the current applicant are identical. These are significant. The whole story of his relationship with a Hindu woman is essentially repeated in both submissions.
The applicant did not respond to the s.424A letter. Today, for the first time, he has raised the question of delivery of that document and of the subsequent decision of the Tribunal. He accepts that the address given to the Tribunal was his current address at the time and is unable to explain why the post office did not deliver either the s.424A letter or the Tribunal decision. If indeed these documents did not get to him then a most unfortunate situation has arisen, but the Tribunal acted in accordance with the requirements of the Act and Regulations and there can be no jurisdictional error arising out of the failure of those documents to arrive, if that is what happened. I did not take evidence from the applicant on the matter because in my view it would not be of any assistance.
Not unsurprisingly, given the number of inconsistencies and in particular the similarity between the applicant’s submissions and those of another person, the Tribunal came to the conclusion that it was unable to accept the applicant’s story. The applicant had produced certain documents which were said to corroborate his conversion to Hinduism and his association with the Awami League. The Tribunal weighed this evidence but found that the letters did not outweigh the concerns which it had with the applicant’s own evidence. The Tribunal concluded that it could not accept that the applicant ever had a relationship with a Hindu girl, or that he or members of his family were involved in the Awami League or its student wing, or that the applicant genuinely feared persecution for reasons of his own or his family’s claimed involvement with that political party.
The applicant filed an amended application on 25 September 2006 in which he gave three grounds for saying that the Tribunal made a jurisdictional error in the manner in which it reached its conclusions. He firstly says that the Refugee Review Tribunal constructively failed to exercise its jurisdiction. It particularises this by saying that there was no evidence to support the finding that the claims which he had made in support of his application were a fabrication. It seems to me that, on the contrary, there was considerable evidence upon which the Tribunal may have acted in the manner that it did. This was the inconsistent and contradictory evidence given by the applicant on the various occasions when he had submitted evidence or given it at a hearing. Furthermore, the discovery of the similar claim was such as to raise legitimate doubts in the mind of the Tribunal as to the credibility of this applicant.
The second ground was that the Tribunal had acted in excess of its jurisdiction. The applicant argues as a particular that there was no evidence to support the finding in relation to “mixed up with Hindu”; “starting date of the relationship”; and “affiliation with Awami League” that the applicant considered this to be an attempt to provide “justification after the fact for the obvious contradictions in his evidence.” I am not entirely clear as to what this ground is really trying to say but I have already expressed my views that the Tribunal did have evidence upon which it could come to conclusions of the type that it did concerning those matters.
Finally, the applicant argues that he was denied procedural fairness or natural justice in that there was no evidence to support the Tribunal’s finding that the submission to the Tribunal on 14 February 2006 was not all in his own words and that the statement was in a significant part almost identical or identical “with a Applicant’s former representative” (sic). As the Tribunal had set out in detail the submission by the other applicant and pointed out clearly by way of emphasis the similarities between the two documents, I am unable to see how it can be said that there was no evidence.
The applicant then provided an outline of submissions suggesting that the Tribunal was in error in regard to findings about his overall credibility. He argues that in his case, on the cumulative weight of evidence it was not open to the Tribunal to make the conclusions which it did as to his credibility and referred to W148/00A v Minister for Immigration (2001) 185 ALR 703. It is certainly possible that in some cases a court on review may find that it was not open to the Tribunal to reach a particular finding on credibility, but such an instance would be rare and the substantive inconsistencies that the Tribunal has pointed to in this case would not bring it within that very narrow range.
The applicant then claims that the Tribunal did not accord him natural justice by not giving sufficient weight to the documents that he submitted. He says that if he had been notified about the Tribunal’s doubts he would “get the opportunity to response” (sic). This is not one of those cases where the Tribunal has in fact doubted the credibility of the documents. It has contented itself with expressing a view that whatever evidential weight they may have is not sufficient to outweigh the view of the applicant’s credibility that has arisen as a result of the substantive inconsistencies. As Hely J said in SZAKF v Minister for Immigration [2004] FCA 1719 at [26]:
“These matters were raised before the Federal Magistrate and rejected. The matters were substantially grounded in the RRTs focus on the inconsistencies between the appellant’s accounts referred to above. The RRTs findings were based largely on its conclusions about the appellant’s credibility, which were in turn largely based upon its findings in relation to the inconsistencies. In considering credibility and any inconsistencies in an applicant’s account the RRT is bound to exercise care: SAAK v Minister for Immigration (2002) 121 FCR 185 at 190 and ff (North, Goldberg and Hely JJ). But a finding on credibility ‘is the function of the primary decision-maker par excellence’: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] (McHugh J). It was a matter for the RRT to assess whether the inconsistencies which it identified were significant, and satisfactorily explained. It was open to the RRT to reach the conclusion which it did.”
Then in VJAD v Minister for Immigration [2004] FCA 468 Kenny J at [28] confirmed that fact-finding was the realm of the Tribunal:
“As the Full Court said in Pollocks v Minister for Immigration (2001) 195 ALR 73 at [35]:
“The selection of what are material facts and what is evidence, or other material, which is relied on for making those findings is a matter for the tribunal in its consideration of the circumstances surrounding the application.””
It is entirely a matter for the Tribunal as to the weight which it gives to particular pieces of evidence and the assessment of weight is very much a matter with which the Tribunal is charged. For the court to interfere in a decision by the Tribunal on the weight to be given to certain evidence, in the absence of some clear jurisdictional error such as no evidence at all, it would be indulging in impermissible merits review.
The final matter raised by the applicant relates to the finding by the Tribunal that there is no real chance that he would be persecuted if he returned to Bangladesh. Before me today the applicant reminded me that the political situation in Bangladesh is unstable to say the least. But that is not a matter with which this court can be concerned as its duty is to consider only the manner in which the Tribunal reached the conclusions that it had reached in 2006.
For these reasons I am unable to provide the applicant with the relief which he seeks. I dismiss his application. I order that the applicant pay the respondent’s costs in the sum of $4800.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 5 September 2007