SZJIT v Minister for Immigration
[2007] FMCA 397
•22 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJIT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 397 |
| MIGRATION – Weight given to material is a factual finding for the Tribunal and is not subject to review – applicant must prove their case – no duty on Tribunal to make enquiries – exclusion in s.424A(3)(b) applies to material given by applicant for the purpose of his application to Tribunal as previously constituted. |
| Migration Act 1958 (Cth), ss.414(1), 421, 422, 422A, 424A, 430, Div 4 Part VII |
| Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 Attorney General (NSW) v Quin (1990) 170 CLR 1 SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 |
| Applicant: | SZJIT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2585 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 22 February 2007 |
| Date of last submission: | 22 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2007 |
REPRESENTATION
| The applicant appeared in person. |
| Counsel for the First Respondent: | Mr J. Mitchell |
| Solicitors for the Respondent: | Mr L. Leerdam of DLA Phillips Fox |
ORDERS
The application and amended application are dismissed.
The name of the first respondent is amended to the Minister for Immigration and Citizenship.
The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2585 of 2006
| SZJIT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 13 September 2006 seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 27 November 2006.
The applicant was born on 10 August 1964 and claims to be from and of Bangladeshi ethnicity and of the Ahmadia Muslim faith (“the Applicant”).
The applicant’s wife, mother, sister, and three brothers all reside in Bangladesh.
The applicant arrived in Australia on 9 March 2004 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 15 April 2004. In this application he claimed that the “Bangladesh government and society is very hard on Ahmadia’s”, and that the government recently passed a law declaring Ahmadia publications and their places of worship illegal (CB 18). The applicant claimed that he would be arrested, persecuted and killed if he were to return to Bangladesh, and that the “Bangladesh people, Bangladesh government, Bangladesh political parties (Islamic), and Islamic fundamentalists” all sought to harm him (CB 20-21). The applicant also claimed that discrimination in Saipan “based on colour and race is very high” (CB 19). The applicant stated that he was treated like a slave and feared persecution from Saipan authorities and employers.
This application was refused on 9 July 2004 by a delegate of the Minister.
On 6 August 2004 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on 29 November 2004, at which time he also claimed that he was beaten up by a group of people in December 2003 because of his Ahmadia faith. The applicant claimed that he was facing “false charges” relating to the damage of properties and an attack on Bangladesh forces (CB 90). He also asserted that his house had been looted on various occasions.
On 1 April 2005 the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa. The Tribunal found that the applicant had fabricated his claim to be of Ahmadia faith (CB 101).
The applicant filed an application for review with the Federal Magistrates Court, and on 19 April 2006, the Court, by consent, quashed the Tribunal’s decision and remitted the matter to the Tribunal for hearing according to law.
On 16 August 2006 a differently constituted Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. The Tribunal did not accept that the applicant belonged to the Ahmadia faith and found at Court Book page 162 that:
His responses to the Tribunal previously constituted as to his activity as an Ahmadi (sic) were unconvincing. His answers to my questions about Ahmadi (sic) beliefs showed an ignorance of basic principles and practice…when he did produce documents appearing to confirm his adherence to the Ahmadi (sic) faith, they turned out not to be genuine…The Ahmadi (sic) are a small community in Bangladesh and the trouble they have there is well published in the local and international media. They therefore stick closely together and support one another. The Tribunal’s experience is that the advice received from their authorities as to whether or not a person is an Ahmadi (sic) is reliable.
I also believe that his lack of contact with the Ahmadi (sic) community in Sydney is inconsistent with his claimed faith and level of activity.
The various problems the applicant claimed to have had over a number of years were claimed by him to have had their origin in his being Ahmadi (sic). He offered no other explanation. Since I have found that he is not an Ahmadi (sic), I do not accept that these things happened to him for that reason. Given that he has been shown to be untruthful in making his claims, I am furthermore not satisfied that these events ever happened. That is, I do not accept that he was ever threatened or assaulted, that his house was robbed, that false charges were lodged against him or that he would be arrested or killed on return to Bangladesh for reason of his religion or for any other Convention reason.
The applicant was made aware by the Tribunal previously constituted of the frequency with which documents are proffered by Bangladeshi asylum seekers which are not authentic. He has illustrated this with two of the documents he himself has submitted. For this reason and for reason of my findings above, I will not give any weight to the other documents he has submitted, in particular the medical report and the court papers.
For all these reasons, I do not accept that there is a real chance of the applicant suffering harm amounting to persecution in Bangladesh for reason of his religion or for any other Convention reason, should he return there in the foreseeable future (CB 162). I find that the applicant does not have a well-founded fear of persecution in Bangladesh for a Convention reason.
The applicant then filed the further application in this Court, again seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out three grounds as follows:
i)On the ground that the Refugee Review Tribunal failed to accord the natural justice.
ii)On the ground that the Refugee Review Tribunal made error of law being jurisdictional error in that the Tribunal identified the wrong issue to determine my case.
iii)On the ground that the Refugee Review Tribunal failed to exercise its jurisdiction under Migration Act and/or acted in excess of its jurisdiction.
In his amended application filed on 27 November 2006, the applicant set out the following grounds and particulars:
Ground 1
The Refugee Review Tribunal failed to put any weight to the medical report and the court papers:
Particulars
I claimed before the Tribunal that I was beaten because of my Ahmadi (sic) faith and a false case laid down against me. The Tribunal did not give my weight to the documents which I submitted before it whereas these documents are vital to asses my claim. The Tribunal said that “I will not give any weight to the other documents he has submitted, in particular the medical report and the court papers.
Ground 2
The Refugee Review Tribunal depended on the wrong report which itself created a conflict of interest:
Particulars
In reply of Tribunal’s letter dated 3 August 2006, I requested to the Tribunal to contact with Mr. Muazzam Hossain who was one of the Ahmadiyya Imam in Bangladesh to prove that the information it received from the Australian High Commission in Bangladesh was conflicted. But without made any inquiry the Tribunal wrongly made decision about my Ahmadi (sic) faith.
Ground 3
The Refugee Review Tribunal made a comment which ignored the reality in the context of Bangladesh perspective:
Particulars
The Tribunal said in its decision that “I do not accept that there is a real chance of the applicant suffering harm amounting to persecution in Bangladesh for reason of his religious or for any other Convention reason, should he return there in the foreseeable future”. I submit that this comment ignored the reality of Bangladesh circumstances.
The first respondent has applied that the application be dismissed with costs.
The applicant was invited by the Court to make submissions in support of his application.
Grounds in the application
No particulars were put forward to support these grounds. No error of law has been shown, and the grounds are rejected.
Grounds in the amended application
Ground one is that the Tribunal failed to put any weight to the medical report and the Court papers.
The Court finds that the weight to be given to the material before the Tribunal is a factual matter for the Tribunal and is not subject to review: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]. Ground one does not show an error of law or denial of natural justice and is dismissed.
Ground two complains that the Tribunal failed to contact a person nominated by the applicant to prove that information received from the Australian High Commission was incorrect.
The applicant must prove his case before the Tribunal, and was given an opportunity to do so. There is no duty on the Tribunal to make enquiries to establish the applicant’s case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992. In so far as the claim raises a denial of natural justice, the Court finds that there was no breach of Division 4 of Part 7 of the Migration Act. This ground shows no error or denial of natural justice and is dismissed.
Ground three requests a review of a finding of fact which is not open to review unless there is Wednesbury unreasonableness: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35-6. This ground is dismissed.
In respect to the alleged breach of s.424A by the Tribunal not sending the applicant a letter in respect of the medical report (CB 67); the Court finds that as the report was information given to the Tribunal by the applicant for the purpose of his application for review, it is excluded from s.424A(1) by s.424A(3)(b). The Court refers to the written submissions of the first respondent (paragraph 6.1) as follows:
In respect of the allegation made in the Applicant's submission that s.424A(1) was breached by the RRT when it made findings as to material submitted by the Applicant to the RRT as previously constituted (CB 67), s.424A(1) did not apply to information given to the RRT by the Applicant for the purpose of his application for review, notwithstanding that the Applicant gave that material to the RRT as previously constituted: s.424A(3)(b); SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 at [39].
The Court refers to paragraph 39 in the decision of SZEPZ:
In any event, when ss 421, 422 and 422A refer to ‘a particular review’, they identify the review initiated under s 414(1) and culminating in a decision in accordance with s 430, being the review that a particular person, namely the applicant for review, has initiated in respect of an RRT-Reviewable Decision. The expression does not depend upon the identity of the particular member constituting the Tribunal. Rather, it refers to the function of the Tribunal to review a decision. Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.
The Court accepts the submission of the first respondent quoted from paragraph 6.1 of the written submissions and applies the principle quoted from paragraph 39 of the decision in SZEPZ.
The application and amended application are dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Turner FM
Deputy Associate: Mary Giang
Date: 23 March 2007
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