SZJJS v Minister for Immigration
[2007] FMCA 2070
•26 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJJS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2070 |
| MIGRATION – Review of decision of RRT – obligation to make enquiries. |
| Migration Act 1958, s.424A |
| Kopalapillai v Minister for Immigration (1988) 86 FCR 547 ReMinister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration v SGLB (2004) HCA 32 |
| Applicant: | SZJJS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2665 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 26 November 2007 |
| Date of last submission: | 26 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2007 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr J Mitchell |
| Solicitors for the Respondent: | Blake Dawson |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs in the sum of $4,500.00.
The First Respondent’s name be amended to Minister for Immigration & Citizenship.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2665.2006
| SZJJS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant, who arrived in Australia in January 2006, claimed to be a Bihari resident in Bangladesh. On 2 February 2006 he applied for a Protection (Class XA) visa from the Department of Immigration & Multicultural Affairs. His application was refused by a delegate of the Minister on 11 April 2006. The applicant applied for review of the decision of the delegate from the Refugee Review Tribunal. He was invited to a hearing on 21 June 2006, which he attended. The applicant provided certain information and documents to the Tribunal. On 22 June 2006 the Tribunal wrote to the applicant a letter pursuant to s.424A of the Migration Act 1958 (the “Act”) providing him with details of information that would, subject to any comments he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. On 12 June 2006 the applicant responded to that letter. On 11 August 2006 the Tribunal determined to affirm the decision under review and handed that decision down on 31 August 2006.
The grounds upon which the applicant claimed he was a person to whom Australia owed protection obligations arose out of his categorisation as a Bihari resident of Bangladesh. He claimed that he had lived in a refugee camp in Dhaka and that in early 1991 he had opened up a small shop selling cigarettes and allied products. He stated that he had been forced to pay commission or protection money to local influential "bandits" and on 25 July 1992 there had been a physical confrontation in which he and one of his friends, together with one of the ring leaders of the bandits, had been seriously injured requiring hospitalisation. He told how his shop had been burnt and that he had had to go into hiding thereafter. The applicant claimed that the persecution which he had suffered from the bandits was a continuing matter and that even though he had gone into hiding, come out of hiding, gone to Pilau, returned to Bangladesh before going to Pilau for a considerable period of time from 1997 until 2005, he feared that he would still be the subject of attention from these people and was unable to assuage their negative attitude towards him as late as 2005 when he finally returned to Bangladesh before fleeing into Australia.
Before the Tribunal the applicant gave evidence about the matters set out above and responded to questions from the Tribunal about inconsistencies between the information that he was providing and other information, such as the documentation put forward by him as well as independent country information. The Tribunal indicated that it had matters of concern about which it would be writing to the applicant and these matters of concern are set out in the s.424A letter [CB 123]. The Tribunal concluded that the applicant was not a credible witness for these reasons.
The first matter of concern to the Tribunal was that the applicant had travelled to Australia on a passport which indicated that he was a citizen of Bangladesh, whereas Bihari's are stateless. He had produced documents from the government of Pilau indicating that he was a citizen of Bangladesh. The applicant had told the Tribunal that anybody of Bangladeshi appearance could obtain a passport, in respect of which comment the Tribunal said:
“He said that he had obtained his Palau work permit on the basis of his passport and that his application for a visitor visa had also been made on the basis of his passport. As I put to the applicant in the course of the hearing, what this suggests is that he tailors his evidence to what he perceives to be his advantage without regard to the truth. When he perceives it to be his advantage, he claims to be a citizen of Bangladesh, but when this is not to his advantage, he claims that he is, in reality, a stateless Bihari.”
Another area of apparent contradiction that the Tribunal referred to was the fact that the applicant claimed that he had gone to a number of schools in the Setkhira district and that he had been born in that district, whereas he had produced a document indicating that he had lived in a camp at Dhakar from 1972 to 1992. The Tribunal also had concerns that the applicant actually went to school when the independent country information indicated that Biharis were not permitted to utilise the school system.
Further concerns were raised by the Tribunal about a ration card produced by the applicant. This ration card indicated use at a time when the applicant was in Pilau. The Tribunal raised with the applicant the problems of document fraud and stated:
“The fact that the ration card was purportedly issued and used at a time when the applicant was not in Bangladesh does not give me any confidence that it is genuine and the applicant's statement that everything can be done in Bangladesh if one has money merely confirms the information which I put to him in the course of the hearing that forged or fraudulently obtained documents are readily available in Bangladesh ... Given that the documents which the applicant has produced in purported corroboration of his claims do not accord with the facts or with the applicant's own evidence it is difficult for me to accept that these documents are genuine.” [CB 146]
The Tribunal's grounds and reasons continue at [CB 146] to set out other areas in which the applicant contradicted himself in respect of claims or provided inconsistent evidence before concluding at [CB 147]:
“Having regard to the problems the applicant's evidence outlined above, I do not accept he is a credible witness. I do not accept that the documents which the applicant produced to the Tribunal in purported corroboration of his evidence (but which contradict his evidence or the known facts in significance respects) are genuine. Having regard to the view I have formed of the applicant's credibility, I do not accept that he is a stateless Bihari. I find that, as indicated in his passport, he is a citizen of Bangladesh. I do not accept that he or any member of his family ever lived in a refugee camp in Dhakar nor that extortionists or bandits tried to extort money from him, nor that he was injured in a physical confrontation with the bandits or extortionists on 24 July 1992 and hospitalised as a result, nor that after he got out of hospital he had heard that the four terrorists whom he named had made a false case against him. I do not accept that the applicant genuinely fears that the four terrorists will demand money from him or will threaten to kill him if he returns to Bangladesh, as he said at the hearing before me. Since I do not accept that the applicant is a stateless Bihari, as he claims, it follows that I do not accept there is a real chance that he will be persecuted for reasons of his being a Bihari if he returns to Bangladesh now or in the reasonably foreseeable future.”
It is now well settled that inconsistencies found by a Tribunal can provide a rational basis for adverse credibility findings (Kopalapillai v Minister for Immigration (1988) 86 FCR 547 [558‑9]) and that such findings are findings of fact which should not be reviewed by the Court (ReMinister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]). It is clear that the Tribunal acted in accordance with the requirements of procedural fairness by sending the applicant a letter under s.424A of the Act setting out in some considerable detail the concerns it had with this evidence, in particular the inconsistencies which I have discussed, and the applicant was given an opportunity to respond. On the face of the grounds and reasons there is no indication that the Tribunal fell into jurisdictional error when it made its decision.
In an amended application filed on 12 January 2007 the applicant states that his grounds of application are:
“(1)The Tribunal failed to exercise its duty under the Migration Act not to consider the documents which I submitted before the Tribunal to support my claim.”
There is no doubt that the Tribunal did consider the documents and considered them thoroughly. The documents were referred to in the Tribunal's decision and in the s.424A letter. Before me today the applicant argued that the Tribunal should have made certain investigations relating to those documents but the Tribunal's duty to inquire is limited as the High Court per Gummow and Hayne JJ said in Minister for Immigration v SGLB (2004) HCA 32 [43] about the duty to inquire and the failure to inquire being an error:
“This ground of error is misconceived for two reasons. First, there was evidence before the Tribunal to assist it in determining how to deal with the question of unreliability. There was the Turner report and the fact that the respondent did not object to providing evidence either at the hearing or by affidavit following the hearing. Secondly, whilst s 427 of the Act confers power on the Tribunal to obtain a medical report[15], the Act does not impose any duty or obligation to do so. Rather, s 426[16] provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.”
This is confirmed by Hely J in Seyfarth v Ministerfor Immigration (2004) FCA 1713 at [95] where his Honour said:
“There is no general obligation on the Minister to make his own enquiries particularly where the visa holder has been given the opportunity to put all that he or she may wish to put before the Minister: Lorenzo v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 435 at [45], [51] (Hill J). A failure to make enquiries may sometimes be a breach of the rules of natural justice or render a decision unreasonable (Re Minister for Immigration & Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209 at [12] – [14] (McHugh J)), but there is no warrant for a finding to that effect in the circumstances of the present case.”
There is similarly no warrant for making a finding of this type in the case before me. The applicant was provided with every opportunity to explain the documentation that he had put to the Tribunal. He did attempt to do so but the explanation was not accepted. This is the responsibility of the Tribunal and it is not one with which this Court would readily interfere.
The second claim made by the applicant in his amended application was that the Tribunal acted in excess of its jurisdiction by making comments that there was no real chance that the applicant would be persecuted for reasons of his being a Bihari if he returns to Bangladesh. The evidence to support that statement was the finding by the Tribunal that the applicant was not a Bihari. It follows logically that if you are not a Bihari you will not be persecuted for being one. I am unable to provide the applicant with any relief on that ground.
Finally, the applicant stated in his amended application that the Tribunal failed to realise the genuine fear that he had received from the terrorists in relation to the extortion or his genuine fear of being murdered by the extortionists if he returns to Bangladesh. The Tribunal considered the applicant's claims in this regard but came to the conclusion that as the claims were based upon his being a Bihari and that as he had been unable to satisfy the tribunal that he was a person of such descent he could not have a genuine fear of further extortion demands or of violence on that particular ground. What the applicant appears to have misunderstood is that the Tribunal can only deal with claims that are Convention related. Whilst a claim of fear of extortionists would be Convention related if the applicant was a Bihari and the extortion threats were being made because of that, a claim in relation to extortion by one Bangladeshi against another would not fall within the ambit of the Convention. This is not said in terms by the Tribunal but a clear inference can be drawn and it is well that the explanation should be given to the applicant via this Court.
In all the circumstances I am unable to find any grounds upon which I can perceive that the Tribunal fell into jurisdictional error in the manner in which it came to this decision. I dismiss the application. I order that the applicant pay the First Respondent’s costs assessed in the sum of 4,500.00. I order that the First Respondent’s name be amended to Minister for Immigration & Citizenship.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
5
4
1