SZJRV v Minister for Immigration
[2007] FMCA 1880
•12 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJRV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1880 |
| MIGRATION – Review of decision of Refugee Review Tribunal – adverse credibility finding – no failure to give weight to documents – findings made were open on the material before the Tribunal – no failure to accord natural justice – weight to be accorded to evidence a matter for the Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592; [2006] HCA 63 NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 |
| Applicant: | SZJRV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3351 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 12 November 2007 |
| Date of Last Submission: | 12 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Mr M. Snell |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application made on 15 November 2006, and amended on 26 April 2007, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3351 of 2006
| SZJRV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me today an application made under the Migration Act 1958 (Cth) (“the Act”) which was filed in this Court on 15 November 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 19 September 2006 and handed down on 10 November 2006, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a citizen of Bangladesh. He arrived in Australia in February 2006 and applied for a protection visa in April of 2006. This application was refused in May of 2006 by a delegate of the respondent Minister.
The applicant’s claims to protection
The Minister has filed a bundle of relevant documents in this matter and I will refer to this as the Court Book (“CB”). What is derived from this bundle of documents is that the applicant’s claims to protection were that he feared persecution in Bangladesh for the Convention-related reason of political opinion and, in particular, that he claimed to have been a supporter of the Awami League. He claimed he had faced persecution from political opponents, in particular, the Bangladesh Nationalist Party (“the BNP”) which formed government, and members, supporters and authorities acting on behalf of the government, and that he feared harm from members of the BNP’s governing coalition partners.
The Tribunal
The applicant’s claims were initially set out in a statutory declaration lodged with his original application for a protection visa. The application for review is reproduced at CB 59 to CB 62. The applicant was represented before the tribunal by a registered migration agent. The applicant gave the Tribunal a number of letters and other material in support of his application. He attended a hearing before the Tribunal on 16 August 2006 and relevantly, given one of the claims made in written submissions, I note the applicant gave his passport to the Tribunal at the hearing, and also gave the Tribunal a copy of the statutory declaration previously provided with his protection visa application.
I note that the Tribunal’s account of what occurred at the hearing is set out in its decision record (reproduced at CB 111 to CB 116). The Tribunal was not satisfied that the applicant faced a real chance of Convention-related persecution in Bangladesh and it found that his claimed fear of such persecution was not well-founded. For this reason, it affirmed the decision that was the subject of the review.
The Tribunal found a large number of inconsistencies in the applicant’s claims and in his accounts of relevant events, such that it found that his claims about activities in which he said he had participated were “profoundly damaged by inconsistency.” It found some aspects of his evidence as fanciful and far-fetched and also as being “quite typical of the kind of ill-conceived ambits prepared by the applicant in the course of this case.”
The Tribunal specifically found that for reasons of this inconsistency, it could not accept that the applicant had any relevant problems with authorities when he left Bangladesh, and I refer here to what appears at the very foot of CB 117. The Tribunal gave no weight to the applicant’s highly inconsistent claims about relevant political experience after his college days and gave no weight to the letters written in support of the applicant.
Application before the Court
By way of amended application, filed in this Court on 26 April 2007, the applicant puts forward with some particulars, three grounds:
1)The Refugee Review Tribunal failed to give any weight to the medical reports in relation to the attack and treatment.
2)The Refugee Review Tribunal failed to give any weight to the letters written in support of me by the previous political colleagues.
3)The Refugee Review Tribunal made a wrong comment about my claim and persecution in Bangladesh.
The hearing before the Court
At the hearing before the Court today the applicant appeared in person and was assisted by an interpreter in the Bengali language. Mr M Snell appeared for the first respondent. And I note also that the applicant has filed written submissions in this matter on 26 October 2007. In those submissions, the applicant appears to complain about the Tribunal’s finding that his evidence was fraught with inconsistency and complained about the Tribunal’s finding about his credibility. He further complains of a breach of s.424A of the Act.
When I asked the applicant if there was anything that he wished to add to these documents, the applicant at first said that he had nothing to add, but after hearing Mr Snell’s submissions, the applicant again pressed his complaint about the finding of inconsistency made by the Tribunal and sought to explain to the Court that he was not in a position to have written everything in his written statement. He stated that everything had been done in a rush and that a long time had elapsed between the incidents that he claimed to have occurred to him and the time when he appeared before the Tribunal. The applicant sought to explain that if he had made mistakes he had no-one helping him and that he had done everything alone and that his life was at risk.
Grounds One and Two – Failure to give weight to documents
Grounds one and two of the amended application essentially complain about the Tribunal’s claimed failure to give any weight to documents that the applicant submitted to it. Ground one asserts that the Tribunal failed to give any weight to a medical report which the applicant had provided to the Tribunal in support of his claim that he had been attacked by political opponents, had been hospitalised and received treatment in relation to this attack. Ground two similarly complains that the Tribunal failed to give any weight to the letters written in support of his claims to have been actively involved with the Awami League and to have held various positions with that party. These letters were provided by persons whom the applicant said were former colleagues.
On any plain reading of the Tribunal’s decision record, it is quite clear that the Tribunal formed an adverse view of the applicant’s credibility based on the evidence provided by the applicant himself at the hearing, the inconsistencies in this evidence, which remained unexplained, and the fanciful and far-fetched explanations, in part, put forward by the applicant.
I can only discern that on what was before it, this was a finding that was open to the Tribunal to make. Findings of fact, including findings of credibility, are within the proper exercise of the Tribunal’s function, as was said by McHugh J in the matter of Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 (at [67]), as the “decision-maker par excellence.”
I agree with written submissions and submissions made in Court today by the first respondent that what the High Court said in Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59, is relevant to the matter before the Court today. It is quite clear that the Tribunal found the applicant’s evidence to be so lacking in credibility that it was therefore open to it to reject IT as being of no weight.
I cannot discern on that basis legal error in what the Tribunal has done. But even further, and specifically in relation to the medical certificate provided by the applicant to the Tribunal which he said supported his claim to have been attacked by political opponents, the Tribunal found that it may well have been that the applicant had sustained an injury on his leg and that he may have sustained it on the relevant evening when he said he had been attacked. But given the evidence over all, the Tribunal could not accept that the applicant sustained the injury in the circumstances that he claimed. The reference to “evidence over all” was clearly a reference to the evidence that the applicant had provided, and which, to a very significant extent, the Tribunal had rejected, as not being credible.
In relation to the letters which the applicant said were written in support of his claims to have been involved with the Awami League, the Tribunal gave no weight to these letters for similar reasons. That is, having rejected the applicant’s highly inconsistent claims about relevant political experience after his college days, having found some of his explanations to be fanciful and far-fetched, and having noted his “essential lack of familiarity with politics and the people who make politics,” and also that his claims about having participated in these political events were profoundly damaged by inconsistency, in these circumstances, again it was open to the Tribunal not to give any weight to the corroborative evidence. This evidence, in the Tribunal’s view, was not such as to overcome its very clear finding as to the lack of credibility in the applicant’s own evidence about the matters which were the subject of the letters in support of his claim. In all, therefore, this ground does not succeed.
Additional complaints raised in written submissions
I also note that in written submissions, particularly at (1), the applicant presses the complaint about the Tribunal’s giving no weight to these documents and says that by doing so the Tribunal failed to accord him natural justice. In this regard it is quite clear that this is a matter to which s.422B of the Act applies and as such makes Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule, absent bias (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).
The submissions in this regard provide nothing further to support either grounds one or two, as pleaded in the amended application. But given that the applicant appeared before me unrepresented today, I did consider whether the Tribunal afforded the applicant a fair hearing pursuant to s.425 of the Act, as recently explained by the High Court in SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592; [2006] HCA 63 (“SZBEL”), a case to which I was referred today by Mr Snell.
I note that the applicant, despite opportunity, has not put any evidence before the Court today, for example, by way of a transcript, to challenge the Tribunal’s account of what it said occurred at the hearing with the applicant. The Tribunal’s account reveals that at the hearing the Tribunal put to the applicant its concerns about matters arising from the letters written in support of his claims. I note here that the Tribunal did not reject the letters as fraudulent or as fabrications but had various concerns that the letters, both in regard to what was stated on their face and in the context of the applicant’s own evidence, did not assist the applicant in making out his claims (see CB 115 to CB 116).
The weight to be accorded to evidence is, of course, a matter for the Tribunal. No error can be discerned in that regard in the case before me now (NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11], VQAB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 104 at [32]).
Ground Three – The Tribunal “made a wrong comment”
Ground three in the amended application asserts that the Tribunal made a wrong comment about the applicant’s claims of persecution in Bangladesh. By way of particulars, the applicant states that the Tribunal said in its decision that it was not satisfied that the applicant faces a real chance of Convention-related persecution in Bangladesh. In one sense I understood this to be an assertion that his claim to fear harm and persecution was related to politics, and that the Tribunal’s finding in this regard was therefore in error or, a “wrong comment.”
A plain reading of the Tribunal’s decision record reveals that the Tribunal well understood the applicant’s claim to have been involved in politics in Bangladesh and that his fear of persecution arose from this involvement (CB 106.6 or 106.7). In its decision record, the Tribunal states that the applicant claims fear of persecution in Bangladesh for the Convention-related reason of political opinion. What follows in the decision record, in my view, accurately sets out the applicant’s claims as put forward in written material. In the Tribunal’s account of the hearing, it is quite clear that the Tribunal discussed with the applicant various aspects of his claimed political activities, both at the time that he was involved in these matters at college, and subsequently.
Simply, there is nothing before the Court to show that the Tribunal misunderstood the applicant’s claims. Having considered those claims, the Tribunal made adverse findings about the applicant’s credibility and, ultimately, affirmed the decision under review based on this adverse view that it took of the applicant’s credibility. I cannot see that the applicant’s complaint that the Tribunal made a wrong comment is anything more than a request for this Court to indulge in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). This ground also does not succeed.
I note in particular item (2) in the applicant’s submissions where the applicant also complains, and presses the complaint, about the Tribunal raising a “question about my credibility”. The applicant confirms that he could not answer a few questions to the Tribunal’s satisfaction but provides the reason that the incident happened a long time ago. I took this to be the incident involving the demonstration in which the applicant claimed to have participated on the evening of 30 December 2002. But even more generally, from what the applicant said today, it may be a reference to other matters that he put before the Tribunal. I understand, therefore, the applicant’s complaint to be that the Tribunal was selective in that it focused on his inability to answer questions to its satisfaction but ignored answers to questions to which, as the applicant says, “I response (sic) properly.”
With respect to the applicant, this complaint is itself selective and, to an extent, disingenuous. The Tribunal’s decision clearly turned on its adverse view of the applicant’s credibility based on a large number of matters which the applicant had put before the Tribunal, and which the Tribunal had discussed with him at the hearing.
The Tribunal’s adverse view was not founded simply and solely on the applicant's inability to answer, to its satisfaction, questions relating to the events of 30 December 2002. In fact a very plain reading of the Tribunal’s decision record reveals that the Tribunal had concerns about the applicant’s credibility in relation to most of his evidence and while the Tribunal accepted that the applicant preferred the Awami League to most other political parties, and accepted with some difficulty that the applicant was involved in campus politics, it did not accept, on the evidence before it, that the applicant had any political career after he left college.
It is important to note, as I said before, that this was not based solely on the events of 30 December 2002. The applicant’s complaint that, “on the cumulative weight of the evidence it was not open to the Tribunal to make its conclusion as to credibility,” is not made out on the material before the Court now. This complaint does not succeed, and nor can I see that the applicant’s reliance on W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 is of assistance in this regard, given what I have just said.
The applicant also, in written submissions, complains that the Tribunal breached the provisions of s.424A of the Act in regard to country information. The applicant particularises this with reference to the country information cited by the Tribunal in its decision record (CB 106 to CB 109). That is, material that related to the political situation in Bangladesh.
I note that the country information referred to by the applicant is not information about the applicant or another person. It therefore falls within the exception contained on s.424A(3)(a) of the Act from the obligations set out in s.424A(1) of the Act (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22], VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12]-[12]). There was no obligation on the Tribunal to put in writing to the applicant any such country information pursuant to s.424A(1) of the Act, and this aspect of the applicant’s complaint also does not succeed.
To the extent that the applicant also complains that the Tribunal found inconsistencies as between his evidence and country information about the political situation in Bangladesh, this complaint, again, is not made out on any plain reading of the Tribunal’s findings and reasons. At the very best, I could only see the country information referred to at the beginning of the Tribunal’s decision record is background information about political events in Bangladesh.
I should also note, as submitted by Mr Snell before the Court today, that the determinative and dispositive issue (with reference to SZBEL at [35]) was not derived from country information before the Tribunal, but was simply the inconsistencies in the applicant’s own evidence provided at the hearing. This includes inconsistencies as between his oral evidence and the written statement he provided at the hearing, an issue that was plainly raised with the applicant at the hearing before the Tribunal such that the applicant was given an opportunity to address the Tribunal’s concerns.
I note that to the extent that the applicant’s complaint, as expressed in the written submissions, seeks to complain that the Tribunal should have put to him in writing inconsistencies in his evidence and to have given him the opportunity of commenting on this, then such inconsistencies are not “information” for the purposes of s.424A of the Act (SZBYR at [18], citing with approval the majority of the Full Federal Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123).
The Tribunal is not obliged to give advance written notice to an applicant of its prospective reasoning process for the purposes of s.424A of the Act. Broadly, the natural justice obligation was addressed by the Tribunal properly at the hearing that it conducted with the applicant.
In all, therefore, the applicant’s explanations today about the difficulties that he had with preparing his matter for the Tribunal and his explanation for the inconsistencies, do not assist the applicant for the reasons that I have already set out. I have found the applicant’s complaint today that he made mistakes because he had no-one helping him as somewhat curious, given that he had advised the Tribunal (see CB 60) that he had an adviser, a Mr David Bitel, whom he had authorised to act for him in relation to the application and whom the applicant told the Tribunal was a registered migration agent, and who appeared to have been actively involved in the applicant’s case before the Tribunal.
I note correspondence to the Tribunal from Parish Patience Immigration Lawyers, signed by “D L Bitel” (at CB 68, correspondence at CB 71) where Mr Bitel advises the Tribunal that “we act for the above applicant and enclose,” and then encloses certain material. I note also (at CB 73) further correspondence from Parish Patience Immigration Lawyers to the Tribunal, although erroneously appears to be addressed to the “Migration Review Tribunal.” Whether in error or not, it is not clear as to whether it refers to some other matter in which the applicant may have been involved, but in any event, the earlier correspondence plainly refers to the applicant and his refugee application.
But even had the applicant not had any such assistance, the explanation, even in those circumstances, put forward by the applicant today, would not assist the applicant in showing jurisdictional error on the part of the Tribunal. The applicant attended a hearing before the Tribunal and had the benefit at that hearing of the assistance of an interpreter in the relevant language. He had the opportunity to provide documentation in support of his claim to the Tribunal, some of which, as I said, was provided on his behalf by immigration lawyers acting for him. Ultimately, he was unable to convince the Tribunal of the credibility of his claims.
The applicant made claims to fear persecution in Bangladesh. He was given the opportunity to explain and expand on those claims at the hearing with the Tribunal. At that hearing the Tribunal put him on notice as to the concerns that it had in relation to the credibility of his claims and evidence. It put him on notice as to the difficulty that it had had, in the face of the credibility concerns, with other corroborative material that he had provided in support of his claims, and ultimately, in a decision that was plainly open to it on the material before it, the Tribunal found that it could not be satisfied that the applicant was a person to whom Australia owed protection obligations.
I cannot discern jurisdictional error in what the Tribunal has done either by way of the matters set out in the applicant’s amended application, nor in his written submissions, nor in what the applicant has said to the Court today, nor otherwise. To succeed today, as I told the applicant earlier, the Court would have to discern such jurisdictional error. The application is therefore dismissed.
It is appropriate that a costs order be made. Nothing has been put to the Court, nor can I discern any reason not to make such an order. As to the amount, I note that today this was the final hearing of this matter and, consistent with the relevant costs schedule to the Rules of this Court, the Minister could have sought an amount up to $5,000. The amount sought is within that range but, in any event, given that I take the view that I am not bound by that schedule, in all the circumstances, I am of the view that the amount sought is a reasonable amount.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 16 November 2007
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