SZKRU v Minister for Immigration
[2007] FMCA 1281
•20 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKRU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1281 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Bangladesh claiming fear of persecution for reasons of his political opinion – credibility issues – no reviewable error. PRACTICE & PROCEDURE – Costs – no order for costs – costs order futile. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.412, 424, 424A, 424B, 425, 449D, 474(2) |
| Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 |
| Applicant: | SZKRU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1673 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 July 2007 |
| Date of Last Submission: | 20 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Mr Pinder |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
No order for costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1673 of 2007
| SZKRU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 30th April 2007 and handed down that day. The applicant was then and is now in immigration detention. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa. The applicant seeks the following orders.
a)An order that the decision of the tribunal is invalid, null and void.
b)An order to redirect the RRT decision and order the Tribunal to take this matter for further consideration.
c)An order not to remove me from Australia while the decision is pending.
The circumstances of this case are that the applicant is a citizen of Bangladesh. He arrived in Australia on 27th March 2001 as the holder of a student visa. He was granted a number of further student visas in Australia. In October 2002 his student visa was automatically cancelled. The applicant applied for a protection (Class XA) visa on 7th November 2002. On 12th December in that year a delegate of the Minister refused the application for a visa.
The applicant remained in Australia as an unlawful non-citizen and in November 2006 he made his way to a police station on the Gold Coast stating that he wished to return to Bangladesh. He was taken into immigration detention and spoke to his family on the telephone.
The applicant then claimed that he had received a letter from his parents repeating warnings they had given to him on the telephone about the political and civil situation and it was on the basis of those claims that he changed his mind as to his decision to return to Bangladesh.
The Tribunal notes at page 104 of the Court book that when the applicant was notified of the delegate's decision not to grant him a protection visa the authorised recipient at the time was not properly notified of the decision as an incorrect address appears on the notification. The Tribunal has found that the delegate failed to comply with s.449D of the Migration Act 1958 (Cth) (“the Act”).
The applicant applied to the Refugee Review Tribunal on 27th March 2007 for review of the delegate's decision and the Tribunal found that the applicant made a valid application for review under s.412 of the Act.
In the applicant's application which was received by the Tribunal on 26th March 2007 the applicant provided a two page typed statement in which he set out his history and claimed that whilst he was studying in Bangladesh he was seriously involved in student politics. He became an active member of the Chattra League which is a wing of the Awami League in Bangladesh and fears harm because of his political involvement. He said that his parents advised him to apply for a student visa and leave Bangladesh because of threats against him.
He claimed that his parents received threats relating to him after he left Bangladesh. He claimed that he went the police station at Southport on the Gold Coast on 1st November 2006 and said that he just wanted to go back to Bangladesh. He said that his passport had been stolen and all his other important documents had been stolen from a house where he lived in Marrickville, New South Wales.
He went on to say that because of all those things that had happened to me he has been suffering from mental illness which was why he gave himself up in 2006. He said that whilst arrangements had been made for him to return to Bangladesh by air on 2nd April 2007 he received two letters from his family on 21st March indicating things were not well in Bangladesh and that his name had been placed on false murder charge with three other friends. He claims that terrorists from the BNP would kill him if he were to return to Bangladesh. He provided copies of documents which were said to be letters from his family. He did not provide translations.
The Tribunal wrote to the applicant on 13th April 2007 under the provisions of both s.424A and s.424 of the Migration Act. That letter told the applicant that the Tribunal had information that would subject to any comments he made be the reason or part of the reason for deciding that he was not entitled to a protection visa. The letter set out certain information and told him the following:
This information is relevant as it may indicate that you applied for the protection visa only because of the cancellation of your student visa. The delay in applying for the protection visa may indicate to the Tribunal that you did not have a well founded fear of persecution in Bangladesh for a Convention reason. It may also cause the Tribunal to question your claim that after you came to Australia your family had been threatened and questioned about you. This information may cause the Tribunal to question the authenticity of your claims and your credibility.[1]
[1] See Court Book at page 83
The Tribunal also noted in this letter that whilst the applicant's application for a protection visa was refused in December 2002, he did not seek a review of that decision until March 2007. The Tribunal also set out other pieces of information indicating that the Tribunal may find that the applicant did not have a genuine fear of persecution in Bangladesh after he arrived in Australia. The letter also asked the applicant to provide information about all addresses where he resided in Bangladesh prior to arriving in Australia and the dates of residence there.
The applicant replied to that letter by means of a letter dated 19th April, a copy of which can be found at pages 90-91 of the Court book.
He explained that because getting a protection visa from Bangladesh was extremely difficult the quickest and easiest way was to come to Australia on a student visa and he did not lodge his application for a protection visa since he already had a valid student visa. He said that he wanted to return to Bangladesh in November 2006 because he thought he was no longer wanted by the authorities because he had been overseas for six years. After he was detained he called his family in Bangladesh but his parents and brother pleaded with him not to return to Bangladesh. They explained that his life would be in grave danger.
The applicant attended a hearing of the Tribunal which took place on 26th April 2007. He gave evidence with the assistance of an interpreter in the Bengali language. The Tribunal asked the applicant a number of questions about his application and his history and about the delays in applying for a visa and in applying for review. The Tribunal referred in its decision to country information.
The Tribunal assigned its decision on 30th April 2007 and handed that decision down that day. The findings and reasons can be found at pages 121-126 of the Court book. The Tribunal accepted that the applicant was a national of Bangladesh and assessed his claims against Bangladesh as his country of nationality. However, the Tribunal was not satisfied about the applicant's credibility having this to say:
The Tribunal found that the applicant was not a credible or forthright witness in presenting his case. The applicant was evasive in his responses to the Tribunal; his evidence was often confused and given after repeated questioning and much prompting by the Tribunal.[2]
[2] See Court Book page 121
The Tribunal then set out the reasons why it rejected the applicant's claim that he feared persecution because of his membership in and involvement in the activities of the Awami League. Those reasons are set out on pages 122-125 of the Court book. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant seeks judicial review of that decision by means of an application and affidavit filed on 28th May 2007. There are only two grounds set out which I will quote as follows:
1)RRT did not observe my case properly under the Migration Act 1958. Please find the enclosed letter.
2) The RRT deprived me of natural justice.
The applicant in his supporting affidavit makes similar claims.
He says:
1)I applied to RRT on 26 March but they did not observe my case properly under the Migration Act 1958. Please find the enclosed letter with this application.
As each of the applicant's documents referred to an enclosed letter and I noticed that there was no enclosed letter I asked the applicant about this. The applicant referred the Court to a letter in the Bengali language which appears at pages 73-74 of the Court book. It appears to be the letter from the applicant's family addressed to the applicant.
The applicant told the Court that he took issue with the Tribunal's finding that he was not a credible witness. He referred to the conditions currently prevailing in Bangladesh and claimed that if he returned he would be killed. His complaint is that the Refugee Review Tribunal did not believe his evidence. He said there were false charges laid against him and if he were to return to Bangladesh he would be arrested.
The applicant has not provided any particulars of any failure to comply with the Migration Act as claimed. He has not provided any particulars of any deprivation of natural justice either under the Migration Act or common law natural justice. Needless to say s.424B of the Migration Act applies and thus the natural justice hearing rule does not have effect. The requirements of natural justice or procedural fairness are set out in the Migration Act. In my view there is no breach of ss.424A or 425 of the Migration Act.
The applicant attended a hearing where he gave oral evidence and presented arguments. The Tribunal wrote to him under the provision of s.424A giving him the opportunity to comment on certain information. The applicant provided written comments on that information and that was considered. As to whether the applicant was taken by surprise in respect of any unexpected finding that would not have been clear to him there is no such evidence.
This is a case that was decided almost entirely on the issue of the credibility of the applicant's evidence before the Tribunal, although the Tribunal had some recourse to independent country information. Findings as to credibility are factual matters and are properly the function of the decision make and normally are not susceptible to judicial review by the Court. That is certainly the case where credibility findings are reasonably open on the evidence before the Tribunal.
(See Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]).
In my view, the Tribunal's credibility findings were open to it based on the applicant's demeanour at the hearing and the considerable delay in applying both for a protection visa and for a review of the decision of the delegate refusing the visa.
I am mindful of the fact the applicant is not legally represented. I am not able to discern from my own reading of the Tribunal decision or the supporting material any jurisdictional error. In my view there is no jurisdictional error and the decision is a privative clause decision as defined by s.474(2) of the Migration Act. Because it is a privative clause decision it is final and conclusive and not subject to orders in the nature of certiorari, mandamus, and prohibition and is not subject to a declaration of the type that the applicant seeks. It follows that the application must be dismissed.
I would indicate that I note that the applicant claims to have been suffering from a mental illness when he reported to the police in Queensland in November 2006. I have some concerns from the applicant's demeanour today that he may not have fully recovered from that mental illness or may have suffered a relapse. I would be concerned if the immigration authorities did not conduct a psychological assessment of the applicant in order to satisfy themselves as to his mental state, if only for the reasons of concerns about the applicant's own well being. I recommend to the Minister that the appropriate investigations should be conducted about the applicant's mental state and that he should be given whatever treatment may be considered necessary.
There is an application for costs on behalf of the first respondent Minister in the sum of $4,000.00. Whilst I do not see any reason to query the quantum of the costs which are sought as they seem to me to be entirely reasonable and within the scale provided by the Federal Magistrates Court rules, this is an unusual case where I am not satisfied that costs should follow the event.
The applicant has been in custody or immigration detention since he handed himself into the police in South Port in the State of Queensland in November 2006. He complained then of mental illness and in my view I have some concerns as to his fitness in that regard now.
Quite clearly he has not been able to earn any income and there is no suggestion that he has now or will have in the reasonably foreseeable future any capacity to meet an order for costs.
I should state that this is no criticism of the Minister and certainly no criticism of the Minister's lawyers but in this case as I consider an order for costs would be futile I propose to make no order for costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 30 July 2007
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