SZMUF v Minister for Immigration

Case •

[2008] FMCA 1731

•

9 December 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMUF v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1731
MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant the applicant a protection visa – applicant is a citizen of Bangladesh claiming fear of persecution for reasons of his political opinion – no jurisdictional error – privative clause decision.
Migration Act 1958 (Cth), ss.425, 425A, 474(1), 474(2)
W396 of 2001 v Minister for Immigration and Multicultural Affairs (2000) 68 ALD 69
WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Chan Yi Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Applicant: SZMUF
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2486 of 2008
Judgment of: Scarlett FM
Hearing date: 9 December 2008
Date of Last Submission: 9 December 2008
Delivered at: Sydney
Delivered on: 9 December 2008

REPRESENTATION

The Applicant: Appeared in person
Solicitors for the Applicant: Not legally represented
Appearance for the Respondents: Ms McDonald
Solicitors for the Respondents: DLA Phillips Fox

ORDERS

  1. The application is dismissed.

  2. The applicant is to pay the first respondent's costs fixed in the sum of $3,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2486 of 2008

SZMUF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

  1. The applicant is a citizen of Bangladesh.  He asks the Court to review a decision of the Refugee Review Tribunal that was made after a hearing on 1st September 2008 affirming a decision not to grant him a protection visa.  The applicant asks the Court for writs of certiorari, mandamus and prohibition.  There is a typographical error in the amended application asking for a writ of certiorari to quash a decision made by the Tribunal on 11th August 2006.  However, the applicant had indicated that that is an error and of course the decision was an oral decision made on 1st September 2008.

  2. The applicant claims that the Tribunal fell into error in three ways.  First, it did not put any weight on the documents which he had provided in support of his claim.  Second it had failed to consider the applicant's involvement with the political party in Bangladesh known as the BNP and third it had failed to consider the reality of persecution that the applicant would face if he re turned to Bangladesh because of his political opinion. The Minister for Immigration & Citizenship has filed a response opposing the orders.

Background 

  1. The background to this matter is that the applicant arrived in Australia on 27th March 2008.  He applied for a Protection (Class XA) visa on 10th April 2008.  He applied for that visa claiming a fear of persecution because of his political opinion.  His claim was set out in a document headed, "Statement of Claim as a Refugee" which can be found at pages 27 to 29 of the Court Book.  In that document he claimed that he feared that he would be murdered by his enemies in Bangladesh particularly activists from the Bangladesh Awami League, the party that is the main opponent of the party that he support, the Bangladesh National Party, or BNP.

  2. A delegate of the Minister refused the application for a grant of the protection visa on 30th June 2008.  The delegate considered Independent Country Information about the political situation in Bangladesh and noted that the applicant claimed to fear harm from non official members of the Bangladesh society being activists from the Bangladesh Awami League and also rivals in business and politics.

  3. The delegate was not satisfied that the applicant had a genuine fear of harm and found that there was not a real chance of persecution occurring and refused the application.

Application to the Refugee Review Tribunal 

  1. After his application for a visa was refused the applicant then applied to the Refugee Review Tribunal on 24th July 2008 for a review of the delegate's decision.  The applicant provided with his application a letter in which he set out the factual basis of his claims to be a refugee.  A copy of that document can be found in the Court Book at pages 61 through to 66.

  2. He provided also a copy of the delegate's decision record and some other documents in the Bengali language and English translations in support of his claim.  The Tribunal wrote to the applicant on 4th August 2008 informing him that it had considered the material before it but was unable to make a favourable decision on that information alone.   The Tribunal invited the applicant to appear before the Tribunal to give oral evidence and present arguments in support of his claim.

  3. The hearing was set down for 10:30 a.m. on 1st September 2008 and an interpreter in the Bengali language was to be provided.  The applicant wrote to the Tribunal on 20th August 2008 asking for an extension of time and a postponement of the hearing in order that he obtain further documents.  The Tribunal replied on 22nd August refusing that application and reaffirming the hearing date on 1st September. 


    The applicant completed a response to hearing invitation indicating that he would attend the hearing and that he would require the services of an interpreter.

  4. He attended the hearing and gave evidence with the assistance of a Bengali interpreter.  The applicant produced his Bangladesh passport to the Tribunal in support of his claim.  He also produced some political posters.  The Tribunal heard evidence from the applicant and delivered an ex tempore decision that same day.  The Tribunal sent a copy of the decision record to the applicant by registered post that same day,


    1st September 2008

    .

  5. The Tribunal affirmed the decision not to grant the applicant protection (Class XA) Visa.  In the decision record the Tribunal set out the relevant law upon which it relied and provided a summary of the applicant's claims in the evidence before the Tribunal noting that he claimed a fear of persecution in Bangladesh for Convention related reasons of political opinion.

The Tribunal’s Findings and Reasons

  1. In its findings and reasons the Tribunal accepted that the applicant was a national of Bangladesh and accepted his claims about where he had lived and the nature of his employment in Bangladesh.  It went on to say:

    Not without some difficulty, given the poor quality of evidence in this case, the Tribunal is prepared to accept that the Applicant prefers the BNP to other political parties in Bangladesh.  However, the Tribunal gives this preference on its own no weight, as the Applicant has generally claimed that only leaders and office bearers have been or are being harassed in Bangladesh. 

    On the vague, confused and contradictory evidence in this matter, the Tribunal does not accept the Applicant's implied claim about being a member of the BNP or even of its youth wing. 

    The Tribunal does not accept that the Applicant has ever worked for the BNP or for any political party in Bangladesh.[1]

    [1] See Court Book page 115.

  2. The Tribunal then considered the documents that the applicant had provided in support of his claim.  The Tribunal gave those documents no weight and found that in its view the documents were fake.  The Tribunal went on to find:

    The Tribunal is of the view that the Applicant's whole case is overwhelmingly damaged by bad faith, forgery, a lack of credibility and a failure to provide consistent and plausible details that a person in his claimed position would easily have been able to provide.[2]

    [2] See Court Book pages 115 and 116.

  3. Whilst the Tribunal accepted that Bangladesh is a politically volatile country and that the situation there is somewhat unresolved it did not accept that those conditions had any significant or relevant impact on the applicant in this case and affirmed the decision not to grant the applicant a protection (Class XA) visa.

Application for judicial review 

  1. The applicant commenced proceedings in this Court seeking judicial review by means of an application and an affidavit in support that he filed on 25th September 2008.  He filed an amended application on


    19th November and a written outline of submissions on 26th November 2008.  In his written submissions the applicant sets out a chronology containing relevant dates beginning when he arrived in Australia and sets out a summary of his factual claims to the Tribunal.

  2. He refers then to his three grounds of review which were set out in the amended application and informs the Court as to why he believes those grounds should be made out.  The applicant also made a short oral submission to the Court in which he criticised the Tribunal for not investigating the documents that it had found to be a fake.  


    The applicant submitted that the Tribunal had failed to exercise its duty under the Migration Act by not putting any weight on its documents.

  3. He referred to the reference letter from the Bangladesh Jatiotabadi Jubodal in relation to his involvement with the BNP and a copy of his arrest order and a copy of a poster showing that he was a victim of false cases by the Awami League.  He complained that the Tribunal had not put any weight on those documents because it had found them to be fake.  He submitted that the Tribunal made that comment in bad faith and put no weight on those documents.

  4. He went on to submit that if the Tribunal had any doubt about the authenticity of the documents it could contact the writers who provided the documents but it did not do so.  As to his second ground which was a claim that the Tribunal underestimated his ability and his involvement with BNP politics he informed the Court that he had claimed to the Tribunal that he was a BNP activist in Bangladesh as the press secretary of the Siragdikhan Jatiotabadi Jubodal but the Tribunal did not accept that he had ever worked for the BNP. 

  5. He submitted that the Tribunal under estimated his inability at politics and his involvement with the BNP when it made that finding.  Again he submitted that the Tribunal could contact the people who had provided him with the appropriate reference to verify the authenticity of the documents.  As to his third ground the applicant claimed that the Tribunal failed to realise the genuine fear which he would face in his home country if the current regime of law and order in Bangladesh would collapse or the old regime under which he claimed persecution and political violence was reinstated.

  6. He submitted that the failure of the Tribunal to address this issue prevented it from having a rational basis to determine the change his persecution in the future and meant that the Tribunal had not considered an essential substantial matter of his claim.  He referred to W396 of 2001 v Minister for Immigration and Multicultural Affairs.[3]

    [3] (2000) 68 ALD 69 at [33]

  7. It was submitted on behalf of the Minister by Ms McDonald, solicitor, that in respect of his first ground relating to the Tribunal not putting any weight on the applicant's documents that the Tribunal's task as an inquisitorial review body is to weigh evidence and make findings of fact. Those finding of fact cannot be disturbed on an application for jurisdictional review.  The Tribunal found that because the police report and the letter from the press secretary were fakes it gave no weight to the posters that he submitted and it was submitted that there was no error in that finding. 

  8. The essence of the submission was that as the Tribunal had made a finding that the applicant was not a witness of truth there was no error in giving the corroborative documents no weight as they had been undermined by the adverse credibility finding.  Ms McDonald relied on the decision of French J in WAGU v Minister for Immigration and Multicultural & Indigenous Affairs[4] and particularly where his Honour said at [36]:

    “Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility.  In such a case a failure to put to the tendering party that the evidence may be so regarded it cannot constitute a breach of procedural fairness.  This is just a special case of the general proposition that procedural fairness does not require the decision maker, in this case the Tribunal, to invite comment upon its thought processes on the way to the decision.”

    [4] [2003] FCA 912

  9. As to the second ground which was the Tribunal's failure to consider the applicant's involvement with the BNP it is submitted that this was no more than cavilling with the Tribunal's factual finding that it did not accept that the applicant had ever worked for the BNP in Bangladesh and was a clear attempt at Merits Review which of course is not available on an application for judicial review.  Reliance was placed on NAHI v Minister for Immigration & Multicultural & Indigenous Affairs;[5] Chan Yi Kin v Minister for Immigration & Ethnic Affairs,[6] per Mason CJ and also Minister for Aboriginal Affairs v Peko-Wallsend Limited.[7]

    [5] [2004] FCAFC 10 at [10]

    [6] (1989) 169 CLR 379; 87 ALR 412 at [420]

    [7] (1986) 162 CLR 24 at [40]-[42]

  10. The third ground characterised as a failure to consider the chance of persecution if the political situation changed was met by the submission that the Tribunal was not required to consider that in circumstances where it did not accept that the applicant had the political profile that he claimed.   The applicant made no submission in reply. 

  11. The basis for the Tribunal finding adverse to the applicant was its comprehensive finding about the credibility of the applicant's evidence.  The Tribunal found that the key documents that the applicant had submitted in support of his claim to be an office holder in the BNP were both fake.  The Tribunal made a comprehensive finding that the applicant's whole case was overwhelmingly damaged by bad faith, forgery, a lack of credibility and a failure to provide consistent and plausible details that a person in his claimed position would easily have been able to provide.[8] 

    [8] See Court Book pages 115 and 116.

  12. Credibility findings as is well known are findings of fact and provided that there is evidence before the Tribunal as with any finding of fact credibility findings will not be disturbed by a Court conducting judicial review.  It was open to the Tribunal to find that the applicant's documents were fakes.  It gave the reasons as to why it considered they were forged.  The applicant submits that the Tribunal should have made its own enquiries from the authors or the providers of those documents but the Tribunal is under no obligation to conduct independent enquiries to verify the applicant's claim.  Accordingly that ground must fail.

  13. The applicant claims that the Tribunal did not accept that he had this political profile that he claimed.  That was entirely a factual finding. 


    It was based on the applicant's own evidence.  The Tribunal did not believe the applicant's evidence that he was a press secretary in a branch of the BNP and had suffered harm accordingly.  Obviously ground two therefore must fail.

  14. Ground three is a complaint that the Tribunal has not considered would happen in Bangladesh if the applicant were to return and the political situation changed or the old regime were restored.  The Tribunal did consider that in the sense that it accepted that Bangladesh is a politically volatile country and the situation there is somewhat unresolved. However, the Tribunal's finding was that difficult though the situation in Bangladesh undoubtedly is it would not have a significant relevant impact on the applicant because it had already found that he did not have the political profile and the position of an office bearer in the BNP that he had claimed.

  15. Those findings were again open to the Tribunal to make on the evidence before it.  It follows then that the applicant's third ground has not been made out.  I am mindful of the fact that the applicant is not legally represented.  It is not a privilege to be unrepresented before a Court when the other party is represented; it is a misfortune. 

  16. The Court in these circumstances as a matter of course, considers the material before it, the Tribunal decision and the supporting documents in the Court Book in order to ascertain whether there may be an arguable case of jurisdictional error that the applicant has not seen or even an arguable case for jurisdictional error that the Minister, albeit seeking to operate as a model litigant at all times has perhaps overlooked. 

  17. My independent reading of the Tribunal decision and the supporting documents does not disclose any arguable case for jurisdictional error. The Tribunal invited the applicant to attend the hearing under the provisions of s.425 of the Act and the letter of invitation complies with s.425A. The Tribunal provided the applicant with an interpreter in the Bengali language and gave him the opportunity to give evidence and present argument.

  18. There is nothing that would suggest that there was any lack of procedural fairness insofar as s.425 of the Act is concerned. It is of no significance that the Tribunal refused the applicant's request for a postponement of the hearing because he wished to obtain more documents from Bangladesh, that was entirely a matter for the Tribunal and I cannot discern any jurisdictional error or any failure to accord procedural fairness in the Tribunal's insisting that the hearing should go ahead.

  19. The applicant was able to attend; he did not suffer any medical hindrance and an interpreter was provided and in my view the Tribunal hearing does not indicate any error. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. Section 474(1) of the Act deals with privative clause decisions and says, amongst other things, that a privative clause decision is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in question at any Court and is not subject to prohibition, mandamus injunction, declaration or certiorari in any Court on any account.

  20. It follows that the applicant's application for orders in the nature of prohibition, mandamus and certiorari cannot be granted and the application will be dismissed.

  21. There is an application for costs on behalf of the first respondent Minister in the sum of $3,800.00. The applicant has been unsuccessful in his claims and in my view it is appropriate to make an order for costs in favour of the first respondent. The amount of $3,800.00 is sought which is in amount well within the range provided for by the scale of the Federal Magistrates Court Rules. In my view it is an appropriate figure in the circumstances.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  12 January 2009


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Cases Citing This Decision

1

SZMUF v Minister for Immigration and Citizenship [2009] FCA 182