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MIGRATION - RRT refused protection visa - Bangladeshi warrants and court documents found bogus - no legal error in Tribunal decision or procedure.

SZDMG v Minister for Immigration [2004] FMCA 822 (3 November 2004)

SZDMG v Minister for Immigration [2004] FMCA 822 (3 November 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDMG v MINISTER FOR IMMIGRATION
[2004] FMCA 822




MIGRATION - RRT refused protection visa - Bangladeshi warrants and court documents found bogus - no legal error in Tribunal decision or procedure.




Migration Act 1958 (Cth), ss.483A, Part 8

Judiciary Act 1903 (Cth), s.39B

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Lam (2003) 214 CLR 1

Applicant:
SZDMG




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG 1318 of 2004




Delivered on:


3 November 2004




Delivered at:


Sydney




Hearing date:


3 November 2004




Judgment of:


Smith FM




REPRESENTATION

Counsel for the Applicant:


In person




Counsel for the Respondent:


Mr D Jordan




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) Objection to competency upheld.

(2) Application dismissed.

(3) The applicant to pay the Minister's costs in the sum of $4000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 1318 of 2004

SZDMG



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Refugee Review Tribunal handed down on 11 April 2000 and dated 24 March 2000. The application in this Court was filed on 6 May 2004, and in the material before me there is no explanation for what has happened in those four years.

2. The applicant was directed to file affidavits and further details of his arguments prior to today's hearing but did not do so. He attended today with the assistance of an interpreter and passed up a six page document headed: "Written argument by applicant" which appears to be a collection of extracts from several documents of different authorship. No explanation for the delay was put forward in that document. However, from what the applicant and counsel for the Minister started to tell me from the bar table, it seems that some of the delay may have been accounted for by participation in a High Court class action.

3. In these circumstances, I decided to hear submissions from both parties on whether the Tribunal's decision was vitiated by errors of law without investigating the delay further. Since I have come to a conclusion adverse to the applicant on the validity of the Tribunal's decision, I have not found it necessary to receive evidence concerning the delay and make no findings in relation to it.

4. The Court's jurisdiction under s.483A is "the same jurisdiction as the Federal Court in relation to a matter arising under this Act", so that the Court has judicial review jurisdiction under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. These limitations do not, however, on current authority of the High Court, prevent the giving of relief in an application such as the present if the Court is persuaded that the Tribunal decision was vitiated by jurisdictional error.

5. The present applicant's application for a protection visa was lodged on 13 March 1998, shortly after he arrived in Australia from Bangladesh. It was presented without the apparent assistance of a Migration Agent, and was accompanied by numerous documents which purported to establish that the applicant, since 1996, had been the subject of warrants for arrest and criminal prosecutions arising out of participation in political demonstrations against the then government of Bangladesh. The documents included what purported to be a record of a District Court in Dhaka in January 1998 finding proven a case against the applicant and sentencing him, in his absence, to ten years' "R.I". The documents also contained statements purporting to corroborate this account from a vice president of a political party to which the applicant claimed to belong, and from members of his family. He also submitted extracts from newspaper reports and other documents.

6. All these documents were also submitted to the Tribunal, together with numerous photographs which have not been well reproduced in the Court Book before me. The applicant attended a hearing before the Tribunal on 3 February 2000 and was questioned about these documents and his account. From the Tribunal's description of the hearing set out in its reasons, it was clearly put to the applicant that the Tribunal thought there were inconsistencies between some documents. In particular, the date of the letter from the vice president of the party, which referred to the conviction, appeared to the Tribunal to pre-date the date of the sentence. The Tribunal says that it put this to the applicant and "he does not know how this happened." The Tribunal also said that it said to the applicant that it thought the documents were fraudulent, and that the applicant did not reply. The full transcript of what happened is not before me, but I have no reason to doubt the accuracy of the Tribunal's description of the hearing.

7. In its reasons, the Tribunal refers to the various pieces of evidence put forward by the applicant, including the photographs, and recounts how it questioned the applicant about their contents and about the letters from his brother and father. The Tribunal's general conclusion, under the heading, "Findings and Reasons" was:

The applicant was not a convincing witness. The following considerations, when taken together, lead the Tribunal to conclude that the applicant's claims were implausible and bogus.

8. It then provides reasons, which are generally rational, for reaching that conclusion, including significantly taking into account the applicant's responses to questioning about the documents. One significant finding is as follows:

The Tribunal is satisfied that the applicant is a business man who attended several BNP rallies in preparation for applying for refugee status in Australia. The photos of him attending a BNP meeting with the Chairperson of the BNP in his home village adds little consequence to his claims. The photos merely show him in a meeting with hundreds of other people. The Tribunal is not satisfied that he is of interest to the authorities in Bangladesh. The applicant by his own account has never been arrested or detained. The Tribunal finds that there are not false cases against the applicant and that the documents he has provided the Tribunal were part of an elaborate plan for deceiving the Tribunal. The Tribunal accepts that the applicant is a member or supporter of the BNP. However the party is legal in Bangladesh and such membership or support does not mean that the applicant has a well-founded fear of persecution in Bangladesh.

The Tribunal is not satisfied that the applicant's house was raided by the AL as he claims. As the Tribunal is not satisfied that he has been an executive member of the BNP, there would be little reason for the AL to raid his house as opposed to any other ordinary member of the BNP. More importantly, his brother's claim that the house had been "demolished" and that the family had in effect been forced to move was exaggerated to state the least. The photos showed the walls of the house clearly standing and some overturned furniture. It did not show that the house was uninhabitable. The applicant admitted that the claim was exaggerated at the hearing. The Tribunal is of the view that he letters from his family members were clearly prepared for the purpose of the application having been written in English. While this does not establish that their contents are false, given the doubts about the overall credibility of his claims, the Tribunal does not accept what is stated in the letters to be the truth. His family appear to have taken part in the planned deception of the Tribunal and the Department, as the applicant told the Tribunal that the Court documentation (which the Tribunal found to be bogus) was sent to him by his family.

9. The Tribunal's ultimate conclusion was that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.

10. The application to the Court contains no particularised allegation of a ground of judicial review, but merely recites a list of heads of judicial review without any apparent substance. There is no purpose in my reproducing it. The written argument passed up this morning contains some allegations of a similar nature, but doing the best I can it contains four arguments.

11. First, that the Tribunal "Did not consider me as a refugee despite many evidentiary proofs. I refer my documentary evidences." This is a complaint about the fact finding of the Tribunal. In my opinion the reasoning of the Tribunal was open to it as a matter of law on the material which was in front of it, and I am not persuaded that the Tribunal made a jurisdictional error when rejecting the applicant's "many evidentiary proofs."

12. The second argument was that the Tribunal's rejection of "relevant evidences and its finding in the face of contradicting independent evidence", indicated "actual bias." I do not accept that argument and can find no evidence of either actual or apprehended bias in the material before me.

13. The third argument was that the Tribunal failed to investigate the applicant's claims in Bangladesh, presumably by making further inquiries as to the validity of the documents that had been tendered. I accept the submission of the Minister that the procedural provisions of the Act did not require the Tribunal to investigate this material further. Although the Tribunal had a discretion to investigate further if it thought necessary, in the circumstances as they appeared to the Tribunal it was open to it to decide the case without doing so.

I therefore do not accept the argument that procedures were not followed which should have been followed, nor that that a failure to investigate further showed bias within the principles relevant to that topic.

14. The fourth argument which I was able to distil from the applicant's written argument was that breaches of procedural fairness occurred of the nature found by the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. The argument appears to have been that, as in Muin, the Tribunal sent the applicant a letter dated 15 December 1999 saying: "The Tribunal has looked at all the material relating to your application but is not prepared to make a favourable decision on this information alone." The Tribunal then invited the applicant to attend a hearing: "To give oral evidence and present arguments in support of your claim."

15. The allegation in the applicant's written argument is that: "Actually in the Tribunal there is no part B documents." And: "In my RRT decision, Tribunal made identical mistake, that is procedural fairness. Tribunal did not invite me to comment regarding the country information." This appears to be a claim similar to that upheld in Muin that the Tribunal made misleading statements as to what material it would look at, and also failed to invite comments on adverse material.

16. However, there is nothing before me to give substance to these assertions. There is no evidence that the Tribunal in fact did not look at the Part B documents referred to in the delegate's decision, and I am not ready to draw that inference merely from the absence of reference in the reasons. There is no evidence that there was any adverse material which was not adequately put to the applicant. There is no evidence that the applicant was at all mislead by the statements in the invitation sent. Finally, there is no evidence of any practical injustice flowing to the applicant from the procedures followed by the Tribunal. (See Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Lam (2003) 214 CLR 1). Therefore, I do not accept this argument.

17. In his oral submissions, which were brief, the applicant did not raise any point which I have not dealt with above. He repeated his assertion that his documents were genuine and his feeling that the Tribunal had wrongly disbelieved him. However, as I have explained to him, it is not my task to decide whether he should be believed or his documents believed. I have not been able to find a legal error in the Tribunal's decision not to believe him.

18. For these reasons I shall dismiss the application on the ground that no jurisdictional error has been made out. It follows that I must also uphold a notice of objection to competency filed by the Minister on the ground that the decision is a privative clause decision for which judicial review is excluded by s.474(1) of the Act, and also that the bringing of the action was barred by s.477(1A) because it was not lodged within 28 days of the decision of the Tribunal.

RECORDED : NOT TRANSCRIBED

19. I order the applicant to pay the respondent's costs in the sum of $4000

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 18 November 2004
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