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MIGRATION - Application to review decision of Refugee Review Tribunal - whether failure to comply with s.424A Migration Act 1958.

SZAZD v Minister for Immigration [2004] FMCA 906 (17 November 2004)

SZAZD v Minister for Immigration [2004] FMCA 906 (17 November 2004)
Last Updated: 13 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAZD v MINISTER FOR IMMIGRATION
[2004] FMCA 906




MIGRATION - Application to review decision of Refugee Review Tribunal - whether failure to comply with s.424A Migration Act 1958.




Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Muin v Refugee Review Tribunal (2002), HCA 30

NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494

NAMW v NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 264

NAOA v NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241

Applicant:
SZAZD




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1387 of 2003




Delivered on:


17 November 2004




Delivered at:


Sydney




Hearing date:


17 November 2004




Judgment of:


Barnes FM




REPRESENTATION

Counsel for the Applicant:


Nil




Solicitors for the Applicant:


Nil




Counsel for the Respondent:


Mr JD Smith




Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) That the application is dismissed.

(2) That the applicant pay the respondent's costs set in the amount of $4,250

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1387 of 2004

SZAZD



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 24 June 2003, affirming a decision of the delegate of the respondent not to grant the applicant a protection visa. The applicant, who is a citizen of Bangladesh, claimed to fear persecution, specifically because after a conference was organised for the political party to which he belonged in January 2000, he became a target for his political opponents.

2. He claimed that he came from an anti-Awami League family and that he had joined the Freedom Party and that he was persecuted by reason of his political opinion because of his membership and activities with the Bangladesh Freedom Party. He claimed that he had been convicted of false charges in relation to a political riot in early 2000. He claimed that after he had left the country he was found guilty and sentenced in absentia to 6 years gaol and fined. He claimed to fear harm should he return to Bangladesh because of this charge and the conviction that occurred after he came to Australia.

3. The Tribunal accepted that the applicant was from Bangladesh, but did not accept that he was charged or convicted of serious offences by the then Awami League government. It gave a number of reasons for that finding.

4. At the commencement of the findings and reasons part of its decision it referred to the fact that the applicant had submitted documents purporting to support his claim. These documents, which purported to be Court documents setting out that the applicant had been charged and found guilty, had been discussed with the applicant in the Tribunal hearing according to the Tribunal reasons for decision. The decision records that it was put to the applicant that there was a record of fraudulent documents, including Court documents, being submitted by Bangladeshi asylum seekers. He had maintained his documents were true. The Tribunal noted the documents and the evidence that the submission of fraudulent documents by Bangladeshi asylum seekers was widespread, but found that that was not of itself evidence that the particular documents were fraudulent, although it did indicate the documents should not be relied upon to prove, of themselves, the applicant's claim to have been charged and convicted.

5. The Tribunal went on to give a number of other reasons for rejecting the claims, first, that the evidence in support of the claims was weak, inconsistent and unconvincing and that the applicant seemed prepared to adjust the evidence to fit any new information. Secondly, that apart from the inconsistency in the claims, there was evidence that the applicant had left and re-entered Bangladesh three times after early 2000 on his own passport and that he had avoided arrest despite so doing.

6. On the basis of that material the Tribunal found that while it was possible that the applicant had been a supporter of the Freedom Party, it did not accept that he had been charged or convicted of any offence because of political activity, or that he had been seriously harmed because of any political activity. Having rejected these claims, the Tribunal went on to consider what would be the position if the applicant had been charged by the Awami League government as contended.

7. The Tribunal found that he had been able to avoid any arrest, that there was evidence that the Courts would not readily convict on false charges and that it was not satisfied that the applicant would be at greater risk of arrest now, there being a new government in power. The Tribunal was not satisfied that there was a real chance the applicant would be falsely convicted of any charges, or that he would be denied a fair trial on any charges. It was not satisfied that there was a real chance that the applicant would be arrested and mistreated should he return.

8. The Tribunal also found that if the applicant was involved in political activity in Bangladesh, there was insufficient reliable evidence on which to conclude that such activity would place him at any risk of persecution in the future. The Tribunal referred to independent country information cited in its reasons, in particular the fact that the Awami League government had lost power and that it could find no evidence that the present government was seeking to harm former or present Freedom Party activists. This information in relation to the change of government was information which, according to the Tribunal, it had put to the applicant in the hearing for comment. The Tribunal reasons for decision make it clear that the Tribunal took into account his comment that the BNP was not harming Freedom Party activists, but that they had not sought to remove the false cases lodged by the Awami League in its consideration of the independent evidence, finding no evidence that the present government was seeking to harm former or present Freedom Party activists and that it was not satisfied that he would be denied a fair trial.

9. The Tribunal concluded that it was not satisfied that there was a real chance the applicant would be persecuted, or that he had a well-founded fear of persecution.

10. The applicant sought review by application filed in this Court. He filed an amended application on 29 March 2004. In that amended application he claimed that the decision was affected by jurisdictional error, in that the Tribunal failed to take into account a relevant consideration when it assessed whether there was a real chance of him being persecuted in Bangladesh. The particulars of that claim were that the Tribunal failed to consider, in assessing the chance of the applicant being arrested on his return to Bangladesh, the fact that the arrest warrant he faced in Bangladesh was based upon his conviction in August 2001, after he came to Australia. A second ground was that the Tribunal's satisfaction that there was not a real chance of persecution was not based upon reasoning which provided a rational or logical foundation for the belief. It relied on the same particulars.

11. Neither ground establishes a jurisdictional error. It is clear from the Tribunal reasons for decision, that the Tribunal understood the applicant's claims, including the fact that the arrest warrant was based upon a conviction after the applicant left Bangladesh. The claim that the Tribunal failed to consider this ground is not established. The Tribunal considered both the claims of charges and convictions. It did not accept that the applicant had been charged or convicted of serious offences while the Awami League government was in power. That finding was based upon matters of credit, including the manner in which the applicant gave his evidence and seemed prepared to adjust it to fit new information, and also the weakness, inconsistency and unconsistency of his evidence, the unreliability `of themselves' of the documents submitted, and the evidence from the applicant of his travel to and from Bangladesh. It is clear, reading the Tribunal reasons for decision as a whole, that the fact that it went on to consider what the position would be if the applicant had been charged, does not detract, as was submitted by the respondent, from the strength of its finding that he had never been convicted. In that respect at least, it was not required to consider the claim on the basis that it might possibly be true: MIMA v Rajalingam (1999) 93 FCR 220.

12. Moreover, insofar as it is contended that there was no rational or logical foundation for the decision, if indeed this constitutes a basis for judicial review, it is not in any event satisfied in this case. The Tribunal conclusions were open to it for the reasons that it gives. In particular, the Tribunal findings in relation to the credibility of the applicant were open to it on the material before it. It was that finding which led to the strength of the Tribunal's rejection of the applicant's claims, particularly in relation to the claimed conviction. The alternative possibility in relation to the charges was also dealt with by the Tribunal. The fact that there had been a change of government was information which was put to the applicant. Generally, in relation to that country information, it was also provided to the applicant by an officer of the Department, in relation to the original application for a visa. There was no unfairness in such circumstances in the Tribunal's reliance upon such general country information. Furthermore it is outside the specific obligation in section 424A(1) of the Migration Act. Whatever the effect of section 422B of the Act is, there is nothing in the material before me to suggest that there is any lack of procedural fairness as contended in written submissions filed on 9 November 2004. These submissions consist of a document of some 26 pages in very general form. It is in a form which has been submitted to the Court in other matters concerning other applicants. It does not address the specifics of the applicant's claims in any detail.

13. The submission commences by suggesting that the former section 476(1)(f) of the Migration Act is applicable on the basis that the decision was induced or affected by actual bias. It goes on to set out a general discussion of the law in a number of respects, in particular in relation to section 474 of the Migration Act 1958 and the notion of a privative clause decision. It contains a significant extract from a United States State Department report which is of no relevance in this particular case. There is nothing to suggest that such material was before the Tribunal or taken into account by the Tribunal. The relevance of this document is not in any way explained by the document or by the applicant, who had nothing to add to the written submission. Moreover this is not a re-hearing, and the Tribunal is not determining the applicant's claim.

14. I have however, considered the matters that are raised in this document, bearing in mind that the applicant is self-represented. First, there is nothing to establish actual bias. This claim was based essentially on the fact that the Tribunal did not accept that the applicant was persecuted. Nor does the fact that the applicant's claim was not accepted constitute bad faith, as appears to be contended. There is a brief reference to the decision of the High Court in Muin v RRT [2002], HCA 30, but the factual basis for such a claim is not established in this instance. There is no evidence that the applicant was misled or relied, to his detriment, on any communication from the Tribunal. There is also a very general reference in the written submission to the principles of natural justice. I have already indicated that there is nothing in the material before me to suggest that there was a breach of the rules of natural justice. Nor, either as contended in the amended application or otherwise, is there anything to support the general and unparticularised submission that the Tribunal ignored or failed to consider the applicant's claims.

15. One issue raised in the written submission does require some consideration. That is the possible application of section 424A of the Migration Act. The submission in this respect is put in very general term. and reference is made to the reasoning of Ryan and Finkelstein JJ, in NARV v MIMIA (2003) 203 ALR 494, in relation to independent information concerning the prevalence of documentary fraud in Bangladesh. It is the case that in this instance, there was documentary evidence presented by the applicant in relation, in particular, to the claimed charges and convictions. The Tribunal reasons for decision record that in the course of the Tribunal hearing the Tribunal put to the applicant for his comment that there was evidence of fraudulent documents being submitted by Bangladeshi asylum seekers. The Tribunal referred to those documents and the evidence as to submission of fraudulent documents by Bangladeshi asylum seekers in the findings and reasons part of its decision.

16. There is nothing in the material before me to suggest that such information was put to the applicant in writing in the manner that is required pursuant to section 424A(2) of the Act. Whilst the applicant did not specifically refer to subsection 424A(2) of the Act, nonetheless, I think it is appropriate to consider the possible application of all of section 424A which is raised by the applicant.

17. Section 424A(1) obliges the Tribunal to give an applicant particulars of any information that it considers would be reason or part of the reason for affirming the decision under review. Insofar as NARV is still good law (and to the contrary see the subsequent decision of the Full Court of the Federal Court in the NAMW v MIMIA [2004] FCAFC 264) while NARV did suggest that information in relation to documentary fraud in Bangladesh would not be within the section 424A(3) exception, as not being just about the class of persons (and in that respect compare what was said in NAMW in relation to the meaning of just about, in particular in the joint judgment of Merkel and Hely JJ) nevertheless, in this case, it is clear that the information about the documentary fraud was put to the applicant in the course of the Tribunal hearing. Hence, while there was a failure to comply with section 424A(2) in that the applicant was not told of such information by one of the methods specified under section 441A, (which involved giving a document to a person) or in accordance with section 424B, such non-compliance with section 424A(2) in circumstances where there was no unfairness or failure to accord procedural fairness, would not amount to a failure to exercise jurisdiction on the part of the Tribunal or to the Tribunal exceeding jurisdiction (see NAOA v MIMIA [2004] FCAFC 241). A mere failure to comply with the procedural requirements of subsection (2) of section 424A is not jurisdictional. Were that not the case, in any event such a breach would be at best technical breach in relation to which it would be appropriate to decline relief. As I have indicated, the applicant had the information put to him. In that sense, there was no failure to comply with the essential element of section 424A(1) that the Tribunal give to the applicant particulars of information it considers to be the reason or part of the reason for affirming the decision under review. In addressing these arguments I note that the written submission of the applicant is expressed in very general terms and does not discuss such issues but they were quite properly addressed by counsel for the respondent in the course of oral submissions to the Court.

18. Having considered all of the material before me then, no jurisdictional error is established by the amended application or the written submissions of the applicant and no jurisdictional error is apparent on the material before me. Accordingly, the application must be dismissed. I will hear submissions in relation to costs.


RECORDED : NOT TRANSCRIBED

19. The respondent seeks that the applicant pay the cost of these proceedings. The applicant did not seek to be heard in relation to the application for costs. I consider that the amount of $4,250 is appropriate and the applicant should meet these costs.

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

Associate:

Date: 8 December 2004.
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