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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - no jurisdictional error - application dismissed.

SZDMO v Minister for Immigration [2004] FMCA 890 (6 December 2004)

SZDMO v Minister for Immigration [2004] FMCA 890 (6 December 2004)
Last Updated: 22 December 2004


[2004] FMCA 890

MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - no jurisdictional error - application dismissed.

Migration Act 1958 (Cth), ss.424A(3), 431

Judiciary Act 1903 (Cth), s.39B

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Limited (1949) 78 CLR 389

Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818




File No:

SYG1328 of 2004

Delivered on:

6 December 2004

Delivered at:


Hearing date:

4 November 2004

Judgment of:

Lloyd-Jones FM


The applicant appeared in person with the assistance of a Bengali interpreter.

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Australian Government Solicitor


(1) The application is dismissed.

(2) The applicant is to pay the Minister's costs and disbursements of and incidental to the application, fixed in an amount of $4,000.




SYG1328 of 2004







The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal ("the Tribunal") handed down on 22 December 1999, affirming a decision of a delegate of the respondent ("the delegate") made on 13 November 1997 to refuse to grant the applicant a protection visa.


2. The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 20 September 1997. On 17 October 1997 he lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs ("the Department") under the Migration Act 1958 (Cth) ("the Act").

3. On 13 November 1997 the delegate refused to grant a protection visa and on 9 December 1997 the applicant sought review of that decision. In his original application to the Department, the applicant claimed that he was born in December 1977. He was educated from 1984 to 1996 and stated that he worked as a chef from March 1990 to January 1997. The applicant is a Muslim who has never married and has lived at the one address in the Munshigonj District. He arrived in Australia on a temporary business visa and a passport that was issued on 30 July 1997 which stated he was a student (Court Book p.73) (&q;
uot;CB"). The application was submitted by an adviser Md Sirajulh Haque. With the application was a typed statement in which the applicant claimed (CB pp.26-28):

a) He came from a politically orientated family and joined the Bangladesh Chaatra Dal, the student wing of the Bangladesh National Party ("BNP").

b) In 1985 he became a "very well known and popular leader" and the general secretary of the Chaatra Dal.

c) In June 1996 elections he worked "door to door" begging votes. The Awami League won government, though a local Awami League member lost his seat to the BNP. In revenge the Awami League attacked the applicant's house, "looted his belongings which was commonplace in Bangladesh" and wounded his younger brother. The applicant claimed his opponents tried to kill him "three times".

d) On 1 July 1997 he was attacked by six or seven Awami League workers and was hospitalised for fifteen days. His relatives advised him to leave the country.

The Tribunal's findings and reasons

4. The applicant appeared before the Tribunal on 30 November 1998 and was assisted by an interpreter. The finding of the Tribunal can be best summarised by its own statement:

"I do not accept any of the applicant's claim relating to the BNP, the Awami League being interested in him, his being wanted by the police or there being any case against him. I find that the applicant was not a credible witness and that he had manufactured a set of claims and documents in the hope of advancing his protection visa application. I do not accept any of his claims as being true." (CB p.78)

The findings then continue:

"Even if the applicant had been involved with the BNP and a false case was against him in Bangladesh I note, that he has stated that he would not continue any political involvement upon return and the independent evidence which states that the judiciary in Bangladesh is largely independent and free from interference. He has an advocate in Bangladesh, he is from a middle class family and will be able to defend any charges against him." (CB p.78)

5. The Tribunal concluded the applicant did not have a well-founded fear of persecution based on a Convention reason.

Application for review of the Tribunal's decision

6. On 6 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903. An amended application was filed on 28 September 2004 and contained the following grounds:

1. The Refugee Review Tribunal (&qu;
ot;the Tribunal") made a finding contrary to the evidence before it. Such finding may have affected the outcome of the Tribunal application.

The applicant gave evidence that he paid a broker to obtain his passport in Bangladesh. The Tribunal found against the applicant in part because he `attend[ed] a government body for the issuing of a passport'.

2. The Tribunal acted beyond its jurisdiction by not conducting a hearing that was fair and just. Such error by the Tribunal may have affected the outcome of the application for review.

The applicant was inhibited by the approach adopted by the Tribunal in the hearing. The Tribunal Member's attitude was such that the applicant felt unable to answer questions properly.

The Member cut off the applicant's answers and continued to state that he did not believe the applicant, without always indicating why he did not believe him.


7. The applicant appeared self represented with the aid of a Bengali interpreter. The applicant filed written submissions on 1 November 2004. He provided a brief history of his matter and made the following written submissions which are reproduced below:

"It is an issue to consider for the Honorable Court whether the RRT breached the rules of procedural fairness by failing to give me an opportunity to comment on information, which the Tribunal relied on it. If so, whether this Honorable Court can grant relief to the applicant in light of amendments to Part 8 of the Migration Act 1958 by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). In Re MIMA; exparte Miah (2001) 179 ALR Gaudron J stated at 99" [extract omitted]

" ... The Tribunal did not provide this opportunity to me to comment on information, which the Tribunal relied on to make its decision."

"The Tribunal decision itself was contradictory and it has affected the outcome of the decision. ... The Tribunal found against me in part because I `attended a government body for the issuing a passport'. It was plainly misconstrued my application by misunderstanding the issue of the fact."

"The Tribunal failed to act fairly and justly by exceeding its jurisdiction and made an error, which has affected the outcome of my application for review. The presiding member's of the Tribunal adopted an approach in asking questions, which inhabited me in the hearing. The Tribunal's member attitude was such that I felt unable to answer questions properly. As a matter of fact that the Presiding member cut off my answers and constituted to state he did not believe me, without mentioning the reasons of the Tribunal's disbelieve."

"The Tribunal was influenced by the country information and without any basis or without any logical ground the Tribunal denied the authenticity of my application. The country information was significant to disbelieve me and my application. It is reasonable to be mentioned that the case law particularly NARV v MIMIA [2003] FCAFC 262 and NAAK of 2002 v MIMIA [2004] FCA 113 and section 424A(3) of the Act does not apply to information about the high level of document fraud in Bangladesh and the Tribunal was under an obligation to bring that information to the attention of me as applicant in accordance with section 424A. The Tribunal in its part denied its procedural fairness, in doing so, the Tribunal made a jurisdictional error."

"I submitted a number of documents which were genuine the Tribunal ignored this document without any basis. The Tribunal made a jurisdictional error in relation to this issue."

8. The applicant relied upon his amended application and written submissions and declined the invitation to make oral submissions at the hearing.

9. Mr J Smith of Counsel appearing for the respondent filed written submissions which were supported by oral submissions during the hearing. It was submitted that the first ground of the amended application was contradicted by the material before the Court. In the Tribunal's decision under the heading "Claims and Evidence", the Tribunal set out the effect of the applicant's oral evidence given at the hearing conducted on 30 November 1999 (CB p.75.5) as follows:

"He said that he had gone to a broker at the passport office (he explained that they sit around the office and expedite the process)."

10. It was submitted that this suggested that the applicant had in fact gone to the passport office and the broker was at the passport office. The applicant, in order to establish jurisdictional error in this respect, must first establish that the Tribunal did in fact make a mistake in regard to what the applicant said at the hearing. The only evidence in that regard was contained in the statement of reasons prepared by the Tribunal under s.431 of the Act. No cassette tape or transcript of the cassette tape of the Tribunal's hearing was tendered and no affidavit was served in support of the application. It was submitted that it was for those reasons that the applicant failed to satisfy the onus of proof which is upon him and therefore the ground must be rejected.

11. In respect of the second ground, it was submitted that the applicant must establish as a matter of fact the two particulars of procedural fairness relied upon. Once again, however, the only evidence as to the conduct of the Tribunal at the hearing was that set out in the statement of reasons prepared by the Tribunal. There was no indication whatsoever in the statement of reasons, and particularly passages at CB pp.74-76 relating to the events of the hearing, that the Tribunal prevented the applicant presenting his case and addressing the case against him. Counsel for the respondent submitted that the applicant failed to satisfy that onus and second ground ought to be rejected.

12. It was submitted that no explanation was given by the applicant, either by admissible evidence or in any other form, as to the reason for the delay in making his application to the Court. It was further submitted, for that reason alone, even if there were jurisdictional error, the application ought to be dismissed on the basis of exercising the Court's discretion against the applicant: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Limited at 400.


13. In respect of ground 1, the applicant was seeking to establish that the Tribunal made an error regarding the way he obtained his passport and who he obtained it from. However, the issue that the Tribunal was commenting on was the fact that the date the applicant claimed he obtained his passport was incorrectly identified by one year and the significance of this error in date was that the obtaining of the passport was being used to substantiate another claim. It was this contradiction that added to the body of evidence that led to the Tribunal doubting the applicant's credibility. As Mr Smith of Counsel correctly submitted, in the absence of transcript or hearing tape, it was not possible to determine whether the actual evidence had been incorrectly recorded as to the date, or some other factors affected the observation of the Tribunal as disclosed in that material.

14. The issue in question was the applicant's credibility and this was a finding of fact. The date of issue of the passport itself was not critical, however it did indicate that there was a sequence of events which the applicant was endeavouring to establish that raise inconsistencies and doubts as to the sequence: Kamal v Minister for Immigration & Multicultural Affairs per Mansfield J at [36]:

"It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal's assessment of the applicant's claims should not have been made. Those evaluative processes are for the Tribunal."

15. The second ground which suggested that the Tribunal did not provide the applicant sufficient time to enable him to answer the questions posed and put forward his explanations, was not supported by any transcript or recording of the Tribunal's hearing that demonstrated that the Tribunal member was inhibiting the applicant. The only material placed before this Court was the Tribunal decision and on its face there was no evidence to support the applicant's claims.

16. In the applicant's written submissions new issues emerged in addition to those pleaded in the amended application. The applicant alleged that the Tribunal denied him procedural fairness because the Tribunal doubted the authenticity of some of his documentation. The Tribunal member put to the applicant that there were two letters they questioned namely the advocate's letter and the letter from the BNP. In both these letters the final paragraphs were similar and may have indicated that they had been fabricated. The Tribunal put this to the applicant together with independent information that widespread document fraud was prevalent in Bangladesh. The information presented in the Tribunal's decision indicating the source of the suggestion that document fraud existed in Bangladesh and that the two documents in question may have fallen into that category were disclosed to the applicant. The applicant was then given an opportunity to respond to that information. There was no withholding of information that would bring s.424A(3) into operation nor the authority that covered the operation of that section of the Act.

17. A further issue arising from the applicant's written submissions was that a number of documents claimed by the applicant to be genuine were ignored by the Tribunal and that the documents were not identified so it was unclear whether the Tribunal made any reference to them or omitted reference to them in their decision. The Tribunal did identify two documents which raised concerns of fraud and those documents were clearly identified. Further, the nature of the suspect elements of those documents was also disclosed to the applicant and he was invited to comment on their authenticity.

18. I am not satisfied that any of the grounds raised in the applicant's amended application or the written submissions are sustainable on the evidence or particulars put before this Court. The applicant, when invited to reply to the respondent's submissions, confirmed from the bar table the date he obtained the passport was in 1996. The identification page of the applicant's passport that was reproduced (CB pp.29-35) carried a date of 30 July 1997 as being the date of issue. As mentioned above, the process of obtaining the passport is not an issue. The fact that it was being used to collaborate another event was significant.

19. I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. The application should be dismissed.

20. Although it is not necessary to pursue this line of investigation because of the decision made immediately above, I agree that there has been no explanation given by the applicant as to the reason for delay between the date of the Tribunal's decision and the lodgment of the application for review before this Court.

21. I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the respondent's costs and disbursements of and incidental to the application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: Menna McMullan

Date: 6 December 2004
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