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Federal Court of Australia |
Last Updated: 23 September 2005
FEDERAL COURT OF AUSTRALIA
SZBJZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1329
MIGRATION – no point of
principle
SZBJZ
v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 839 OF 2005
MOORE J
23 SEPTEMBER
2005
SYDNEY
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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SZBJZ
APPELLANT |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
1.
The Refugee Review Tribunal be added as a respondent.
2. The appeal be
dismissed.
3. The appellant pay the respondent's
costs.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court Rules.
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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AND:
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REASONS FOR JUDGMENT
1 This is an appeal from a judgment of a Federal Magistrate of 13 May 2005 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). On 29 January 2003 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 3 April 2003 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant the protection visa. On 10 April 2003 the appellant applied to the Tribunal for review of that decision.
Background
2 The following is taken from the claims and evidence before the Tribunal. The appellant is a national of Bangladesh and claimed to fear persecution on the basis of his political opinion. He left Bangladesh on 29 January 1996. He was a member of Jana Dal which he claimed later changed its name to the Jatiya Party. In 1997 the appellant was issued with an Australian temporary resident's visa. Since that time he has entered Australia twenty-one times. Most recently, the appellant travelled to Australia on 30 December 2002 on a temporary business visa issued in Dhaka. The appellant has travelled extensively, to places including Hong Kong, Singapore, Korea, the Philippines, Malaysia, Fiji, Germany, Holland, Portugal and India.
3 The appellant claimed he joined the Jana Dal in 1982, the same year that it was formed by Ershad. He claimed that no other parties had been involved in the formation of the Jatiya Party and that the Jatiya Party and the Jana Dal were the same. He claimed to have been selected as the joint secretary to the Jatiya Party in the Rajshahi District in 1988. The 1988 election was the last election in which he took part. The appellant claimed to know leaders in the Rajshahi district and have a family connection to President Ershad.
4 The appellant claimed to have become the target of other parties in 1990 during the agitation against the Jatiya Party government. His business efforts within Bangladesh were frustrated, his business with the army and police almost completely stopped and his attempt at an import export business thwarted by the extremists of the ruling and opposition political groups who wanted to destroy and kill him. The appellant claimed to have been attacked twice and almost beaten to death by extremists of the ruling party in 1994. The police did not act on his complaint.
5 At the end of 1995 he was attacked, threatened and his house damaged. Because of this situation he left Bangladesh on 29 January 1996. In the previous twelve months, he claimed that the BNP had been in power and that a number of false cases had been lodged against him. He had been in hiding during this period but had authorised his brothers to conduct his food supply business. He had not been directly involved in political activities during this period, having been involved in very few political activities after 1991, after which the Jatiya Party was no longer operational. His post-1991 involvement had been making phone calls to other party members to find out what was going on. He claimed that there would still be interest in him because he was involved in a lot of activities when he was involved in the party and that his opponents could not bear to see his success and that he could not get protection so had no alternative but to leave in 1996.
6 He claimed to have travelled many times between Hong Kong, China, South Korea and the Philippines in unsuccessful attempts to establish a business. In the past 6 years he has returned to Bangladesh twice, and claimed not to have stayed at his home but in a hotel in Dhaka. The hotel receipts given to the Tribunal in support of this claim were not the originals but receipts sent to him by the hotel when he had requested copies. The appellant claimed that is why the receipts, though dated two years apart, look like they were produced at the same time.
7 Because his wife was threatened and asked his whereabouts in 1998 by opposition party extremists, the appellant became scared and went to India where his wife and children joined him. Later, he returned to Australia and his wife went to her parents in Rajshahi in Bangladesh. He claimed that he was on the hit list of opposition political groups whose extremists want to kill him and that he will be persecuted if he returns to Bangladesh.
Tribunal decision
8 The Tribunal set out the appellant's claims and what transpired at the Tribunal hearing. When asked about the aftermath of the 1996 election, the appellant had only been able to tell the Tribunal that the party had won 30 seats in the election and that President Ershad had been released from prison through a secret deal, but he did not know how the deal had come about. The Tribunal set out a history of the Jatiya Party from independent country information. Though the Tribunal accepted the appellant had a connection to the Jatiya Party, it did not accept that he was politically active in Bangladesh or in the Jatiya Party. The appellant's claims regarding the Jana Dal and its renaming as the Jatiya Party were contrary to independent evidence.
9 When asked why he could return twice to Bangladesh twice after 1996 if he was at risk of persecution because of his political activities, the appellant explained he did not "have any cases in the airport" and that his family had not known where he was staying in Bangladesh. When asked by the Tribunal why he had not applied for a protection visa at an earlier stage, given that he had travelled to Germany, Holland, Portugal, India and Asia, the appellant indicated that it had not occurred to him as he was involved in business.
10 The Tribunal set out independent evidence regarding document fraud in Bangladesh which indicated a high level of document fraud, and that lawyers would provide, for a fee, a letter advising that it is unsafe to return to Bangladesh. In light of the independent evidence regarding false documents, the Tribunal placed no weight on the letter provided by the appellant supposedly from a Jatiya Party official stating that the appellant was "an active member". The Tribunal did not consider that documents provided by the appellant corroborated his claim that he stayed in a hotel on his two return visits to Bangladesh. It did not accept that the appellant did not go home on his return to Bangladesh and concluded that he would not have returned to Bangladesh at all if he genuinely feared persecution for a Convention reason.
11 The Tribunal concluded that the appellant had fabricated his claims in an attempt to create for himself the profile of a refugee. It did not accept that he had been politically active in the Jatiya Party or that he was ever harmed or his house raided, for that reason. It was not satisfied that he would become involved with the party if he returned to Bangladesh. The Tribunal went on to say:
Even if, contrary to the finding that I have made, the applicant was a member of the Jatiya Party and was active with the party in the 1980s, on his own evidence his involvement in political activities effectively ceased in 1991. In my view, it is inherently implausible that a person who had no involvement in political activities for such a long period of time would be of continuing adverse interest to former political opponents. ... The independent evidence does not suggest that currently active Jatiya Party members are persecuted in Bangladesh, let alone that Jatiya Party members who have not been active for more than ten years are at risk of persecution. Nor does the independent evidence suggest that people with family connections to General Ershad are targeted for persecution. In the circumstances, even if the applicant was active with the Jatiya Party prior to 1991, I do not accept that the applicant was at risk of persecution prior to leaving Bangladesh, or that he is at risk of persecution for this reason currently.
Overall, I am of the view that the applicant fabricated the claims made in his protection visa application in an attempt to create for himself the profile of a refugee. I am not satisfied that the applicant has a well-founded fear of persecution for reasons of his political opinion or because of his connection to General Ershad. ... he has not claimed to fear persecution for any other reason other than his political opinion and no other Convention reason is suggested on the evidence before me. I am therefore not satisfied that the applicant has a well-founded fear of persecution for a convention reason.
12 The amended application before the Federal Magistrate is in very similar terms to the "amended application" before this Court. The three allegations identified by the Federal Magistrate in the application were first, that the presiding member was actually biased, second, that the Tribunal proceeding was unfair and third, that the Tribunal misunderstood or misapplied the test for the determination of who is a refugee.
13 His Honour accepted the submissions of the Minister in relation to the first two allegations. These were essentially that the only evidence before the Tribunal on which to make a finding of bias was the statement of reasons for decision of the Tribunal and correspondence between the Tribunal and the appellant, as no transcript of the proceedings before the Tribunal was provided. His Honour noted that the Tribunal did not merely reiterate the findings and reasons of the Minister's delegate but came to its own conclusion based on the material before it, including evidence given at the Tribunal hearing. In view of the evidence, there was no foundation for a claim of bias.
14 In relation to the claim that the appellant had been denied procedural fairness, the Federal Magistrate accepted that the adverse information the appellant claims he should have been given more time to address was not specified by the appellant and that, more importantly, there was simply no evidence establishing that he was denied an opportunity to provide the information he claims he would have provided if given the time. The Federal Magistrate also noted that the appellant was afforded, and accepted, the opportunity to attend a hearing, where he was represented by a solicitor, who was also a migration agent. For these reasons the Federal Magistrate concluded there was no basis for the contention that there was a denial of natural justice.
15 The last issue the Federal Magistrate dealt with was whether the Tribunal had erred in applying the test to determine whether the appellant was a refugee. The Federal Magistrate noted that the Tribunal determined the appellant's claim on the basis of an adverse credibility finding. The Federal Magistrate did not accept the Minister's submission that the finding (at [11] above) was not independent of the adverse finding on credibility. Nevertheless, his Honour found no legal error in Tribunal's approach on this question. The Federal Magistrate dismissed the application.
The appeal and its disposition
16 The hearing of the appeal was adjourned twice because the appellant was ill. On the third occasion he made no oral submissions and relied on an amended application filed 5 July 2005. The amended application contained a section headed "the grounds of the application" which, in substance, constituted a written submission. Counsel for the Minister in the appeal identified, in my opinion correctly, four issues raised by that written submission. The first was that the Tribunal had not disclosed how it interpreted the country information. The second was that the Tribunal was biased. The third was that the Tribunal had failed to understand "the refugee definition". The last was that the Tribunal had not considered current circumstances in Bangladesh.
17 I accept the submissions of the Minister that the appellant cannot make good any of these propositions. The Tribunal is not obliged to reveal its preliminary views or thought processes. The evidence does not establish bias. Ultimately, the evaluation of the appellant's claims turned, not on what was comprehended by the notion of "refugee", but whether he was to be believed about his experiences in Bangladesh. He was not. For that reason the fourth proposition is irrelevant. The appeal should be dismissed with costs. The Tribunal should be added as a respondent.
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I certify that the preceding seventeen (17) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice Moore.
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Associate:
Dated: 23 September 2005
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The Appellant appeared in person.
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Counsel for the Respondent:
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GR Kennett
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Solicitor for the Respondent:
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Blake Dawson Waldron
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Date of Hearing:
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14 September 2005
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Date of Judgment:
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23 September 2005
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