SZAZP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1004

FEDERAL COURT OF AUSTRALIA

SZAZP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1004 SZAZP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD1650 OF 2004 EMMETT J 24 JUNE 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1650 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAZP

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 24 JUNE 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1650 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAZP

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 24 JUNE 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a Bangladeshi citizen, who arrived in Australia on 26 April 2001. On 2 May 2001, he lodged an application for Protection (Class XA) Visa under the Migration Act 1958 (Cth) ('the Act'). On 10 May 2001, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant a protection visa. On 24 May 2001, the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of that decision. On 28 May 2003, the Tribunal affirmed the decision not to grant a protection visa. The reasons for that decision were published on 24 June 2003. 2 The appellant then commenced a proceeding in the Federal Magistrates Court of Australia seeking Constitutional writ relief in respect of the Tribunal's decision. On 29 October 2004, the Federal Magistrates Court ordered that the proceeding be dismissed with costs. 3 By notice of appeal filed on 11 November 2004, the appellant appealed to the Federal Court of Australia. The Chief Justice has directed that the appeal be heard by a single Judge. 4 The appellant does not speak English and has no legal representation. However, on the hearing of the appeal he has been assisted by an interpreter in the Bangladeshi language. 5 The Tribunal's reasons record that the appellant claimed to have suffered persecution in Bangladesh because he was a member of the Freedom Party. He claimed that he had a real chance of persecution because of his activities with the Freedom Party if he returned to Bangladesh. 6 The Tribunal considered the appellant's evidence in relation to most aspects of his claims to be vague, generalised, lacking in specific detail, and inconsistent, and unconvincing. The lack of credibility of the appellant's evidence led the Tribunal to conclude that it was unable to be satisfied that the appellant had faced persecution in Bangladesh or that he would face a real chance of persecution in the foreseeable future if he returned to Bangladesh. 7 The Tribunal accepted that the appellant is a Bangladeshi citizen and national, being the holder of a valid and legitimately issued Bangladeshi passport. While the appellant claimed to have been an active general member of the Freedom Party from 1990 until 2001, he was unable to give the Tribunal a simple explanation of the Party's manifesto, aims or objectives other than to say it was to improve the life of the people and develop the country. 8 The appellant claimed before the Tribunal that the Freedom Party had more than 10,000 members in his area alone. However, the Tribunal referred to country information that indicated that the Freedom Party would have several hundred activists in the whole country, if at all. The Tribunal was, therefore, unable to accept that the appellant had ever been a member of the Freedom Party. 9 The Tribunal did not accept the veracity and genuineness of documents submitted by the appellant in support of his claims. The evidence before the Tribunal indicated that there is a very high level of document fraud in Bangladesh, with fraudulent documents able to be obtained with the assistance of the police, court officials and medical officers. The Tribunal accepted that evidence, and considered that the documents produced by the appellant had the flavour of such fraudulent documents. According to the Tribunal's reasons, on an examination of the document, they were riddled with inconsistencies and implausibilities. The Tribunal considered that the documents disclosed dates that were inconsistent with the endemic and chronic delays in the Bangladeshi Local Court system. Documents purporting to be copies of originals were in very bad English, and the Tribunal considered that certain of the documents were inconsistent with the appellant's claims. 10 Since the Tribunal did not accept that the appellant was ever a member of the Freedom Party, it did not accept the claims made by him that false cases had been brought against him and that an arrest warrant had been issued for him. The Tribunal did not accept that the appellant had been involved in political activities that had brought him to the attention of the police, as he alleged. The Tribunal concluded that the appellant had fabricated claims in an attempt to create for himself the profile of a refugee. Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution in Bangladesh for a Convention reason. 11 The application to the Federal Magistrates Court of 26 July 2003, set out nine separate grounds, together with a statement that more details of the grounds would be provided later. The Federal Magistrates Court observed that no further details had been provided. In its reasons, the Federal Magistrates Court dealt with each of the nine grounds stated in the application. The Federal Magistrates Court also observed that directions requiring an amended application disclosing adequate grounds had not been complied with. 12 The first ground was that the Tribunal did not take into account the court case against the appellant. As the primary judge observed, the Tribunal simply did not accept the allegations made by the appellant. The Tribunal dealt specifically with the alleged court case and rejected the documents relied on as being fraudulent. 13 The primary judge dealt with Grounds 2, 3 and 6 together, on the basis that they generally overlapped. Ground 2 alleged bad faith. Ground 3 alleged a denial of natural justice and ground 6 alleged a predetermined decision, contrary to what the Tribunal, in fact, did. The primary Judge examined the material before him, and concluded that there was nothing in the material to indicate that the Tribunal did not have an open mind and did not ultimately reach a rational decision. His Honour observed that there was nothing in the communications from the Tribunal to the appellant to suggest that he was in any way misled so as to give rise to a denial of procedural fairness. 14 Grounds 4, 5, 7 and 8 generally appear to raise the merits of the Tribunal's decision. They were as follows: '4. The Tribunal denied the evidentiary proof of my claim.