SZFRV v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|2006-07-21|Before: Cowdroy J

REASONS FOR JUDGMENT 1 The appellant appeals to this Court from the decision of Smith FM delivered on 30 September 2005, which dismissed a challenge by the appellant to a decision of the Refugee Review Tribunal that he was not entitled to a protection visa.

Background 2 The appellant arrived in Australia on 28 April 2004 and made application for a protection visa on 17 May 2004. In that application he stated that he was born in Bangladesh on 6 August 1966 and gave his occupation before coming to Australia as 'chef'. 3 The appellant claimed that he had become involved in politics at an early age as a worker in the Jubo League, a wing of the Awami League. He stated that as 'a promising Jubo Leaguer leader' he had a close association with Awami League leaders especially Rezaul Karim Hira (a Member of Parliament) and Mirza Azam, the central leader of the Bangladesh Jubo League. The appellant claimed that he regularly organised various political meetings and processions against the BNP (the opposing political party) and was also assigned to organise meetings, demonstrations, rallies and processions. 4 The appellant claimed that because of his involvement with the Jubo League, the BNP and associated groups became hostile to him and that he was kidnapped and tortured. After the BNP came to power, its supporters tried to destroy his political career and had false charges brought against him. He said that supporters of the BNP had killed many Awami League supporters and he is scared that they will harass or kill him if he returns to Bangladesh. 5 On 13 August 2004 a delegate of the first respondent refused to grant a protection visa. On 27 August 2004 the appellant lodged an application for review of that decision with the Tribunal.

tribunal's FINDINGS 6 The Tribunal rejected the appellant's application for a protection visa on the basis that it was not satisfied that he had provided a truthful or accurate account of his experiences in Bangladesh, for several reasons. It considered his account of his kidnapping and torture was vague and unconvincing, and it did not accept that the appellant had been subjected to harm. Based upon his inability to describe the aims or activities of the Jubo League or describe his past involvement with it, the Tribunal was not satisfied that the appellant had ever been a member of the League. It considered that the appellant's account was implausible because, if he had been leading a fugitive life as claimed, he would not have risked passing through the international airport in Dhaka to visit India for a holiday in 2003. Further the Tribunal did not accept that the appellant could have prepared his documents for the Department and the Tribunal with the assistance only of friends who were also refugees, as he claimed, given the professional appearance of the documents and the legal argument contained in his submissions.

Appeal to the Federal Magistrates Court 7 The appellant appealed the decision of the Tribunal to the Federal Magistrates Court on several grounds, namely that the Tribunal had breached s 424A of the Migration Act 1958 (Cth), that the Tribunal had failed to afford the appellant with procedural fairness, and that the Tribunal drew conclusions of fact for which there was no evidence. I note the appellant was legally represented before the Federal Magistrates Court. 8 The decision of Smith FM carefully considered each of the claims raised by the appellant, and rejected each one. In relation to the claims made under s 424A, Smith FM, applying the test set out in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [33], considered that one of the matters referred to, namely the information contained in the Department's movements database, did not form an integral part of the reasons for decision of the Tribunal and was therefore not a matter to which s 424A(1) applied. In respect of the other matters raised under s 424A of the Migration Act, Smith FM, relying upon the observations of Gray J in M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131, considered that the appellant had provided the information to the Tribunal for the purposes of s 424A(3)(b). 9 In respect of the ground of procedural fairness, the appellant submitted that the Tribunal should have asked him further questions about several matters and alerted him to the possibility that the Tribunal may consider his answers inconsistent before making adverse findings in respect of those matters. Smith FM, relying upon the observations of McHugh J in Re Refugee Review Tribunal and Anor; Ex parte Aala (2000) 204 CLR 82 at [101], found that the Tribunal had no obligation to warn the appellant that there was a risk of a finding adverse to him being made, because that risk necessarily inhered in the proceedings. 10 The no evidence ground was not pressed before Smith FM, and therefore his Honour did not decide the issues raised by this ground.

The appeal to this Court 11 The appellant's notice of appeal to this Court failed to provide particulars of alleged errors of law, but instead made general claims that Smith FM had erred in his decision. The Court asked the appellant to explain further his grounds for appeal, but the appellant was unable to articulate any legal error. The appellant instead referred to the situation in Bangladesh, which he said was unsafe, and asked the Court to grant him asylum. He also said the decisions of the Tribunal and of the Federal Magistrates Court did not fully consider the information he had provided and reiterated that he was at risk of being harassed, tortured or killed if he were returned to Bangladesh. 12 As the appellant was not represented at this hearing, I have read and considered the papers which were included in the file. There is only one issue which I consider warrants further attention, namely the application by Smith FM of the test enunciated in VAF at [33], which has since been disapproved in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (see the reasons of Allsop J at [208]-[216], with which Weinberg J agreed at [158]). 13 The application of the VAF test arose in relation to information contained in the Department's movement database, which contradicted evidence given by the appellant as to the name on the passport on which he entered the country. I accept that the VAF test adopted by Smith FM was incorrect in light of the more recent decision in SZEEU and SAAP and Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. However, the Tribunal's reasons in relation to this matter stated as follows: 'The Applicant's evidence raises some doubts as to his identity. He claims that his name is Mohammed Shamsur Reza Tarek and that he was born in Jamalpur, Bangladesh on 6 August 1966. He also claims to have entered Australia on a purchased and falsified Bangladesh passport under the name of Mohammed Shamsur Reza Arif Akand. However, the latter claim is in conflict with the evidence of the Department's movements database, which the Tribunal accepts, indicating that the Applicant entered Australia on 28 April 2004 in the name of Mohammed Shamsur Reza Tarek. Despite its concerns on this issue, the Tribunal is prepared to give the Applicant the benefit of the doubt to the extent of accepting that his real name is Mohammed Shamsur Reza Tarek, as he claims. The Tribunal is also prepared to accept that the Applicant is a citizen of Bangladesh who was born in Jamalpur on 6 August 1966.' 14 The Tribunal thus explicitly gave the appellant the benefit of the doubt in relation to his identity. Further the Tribunal made no findings concerning the appellant's credit based upon his version of events with respect to entering Australia. Rather, it relied upon other inconsistencies in the appellant's evidence (referred to at [6] above) to make its finding that the appellant had not given a truthful and accurate account of his activities. Accordingly, I am satisfied that the discrepancy in relation to his entry into Australia did not form part of the reasons for the Tribunal's decision. It follows that although the test applied by Smith FM has since been disapproved, the appellant's case must fail on this point in any event. 15 I am unable to identify any other appealable error which would justify this Court setting aside the decision of the Tribunal or of the Federal Magistrate. It is clear that the Tribunal did consider country information relating to Bangladesh, as well as the appellant's specific claims and evidence, in arriving at its decision. The Tribunal's reasons were primarily based upon its assessment of the appellant's credit, and its reasons for disbelieving him were set out extensively and coherently. I cannot find any error of law contained in them. 16 Accordingly, I consider that this appeal should be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 21 July 2006 Counsel for the Appellant: The appellant appeared in person.

Solicitor for the First Respondent: Sparke Helmore

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