MZXSW v Minister for Immigration - [2008] FMCA 706

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXSW v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 706

MIGRATION – Application for judicial review – very generalised and unparticularised grounds of application – application dismissed.

SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43

Applicant:

MZXSW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 1374 of 2007

Judgment of:

Burchardt FM

Hearing date:

16 April 2008

Date of last submission:

16 April 2008

Delivered at:

Melbourne

Delivered on:

11 June 2008

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Ms M. Ngo

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1374 of 2007

MZXSW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In this application, the substantive relief sought by the Applicant is that the decision of the Refugee Review Tribunal (“the Tribunal”) dated

3 September 2007 be overturned. In that decision, the Tribunal found that the Applicant was not a person to whom Australia owed protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The Applicant has filed an application on 8 October 2007, in which two grounds are set out. The first is that the Tribunal failed to observe the proper procedures with regard to the Applicant and to act in accord with substantial justice, and the second is that the Tribunal exceeded its jurisdiction. It is immediately apparent that those are very generalised grounds and they have not been particularised subsequently.
In contentions of fact and law filed on 12 March 2008, the Applicant set out a number of paragraphs asserting error by the Tribunal. Once again, however, these are all in very general terms. Much of it consists of simple recitations of well-established authority. The only matters that really condescend to any kind of detail are set out in my view in paragraphs 9 to 12 of the Applicant's contentions of fact and law and those are - and I summarise - to the effect that the Tribunal erred in concluding that the Applicant, who is a person who had lived in Australia for 12 years, would not face persecution if he returned because of the adoption of what might be described as western ways. The Applicant went on to say in paragraph 12 that:
“In our submission it is quite evident from all available evidence that the laws and customs (religious and ethical) of Bangladesh are fundamentally inconsistent with the acquired and now entrenched beliefs and values of the Applicant due to a long period of residence in Australia. There can be little doubt that the Applicant would be subject to a real chance of persecution if he returned to his country of origin and continued to express and exhibit these beliefs and values - something that he has steadfastly maintained he will do in that unfortunate event.”
The Applicant also appended to his contentions of fact and law what appears to be a statutory declaration filed by one Mehedi Foyez and a further attested document from the Applicant's brother in Bangladesh. Both of those documents assert some element of mistreatment in Bangladesh or some concerns arising out of times they had spent in Australia and an element of westernisation as a result. The difficulty of course with those letters is that they were not before the Tribunal.
The First Respondent has set out in his contentions of fact and law some of the background facts and I take the following recitation either directly or as a paraphrase from those contentions of fact and law. The Applicant is a male citizen of Bangladesh born on 27 November 1977. He arrived in Australia on 16 May 1995, was a student and received a number of further student visas. He returned from time to time to Bangladesh during the course of his studies.
In 2001 he was granted a temporary partner visa but that was later cancelled. It would appear that that was because his relationship fell through. He returned to Bangladesh in 2006 and in February 2007, applied for a protection visa. That was rejected by the delegate and again upon review by the Tribunal, so now the matter is before this Court.
I accept the submissions in the First Respondent's contentions of fact and law which can be fairly said to submit that the criticisms made by the Applicant in his contentions of fact and law are either grossly overgeneralised and unparticularised or otherwise misfounded. In my view, there is nothing in the Tribunal's reasons for decision that goes to support the criticisms made by the Applicant in his contentions of fact and law. Much of the material upon which the Applicant wishes to rely, such as the alleged corruption, injustice, poverty and greenhouse effects pollution in Bangladesh is, whether it is true or not, not such as to ground refugee status in the Applicant, given his evidence and the nature of some of these matters.
Before me today, the Applicant has articulated his claim as constituting two major errors committed by the Tribunal. His first major point was that the decision-maker was wrong because he had not considered all the facts given to him and was biased. The second point was that at the hearing, the Applicant was not given a proper chance to express himself. As a sub-part of this ground, the Applicant complained of the reliance by the Tribunal on country information from the United States of America. He said that this evidence might not be accurate and that he had provided evidence from the ABC's 7.30 Report, together with his own evidence of his experiences in Bangladesh which should have been accepted.
He went on to say that in 2006 when he was in Bangladesh, he was approached by people he assumed were extremists and he assumed that they had approached him because they were anti-western and having lived here for twelve years, he might seem western to them.
I should interpolate and say that there is nothing in the Tribunal's decision to indicate that the Applicant made any assertion to this effect to the Tribunal and that there is no proof that the Tribunal was confronted with evidence of this sort. Furthermore, the Applicant did not in fact elaborate in any detail why it was that this single passing incident, if it had occurred, gave rise to any real fear on his part of persecution in the event of his return.
In respect of his first major ground as he articulated it, he referred to paragraphs 7 and 9 of his contentions of fact and law and said that the facts disclosed by him had not been properly considered. However, paragraphs 7 and 9 of his contentions of fact and law are in very general terms. In paragraph 9, it is asserted that the Tribunal failed to consider or give any or any realistic consideration to the real chance of the Applicant suffering persecution in his home country if he continued to express the views and beliefs to defend and exhibit values and customs acquired in over thirteen years of residence in Australia.
The difficulty with that proposition is that in the Tribunal's decision at Court Book 206 - 209, the Tribunal dealt with this issue, it seems to me, in terms. It of course made a finding contrary to what the Applicant wanted and in substance, his complaint in effect is that his submission was unsuccessful. It is clear that the criticism which the Applicant makes does not ground the findings that he seeks from this Court.
I refer to and repeat what was said by the Full Court of the Federal Court in SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43 at [12], quoted in paragraph 24 of the First Respondent's written submissions in this regard. Error of fact is not a jurisdictional error. I also accept the First Respondent's submission in paragraph 25 of the First Respondent's contentions of fact and law that the Tribunal's reasons are not irrational or illogical.
Insofar as the bias point is concerned, it emerged that the Applicant's complaint was that the Tribunal considered the material from the US government report. That does not, on any view, disclose bias.
On the second major point raised by the Applicant, the prevention of his giving material to the Tribunal, the matter he raised appears to consist of a suggestion that the Tribunal interrupted the Applicant when he was seeking to explain the nature of his views as a secularised Muslim. If one looks at the Tribunal’s decision, however, it is quite clear that the Tribunal was well seized of what the Applicant was saying about this matter and there is no evidence that the Applicant was prevented from putting anything to the Tribunal that he wished to. Insofar as he raises this particular issue, the Tribunal's decision itself makes it clear that the matter was fully ventilated at the hearing.
The Applicant sought to rely upon the two further documents that he has now prepared from Mr Foyez and his brother but it is not open to him to put material of that sort before the Court at this stage. Even if the material was to be received, it is by no means clear that it would assist the Applicant. It, after all, concerns different people who appear to have different difficulties. I note in passing that the Applicant's brother is in Bangladesh and appears to have been there for some time and although he complains of the circumstances of the country generally, the fact is that he appears to be alive and well.
Insofar as criticism was made of the reliance by the Tribunal on the country information, counsel for the First Respondent submitted that it is a matter for the Tribunal to decide what weight it should give to any country information and as to the use it should make of it. I accept that submission. In reply, the Applicant stressed the fact that Islam can be an extreme religion and he referred to an incident in 1990 in a remote part of Bangladesh when an adulteress woman was apparently stoned to death. He took issue with the Tribunal’s assertion that there is a free media in Bangladesh.
The evidence about the incident alleged to have taken place in 1990 was not before the Tribunal and plainly took place in a part of Bangladesh remote from Dhaka where the Applicant would be expected to live, because it is where he has lived in the past and his family apparently is. The news point, even if true, would be an error of fact and, as I have already said, error of fact does not constitute an error of law.
I regret to say that the application is without merit and must be dismissed with costs.

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

Associate: Brooke Evans

Date: 11 June 2008