MZXTG v Minister for Immigration
[2008] FMCA 675
•12 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXTG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 675 |
| MIGRATION – Adverse assessment of the credit of the applicant by Tribunal – rejection of applicant’s claims – findings by Tribunal exhibited probative logic and were open to it to make – application for review dismissed. |
| Migration Act 1958 s.474 |
| Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407) W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 |
| Applicant: | MZXTG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 3 of 2008 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 22 May 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 12 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Evans |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application filed on 3 January 2008 as amended on 24 April 2008 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 3 of 2008
| MZXTG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding is a review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 12 December 2007 in which the Tribunal affirmed an earlier determination of a delegate of the first respondent to refuse the granting of a protection visa to the applicant.
The applicant is 17 years of age. No issue was taken by any of the parties in respect of the applicant's age and in earlier proceedings I determined that it was not necessary to appoint a litigation guardian.
Background
The applicant’s claims were assessed by the Tribunal against his assertion that he was a Bangladeshi in need of protection. The applicant claims to have lived with his father and mother in a village not too distance from Dhaka. His father is a member of the Awami League and was politically active. The Awami League is an opposition party to the present ruling government of Bangladesh.
The applicant recited an event which gave rise to him fleeing Bangladesh; initially to China and eventually to Australia. That incident involved, the applicant claims, an invasion of his parents' home at night by 15 to 20 masked men. He was awoken by the noise they made and discovered the men in his parents' bedroom assaulting his father. He claims also to have been assaulted causing injury to the back of his head.
This group of men discussed whether to take him and his father away, but decided only to take his father. His father was kidnapped from the family home and held for a period of three days; being left on the side of a road after that period. He showed signs of physical abuse and torture.
On his return to the household the applicant's father informed the applicant that it was not safe for the applicant to remain in Bangladesh as harm would come to him because of his father's political activities. On the strength of his father's warning, and his observations of what had happened to his father, the applicant fled to his brother's house in relatively nearby Dhaka. He remained there for some little while until he obtained, with the assistance of a leading member of the Awami League, a false passport whereby his photo was substituted for someone else.
In addition to the kidnapping of his father, significantly the applicant also claims that his parents' house had been shot at and damaged since the kidnapping. Also he claims that his father is in hiding in Bangladesh.
The Tribunal's Determination
In the conduct of the hearing before the Tribunal, the Tribunal member sought to hear evidence from the brother of the applicant with whom the applicant spent some time after the father's kidnapping. It would appear that the applicant was reluctant for his brother to give that evidence, but later acquiesced in him giving evidence to the Tribunal by telephone from Dhaka.
Significantly, as far as the Tribunal was concerned, and indeed as far as this review hearing is concerned, the Tribunal found that the applicant was not a credible witness for a number of reasons.
The first being that the brother failed to confirm that the father had been kidnapped and, indeed, suggested that it was the applicant that had been kidnapped. The second inconsistency with the claims of the applicant was the brother's evidence that no damage had been caused to the applicant's parents' home.
The Tribunal, it must be noted, gave very detailed and lengthy reasons for its decision. On a fair reading of the decision, based upon the evidence presented to it, it was open to the Tribunal to reach the conclusion it did in respect of the applicant's credibility. (See Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407) It is to be noted that the Tribunal quite emphatically rejected the central and pivotal claim by the applicant about the kidnapping of his father.
In the lengthy decision the Tribunal articulated fully the applicant’s claims and its reasoning. In my view, it exhibited in that process probative logic. Its conclusions were open to it. (See W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703)
Grounds for Review
The applicant abandoned the first stated ground for review as set out in his amended application filed on 24 April 2008. The extant grounds for review are:
a)The Tribunal failed to consider a claim or an integer of the applicant's claim; that is, that threats of violence were made against him to blackmail his father out of engaging in political activity in the future;
b)The Tribunal failed to take into account the relevant evidence that the applicant's father was in hiding and thus unable to engage in the political activity which would, if engaged in by the father, trigger acts of violence which had been threatened against the applicant; and
c)The Tribunal misconstrued and/or misapplied Article 1A of the Convention by reasoning that the communal violence and/or random violence was not violence inflicted for a reason which was a Convention reason.
The Applicant's Contentions
In respect of the first ground for review it was contended that the Tribunal failed to consider a claim or integer of the applicant's claim; namely, that threats of violence were made against him to blackmail his father out of engaging in political activity in the future. Reference was made to the applicant's claim that the kidnappers had told his father that if he (the father) did not stop his activities with the Awami League then they would kill the applicant.
In effect, as I understood the applicant's case, in the Tribunal's reasons for decision there was a failure to address this aspect of the applicant's claims by way of a finding and, ipso facto, a failure to consider an important integer of the applicant's claim.
Without any question in my mind, the Tribunal's decision clearly determined that there was, as a finding of fact, which finding was within the jurisdiction of the Tribunal to make, and which was open to the Tribunal to make, that there was no kidnapping. It follows then that any claim that was predicated upon the truth of the kidnapping, such as threats being made at the time of the kidnapping to the father, were also not accepted.
The rejection of the claimed kidnapping negates any obligation, in my view, on the Tribunal to consider any of the other claims that are dependent upon an acceptance of that central claim. Simply put, the Tribunal found, in effect, that if the kidnapping did not happen it could not then give any credence to any claim about threats of violence to the applicant or blackmail of the applicant's father in respect of his political activity.
In respect of the second ground, the applicant contended that the Tribunal failed to take into account the relevant evidence that the applicant's father was in hiding and thus unable to engage in political activities which, if engaged in, would trigger the acts of violence which had been threatened against the applicant. Again this is similar in purpose and effect to the first ground for review and it fails for the same reason.
To buttress the applicant's contentions in these regards I was referred to aspects of the Tribunal's decision. After clearly and emphatically rejecting the applicant's claim in relation to the kidnapping (and what follows on from that), the Tribunal ventured into a discussion about the possible causes of injury to the applicant; namely, he was a victim of a random act of violence which is so prevalent in Bangladesh. I was asked to accept that discussion on the part of the Tribunal as indicative of some uncertainty in the Tribunal's mind as to its finding about the kidnapping.
In my view, there was no need for the Tribunal to have engaged in the discussion it did about the possible cause of injury to the applicant. In a fair reading of the whole of the decision of the Tribunal it is very evident that that discussion was unnecessary and does not, in my view, create any doubt as to the strength and certainty of the finding made by the Tribunal in respect of the kidnapping.
The final ground for review was the contention that the Tribunal had misconstrued and misapplied article 1A of the Convention by reasoning that the communal violence and/or random violence was not for a Convention reason. Again, as for the previous two grounds, the Tribunal's assessment of the credibility of the applicant is determinant of these matters. In relation to the broader issue of the misconstruing the application of Article 1A of the Convention, the nexus between the injury to the applicant and the Convention is ultimately a finding of fact for the Tribunal to make and the characterisation of the random or communal violence in Bangladesh as unrelated to the Convention was open to it. The Tribunal’s discussion on this point, clearly in my mind a discussion in the alternative, does not disclose a jurisdictional error. In any event, should there have been an error on the Tribunal’s part in this regard, it is not an error affecting the Tribunal’s decision. As stated, that decision was made on the basis of the rejection of the applicant’s central claim about his father’s kidnapping, a finding which was open to it to make.
Conclusion
In a claim for protection that is so dependent upon the acceptance of the credit of the applicant to support the claims made by him, it becomes very difficult to review a Tribunal's determination when that Tribunal has made a clear and emphatic assessment that the applicant lacks credit in relation to the central and pivotal claim upon which the other claims are dependent. In my view the Tribunal exercised probative logic in its reasoning to reject in entirety the claim by the applicant, which finding was certainly open to it on the evidence.
In those circumstances there is no basis to find that there has been jurisdictional error and the decision of the Tribunal, which is a privative clause decision under s. 474 of the Migration Act 1958, stands. Accordingly the application filed on 3 January 2008, as amended on 24 April 2008, is dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate: Gail Car
Date: 12 June 2008
0
2
1