SBVD v Minister for Immigration
[2006] FMCA 1511
•5 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SBVD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1511 |
| MIGRATION − Review of RRT decision − where Tribunal found applicant not to be credible − where Tribunal found no grounds for fear of persecution on grounds of political opinion − whether Tribunal considered every integer of the applicant’s claim − whether Tribunal failed to use independent country information. |
| Migration Act 1958, s.424A |
| Applicant: | SBVD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | ADG1371 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 5 October 2006 |
| Date of last submission: | 5 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 October 2006 |
REPRESENTATION
| Applicant in Person |
| Counsel for the Respondent: | Ms L. Clegg |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant shall pay the first respondent’s costs assessed in the sum of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
Any appeal to be filed in Sydney and not in Adelaide or any other Federal Court registry.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
ADG 137 of 2006
| SBVD |
Applicant
And
| MINISTER FOR IMMIGRATION &MULTICULTURAL AFFAIRS |
Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh. He arrived in Australia on 3 December 2005. On 30 December 2005 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 25 January 2006 a delegate of the Minister refused to grant a protection visa and on 30 January 2006 the applicant applied for review of that decision.
The applicant attended a hearing before the Tribunal on 28 February 2006. On 21 March 2006 the Tribunal wrote to the applicant, through his migration agent, advising him of certain information that would, subject to any comments he may have to make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The applicant’s migration agent responded to the s.424A letter on
27 March 2006. On 10 April 2006 the Tribunal determined to affirm the decision not to grant a protection visa, a copy of which was sent by post to the migration agent on 11 April 2006.
On 2 May 2006 the applicant, who was then in detention, filed an application with this court seeking review of the decision of the Refugee Review Tribunal. No particulars of the grounds upon which the Tribunal was said to have fallen into jurisdictional error were provided at that time nor in compliance with order 2 of the orders of Registrar Christie made on 6 June 2006. The first time the applicant has particularised his allegations concerning the conduct of the hearing was today.
The applicant was a seaman employed by one of the largest shipping companies in Bangladesh. He had arrived in Australia on 20 October 2005 to join a ship which travelled to New Caledonia. The applicant felt that he was being badly treated, overworked and poorly fed on this vessel and so he jumped ship on 3 December 2005 when the vessel had returned to Australia.
At the hearing before the Tribunal the applicant spoke to a 40-page submission that had been made by his adviser and argued that he was an important member of the Awami League political party which he said that he had joined when he was in class 8 at high school. He told the Tribunal that he became an office secretary in 1992 and then helped them out in the library on those occasions that he was in Bangladesh between voyages. He was questioned by the Tribunal as to his knowledge of Awami League policies and gave responses which did not entirely convince the Tribunal that he occupied the important position that he had suggested.
The applicant made some general and then some specific complaints about the BNP and its opposition to members of the Awami League. He claimed that the executive director of the shipping company for which he had worked was a prominent member of the BNP and used his political affiliations to cause problems for the applicant, his brother and other members of his family. The applicant told the Tribunal that on the order of this gentleman his brother had been kidnapped and was only released after the payment of a substantial bribe.
The Tribunal questioned the applicant as to why he had not taken advantage of being a seaman to seek asylum in other countries that he had visited at an earlier stage, given that the persecution he alleged he was suffering for his political views was separate from the personal problems caused by the difference in views between himself and the director of the shipping line. The Tribunal was concerned about the statements made by the applicant relating to his relations with the shipping line, which it found inconsistent with the line’s treatment of him as an apparently respected employee of the company.
This included flying him to Australia to join the ship and giving him consistent employment. These facts seemed to be at odds with the applicant’s claim of political differences between himself and the director. The applicant claimed that if he returned to Bangladesh he would be persecuted and that false charges had been laid against him. The Tribunal accepted that charges may well have been laid against him but that these related to his having jumped ship, an offence contrary to the universal maritime laws.
In its findings and reasons the Tribunal concluded that whilst the applicant may have been a member of the Awami League he was not as politically active as he had suggested, nor did he hold a particularly important position. The Tribunal did not accept that his position would have made him liable to the type of persecution claimed. In relation to the alleged kidnapping of his brother the Tribunal said at [CB158]:
“The Tribunal…is prepared to give him the benefit of the doubt by accepting that his brother was kidnapped. However, the Tribunal is not satisfied that the motivation for the kidnapping is as the applicant claims it to be. The Tribunal is not satisfied it is plausible that if the enmity, of Nurul Absar towards the applicant is so great that he has employed terrorists in order to kill him on his return the same terrorists would have simply released the applicant’s brother apparently unharmed three days later after payment of a ransom … The Tribunal is satisfied, on the basis of the information before it, that a simple criminal desire for monetary gain was the motive for this unfortunate event and it was not connected with any political opinion held by the applicant. If it is true, as the applicant asserts that his brother has been sent to Dubai the Tribunal is not satisfied that this is because of any fear that he will come to harm as a result of the applicant’s political opinion. Nor is the Tribunal satisfied that the applicant has asked his family to relocate to another area of Bangladesh in order to ensure their safety or that they had moved away from their home.”
The Tribunal considered the possibility of future harm to the applicant and concluded that any harm that he might suffer would arise out of the prosecution for jumping ship and had nothing to do with his political views. Neither did the Tribunal feel that the enmity of the director was a product of the political differences between them, but if it existed at all it arose out of the applicant’s conduct as an employee.
Before me today the applicant articulated for the first time the grounds on which he says that the Tribunal fell into jurisdictional error in coming to the conclusions that I have adumbrated. He says first that he was an active member of the Awami League and that he was working in important positions for the party. He says that the Tribunal did not take this into consideration. This is not correct. At [CB157] the Tribunal says:
“The applicant does not claim to have played a leading or prominent role in the Awami League and his responses at the hearing appeared to reflect a generally low level involvement.”
The applicant says, secondly, that the Tribunal did not consider his case as a refugee and that if he went back to Bangladesh he would be in fear of his life because the BNP might destroy his life as they are in power. It is clear from a reading of the Tribunal’s decision that this was the very matter that it did consider, but found that the applicant’s claims were not maintainable.
The third ground raised by the applicant was that his family had a lack of security and were running from place to place and neither the Tribunal nor the Minister’s delegate gave those matters any importance. The amount of importance to be given to a piece of evidence is, of course, completely within the purview of the Tribunal. Provided that the Tribunal gives a matter consideration it does not fall into jurisdictional error if, upon a reasonable basis, it does not accept or does not give that piece of information much weight. The Tribunal did refer to these matters at [CB161] where it says:
“Nor is the Tribunal satisfied that terrorists hired by this person kidnapped the applicant’s young brother or have taken any other action to harm the applicant or his family.”
The fourth matter raised by the applicant is that there was a false case against him at the police station, that people were looking for him and that the RRT did not take that matter into consideration. At [CB158] the Tribunal says:
“However, the Tribunal is prepared to give him the benefit of the doubt by accepting that these charges have been brought against him and that they relate to his actions in jumping ship in Australia. The Tribunal also accepts that this being so it is possible that police have been to the applicant’s house asking for his whereabouts in connection with the case.”
The fifth ground referred to the by applicant was that BNP extremists broke the wall of his house and sought a donation from his family but after taking 14,000 taka they continued to threaten him. He said that this was not considered by the RRT. The applicant is incorrect about this matter also because in the s.424A letter that I previously referred to the Tribunal commences with these words:
“At your hearing before the Tribunal on 28 February 2006 you claimed that during a recent visit to Bangladesh you have been forced to pay a bribe when renovating your house and that a wall you constructed was knocked down”.
The sixth matter raised by the applicant was that BNP extremists had caught his younger brother and persecuted him, that they kept him in prison for three days, beat him and took 15,000 taka off him.
The younger brother was required to leave the country to save his life and that shows that his (the applicant’s) life was at risk and that these matters were not considered by the Tribunal. I have already extracted that part of the Tribunal’s decision which deals with this matter, so it cannot be said that the Tribunal did not consider it. Perhaps what the applicant is really saying is that although the Tribunal considered all these matters it came to a conclusion contrary to that which the applicant was contending for. This of course is to seek impermissible merits review.
The seventh matter raised by the applicant was that the government had to follow the BNP orders and that if the BNP was against him the whole of Bangladeshi bureaucracy and law enforcement would be against him. He says that this was not considered by the RRT. But in fact at [CB159] the Tribunal says:
“The applicant claims he will not receive justice through the courts because they are corruptly controlled by the ruling BNP and they target Awami League supporters. The Tribunal accepts, on the basis of the United States State Department 2004 report on Human Rights Practices attached to the adviser’s submission of 24 February 2006, that the lower courts in Bangladesh are under the control of the executive and that they are subject to the executive’s influence. The report indicates, however, that the higher levels of the judiciary display some degree of independence and have ruled against the Government in criminal, civil and politically controversial cases. Moreover, in the particular case of the applicant there is nothing to indicate that the cases which have been brought against him are false and do not have at least some basis in fact. The Tribunal is not satisfied, in the particular circumstances of the applicant, that he will be unable to receive a fair trail in the Bangladesh courts.”
In these circumstances it cannot be said that this matter was not considered by the Tribunal.
The eighth matter raised by the applicant was that the Tribunal did not consider the concerns found in certain independent country information provided by the applicant to the Tribunal. The applicant clarified this submission to advise that it referred to a Human Rights Watch World Report 2006 for Bangladesh dated 23 February 2006. This document is found at [CB101] and whilst it is not specifically referred to by the Tribunal in its grounds and reasons for decision, there is nothing to indicate that having been provided to the Tribunal by the applicant it was not taken into account. The weight to be given to this information is a matter for the Tribunal. And even if it had not taken it into account at all I cannot see that a jurisdictional error would have been committed, because the information was no more than an attempted corroboration of a very general claim concerning the political situation in Bangladesh which the Tribunal had indicated was not relevant to this applicant’s particular circumstances. In other words, the applicant cannot prove by this document alone that a low level member of the Awami League such as he would be a person to whom Australia owed protection obligations.
The applicant has not provided the court with any further grounds upon which he says the Tribunal fell into jurisdictional error. The court has read the decision of the Tribunal carefully and there is no obvious ground appearing from that decision, which the applicant has failed to articulate.
The application is dismissed. The applicant must pay the respondent’s costs which I assess in the sum of $5,000. That assessment includes the cost of the hearing in Adelaide which was required to be aborted because of the quality of the interpretation services that were provided. The applicant is now resident in Sydney. Should he wish to appeal this decision he is ordered to file such an appeal in Sydney and not in Adelaide or any other of the registries of the Federal Court.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM
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