SZAEZ v Minister for Immigration
[2003] FMCA 398
•10 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAEZ v MINISTER FOR IMMIGRATION | [2003] FMCA 398 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – no reviewable error found. |
Migration Act 1958 (Cth), s.474
Abebe v Commonwealth (1999) 197 CLR 510
Chan v Minister for Immigration (1989) 169 CLR 379
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Linett v McIntyre (2002) 117 FCR 189
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
Re Minister for Immigration; ex parte Lam (2003) 195 ALR 502
Re Minister for Immigration; ex parte S20 of 2002 (2003) 198 ALR 59
W148/00A v Minister for Immigration (2001) 185 ALR 703
| Applicant: | SZAEZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ210 of 2003 |
| Delivered on: | 10 September 2003 |
| Delivered at: | Sydney |
| Hearing date: | 10 September 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
Applicant appeared in person
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ210 of 2003
| SZAEZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 31 December 2002 and handed down on 29 January 2003. The RRT affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant is from Bangladesh and claimed a protection visa on the grounds of alleged political persecution in Bangladesh. He claimed to fear harm from persons supporting the Bangladesh National Party (“the BNP”) and also from supporters of the Awami League. To the extent that his claims were based on a fear of supporters of the BNP, the applicant was not believed. To the extent that his claims were based on a fear of supporters of the Awami League, the applicant accepted at the hearing before the RRT that he was no longer at risk from those supporters following the defeat of the Awami League in national elections. This is dealt with by the presiding member at page 108 of the court book.
The applicant told the presiding member and, indeed, repeated before me today, that he is particularly concerned about harm at the hands of a single individual whom he described as a professional killer. However, the presiding member did not accept that that fear was genuine. The presiding member found that the applicant had fabricated documents in order to support his claims. The presiding member found that the applicant's claims about his fear of harm at the hands of the particular individual he identified were not plausible.
In his original application for review in this Court, filed on 21 February 2003, the applicant asserted a denial of natural justice and jurisdictional error. However, in an amended application, filed on 22 July 2003, the applicant advanced the following grounds.
a)The RRT did not complete the exercise of its jurisdiction as it made no finding as to what political changes might occur in Bangaldesh in the reasonably foreseeable future and it thus failed to assess whether the applicant's fears of being persecuted for being an active member of the Jatiya Party were well founded in the reasonably foreseeable future.
b)The RRT’s decision was not based upon circumstances giving a rational foundation for the belief entertained as the RRT’s finding, when applied to the applicable criteria, meant that the RRT should have been satisfied that the applicant had met those criteria.
The applicant relied upon the amended application. I invited the applicant to present oral submissions to me in support of the grounds advanced but he was unable to articulate any meaningful submissions. He told me that he had received some advice, or assistance, in putting together the amended application. There is no substance in either of the grounds advanced. The RRT considered the claims advanced by the applicant in support of his application for a protection visa. The applicant did not base his claims on possible future political developments in Bangladesh. His claims were based upon past experiences of harm at the hands of supporters of the Awami League and the BNP. His claims based on fear of supporters of the Awami League were abandoned at the RRT hearing. His other claims were rejected as not being credible.
In the circumstances, it was unnecessary for the presiding member to consider or speculate about possible future political developments in Bangladesh. The second ground advanced appears to be an attempt to rely upon the decision of the High Court in the recent case of Re Minister for Immigration; ex parte S20 of 2002 (2003) 198 ALR 59. Whatever assistance that decision might, in theory, give the applicant, on the facts of this matter the applicant cannot draw support from it. There clearly was material before the RRT on which it could properly base its findings. The RRT considered the applicant's claims and made a rational decision based upon the material before it. The RRT was, on that material, entitled to be satisfied under s.65 of the Migration Act that the applicant did not qualify for a protection visa.
I otherwise adopt Mr Reilly's written submissions from paragraph 1 through to paragraph 7 as follows:
On 29 January 2003 the RRT handed down a decision affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.
The applicant applied for the visa on 26 September 2000. The delegate’s decision refusing the visa was made on 4 January 2001. The applicant applied to the RRT for review on 25 January 2001. The RRT held a hearing on 20 November 2002.
The applicant claimed to fear persecution for reason of his political opinion in Bangladesh. He claimed to be a member of the Jatiya Party and to have been assaulted on numerous occasions by members of the rival Awami League or Bangladesh National Party (BNP), and to have had false charges filed against him. At the hearing he agreed that as the Awami League were no longer in power in Bangladesh he no longer had a well founded fear of persecution by Awami League members. He claimed that a “terrorist” acting for the authorities, … had ransacked his house in 1998 and would kill the applicant if he returned to Bangladesh.
The RRT found that the applicant’s claims were not credible, noting that independent country information was contrary to the applicant’s claims that Jatiya Party members were targeted by the BNP and that the police and courts would not act against BNP members. Further the RRT found that the documents submitted by the applicant in support of his claims that false cases had been laid against him were fabricated, noting that one document described the applicant as a member of the BNP, and having regard to independent country information concerning document fraud in Bangladesh. The RRT regarded the applicant’s claims to fear harm from [the alleged terrorist] as implausible, noting that the applicant had openly worked in Dhaka for several months before coming to Australia, despite claiming that [the alleged terrorist] was looking for him at this time.
It is apparent that the applicant was unsuccessful because of the view the RRT took of the facts, in particular its findings that the applicant’s claims were not credible. Such findings are matters of fact for the RRT par excellence: Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 (HCA, perMcHugh J) at [67]. So long as the RRT’s credibility findings were open to it, no error is demonstrated in such conclusions: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and R D Nicholson JJ. The RRT’s findings were open for the reasons it gives, in particular the independent country information to which it refers. It is unlikely that a State party is expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State’s understanding of conditions in his or her country of nationality: Chan v Minister for Immigration (1989) 169 CLR 379 at 428 per McHugh J (although here the Tribunal has not found the applicant’s claims to be “plausible and coherent”).
The amended application states that the RRT did not make findings “as to what political changes might occur in Bangladesh in the reasonably foreseeable future”. However there was no claim of any particular political changes that the applicant feared, and the RRT states that it is satisfied that the applicant has no well founded fear of harm in Bangladesh “either now or in the reasonably foreseeable future”. The amended application also states that the RRT should have been satisfied that the applicant was entitled to a protection visa, but this plainly seeks merits review. The Court cannot review the merits of the RRT’s decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the RRT making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
As there is no arguable jurisdictional error in the RRT’s decision it is strictly unnecessary to discuss the effect of Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 or s 474 of the Migration Act. However the distinction between jurisdictional and non-jurisdictional errors remains: Linett v McIntyre (2002) 117 FCR 189 (FC) at [5], [30-35], [86-87]; Re Minister for Immigraiton; ex parte Lam (2003) 195 ALR 502 at [77]; Re Minister for Immigration; ex parte Applicant S20/2002 at [59]. The RRT was plainly addressing the right question, and the applicant’s complaints can at most concern the weight given to evidence before it, which cannot be a jurisdictional error: Linett.
The decision of the RRT is a privative clause decision. I will dismiss the application.
On the question of costs, the Minister being wholly successful and the applicant wholly unsuccessful, Mr Reilly has requested an order for costs and it is appropriate that an order be made. Mr Reilly submits that I should fix costs in the sum of $3,500. This was a relatively straightforward matter. It was not apparent from the papers that there was any substance in the grounds of review advanced by the applicant. The amount of preparation required was no more than average. I will order that the application be dismissed and that the applicant pay the respondent Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 September 2003
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