SZAFO v Minister for Immigration - [2003] FMCA 403

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAFO v MINISTER FOR IMMIGRATION

[2003] FMCA 403

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.425

Applicant:

SZAFO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ256 of 2003

Delivered on:

8 September 2003

Delivered at:

Sydney

Hearing date:

8 September 2003

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ256 of 2003

SZAFO

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 30 January 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The general background relating to the application is accurately set out in paragraphs 3, 4 and 5 of written submissions filed on behalf of the respondent on 2 September 2003. I adopt that statement of background facts for the purposes of this judgment as follows:
The applicant is a citizen of Bangladesh who arrived in Australia on 11 November 2000 and applied for a protection visa on 14 December 2000. On 5 March 2001 a delegate of the respondent made a decision refusing to grant the applicant a protection visa and the applicant applied to the RRT for review of that decision.
The applicant’s claims in support of his application for a protection visa were based on his membership of and involvement with the Jatiya Party in Bangladesh. He claimed amongst other things to have been falsely charged and convicted of the death of a member of the Awami League and that as a consequence he had had to close his business and leave the area permanently. He claimed to have been found later by members of the Awami League and beaten by them on two occasions in 1994 and 1995. After the Awami League regained power in Bangladesh in 1996 another false case was filed against the applicant and an arrest warrant was issued for him. In a letter from the applicant’s advisers addressed to the RRT and dated 10 December 2002 the applicant claimed that members of the Bangladeshi National Party (BNP) had been looking for him for a long time and that leaders of that Party had taken a decision to kill him at any cost.
The applicant gave further evidence in response to questioning by the RRT at a hearing held on 12 December 2002.
Briefly, the applicant is from Bangladesh and applied for a protection visa on the basis of claimed political persecution in Bangladesh. The applicant claimed an association with the Jatiya Party and claimed that he was at risk of harm from his political opponents. Mr Smith, for the Minister, deals with the decision of the RRT on these matters in paragraph 6 of his written submissions. I adopt that paragraph as an accurate description of the RRT decision as follows:
The RRT did not accept the applicant as a credible witness. It did not accept the claims made in his submissions or in his oral evidence (court book, page 235.4). This finding was made by the RRT after a detailed consideration by it of inconsistencies in the applicant’s oral evidence as well as inconsistencies between that evidence and the claims made earlier by him in writing. The RRT also considered the application on the basis that it accepted the applicant’s claims. It found, on the basis of independent evidence, that there was no real chance in the future of the applicant being selected or targeted for persecution for any Convention reason. That evidence was to the effect that the current government in Bangladesh had given clear instructions to maintain peace and communal harmony and that the local authorities would not hesitate to move against activists (of whichever party) if they were suspected of criminal activity or of inciting communal violence. The evidence was also to the effect (and this was agreed to by the applicant at the hearing) that while the lower levels of the judicial system in Bangladesh are subject to the Executive, the higher levels of the judiciary display a significant degree of independence and often rule against the government in criminal, civil and even politically controversial cases (court book, page 235.5).
Essentially, the claims made by the applicant were not believed by the presiding member. The RRT found that the applicant was not a credible witness. The court book at pages 223 through to page 228 details the matters put to the applicant by the presiding member relevant to the findings on credibility. At pages 228 through to 231 the presiding member details relevant country information. At pages 231 through to 235 the presiding member deals with the issue of credibility. The presiding member rejects, one by one, the claims made by the applicant and explains those findings. The presiding member was particularly concerned with inconsistencies in the applicant's evidence. At page 235 of the court book, the presiding member stated:
Overall, the inconsistencies were widespread and the applicant could not adequately explain the reasons for the substantial discrepancies.
As a result, I do not accept the applicant as a credible witness.

I do not accept his claims made in his submission or in his oral evidence.
The presiding member went on to say that even if the applicant had a genuine fear of persecution the available country information established that there was not a real chance of the applicant being persecuted in Bangladesh for any Convention reason.
In the proceedings before me today, the applicant relied upon an amended application filed on 23 April 2003, an affidavit made on 22 April 2003 and his written submissions filed on 26 August 2003. The applicant was cross-examined on his affidavit by Mr Smith. He stated that he speaks, reads and writes English a little. Nevertheless, he was assisted in the proceedings today by a Bengali interpreter.
The applicant explained that his affidavit, and I surmise his other documents, were prepared with the assistance of a friend. The friend is a Mr M Rahman. He is not a migration agent nor a lawyer. Mr Smith asked the applicant about the RRT hearing. He had difficulty remembering when the hearing was but he remembers generally questions put to him by the presiding member and his answers.
The applicant confirmed that the presiding member asked questions about the political situation in Bangladesh. He also confirmed that the country information referred to by the presiding member (court book, page 235) was put to him. He had disputed this country information when given the opportunity by the presiding member.
The amended application sets out 13 grounds of review. The first ground asserts jurisdictional error in the finding that the RRT is not satisfied that there is a real chance in the future of the applicant being selected or targeted for persecution for any Convention reason. This is the ultimate finding made by the RRT at page 235 of the Court Book.

I asked the applicant about this ground of review and he expressed concern that he had tried to explain his situation to the presiding member but his explanations were either not understood or not believed. The applicant was not able to particularise this ground of review, apart from expressing his concern that his claims were not accepted.
Based upon my reading of the court book, the findings made by the RRT both on the question of credibility and upon the relevance of the country information were reasonably open to the RRT on the material before it. The presiding member was not bound to agree with the applicant or to accept his evidence. There is no substance in the first ground of review.
The second ground of review is that the RRT could not form the requisite degree of satisfaction required to support its finding that it was not satisfied that there was a real chance in the future of the applicant being selected or targeted for persecution for any Convention reason. In this ground the applicant asserts that the RRT could not obtain the requisite degree of satisfaction because it had not been formed by the correct application of the applicable law. I reject that ground of review. It is clear from pages 217 to 219 of the court book that the RRT applied the correct law.
Thirdly, the amended application asserts that the RRT had no jurisdiction to make its decision because its reasonable satisfaction was not arrived at in accordance with the requirements of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant was not able to point me to any particular provisions of the Migration Act that might not have been complied with. The presiding member sets out the relevant legislative provisions on page 217 of the court book. I find that this ground of review is not made out. The RRT understood the task that it had to perform and asked itself the right questions. The presiding member applied the correct legislative provisions. There was no breach of any legislative requirement in the Migration Act.
There is no substance in the fourth and fifth grounds of the amended application. I asked the applicant about those grounds but he was not able to tell me anything useful about them.
The sixth, seventh and eighth grounds amount to an allegation of actual bias. No particulars are given. I asked the applicant about those grounds. He told me that he had limited time to submit documents to the RRT and was upset at the hearing. He admitted that he was given the opportunity to put submissions and evidence to the RRT but he was concerned that he was not believed. There is nothing to support an allegation, if it is indeed made, that the presiding member approached this matter with a closed mind. On the material before the RRT, the presiding member was entitled to disbelieve the applicant. There is no substance to an allegation of actual bias.
It is possible that the eighth ground also amounts to an allegation that the RRT failed to base its decision upon relevant material. However, it is apparent that the presiding member considered each of the applicant's claims. In his written submissions, the applicant asserts that the RRT made a serious error of fact (court book, page 225) in stating that the applicant told the RRT that when the Awami League came to power in 1996 the applicant had a business and the applicant went there quite regularly.
The applicant told me that while he did have a business which was still operating at the relevant time he went there irregularly and at odd hours in order to avoid coming to harm. He told me that a correct characterisation was that he went there sometimes rather than regularly. It is possible that there was some misunderstanding on the part of the presiding member as to precisely what the applicant was saying at this point.
At page 225 of the court book the presiding member states:
When the Awami League came to power in 1996 and started arresting Jatiya party members, the applicant stated that he was staying in various places, like Lalbagh “as well as two other addresses mentioned previously”. The applicant then stated, “I had my business established. I went there quite regularly”.
I noted that the applicant had stated that he ran a successful business and that he had also stated that he went there quite regularly. I put to the applicant that I could not understand why the people who were looking for him did not go to his business premises. The applicant stated that he was quite unable to look after his business from one spot, he moved “on and on”. He stated that they had come and looted and destroyed his shop and he had to lodge a complaint with the Police. I put to the applicant that this claim had not been raised previously. The applied replied that he did not remember it then.
I read that passage to the applicant during argument and he agreed with the accuracy of it. Accordingly, it does not appear that at the hearing the applicant disputed the characterisation of his trips to the business as regular trips. Be that as it may, I see no particular significance in whether the applicant in fact said he went to his business premises regularly or only sometimes. The applicant's claim of a fear of harm at the relevant time was put to the presiding member and in substance understood. The applicant was not believed. This, and it appears all other elements of the applicant's claim, were considered by the presiding member. I find that there was no failure on the part of the RRT to consider all the relevant material.
The ninth ground alleges that the RRT failed to put adverse country information to the applicant to enable him to have an opportunity to submit his explanations and materials in replying to the alleged adverse materials and that it could have led to a different decision to the RRT, therefore amounting to jurisdictional error. However, the applicant conceded during cross-examination and during argument that adverse country information was put to him and that he had had an opportunity to respond to it. Accordingly, there is no substance to this ground.
The tenth ground alleges a breach of s.425(1) of the Migration Act. When I read to the applicant that section he conceded that in fact there had been no breach.
The eleventh ground asserts that the decision of the RRT was not a bona fide attempt to exercise the power conferred upon the RRT. There are no particulars and no evidence was advanced to support it. The applicant once again referred to the fact that he was not believed but that does not provide any substance to the allegation of bad faith.

I reject that ground.
The twelfth and thirteenth grounds are not properly grounds of review at all. They are merely assertions that the applicant is entitled to a protection visa and that he has a well founded fear of persecution.
The applicant has failed to establish any jurisdictional error by the RRT. No error is apparent to me from the court book. Accordingly, the decision of the RRT is a privative clause decision.
I will dismiss the application.
On the questions of costs, Mr Smith seeks an order for costs and it is appropriate that an order should be made. Mr Smith submits that it would be appropriate to fix costs in the sum of $4,000 given the amount of preparation required in the matter and the complexity of the issues raised. The applicant stated that he would abide by the order of the Court.
Two applications have been filed in the matter and the amended application raises numerous grounds of review. In addition, the applicant presented an affidavit in support and written submissions. It was necessary for the respondent to deal with the matters raised by the applicant. The amount of preparation required in the matter was somewhat more than average. In those circumstances, an order for costs in the sum of $4,000 is an appropriate order. I will order that the application be dismissed and that the applicant pay the respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 19 September 2003