SZAGV v Minister for Immigration

[2003] FMCA 495

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAGV & ANOR v MINISTER FOR IMMIGRATION [2003] FMCA 495

MIGRATION – Review of RRT decision – application for protection visa - where the applicant claims to have a well founded fear of persecution on grounds of political opinion and membership of a particular social group namely the family of a person who was murdered for having a particular political opinion – where the reasoning of the Tribunal did not refer to rape allegations made by the applicant – where the applicant’s migration agent failed to submit documents to the Tribunal.

Migration Act 1958 (Cth), ss.48A, B

Abebe v The Commonwealth (1999) 197 CLR 510
Waterford v The Commonwealth (1987) 163 CLR 54

Applicant: SZAGV & ANOR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 384 of 2003

Delivered on: 30 October 2003

Delivered at: Sydney

Hearing date: 30 October 2003

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Mr D Jordan

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 384 of 2003

SZAGV & ANOR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicants in this matter are mother and son who are citizens of Bangladesh. Because the son is an infant I made orders that the applicant be appointed his litigation guardian pursuant to Part 11 Order 11.1 of the Federal Magistrates Court Rules. The respondent has indicated that it will not seek any order for costs against SZAGW.  Because the second applicant only has a claim by virtue of his being a family member of the first applicant I will refer throughout these proceedings to the first applicant as "the applicant".

2. The applicant arrived in Australia on 2 September 2000.  On 21 September 2000 she lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Multicultural Affairs.  On 8 May 2001 a delegate of the Minister refused to grant a protection visa.  On 14 May 2001 the applicant applied for a review of that decision.  The Refugee Review Tribunal considered the application for review and arranged a hearing which was attended by the applicant and her representative on 23 January 2003.  The Tribunal came to its decision on 24 January 2003 and handed it down on 19 February 2003.  The Tribunal affirmed the original decision of the delegate.

3. The circumstances which led to the applicant claiming that she had a well founded fear of persecution for the Convention reason of political opinion and because she was a member of a particular social group, namely the family of a person who was murdered for having a particular political opinion, I will set out shortly.  They are set out in more detail in the court book at [CB 81- 83].

4. The applicant claims that she joined the Freedom Party in Bangladesh in about 1994 together with her husband.  Her husband was politically active in the Freedom Party and was a well-known film actor.  She claims that on 21 January 1995 her husband was killed because he organised the Freedom Party within the film industry.  The applicant claimed that she reported those persons she believed to be responsible for her husband's killing to the authorities.  Those persons were members of the Awami League which came into government shortly thereafter.  She claims that she was the subject of sexual abuse from persons who kidnapped her and in particular from the person she believes was responsible for her husband's death.  She says that false charges were laid against her and that she had to remain in hiding in Bangladesh for a very lengthy period of time.  She apparently came out of hiding in about 1999 and went to work but she was living at all times with friends.  The applicant claims that if she returns to Bangladesh she fears being harmed again because she refuses to withdraw the charges against her husband's killers.

5. It is noteworthy that at the hearing the Tribunal did not discuss with the applicant her claims of having been raped or, if it did, it did not report them in the reasons for decision.  The discussions between the applicant through her adviser and the Tribunal appeared to centre around other matters which went essentially to her credibility.  I am not saying here that the rape allegations were ignored by the Tribunal.  They were referred to at [CB 84] and by inference at [CB 85] but they do not seem to find their way into its findings and reasons.

6. The Tribunal came to the conclusion that the applicant was not a credible witness but at [CB 90] it says:

   “However, for present purposes I am prepared to accept that the applicant and her husband were members of the Freedom Party, that the applicant's husband was murdered in 1995, that the applicant brought charges against those she considered responsible and that she was attacked in 2000 because she refused to withdraw those charges. However, I am not satisfied that the applicant has a well founded fear of persecution for a Convention reason arising out of either her membership of the Freedom Party or her refusal to withdraw charges against those she accuses of killing her husband.”

7. The Tribunal then goes between [CB 90] and [92] to explain why it comes to those conclusions.  Firstly it does not accept that an arrest warrant has been issued for her in Bangladesh because of her membership of the Freedom Party.  The Tribunal states that it believes that the applicant's evidence concerning this point was implausible and internally inconsistent and that in its view that inconsistency adversely affects her credibility.  The applicant had suggested that all members of the Freedom Party were targeted by the Awami League Government in 1996 but the Tribunal cites independent evidence that does not support that assertion.

8. The Tribunal then goes on to deal with the applicant's claims against the persons who killed her husband.  The Tribunal states:

   “The applicant claims that this (the killing) happened because of her husband's involvement in the Freedom Party.  I am not satisfied that this is the case.  In relation to this, the independent evidence is that Freedom Party members had no particular problems before the Awami League Government was elected in 1996.  In my view, this makes it most unlikely that Freedom Party members would have been killed because of their political opinion during the BNP Government which was in office between 1991 and 1996.  I note the applicant's evidence that her husband had been involved in violence and killings.  I am of the view that if the applicant's husband was murdered by someone in the Awami League, it is much more likely that this was a criminal act connected with the husband's own criminal activities.”

9. The Tribunal then goes on to deal with the applicant's conduct in the year 2000 shortly before she left Bangladesh.  The applicant claimed that she had discovered that a warrant had issued for her arrest in February 2000 but she remained in Bangladesh until 24 July 2000 when she went to the United Kingdom.  Furthermore, she returned from the United Kingdom to Bangladesh and remained there for a month before coming to Australia.  The Tribunal took the view that if the applicant had a genuine well founded fear of persecution she would not have returned to Bangladesh and she would have taken more steps to seek asylum in the United Kingdom.  At [CB 93] the Tribunal says:

   “Overall, I am not satisfied that the applicant had a genuine subjective fear of persecution prior to leaving Bangladesh and I do not accept that she currently has a genuine subjective fear of persecution.”

10. When the matter was called on before me the applicant explained that her first migration agent had died and that she had appointed a new migration agent. She complained that the new migration agent had not submitted to the Tribunal all the documents which she would have wished the Tribunal to have seen.  There is found in the court file a bundle of documents which the applicant sent to the court and it is obvious from a glance at these that they may well have been of some interest to the Tribunal.  However, this court can only deal with the case that was put to the Tribunal and I did not permit those documents to be tendered in evidence.

11. I explained to the applicant that whilst under s.48A of the Migration Act 1958 (Cth) she was not normally entitled to make a further application for a protection visa she could make an application to the Minister pursuant to s.48B that the provisions of s.48A should not apply to her. I imagine that the circumstances which she would put to the Minister would be those concerning the death of her former agent and the appointment of a new one, and the fact that these documents could have, and indeed should have been put before the Tribunal.

12. In regard to the decision before me, the applicant was unable to articulate any area in which she believed that the Tribunal had made a jurisdictional error. As Mr Jordan submitted, she did not really articulate any error that the Tribunal had made at all, other than possibly errors as to fact.  It is well settled that there is no error of law in making a wrong finding of fact – see Abebe v The Commonwealth (1999) 197 CLR 510; Waterford v The Commonwealth (1987) 163 CLR 54 at [77] per Brennan J.

13. The applicant is probably also concerned that the Tribunal did not believe her. I am satisfied from a perusal of the papers that the basis upon which the Tribunal expressed its doubts as to her credibility were capable of being clearly seen from the evidence that was before the Tribunal, including the country information concerning false documentation from Bangladesh. Although it is not clear whether or not that country information was raised specifically with the applicant, the Tribunal most certainly raised its doubts about the genuineness of the Freedom Party membership cards [CB 86].

14. In all the circumstances I am unable to find any grounds upon which review of this decision can be carried out.  I dismiss the application. 

    
    

    I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

15. I stated earlier in the judgment that the Tribunal had not referred to the allegation of rape in its findings and reasons, however, it does appear to have been referred to by inference at [CB 90] where the Tribunal states and it accepts that she was attacked in 2000.  The attack which she described included rape.  However, I remain of the view that there were two essential integers of the Tribunal's decision; the first was that it did not believe that the matters which the applicant deposed to being the murder of her husband and her own attack arose from a Convention reason.  The Tribunal came to the conclusion that they were both a criminal action brought to repay other criminal actions which it gathered from the evidence of the applicant that her husband been involved in.

16. The second integer was the lack of subjective fear of persecution which the Tribunal drew from the applicant's evidence concerning her trip to the United Kingdom, her failure to apply for asylum in that country, her return to Bangladesh and her remaining in Bangladesh for a short period of time before flying to Australia which could not have been explained by the need to obtain a visa from Australia as that had been obtained prior to her journey to the United Kingdom.

I certify that the preceding sixteen(16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: