SZALF v Minister for Immigration
[2004] FMCA 248
•23 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZALF v MINISTER FOR IMMIGRATION | [2004] FMCA 248 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – whether the RRT erred in failing to disclose relevant country information to the applicant considered – no reviewable error found – application dismissed. |
Migration Act 1958 (Cth)
Minister for Immigration v Teoh (1995) 183 CLR 273
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
NADR v Minister for Immigration [2003] FCAFC 293
NADZ v Minister for Immigration [2003] FCA 118
Randhawa v Minister for Immigration (1994) 32 FCR 437
| Applicant: | SZALF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ658 of 2003 |
| Delivered on: | 23 April 2004 |
| Delivered at: | Sydney |
| Hearing date: | 23 April 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr R Beech-Jones |
| Solicitors for the Respondent: | Sparke Helmore |
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 $4,500.
The applicant is to pay the setting down fee of $327 or obtain a waiver within 14 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ658 of 2003
| SZALF |
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 28 February 2003 and handed down on 21 March 2003. The RRT affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant claimed political persecution in Bangladesh. The background information relating to his visa claim and the decision of the RRT is accurately set out in paragraphs 1 through to 6 of written submissions prepared on behalf of the Minister by Mr Beech-Jones. I adopt those paragraphs for the purpose of this judgment:
The applicant is a citizen of Bangladesh. He was born on 12 December 1974 (court book, page 7). He arrived in Australia on 20 October 2000 (court book, page 248). On 1 December 2000, he lodged an application for a protection visa (court book, pages 1-29). On 29 March 2001, a delegate of the respondent refused the application (court book, pages 35-44). The applicant sought review by the RRT. By a decision dated 28 February 2003 and handed down on 21 March 2003, the RRT affirmed the delegate’s decision (court book, pages 247-267).
The applicant claimed that he had a well-founded fear of persecution upon his return to Bangladesh for reasons of his political opinion. The evidence said to support his claims were set out in a statutory declaration that accompanied his application (court book, pages 30-31), a letter and accompanying material enclosed with the application (court book, pages 1-6), a letter from his solicitors dated 6 December 2002 enclosing further material (court book, pages 60-151), a letter from his solicitors dated 9 December 2002 enclosing further material (court book, pages 152-153) and a further letter from his solicitors dated 7 January 2003 enclosing various documents, statements and submissions material (court book, pages 155-236).
The particular claims made by the applicant which were said to support his application were:
i)in 1992 the applicant became involved in the student wing of the Jatiya Party;
ii)after he finished his studies he joined a local branch and was elected to vice-president;
iii)on 6 December 1994 he was participating in an anti-BNP government demonstration and after that came into conflict with BNP activists and cases were filed against him with the local police;
iv)on 3 October 2000 he was attacked by four people who snatched a bag and he believed his assailants were active members of the local Awami League branch;
v)on 9 November 2000, after the applicant had left Dhaka, two of his friends were shots and the suspects in both killings were Awami League activists.
The effect of the material which was submitted by the applicant’s solicitors under cover of their letters dated 1 December 2000, 6 December 2002 and 9 December 2002 was summarised in the RRT’s decision at court book, pages 252-253. In broad terms they addressed the politically unstable position in Bangladesh and the non-observance of human rights standards. The material enclosed under cover of the letter of 7 January 2003 included a statement from a former Prime Minister of Bangladesh and various statements and documents purporting to demonstrate that the applicant had been charged (court book, pages 155-173 and court book, pages 255-256).
The RRT decision
In its decision, the RRT set out the constituent elements of the definition of a refugee (court book, pages 248-250), summarised the documentary evidence submitted by the applicant (court book, pages 250–256), and what was discussed during the hearing held before it on 7 January 2003 (court book, pages 256-260) and a further telephone hearing on 28 January 2003 (court book, pages 260-261). At court book, pages 261-263 it set out the independent evidence before it. At court book, pages 264-266 it set out its findings and reasons for its decision. In summary, the RRT found as follows:
i)the RRT accepted the applicant was a national of Bangladesh (court book, page 264.1);
ii)the RRT accepted the applicant was a member of the Jatiya Party but considered he had a low political profile (court book, page 264.3);
iii)the RRT did not accept that he had been subjected to any actual harm or mistreatment which might be capable of amounting to persecution (court book, page 264.3);
iv)the RRT did not accept that the applicant would be targeted if he returned to Bangladesh; it noted the Awami League was no longer in power and that the BNP had a “neutral” attitude towards the Jatiya Party (court book, pages 264.10-265.2);
v)the RRT did not accept that there had been any false cases or indeed any cases lodged against the applicant by the BNP as he alleged (court book, pages 265.4-266.2). It did so because it considered that the applicant had contradicted himself as to who initiated the cases, first stating it was the BNP and later saying it was the Awami League. It did not attach any weight to the letters, accepting independent evidence concerning the prevalence of document fraud. It dismissed the evidence of a witness for the applicant, the Hon. K.Z. Ahmed, whom the RRT considered had no direct knowledge of the relevant events (court book, pages 265.10-266.1).
Accordingly, the RRT affirmed the delegate’s decision.
There was a difficulty apparent in the hearing of this matter at the outset. That is that the grounds of review advanced in the application filed on 29 April 2003 are different from those dealt with in the applicant's written submissions filed on 19 April 2004. The application and a supporting affidavit were filed by the solicitors acting for the applicant at that time. The solicitors ceased to act on 17 March 2004. A notice of ceasing to act was filed the following day. I note that the solicitor formerly acting for the applicant filed an affidavit verifying compliance with the Court Rules on 18 March 2004.
The applicant told me that he prepared written submissions with the assistance of a friend. He told me that he wished to rely on all documents that had been filed by him or on his behalf. I took this to be a request to amend his application to add the grounds dealt with in his written submissions. I granted that request, noting that he is now self represented.
Mr Beech-Jones’ written submissions were limited to the grounds advanced in the applicant's written submissions. He deals with those grounds in paragraph 8 through to paragraph 12 of his written submissions. I agree with Mr Beech-Jones' submissions on those matters and adopt those paragraphs for the purposes of this judgment:
Paragraph 2 of the applicant’s submissions asserts the RRT ignored his claim that he was a member of the “Bangladesh Jatio Party” and did not otherwise explain on what ground it did not believe his claims. Assuming that the Bangladesh Jatio Party is the same as the Jatiya Party, then it is clear the RRT did not ignore it. It accepted that he was a member but did not accept that the applicant was as prominent as he asserted. Otherwise, the RRT set out in considerable detail the claims the applicant made that it did accept and in respect of those ones which it did not, why (court book, pages 264-265).
The second and third paragraphs on page 2 of the applicant’s submissions appear to assert that the RRT failed to investigate the issue of document fraud in Bangladesh. In fact the RRT had a considerable amount of material before it concerning the existence of document fraud (court book, pages 262-263) and as conceded by the applicant, discussed it with him during the hearing (court book, page 258.8). In those circumstances, it is submitted there was neither any failure to afford the applicant procedural fairness nor any remaining duty upon the RRT to make inquiries (see Minister for Immigration v Teoh (1995) 183 CLR 273, 289-290 (per Mason CJ and Deane J)).
The second last paragraph on page 2 of the applicant’s submissions asserts that the RRT failed to address the question of whether relocation was not an effective option in Bangladesh. Given that the RRT did not accept that the applicant had a well-founded fear of persecution in relation to any part of Bangladesh, it is submitted that it follows that it had no obligation to consider any question of internal relocation (see Randhawa v Minister for Immigration (1994) 32 FCR 437).
As paragraphs 3 and 4 attempt to draw some analogy between this case and that considered in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 and in particular the letter referred to at paragraph 253 by Hayne J in which the Court found that the applicant was misled by a letter emanating from the RRT to believe that the RRT member had considered each of the documents addressed by the delegate. The equivalent letter from the RRT to the applicant has not been produced in the Court Book but will be tendered at the hearing. A copy is attached. Unlike Muin, what the applicant has not proved or even sought to prove in this case is that:
i)based upon the letters he had a belief that the documents set out in the delegate’s decision at court book, pages 38 to 39 had been sent and considered by the RRT (cf. Muin at paragraph 255);
ii)the RRT did not in fact receive those documents (cf. Muin at paragraph 250);
iii)the RRT did not in fact review those documents (cf. Muin at paragraph 250);
iv)had the applicant been of the opinion in (i) and known of (ii) and (iii), he would have made further submissions and drawn them to the respondent’s attention (cf. Muin at paragraph 255).
(See NADR v Minister for Immigration [2003] FCAFC 293 at paragraphs 19 to 26 (per Kiefel J) and NADZ v Minister for Immigration [2003] FCA 118 at paragraph 14 (per Hely J).)
The remainder of the applicant’s submissions do not raise any separate grounds.
I will now deal with the grounds of review raised in the original application. The first two grounds are related. Ground one is that the RRT failed to exercise its jurisdiction under the Migration Act 1958 (Cth) (“the Migration Act”). Ground two is that the RRT erred in its understanding and application of the applicable law. The same particular is relied upon for both grounds. That is that the RRT misconstrued and/or misapplied the expression “well-founded fear of persecution” in such a way as to cause it to fail to exercise its jurisdiction as required by law. I invited the applicant to present oral submissions on that ground, noting that his written submissions were silent on it. He was not able to expand upon the application in any significant way. There is, in my view, no substance to either ground one or ground two. The RRT correctly set out the terms of the test of determining a claim for a protection visa in its decision. The relevant law is accurately summarised on pages 248 to 250 of the court book.
It is apparent from reading the discussion of the applicant's claims and the reasoning of the presiding member in dealing with those claims that the presiding member was satisfied that the applicant did not have a well founded fear of persecution. First, the presiding member was not satisfied that the evidence presented by the applicant established that he had suffered persecution in Bangladesh in the past. Secondly, the presiding member was not satisfied that the evidence established that the applicant would suffer persecution in Bangladesh in the future. His claim was based upon asserted political persecution but he told the RRT that he had abandoned his political ambitions.
In addition, country information indicated to the presiding member that the political situation currently applying in Bangladesh was not adverse to the applicant's interests. Finally, the presiding member rejected the applicant's claim that a false case had been filed against him by his political enemies. I see no error whatsoever by the presiding member in applying the test of a well founded fear of persecution to the facts of the case.
The third ground of review is that the RRT acted in bad faith and failed to give the applicant a fair hearing. The particulars given are that the RRT was requested by the applicant's adviser to forward country information that it was going to rely on and which it raised during the RRT hearing. The RRT sent a facsimile, dated 13 January 2003, purporting to disclose that country information. However, it then placed reliance on a DFAT report (DFAT report 195, 10/1/02) that materially affected the purported decision under review and which was not disclosed to the applicant or his adviser despite the RRTs said facsimile to the contrary resulting in it failing to exercise its jurisdiction as required by law.
I accept that the RRT decision was based in part upon the DFAT report referred to. On pages 264 and 265 of the court book the presiding member said:
Furthermore, the independent evidence does not suggest that the applicant would be targeted if he were to return to Bangladesh. In this respect the Awami League is no longer in power and the applicant agreed that he no longer had the same level of concern regarding them, but rather if one's name is in the records the Army will pursue one. I also accept the independent evidence that the BNP’s relationship with the Jatiya Party is described as neutral with the Jatiya Party being conciliatory towards it. (Country Information Report No 314/01). The applicant also stated that part of the Jatiya Party was presently in a coalition government with the BNP. Moreover, the government has provided instructions to maintain peace and communal harmony (DFAT Report 195, 10/1/02) and I accept this evidence over that provided by the applicant.
It is also apparent from the court book that the issue of the government instruction to maintain peace and harmony was raised with the applicant at the hearing. On page 258 of the court book the presiding member says:
I discussed information with the applicant that Local Officials had advised that they had clear instructions from the new government to maintain peace and communal harmony. The applicant stated “I don't believe that. I don't know about this.”
On page 240 of the court book is a copy of a letter faxed to the applicant's then solicitor by the RRT. That letter discloses that the RRT provided to the applicant's then solicitor country information requested by him that was apparently discussed at the RRT hearing. The letter contains a quotation from the first of the two DFAT reports referred to by the presiding member in the quote I read from pages 264 and 265 of the court book. It does not refer specifically to the second DFAT report and it is not clear from the court book precisely which country information was provided, apart from the report quoted in the letter. However, the letter includes the following sentence:
If you have any further requests for country information references arising out of the hearing would you please inform the contact officer at the Tribunal on the above number.
The relevant telephone contact number was included in the letter. Given the apparent importance of this issue I took oral evidence from the applicant. He told me that he was not aware what was in DFAT report 195 and he was not sure whether he had seen it. He told me that he and his legal advisers had submitted to the RRT information relating to the government instruction. He said that he thought he might have been able to get further relevant information from Bangladesh but at the time it was not available to him. He told me that he and his legal advisers had submitted to the RRT all relevant information on the issue that was then available to him. Under cross-examination, the applicant confirmed that the presiding member's statement concerning the discussion with the applicant about the issue at the hearing was correct. He also said that he did not discuss the issue with his legal advisers after the hearing. However, in response to a further question from me he said that he had discussed the letter dated 13 January 2003 with his legal advisers.
It is possible that the RRT may have failed to disclose to the applicant the relevant country information that was relied upon by the RRT in making its decision. If there was such a failure there is no evidence of bad faith. In addition, I am satisfied that if there was such a failure there was no practical unfairness.
The applicant was made aware of the issue at the RRT hearing. He had the opportunity which he took to submit relevant information to the RRT on that issue. On his own evidence, he could not have done anything further. In the circumstances, I find that there was no jurisdictional error committed by the RRT in the event that it did fail to disclose to the applicant a copy of DFAT report 195. The substance of the report was disclosed at the hearing and the applicant did all that he could have done to deal with the issue.
One further matter was raised by the applicant in his oral submissions. He submitted that the RRT did not understand his evidence in relation to who was responsible for the laying of a false case against him. The presiding member found that the applicant had contradicted himself on that issue and drew an adverse credibility finding from it.
The applicant first told me that he thought there were interpretation difficulties at the time of the hearing. Later he told me that he was feeling insecure and was not sure that he expressed himself clearly. He also said that he was confused by the presiding member's question and is not sure that he was properly understood. The applicant invited me to listen to the tape recording of the RRT hearing and obtain a transcript of it. I have decided not to take that course.
The application for judicial review has been extant since 29 April 2003. For most of that period the applicant has been legally represented. The issue was not raised in the original application or since by the solicitors formerly acting for him. After the solicitors ceased acting for the applicant he had the opportunity, which he took, to augment the grounds of review he was advancing. He filed an extensive written submission. There is nothing in that written submission addressing this issue. It was raised for the first time at the hearing today. In my view, the issue was only raised for the purposes of seeking delay. I note in any event that the allegation lacks credibility.
I note from page 265 of the court book that the presiding member regarded the issue as important and was concerned to satisfy himself that he understood the applicant's evidence on the point. The presiding member said:
… I asked him to confirm his then statement that the false claim was made by the Awami League, which he did. Accordingly, because the applicant contradicted his previous written evidence (which he had agreed was correct after having been translated and read back to him), I find that his evidence in his regard was contrived and that there was no false claim made against him.
In my view, it is apparent from the reasons for decision of the RRT that the presiding member did all that was necessary in order to establish the relevant facts. I reject this ground of review.
There is no jurisdictional error in the decision of the RRT. The decision is therefore a privative clause decision. It follows that I must dismiss the application.
On the question of costs, the applicant having been wholly unsuccessful, costs should follow the event. Mr Beech-Jones has sought an order for costs fixed in the sum of $4,500 on a party/party basis. The applicant did not wish to put any submissions on costs. I agree that the sum of $4,500 would be an appropriate award in this matter. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,500.
I also note that the applicant has not paid the setting down fee of $327 payable prior to the hearing of this matter. I will, in addition, order that the applicant pay that setting down fee within 14 days or obtain a waiver.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 April 2004
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