SZANB v Minister for Immigration
[2004] FMCA 387
•18 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZANB v MINISTER FOR IMMIGRATION | [2004] FMCA 387 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – no reviewable error found – observation on the meaning of “political opinion” in the Refugees Convention – application dismissed. |
Migration Act 1958 (Cth), ss.48A, 477
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
| Applicant: | SZANB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ742 of 2003 |
| Delivered on: | 18 June 2004 |
| Delivered at: | Sydney |
| Hearing date: | 18 June 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Minister’s objection to competency is upheld.
The application for judicial review is dismissed as incompetent.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ742 of 2003
| SZANB |
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 27 March 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and made claims of political persecution. The relevant background facts are set out in paragraphs 3 through to 17 of written submissions prepared by Mr Lloyd on behalf of the Minister. I adopt those paragraphs for the purposes of this judgment:
The applicant, a citizen of Bangladesh, arrived in Australia on 9 May 1996.
He purported to apply for a protection visa in July 1996. That application was refused by a delegate in March 1997, which refusal was affirmed by the RRT in February 1999. An application for judicial review challenging that RRT decision was dismissed by the Federal Court on 24 June 1999.
The applicant lodged a second application for a protection visa on 8 August 2001 (court book, pages 1-39). It was accepted as valid, notwithstanding s.48A of the Migration Act 1958 (Cth) (“the Migration Act”), because it was accepted that the first application for a protection visa had been invalid because it had contained no claims under the Convention.
On 24 December 2001, an officer of the respondent’s department sent to the applicant some country information relevant to his application to give him an opportunity to comment upon it (court book, pages 44-45). He did not take that opportunity (court book, page 52.1).
On 14 February 2002, a delegate of the respondent refused the application (court book, pages 46-54).
On 6 March 2002, the applicant lodged an application for review with the RRT (court book, pages 55-58).
By letter dated 29 January 2003, the RRT invited the applicant to attend a hearing and to respond to that invitation by 14 February 2003 (court book, pages 61-62). No response was received within time, so the RRT chased up the applicant’s agent (court book, page 63).
The applicant’s agent filed a submission and documents with the RRT on 26 March 2003 (court book, pages 64-112, 115-311).
The applicant was apparently sick on the date of the first hearing and so the RRT adjourned it until 27 March 2003 (court book, pages 113-114).
The RRT made its decision following a three-hour hearing on 27 March 2003 (court book, pages 317-339, 326[12]). The RRT’s decision turned upon its conclusion that the applicant could relocate away from Kapasia in Bangladesh and not have a well-founded fear of persecution (court book, page 336.5).
It accepted that the applicant had had an involvement first with the Awami League and then the BNP (or their student wings) (court book, page 334.4). The RRT observed that the applicant kept returning to Kapasia where he claimed to face trouble from political opponents, even while he was working in another area, indicating to the RRT that he did not fear persecution there even at that time (court book, page 335.7).
The RRT did not accept that the applicant ever had a national political profile. However, the RRT considered that even if he had had one that was eleven years ago and he does not have one any more (court book, page 336.8).
The RRT considered that the applicant would be able to participate in politics without fear of persecution if he did so without participating in violence himself.
To the extent that some member of the Awami League sought to harm him because he was a witness to a murder by them, the RRT did not accept that any such harm was for a Convention reason (court book, page 337.4).
The RRT also concluded that the applicant did not presently have a genuine fear of persecution (court book, page 338.5).
The applicant relies upon an amended application filed on 19 January 2004. I note that the amended application is dated 20 January 2004. That date or the date on the registry stamp is wrong. I assume that the amended application was prepared and filed on or about 20 January 2004. The amended application sets out five grounds of review. The applicant has also prepared written submissions in support of his application which were filed on 16 June 2004. The written submissions appear to deal largely with the nature of the Court's jurisdiction. The written submissions also assert procedural unfairness based upon the decision of the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. That asserted ground of review does not appear in the amended application but I have nevertheless considered it.
Unfortunately, the applicant's written submissions are of no real assistance in advancing the grounds set out in the amended application which themselves are not particularised. Those grounds are dealt with by Mr Lloyd in paragraphs 18-26 of his written submissions. I adopt Mr Lloyd's submissions on the five grounds for the purposes of this judgment.:
The amended application contains five grounds of review. They will be addressed in turn.
The first (and fourth) ground is that the RRT breached its obligations under s.424A of the Migration Act. The particulars for this allegation appears in ground 4 of the application, namely that the “RRT did not provide the applicant with particulars of information, which formed part of the reason of the RRT’s decision, namely, that violence against BNP supporters/leaders had subsided and that information was not ‘just information about a class of persons’”.
The RRT did not make a finding that violence against BNP supporters/leaders had subsided. This was not a part of its reasons. The RRT’s principal reason for its decision was that any harm faced by the applicant was limited to one area and that he could (and had) relocated within Bangladesh to find safety.
The second ground is that the RRT failed to consider what socio‑political changes may occur in Bangladesh in the reasonably foreseeable future. The applicant did not suggest that there were any relevant changes which would affect the decision, requiring the RRT to make findings in this regard. The RRT put to the applicant at the hearing that he would be able to relocate within Bangladesh. The applicant’s response was that he could not do so because he had a national profile. The RRT both rejected this claim and found that, in any event, he no longer has such a profile and has not had one for 11 years and could relocate. No error is disclosed.
The third ground is that the RRT’s decision does not have a rational foundation. This ground is utterly without substance. The RRT’s reasons are clear and compelling on the findings made by it (which were open to it).
The fifth ground is that the RRT did not put to the applicant its doubts about documents containing information personal to the applicant and those doubts formed part of the reason for the RRT’s decision. This ground may have been copied from some other judicial review application as it appears to have no bearing to this one.
The applicant has not tendered any evidence to support his assertion that these matters were not raised with him at the hearing. The RRT’s reasons suggest to the contrary, where it is says that the applicant was disappointed that the RRT was so little impressed by the documents he had submitted. Without more, this ground would lose on lack of evidence by the applicant.
In any event, it is clear that the RRT’s decision does not turn upon any adverse view taken about them. Rather, the RRT did not see that the substance of the documents supported the applicant in relation to any of the issues critical to the RRT decision (court book, pages 337-338).
In the one instance where the RRT doubted the authenticity of a document, it went on to make findings which dealt with the position if it had been both authentic and true (court book, page 336.7).
The applicant was not able to advance a discussion of those grounds in his oral submissions.
There is also no substance to the asserted breach of procedural fairness based upon the High Court's decision in Muin and Lie. There are no agreed facts in this case and no evidence has been presented that might sustain such an argument. In his oral submissions, the applicant essentially argued the merits of his claims to a protection visa. He referred to events which allegedly have occurred since the RRT made its decision which he says support his claims. Those are matters which he can take up with the Minister and the Department if he wishes. They are not matters that have any bearing on my assessment of the validity of the RRT decision.
The applicant also made oral submissions which appear to be based on the proposition that the presiding member had a predetermined view on the outcome of the case. The applicant places significance on the fact that the presiding member made an oral decision immediately after the hearing. The applicant is also concerned at least in significant respects he was not believed. Neither of those factors, however, points to pre‑judgment.
The RRT, like this Court, indeed in this instance, is entitled to make an oral decision where it feels confident enough to do so. Likewise, the RRT has no obligation to believe what an applicant puts to it. Indeed, where a presiding member has doubts about the veracity of an applicant's claims it is entirely appropriate for the presiding member to make that clear at the hearing.
It appears from the presiding member's decision and reasons that he did not consider that the applicant's fear of persecution was genuine (see in particular page 338 of the court book in the second full paragraph). The presiding member also considered that if the applicant was at risk in his home location the applicant could relocate because that risk was locally based. The presiding member also rejected a number of specific claims made by the applicant for the reasons indicated in the decision. I have no concern about any of those findings, except in one respect. On page 337 of the court book the presiding member said:
In the pre-hearing claims it was claimed that the applicant was wanted by his AL opponents and there was no particular emphasis on any one reason or event for that. It looked like a simple dislike of a political opponent. At the hearing, however, he made clear that the reason the AL wants him is because he is a witness in the case against those who killed Munir. In other words, he was wanted not for his politics but because he was a key witness to a murder. Thus, it appears that the essential and significant motivation for any future persecution of him is that he is a witness, which I conclude is not a Convention reason. The correctness of this conclusion is demonstrated by asking the question “Would he still be wanted by the AL if he witnessed the murder but was not associated with the BNP?” To which the obvious answer is yes, which removes political opinion as a Convention-related factor in his case.
In my view, the conclusion reached by the presiding member does not logically follow from the question which he posed for himself. If the presiding member was under the impression that it was necessary for the applicant to demonstrate a nexus between the harm feared and his political opinion, in my view, the presiding member was wrong. Under the Convention political opinion is an available nexus, but the political opinion need not necessarily be that of the asylum seeker. The political opinion of the alleged perpetrators of violent acts may also be relevant.
The presiding member could just have readily have posed himself the question: Would he still be wanted by the AL if he witnessed the murder but was associated with the AL? The answer to that question is not as obvious as the answer to the question posed by the presiding member. However, a want of logic in reasoning is not necessarily indicative of jurisdictional error. Read fairly the paragraph indicates that the presiding member had formed the view that the issue raised by the applicant was an issue of an ordinary criminal act being witnessed, rather than any particular act of political significance.
That conclusion was reasonably open to the presiding member on the material before him. I conclude that there is no jurisdictional error in the decision of the RRT.
Accordingly, I must dismiss the application.
There are two outstanding issues. The first is the Minister's notice of objection to competency filed on 30 June 2003. As is stated in that notice, the applicant was notified of the RRT decision when it was made orally on 27 March 2003. The applicant's original application to the court was made on 2 May 2003. That was more than 28 days after notification of the decision. Because I have found that there is no jurisdictional error in the decision of the RRT, the decision is a privative clause decision. It follows that the time limit on judicial review applications in s.477(1) of the Migration Act applies. The objection to competency should be upheld.
The other outstanding issue is costs. The Minister has incurred approximately $6,000 in costs in this matter according to Mr Lloyd. On a party and party basis this calls for a costs order of approximately $4,500. The applicant referred to his impecuniosity which is not a reason for me to refrain from making a costs order. I will order that the Minister's objection to competency is upheld and the application for judicial review is dismissed as incompetent. The applicant is to pay the Minister's costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 June 2004
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