SZANJ v Minister for Immigration
[2004] FMCA 386
•18 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZANJ v MINISTER FOR IMMIGRATION | [2004] FMCA 386 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – asserted bad faith and procedural unfairness by the RRT – no reviewable error found – application dismissed. |
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
| Applicant: | SZANJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ749 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 J A C Potts |
| Solicitors for the Respondent: | Clayton Utz |
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 $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ749 of 2003
| SZANJ |
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 18 March 2003 and handed down on 9 April 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 1.3 through to 3.1 of written submissions prepared by Ms Francois on behalf of the respondent Minister. I adopt those paragraphs for the purposes of this judgment:
The applicant claimed a well founded of fear of persecution in Bangladesh on the basis of his political opinion arising from his involvement with, and membership of, the Awami League. In the applicant’s protection visa application he claimed that:
a)he started his political career as a student at the Feni Polytechnic Institute in 1990 by joining the Chattra League (the student wing of the Awami League) (court book, page 16);
b)in 1992 he became the organising secretary of the Chattra League, Feni Polytechnic Institute Branch;(id)
c)after he starting working he became a union organiser but was warned by management “not to proceed with the formation of a trade union”;(id)
d)management threatened him a few times and engaged Bangladesh Nationalist Party (“BNP”) thugs to kill him and he left Bangalesh and went to Fiji to save his life; (id)
e)when the BNP was in government he was harassed by the police and BNP thugs (court book, page 17);
f)the BNP government is persecuting Awami League leaders and he will be persecuted because his is a leader (id);
g)other Awami League leaders and activists have had false cases filed against them, their passports confiscated and their life and dignity threatened and the same will happen to him if he returns (court book, page 19).
On 29 January 2002 a delegate of the Minister wrote to the applicant and invited him to comment on particular information, including that (court book, pages 36-39):
a)there was no evidence that the current BNP government was pursing a campaign of persecution of its opponents and there was no evidence of the BNP government specifically targeting Awami League supporters;
b)the judiciary are independent of the government;
c)the fact that all political parties are from time to time involved in armed clashes with the police and with each other, as part of the political milieu of Bangladesh, does not mean that there is persecution within the meaning of the Convention, because the violence lacks the selective or discriminatory quality which is inherent in the notion of persecution, and because it lacks the requisite "official" quality in the sense that it is official, or officially tolerated, or uncontrollable by the authorities of Bangladesh.
The applicant’s migration agent responded by letter received on 28 February 2002 (court book, pages 40-57) and, among other things, provided evidence from newspapers that Awami League supporters are the subject of persecution by the BNP government. In addition, the migration agent enclosed a statutory declaration by the applicant which provided more detail and expanded on his claims as follows:
a)he was sacked from his job [in 1998] and became the victim of physical violence (court book, page 46, para 5);
b)the management of the company and BNP activists filed a false case against him in 1998 and threatened to kill him (court book, page 46, final para); and
c)as the Awami League was in power in 1998 he used his influence to ensure the false case did not proceed against him but if he returned he would be “punished” in relation to the false case (court book, pages 47, para 1 and page 48, para 2).
A delegate of the Minister refused the application 4 April 2002 (court book, page 58-67).
RRT proceedings
On 6 May 2002 the applicant applied to the RRT for a review of the delegate’s decision (court book, pages 68-89). The applicant’s migration also provided further submissions and documents under cover of a letter dated 2 May 2002 (court book, pages 72-89). The migration agent gave further details about the false case (the applicant was accused of organising workers to stop work (court book, page 72, last para) and said that the applicant “lead the life of a fugitive after the false case was filed prior to depart [sic] Bangladesh in 1998” (court book, page 73, para 1). The documents submitted by the applicant’s migration agent included:
a)an undated letter purportedly from his uncle in relation to attack on the applicant by “BNP supported Terrorists at 10.00am on 15/8/1995” which left him seriously injured (court book, page 85);
b)a letter dated 15 September 1995 purportedly from the Al-Razi Hospital confirming that the applicant was admitted to the hospital and had been seriously injured on 15 August 1995 (court book, page 86); and
c)a letter dated 17 February 2002 purportedly from the Chatra League, Feni Polytechnic Institute confirming he had been organising secretary (court book, page 88);
d)a letter dated 10 March 2002 purportedly from the Bangladesh Awami League confirming that he worked at “Style Craft Ltd” and performed the responsibility of an Assistant Secretary of Style Craft Ltd Branch for 1996-98 session (court book, page 89).
On 12 February 2003 the RRT advised the applicant that it was not able to make a favourable decision on the information he had provided and invited him to attend a hearing on 12 March 2003 (court book, page 95-96.
The applicant attended the hearing and gave oral evidence on 12 March 2003, including that:
a)he had obtained his job at Style Craft with the assistance of a relative (court book, page 106.7);
b)he had only been physically assaulted once in February or March 1998 and had not returned to work after that time as he had been too concerned about further attacks on him (court book, pages 106.8-107.1);
c)when confronted with the supporting documents filed by his migration agent which stated that he had been injured in 1995 he said he could not provide an explanation (court book, page 107.3);
d)he had a brother who had been killed but had not included this information before because his application and submission had been “based on his own humanitarian case”;[1] and
[1] court book, page 107.7 and see also court book, page 5 which lists his father as deceased but does not mention any brother.
e)he had no difficulty obtaining his passport or in leaving Bangladesh (court book, page 107.8).
During the hearing the RRT, in the context of the applicant’s fears based upon the “false case”, invited the applicant to comment on the independent country information which indicated that the BNP government had failed in its attempts to address law and order issues but that there was no evidence that it was pursuing a campaign of persecution against Awami League opponents (court book, pages 108-109).
On 18 March 2003 the RRT affirmed the decision of the delegate (court book, pages 101-112).
The RRT’s decision and reasons
The RRT did not directly make an adverse credit finding against the applicant. However, the RRT:
a)was not satisfied he was attacked and hospitalised in 1998 (court book, page 109.8);
b)was not satisfied that the applicant was of such prominence in his political activities as to be subjected to severe harm or mistreatment (court book, page 110.1);
c)was not satisfied given his low prominence and ease of departing Bangladesh that the government would pursue any false charges laid against him the past (court book, page 110.2);
d)whilst there is a poor record of law and order in Bangladesh the applicant’s profile was not such as to lead to real chance of his being persecuted for a convention (court book, pages 110.3-110.6);
and in the alternative:
e)after the attack upon the applicant in 1995 the applicant was able to avoid further harm[2] and upon return he could be expected continue to engage in political activities and to avoid harm in the same manner (court book, page 110);
·did not accept the applicant’s claim that the BNP government would persecute him as an Awami League supporter in light of the independent country information (court book, pages 110.9-111.2); and
·was not satisfied that adequate state protection was not available to the applicant. (court book, page 111.3)
[2]In fact, the documents filed by the applicant indicate he became more prominent in the trade union movement becoming assistant secretary for his factory between 1996-98: CB 89.
The applicant relies upon his application filed on 5 May 2003 and written submissions filed on 15 June 2004. I pointed out to the applicant that I had a difficulty with both documents. The application lists seven grounds of review but provides no particulars. In the absence of particulars, I do not see how the grounds could be sustained. The written submissions deal with grounds of review not identified in the application. Those are asserted bad faith and asserted procedural unfairness. The applicant confirmed to me that those were the grounds upon which he wished to concentrate.
However, in his oral submissions the applicant raised two additional matters. These were what he thought were errors by the RRT in dealing with two particular issues. The presiding member stated the applicant did not have difficulty in obtaining a Bangladesh passport. This is apparently drawn from something said by the applicant himself (court book, page 107). However, the applicant told me that his passport had been stamped to indicate that it could not be extended. The applicant had with him his original passport but it is reproduced in the court book. Page 30 of the court book includes the relevant page. The passport is stamped with an observation in the following terms:
No further extension should be granted without reference to the issuing authority.
Unlike the applicant, I see no particular significance in those words.
The applicant told me that since the date of the RRT hearing he has sought unsuccessfully to obtain a new or extended passport as his former passport has now expired. That event occurred after the RRT hearing so obviously it could not have been taken into account by the RRT. It is something that the applicant could raise with the Minister should he wish.
The other issue raised by the applicant orally concerned the circumstances of the alleged death of his brother in politically motivated violence. This is dealt with by the presiding member on page 107 of the court book. The presiding member says:
The applicant said that, despite his references to a family member who owned a small garment factory, his own family was not well off. His father had been dead for many years and his mother was now alone: his only brother had been killed in June 2001 by political enemies. The Tribunal asked when the applicant had first heard of his brother's death; the applicant said that would have been soon after it occurred, in about July 2001. The Tribunal asked why this major fact had not been mentioned in material submitted to the Department and the Tribunal in December 2001, February 2002 and May 2002 in support of the applicant's claims. The applicant replied that his protection visa application and subsequent submissions had been based on his own humanitarian case.
The issue of the alleged killing of the applicant's brother was not further referred to by the Presiding Member. As I understand the applicant the submission is that it should have been. The applicant told me that when the issue was raised at the RRT hearing he asked for more time to submit information about his brother's killing. The applicant told me that the audio tape of the RRT hearing would confirm this. However, the applicant has provided no evidence of what occurred at the RRT hearing. He has not prepared a transcript of the hearing. He no longer has the audio tape of the hearing.
On 2 July 2003 the applicant consented to an order by a registrar that he file and serve any evidence upon which he proposed to rely on or before 31 October 2003. He has not filed or served any evidence. I note that the applicant was given legal advice under the Minister's legal advice scheme on about 15 October 2003. In the circumstances, it is unsatisfactory for the applicant to raise from the bar table a factual allegation that cannot be substantiated by evidence. Nevertheless I have considered the issue on the basis of the material before me. The applicant told me that he explained to the presiding member that he had not raised the issue of his brother's killing earlier on advice from his migration agent. He told me that his migration agent had advised him to concentrate upon his own circumstances and that is what he told the RRT. That is consistent with the last sentence in the paragraph from the RRT decision I have quoted. Assuming that to be correct, it would follow that the applicant's migration agent did not regard the killing of the applicant's brother as a matter relevant to the applicant's own claims. The silence by the presiding member in his findings and reasons indicates that the presiding member did not regard the issue as material.
Whether or not the applicant's brother was killed in a political attack has no necessary implication for the applicant. The RRT accepted that political violence is endemic in Bangladesh. The fact that a person is killed in politically motivated violence does not create any necessary implication that a relative of the dead person will himself be harmed. In my view on the basis of the material provided to the RRT at the time it was provided, the RRT did not err in treating the allegation as immaterial.
There is no evidence of any written request by or on behalf of the applicant for more time to deal with that issue. If, contrary to my impression, the issue was a significant one for the applicant I would have expected to see a request in writing for more time to deal with the issue. On the state of the evidence before me I am unable to determine whether there was any oral request. It follows that I am not satisfied that there was any procedural unfairness concerning this issue.
In the absence of particulars there is no substance to the grounds of review asserted in the applicant's application. Neither is there any substance to the allegation of bad faith in the applicant's written submissions. The applicant has sought to take advantage of the decision of the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. However, there are significant differences between the factual circumstances in that case and the facts in this case. In particular, there is no agreed statement of facts in this case.
Secondly, although the applicant asserts that the RRT did not take into account the part B documents identified in the decision of the delegate (court book, page 61) the presiding member on page four of his decision (court book, page 104) asserts that the RRT in fact did have regard to the part B documents. I have no reason to doubt the accuracy of that assertion.
In the circumstances, it does not appear that the applicant could have been misled by the letter dated 12 February 2003 from the RRT (court book, page 95), which commences with the statement that the RRT had considered material before it in relation to the application for a protection visa. I find that there is no procedural unfairness established in this case based upon the decision of the High Court in Muin and Lie.
There is no jurisdictional error in the decision of the RRT. Accordingly, I must dismiss the application.
On the question of costs, the applicant has been wholly unsuccessful, costs should follow the event. Mr Potts tells me that the Minister has incurred approximately $4,000 in costs on a solicitor and client basis. On a party/party basis an order fixed in the sum of $3,000 would be appropriate. The applicant did not wish to make any submissions on costs.
I will order that the application be dismissed and that the applicant pay the 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 fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 June 2004
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