SZANR v Minister for Immigration - [2004] FMCA 419

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZANR v MINISTER FOR IMMIGRATION

[2004] FMCA 419

MIGRATION – Review of RRT decision – where applicant did not attend Tribunal hearing – where applicant claimed to have a well founded fear of persecution for Convention ground of political opinion – whether Tribunal relied on information which ought to be disclosed to the applicant pursuant to s.424A – whether Tribunal obliged to deal with matters raised before the delegate – whether Tribunal considered the likelihood of future persecution – whether Tribunal obliged to consider existence of ‘effective state protection’ where it had found the applicant had not suffered persecution in the past – whether findings and reasons of tribunal evidence a denial of natural justice or failure to accord procedural fairness.

Federal Magistrates Court Rules 2001, Pt 21 r 21.02(2)(a)

Khawar v Minister for Immigration & Multicultural Affairs [1999] FCA 1529
SGBB v MIMIA [2003] FCA 709
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NARE v MIMIA [2003] FCA 554

Applicant:

SZANR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 766 of 2003

Delivered on:

17 June 2004

Delivered at:

Sydney

Hearing date:

17 June 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Mr S Lloyd

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 766 of 2003

SZANR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh. He arrived in Australia on 19 February 2000. On 17 January 2001 he lodged an application for a protection (Class XA visa) with the Department of Immigration and Multicultural and Indigenous Affairs. On 1 March 2001 a delegate of the Minister refused to grant a protection visa and on 26 March 2001 the applicant applied for a review of that decision.
On 29 November 2002 the Tribunal wrote to the applicant inviting him to attend a hearing to be held on 20 December 2002. On 19 December 2002 the applicant sent to the Tribunal a facsimile indicating that he accepted that invitation. On 20 December 2002 the applicant's adviser contacted the Tribunal to ensure that it had received the applicant's acceptance of the invitation to attend the hearing. However, the applicant did not attend the hearing although approximately one month later on 10 January 2003 his migration consultant sent to the Tribunal a six-page submission [CB 93].
The applicant told me today that the reason he had not attended the hearing was that he was sick but it is interesting to note that that excuse is not repeated in the submission made by the adviser.
The applicant claimed to have a well-founded fear of persecution for the Convention reason of political opinion. He stated that he came from a politically minded family and that he had joined the student wing of the Jamaat-e-Islami in 1987 whilst he was at school. He was particularly vocal against the Awami League and he had been targeted by the Chattra League and other political parties.
The applicant claimed that his studies had been interrupted in 1996 by Chattra League leaders and he had stopped attending classes and had to go into hiding. In August 1997 he was involved in organising an annual party convention when there was an attack upon it by the Awami League with the assistance of the police. Following this incident some false charges had been laid against him.
The applicant continued to be the object of Chattra League "terrorist" attacks and claimed to have been wounded with a knife and a hockey stick. He was admitted to hospital for two weeks. He was arrested by the police and interrogated and tortured whilst in their custody. The applicant submitted that he was able to get away after two days with the help of relatives and senior political leaders and by paying a considerable bribe. He stayed in hiding from 1998 until 1999 to avoid police harassment and Chattra League attacks. He managed to sit for his final examinations only with the assistance of strong private security.
The applicant came to Australia to pursue tertiary qualifications. He claimed that he was no longer in a position to continue his studies in Bangladesh because the police and the Awami League supporters were still searching for him.
The Tribunal's reasons for decision and in particular the findings and reasons set out between [CB 103] and [CB 107] deal with the claims that have been made by the applicant but state that:
“The Tribunal is not satisfied that the applicant was of such prominence in his local activities as to be subjected to harm serious enough to amount to persecution, or that he would be so targeted on his return to Bangladesh.”
At [CB 104] the Tribunal notes:
“In the absence of any further details or supporting information the Tribunal does not accept as plausible the applicant's claim to have been severely attacked by his political opponents and then tortured in custody by the police. The Tribunal accepts as plausible that the applicant may have been sought by the police in connection with the violence of political activities in which police were injured and in which the applicant participated but considers in the absence of any evidence to the contrary that these events of some six years ago are unlikely to be pursued upon the applicant's return.”
The Tribunal noted that the Awami League was no longer in power in Bangladesh. At [CB 105] the Tribunal comes to the heart of its difficulties in accepting the applicant:
“The Tribunal would have been able to explore the apparent inconsistencies in the applicant's written evidence if he had taken advantage of the opportunity to present oral evidence at his scheduled hearing. The Tribunal would also have been able to seek more details of the incidents of violence to him reported by the applicant in the statutory declaration accompanying his protection visa application and to examine the issue of whether the applicant was likely to suffer such violence in the reasonably foreseeable future at a level amounting to Convention persecution.”
The applicant filed an amended application on 8 March 2004 and he provided five particulars of error on the part of the Tribunal. The first was that "The Tribunal do not provide the particulars of information for the applicant in the Australian Embassy reports or any adverse materials which form part of the reason of the Tribunal's decision".
My reading of the Tribunal's decision does not indicate that it relied upon DFAT reports although it did rely on certain independent country information together with its own knowledge of the situation in Bangladesh. None of the material that I have seen would be material the Tribunal was obliged under s.424A to provide to the applicant because of the exemption contained in s.424A(3). In any event, the applicant did not attend the Tribunal so it would have been rather difficult for it to have provided him with that information, even if it had been obliged to do so.
The second matter raised by the applicant was that “The Tribunal erred in not finding that the delegate of the respondent had not dealt with, or not dealt in applicant's substantive way with, a key component of the applicant's claim, that the serious persecution will face on his return to Bangladesh in foreseeable future."
It is not the responsibility of the Tribunal to deal with matters raised before the delegate. The Tribunal is hearing the whole application anew. But it cannot be said that the Tribunal did not consider the situation of the applicant's return to Bangladesh because these matters are raised at [CB 105].
The third matter raised by the applicant was that "The Tribunal never ever put to the applicant its doubts about documents containing information personal to the applicants from the Bangladeshi authority and those information formed part of the reason for the Tribunal's decision". With respect to the applicant this ground would not appear to be relevant to his case as no information personal to the applicant contained in documents provided by the applicant was before the Tribunal.
The fourth matter was that "The Tribunal did not complete the exercise of its jurisdiction as it made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future and it thus had failed to assess whether the applicant's fears of being persecuted by the Bangladeshi Government were well-founded in the reasonably foreseeable future". The Tribunal did take into account that there had been a change of government in Bangladesh so that the applicant's persecutors were no longer in power. The Tribunal considered that this state of affairs would continue into the foreseeable future and made the findings that I have already referred to.
The final matter raised by the applicant was that "The Tribunal fell into jurisdictional error in assessing whether or not the State was able to offer adequate protection to the appellant if he returned". The Tribunal was not required to make any finding on this matter because it had not come to the view that the applicant had been persecuted previously. It did not come to the view that the applicant was a person who was likely to be persecuted. It matters not whether that persecution was for a Convention reason or otherwise if the failure to provide State protection was a failure for a Convention reason: Khawar v Minister for Immigration & Multicultural Affairs [1999] FCA 1529. But this is not such a case.
Before me the applicant made a number of further complaints about the Tribunal. He said that it did not get in touch with the Bangladesh Embassy and did not check properly the information which he had provided to it. He claimed that the Tribunal did not check properly the risk to his life if he returns to Bangladesh.
In SGBB v MIMIA [2003] FCA 709 the Court said at [17]:
“As Kirby J noted in Dranichnikov (2003) at 405 [78]: "the function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”. And see also von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 548 at [16]: "neither the delegate nor the Tribunal is obliged to consider claims that have not been made”. But this does not mean that the application is to be treated as an exercise in 19th Century pleading. As it was put by the Full Court of this court in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCFCA 1801 at [49:]
"The Tribunal must, of course, deal with the case raised by the material and the evidence before it. An asylum claimant does not have to pick the correct Convention label to describe his or her plight but the Tribunal can only deal with the claims actually made".”
Indeed, that case serves as an example of how the nature of the case as actually put can affect the obligation of the Tribunal in identifying the relevant social group. In that case the majority of the High Court were prepared to identify the relevant social group from the evidence and material put before the Tribunal by the applicant and to explain his relevant ‘fear’ by reference to the ‘peculiar circumstances that had impinged on his life’ (see Dranichnikov (2003) 197 ALR 389 at [63]).
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 the Full Bench noted at [22] that:
“The Tribunal did not have an obligation to attempt to verify everything the appellant has placed before it.”
It is as well, for the benefit of the applicant, to repeat what Allsop J said about the role of the Courts on review in NARE v MIMIA [2003] FCA 554. At [10]:
“What the applicant may well not appreciate, not being a lawyer, is that the process of purpose of review of this Court does not, and cannot, involve simple re-finding of facts found by the Tribunal. Rather the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully - for instance, asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act 1958 (Cth) (the “Act”) says must be dealt with, not dealing with matter extraneous to its task and correctly understanding the law to apply.
It is not the court's job to review the factual findings of the Tribunal unless their quality or lack thereof is such as to portray a failure to undertake properly the required task. This is why it is not open to the primary judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual error in those conclusions by the Tribunal.”
The matters put before me today and the matters raised by the applicant in his amended application do not to my mind indicate any area in which the Tribunal has fallen into jurisdictional error in its findings and reasons in this case. I am unable to provide the applicant with the review sought. I dismiss his application.
I order that the applicant pay the respondent's costs which I assess in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 7 July 2004