SZAPW v Minister for Immigration - [2004] FMCA 380

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAPW v MINISTER FOR IMMIGRATION

[2004] FMCA 380

MIGRATION – Refugee Review Tribunal – protection visa – application for review of decision by Refugee Review Tribunal – applicant from Bangladesh – applicant claims well-founded fear of persecution – no reviewable error.

Migration Act 1958 (Cth)

Prasad v Minister for Immigration and Ethnic Affairs (1958) 65 ALR 539
Luu v Renevier (1989) ALR 39
Kioa v West (1985) 159 CLR 550
Abebe v Commonwealth of Australia (1999) 197 CLR 510

Applicant:

SZAPW

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 851 of 2003

Delivered on:

27 April 2004

Delivered at:

Sydney

Hearing date:

27 April 2004

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Mr Lloyd

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $4,000.00.
I allow 28 days to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 851 of 2004

SZAPW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application before the court is an application for a review of a decision made by the Refugee Review Tribunal. The decision was handed down on 22 April 2003. In that decision, the Refugee Review Tribunal affirmed a decision by the delegate of the Minister not to grant the applicant a protection visa.
The applicant is a citizen of Bangladesh. He has come to Australia on two occasions. The first time was in October 2000. He returned to Bangladesh and travelled back to Australia on 12 November 2001. On 24 December of that year, he lodged an application for a protection visa. In his statutory declaration forming part of his application, the applicant said that he was applying for a protection visa so he could remain in Australia permanently. He said that his life was in danger of persecution and death in Bangladesh.
On 7 March 2002, the Department wrote to the applicant asking him some questions about his application. The questions related to three matters. First, the letter said that independent information available to the department did not indicate that leaders of the Jatiya Party, were being targeted for persecution by various people. Second, the United States State Department country report for 2001, said that the higher levels of the judiciary in Bangladesh display a significant degree of independence and often rule against the government. Third the letter said that the applicant could relocate to other places in Bangladesh if he could not continue to live in his normal neighbourhood.
The basis of the applicant's application was that his membership of the Jatiya Party rendered him liable to persecution and threats of death. He said that the police had brought false charges against him for political reasons, and that he did not believe that he would be dealt with fairly.
The letter from the Department dated 7 March 2002, gave the applicant 28 days to reply to that letter and deal with those points. No reply was received. On 16 April 2002, a delegate of the Minister refused the applicant's application for a protection visa. The reasons given were these:
(1)Support for the Jatiya Party is not in itself a cause for persecution in Bangladesh.
(2)Whilst politics in Bangladesh are often violent, politicians who only engage in legitimate political activities usually have little or nothing to fear.
(3)The applicant left Bangladesh legally on 11 November 2001, using a passport in his own name.
(4)The applicant has never been convicted of committing any offence in Bangladesh, which means that he has never been of any real adverse interest to the authorities.
(5)There was scope for the applicant to relocate to other places in Bangladesh, if living in his own locality became unbearable.
(6)The applicant's decision not to reply to the letter of 7 March, impacted adversely both on his subjective fear of persecution as well as the genuineness of his claims.
On 29 April 2002, the applicant lodged an application for review with the Refugee Review Tribunal. He appeared before the Tribunal on

28 March 2003. He was not represented but he gave evidence with the assistance of an interpreter. He gave evidence and he made submissions.
On 22 April 2003, the Refugee Review Tribunal handed down its decision. It affirmed the decision not to grant him a protection visa. Whilst the Tribunal accepted that the applicant was a national of Bangladesh and that he had had an association with the Jatiya Party, the Tribunal did not accept his claim that he had been a president of his local branch of that Party.
The Tribunal did not accept that he had received threats to his life, or to harm him, before he visited Australia in October 2000. The Tribunal did not accept his claim that false charges had been made against him by the police. Even if he were to face false charges on his return to Bangladesh, he could obtain protection from the courts in that country. The Tribunal said that many of his claims were vague and general, and could not be satisfactorily clarified. The Tribunal had serious doubts about his credibility.
On 16 May 2003, the applicant made an application to this court for a review of the RRT decision. He gave 8 grounds for his application. In the proceedings before the court today, the applicant withdrew one of those grounds. That ground was number 6 in the application, which claimed that the Tribunal had pre-judged his matter.
The applicant proceeded with his application based on the other 7 grounds. I will quote them now.
(1)The Tribunal did not take into account the conviction of court case against me in Bangladesh of a convention based reason.
(2)The Tribunal made his decision in bad faith.
(3)The Tribunal deprived me of the natural justice.
(4)The Tribunal denied the evidentiary proof of my claim.
(5)The Tribunal's decision did not reflect the material facts of my claim.
(6)The Tribunal mixed up many facts with this decision, which affected the decision.
(7)The Tribunal concentrated in particular fact while ignored many other facts in this condition.

Those were the 7 grounds.

In his opening Mr Lloyd of counsel, who appeared for the Minister, challenged those grounds. Ground 2, relating to bias and bad faith, was not based on any evidence. Ground 3, being deprived of natural justice, he also said had not been made out; grounds four, five, seven and eight all related to a review of the facts of the matter and had not been properly particularised; ground one referred to convictions of a court case, yet the applicant had said that he had not been convicted of any offence. If the claim meant that false charges had been laid against the applicant, then that claim had been considered by the Refugee Review Tribunal.
In summary the respondent submitted that the onus was on the applicant to make out that there had been a jurisdictional error and he had failed to do so. He may disagree with some findings of fact made by the Tribunal but findings of fact are a matter for the Tribunal and not for a review by this court. He said the decision of the Refugee Review Tribunal was a privative clause decision and that the application should be dismissed.
The applicant addressed the court and asked that the court should listen to a tape of the RRT proceedings and order a transcript of the proceedings. If that were done, then the court would see that the proceedings in the RRT were unfair. He said he had made a submission to the RRT which had been rejected without any investigation being made, he said the application should be sent back to the RRT because it did not accord with two recent decisions of the High Court of Australia, those decisions were Plaintiff S156 v The Commonwealth and Muin v The Refugee Review Tribunal.
The applicant told the court that it was true that he had not been convicted of any offence and that there had been false charges laid against him. It was his belief that everyone knew that the courts in Bangladesh were not independent, he said that the courts follow the wishes of the ruling Party. He said the decision of the RRT was made in bad faith because the RRT did not make its own inquiries about the false charges against him.
He said he was denied natural justice because his claims were not considered properly and he did not get a favourable decision. He referred the court to his statement about the denial of evidentiary proof by saying that the RRT had not accepted his written submission. He said the RRT did not consider material facts because it did not make its own investigation of his claims. He said the RRT mixed up many facts because it looked at documents which were not proven and true documents. He said the RRT concentrated on some facts and ignored others because it did not make a proper investigation of his claims that he came to Australia in fear of his life.
It was submitted by the respondent that the thrust of the applicant's claims were that the RRT should have made its own inquiry. The RRT has no responsibility to make such an investigation. An administrative decision maker is not obliged to make its own inquiries. Mr Lloyd of counsel referred the court to a number of decisions on this point. It is my view that the applicant's claim that the RRT had a responsibility to make its own investigation of his case cannot be sustained. In the decision of Prasad v Minister for Immigration and Ethnic Affairs reported in (1985) 65 Australian Law Reports 539 Wilcox J of the Federal Court held that:
Where it is obvious that material is readily available which is centrally relevant to the decision to be made, then to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have exercised it.
In this case there is nothing before the court to show that any such information was readily available. This situation was considered by the Full Federal Court in the decision of Luu v Renevier reported in (1989) 91 Australian Law Reports 39. This was a decision of the Full Federal Court. Their Honours followed the decision in Prasad v Minister for Immigration and Ethnic Affairs and said:
A decision is unreasonably made where, to the knowledge of the decision maker, there is readily available other factual material which is likely to be of critical importance in relation to a critical issue for determination and which has not been obtained.
As I said earlier, there is no evidence of any such material in this case. The court held that in providing procedural fairness a decision maker is not obliged to make the case for the applicant. The court applied the decision of Kioa v West reported in (1985) 159 Commonwealth Law Reports at 550. This principle has been followed by the High Court of Australia in the decision of Abebe v Commonwealth of Australia reported in (1999) 197 Commonwealth Law Reports page 510. At paragraph 187 of that decision the court said:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
In the case before me the applicant gave evidence and made submissions. The Tribunal was not satisfied that he had made out his case. There is no evidence that he was denied natural justice. He was given ample opportunity to present his case. There is no evidence that the Tribunal considered matters of which the applicant was not aware. The applicant says the judiciary in Bangladesh is not independent but the Tribunal accepted country information which says that the higher levels of the judiciary are independent. The applicant was given the opportunity to comment on that material in the respondent's letter of

7 March 2002. The applicant did not take up that opportunity.
The applicant challenges findings of fact made by the Tribunal. In my view, the findings of fact made by the Tribunal were open to the Tribunal to find. It is not up to this court to re-hear the application on the facts. In my view, no jurisdictional error has been shown.
The decision of the Refugee Review Tribunal is a privative clause decision. There are no grounds for a review of that decision. The application is dismissed.
In matters of this nature costs follow the event and I am satisfied that this is an appropriate matter for an order for costs. I am satisfied that the amount sought on a party/party basis is an appropriate figure.
The applicant is to pay the respondent's costs of this application in the sum of $4000. I allow 28 days to pay. I require a transcript of my reasons for this decision.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 17 June 2004