SZARP v Minister for Immigration
[2004] FMCA 450
•16 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZARP v MINISTER FOR IMMIGRATION | [2004] FMCA 450 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – unparticularised grounds of review – no reviewable error found – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth)
Applicant S v Minister for Immigration [2003] HCATrans 265
Daihatsu Australia Pty Ltd v Commissioner of Taxation [2001] FCA 588
Dan v Commissioner of Taxation (Cth) [No. 2] [2000] FCA752
Kordan Pty Ltd v Commissioner of Taxation [2000] FCA 1807
Minister for Immigration v Applicant S (2002) 124 FCR 256
Minister for Immigration v Jia (2001) 205 CLR 507
Minister for Immigration v Singh (2000) 98 FCR 469
Muin v Refugee Review Tribunal [2002] HCA 30
NADR v Minister for Immigration [2002] FCAFC 293
O’Toole v Charles David Pty Ltd (1991) 171 CLR 232
Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24
SBAP v Refugee Review Tribunal [2002] FCA 590.
Ex parte H (2001) 179 ALR 425
VFAB v Minister for Immigration [2003] FCA 872
WADU v Minister for Immigration [2003] FCA 1252
WAFV of 2002 v RRT [2003] FCA 16
| Applicant: | SZARP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ957 of 2003 |
| Delivered on: | 16 July 2004 |
| Delivered at: | Sydney |
| Hearing date: | 16 July 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Ms R Francois |
| 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 $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ957 of 2004
| SZARP |
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 9 April 2003 and handed down on 30 April 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The background facts and circumstances relating to the judicial review application before me are set out in paragraphs 1.2 through to 4.1 of written submissions prepared on behalf of the Minister by Ms Francois.
I adopt those paragraphs for the purposes of this judgment:
The applicant is a 31 year old male and a national of Bangladesh. The applicant entered Australia on 19 November 2001 on a visitor’s visa (court book, pages 40 & 92). On 11 December 2001 he lodged an application for a protection (Class XA) visa.[1]
[1]The visa application and supporting documents are at court book, pages 2 to 51.
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)his father had been a “dedicated Awami League leader” (court book, page 44, para 2);
b)in 1989 he joined the student wing of the Awami League, known as the Chattra League and had close associations with leaders of the Chattra League (ibid, para 3);
c)in 1994 he was appointed as the “orgainising secretary of the Jubo League for Gendaraia Committee Dhaka” actively organised and lead political rallies against the BNP (court book, page 45,para 4);
d)between 1994 and 1996 he was harassed and threatened by the local BNP activists and its student force, the Chattra Dal (id);
e)in 1996 he actively campaigned for his local candidate who won the election (id);
f)his party came to power in 1996 but BNP “terrorists” starting threatening Awami League party workers (court book, pages 45-46, para 5);
g)during 1997 “some BNP terrorists” charged bombs at his home and in retaliation “[he] made counter attack in which some of their workers injured severely”. The Applicant noted that those in the BNP who he and his friends attacked “were unable to do anything in this concern because at that time, our party was in power” (court book, page 46, para 6);
h)however, the BNP targeted him from that time and started searching to kill him. They also threatened his family and their business interest and killed some of his colleagues. He was forced into hiding for some months and although his party was in power and he complained to the police, the “central leaders did not do anything to save [them] from BNP terrorists” (court book, page 46-47, paras 7-9);
i)the BNP is now in power and is persecuting Awami League leaders. In November 2001 local BNP leaders filed a “false case” against the applicant and “recently” went to his house to arrest him (court book, page 47, para 10);
j)the Applicant went overseas and “recently” returned to his locality but he was still threatened. He stated (court book, page 48, para 11):
In fact, because of fear of life, I left Bangladesh several times to take shelter in India, Thailand, Nepal and even in Australia. I initially came to Australia in March of this year but returned to my country because my leaders gave me all cleared signs. Nevertheless, this time, the situation of my country has deteriorated severely and I do not like to return to my country any more.
k)he reiterated that the BNP is punishing Awami League members and that he is being targeted by local BNP “terrorists” (court book, pages 48-49, paras 12 & 13).
On 12 March 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 leaders;
b)the higher levels of the judiciary are independent of the government; and
c)the applicant could relocate to other parts of Bangladesh.
The applicant did not respond to this letter. A delegate of the Minister refused the application 19 April 2002 (court book, pages 63-70).
RRT Proceedings
On 29 April 2002 the applicant applied to the RRT for a review of the delegate’s decision and stated that “I will provide my supporting documents ASAP” (court book, pages 71-74). The applicant did not file any further documents in support of his application.
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 10 March 2003 (court book, pages 80-81).
On 6 March 2003 the applicant’s migration agent wrote to the RRT and sought an adjournment of the hearing on the basis of a medical certificate which stated that the applicant had a viral infection (court book, pages 82-83). The RRT wrote to the applicant on 7 March 2003 and confirmed that it had adjourned the hearing to 21 March 2003 (court book, page 84).
The applicant attended the hearing and gave oral evidence on 21 March 2003. During the hearing the applicant:
a)stated that his visits to India and Nepal had been in his capacity as a freelance photographer and he had visited Australia and Thailand in early 2001 as a tourist and did not at that time believe he was at risk of persecution in Bangladesh (court book, page 98.2);
b)said he had no difficulty entering or leaving Bangladesh on any of these travels (id);
c)was unable to say what the policies of the Awami League were or give any details about the “Jamat” party referred to in paragraph 3 his statement (court book, pages 98.4 and 45); and
d)was unable to say if he had occupied any other positions in Awami League organisations from 1994 to his departure in 2001 (court book, page 98.5).
On 9 April 2003 the RRT affirmed the decision of the delegate (court book, page 101-112).
The RRT’s decision and reasons
The RRT was not satisfied that the applicant was of such prominence in his political activities as to be subjected to harm serious enough to amount to persecution or that he would be targeted upon return to Bangladesh (court book, page 100.3). In particular the RRT:
a)found that the applicant was a relatively minor member of the Awami League and was in no different position to other supporters who have remained in Bangladesh and are not being persecuted (court book, page 100.5);
b)specifically rejected the applicant’s claim that his home was bombed (court book, page 100.7); and
c)was not satisfied that the authorities had targeted the applicant or that he was subject to police action or other action by the Bangladeshi authorities related to his claimed political activities (court book, page 101.1).
In the alternative, the RRT found that if the applicant were the subject of false charges, it was not satisfied that the authorities would pursue such charges and in any event, the applicant would have the effective protection of the Courts in Bangladesh (court book, page 101.3-101.9). The RRT further found that the applicant could engage in political activities upon return to Bangladesh without harm if he exercised prudence about situations where violence was likely or imminent (court book, page 101.9-102.2).
…
The application for review of the RRT’s decision
The applicant filed an application in this Court on 5 May 2003. The applicant pleads the following grounds of review:
1.The Tribunal did not take into account my conviction by the Court in Bangladesh of a Convention based reason;
2.The Tribunal made his decision in bad faith;
3. The Tribunal deprived me of 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 has given a decision, which was preset in the back of its mind;
7.The Tribunal mixed up many facts with this decision which affected the decision.
8.The Tribunal concentrated in particular fact, while ignored many other facts in this condition”
As is noted by Ms Francois in her written submissions, the application does not give particulars of any of the eight asserted grounds of review. In that regard I note that consent orders were made by a registrar in this matter on 16 July 2003. The applicant consented to an order that he file and serve any amended application and any evidence upon which he proposed to rely on or before 30 September 2003. Given the terms of that order the applicant was not required to file an amended application. He has chosen not to do so. In the absence of any particulars of the grounds advanced it would have been open to the Minister to seek to have the application summarily dismissed as disclosing no reasonable cause of action.
The applicant filed an outline of submissions on 12 July 2004. I agree with, and accept the first paragraph of those submissions:
This purports to be an application pursuant to s.39B of the Judiciary Act 1903 (Cth) which seeks to challenge a decision of the RRT to refuse the application for a protection visa pursuant to the Migration Act 1958 (Cth). I am a citizen of Bangladesh.
The rest of the applicant's submissions, however, do not assist me. In part, his submissions simply repeat some of his grounds of review which are not particularised. He directs my attention to several court decisions but the relevance of them, apart from the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24 is not clear. He asserts that he is a genuine refugee, but that goes to the merits of the RRT decision, which I cannot review.
The only issue of substance which the applicant appears to advance is that the RRT ignored relevant evidence and failed to properly investigate the applicant's claims. Those asserted errors are claimed to amount to either actual bias or procedural unfairness. I reject that submission. It is clear from a reading of the decision and reasons of the RRT that the applicant's claims were rejected on credibility grounds. While the RRT accepted that the applicant was a member of the Awami League the presiding member found that he was not a person of any consequence. The presiding member was not persuaded that the applicant had suffered serious harm amounting to persecution in Bangladesh. The presiding member specifically rejected a claim by the applicant that a false case or false cases had been brought against him by political opponents. In those circumstances, while the presiding member went on to consider whether the applicant would obtain a fair hearing on any false cases, that consideration was irrelevant to the decision.
I see no jurisdictional error in the decision of the RRT. The credibility findings made by the presiding member were reasonably open to him on the material before him. There is no evidence of any procedural unfairness. There is no substance to the assertion of bad faith and actual bias. The presiding member clearly understood the task that he had to perform and performed it consistently with his statutory and common law obligations.
Ms Francois deals with the grounds advanced by the applicant in paragraphs 4.2 through to 4.9 of her written submissions. For completeness, I agree with and adopt those paragraphs for the purpose of this judgment:
The applicant has not provided any particulars. Further, grounds 4, 5 and 7 appear to seek impermissible merits review. The applicant’s written submissions do not illuminate any of the remaining grounds and essentially add:
· an allegation that the RRT’s findings were in the face of contradicting independent evidence;
· an allegation that the RRT failed to investigate his claims which constitutes actual bias; and
· a reference to the High Court’s decision in Muin v RRT [2002] HCA 30.
Failure to consider the applicant’s conviction in a court
The RRT’s records indicate that at no time did the applicant allege that he had been convicted by a Court in Bangladesh. In so far as the applicant alleged there had been false charges filed against him, the RRT specifically dealt with this issue: see court book, pages 101.1 and 101.3.
Bad faith or actual bias
The absence of bona fides is to be proved other than by perusing the face of the record.[2] However, proof of bad faith necessitates proof of extreme circumstances[3] such as dishonesty.[4] It is a serious allegation which should not be made lightly.[5] There is no proper evidence to support an assertion that the RRT was acted in bad faith or was biased in this case.
The suggestion in the applicant’s written submissions that the RRT failed to investigate the applicant’s claims and this constituted actual bias is patently untenable. There is no suggestion that the applicant asked the RRT to investigate any particular aspect of his claims or that, to the knowledge of the RRT, there was readily available factual material likely to be of critical importance in relation to a central issue for determination which had not been obtained. Accordingly, in the circumstances of this case, there was no obligation on the RRT to make any inquiries: WADU v Minister for Immigration [2003] FCA 1252 at [34] to [36]; Minister for Immigration v Applicant S (2002) 124 FCR 256 at [74] per Stone J.[6]
Apprehended bias
Nor is there any evidence that the RRT gave a decision which was “preset in the back of it’s mind”. There is nothing on the face of the decision to indicate that the RRT had a mind “incapable of alteration”[7] or that would cause a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.”[8]
Breach of rules of natural justice
There is nothing on the face of the decision to indicate that RRT failed to accord the applicant procedural fairness.
Failure to take into account relevant considerations/decision contrary to information
The applicant has not specified what matters the RRT ignored nor the evidence that contradicted the RRT’s findings. These matters are not apparent on the face of the decision. Further, the RRT is not obliged to refer to or address all the material relied upon by the applicant to support his claims: Minister for Immigration v Singh (2000) 98 FCR 469.
[2] By a majority in O’Toole v Charles David Pty Ltd (1991) 171 CLR 232.
[3] Dan v Commissioner of Taxation (Cth) [No. 2] [2000] FCA752 at [34]; Daihatsu Australia Pty Ltd v Commissioner of Taxation [2001] FCA 588 at [36].
[4] WAFV of 2002 v RRT [2003] FCA 16; SBAP v RRT [2002] FCA 590.
[5] Kordan Pty Ltd v Commissioner of Taxation [2000] FCA 1807.
[6] The High Court granted special leave to the applicant on 8 August 2003: Applicant S v Minister for Immigration [2003] HCATrans 265 (8 August 2003). The Transcript indicates that the grant of leave was on the basis of hether the Full Court correctly applied the test in relation to determining what would constitute a “particular social group”.
[7] Minister for Immigration v Jia (2001) 205 CLR 507 at 532
[8] Ex parte H (2001) 179 ALR 425 cited by Kenny J in VFAB v Minister for Immigration [2003] FCA 872.
Muin v Refugee Review Tribunal
The applicant has not filed any evidence which suggests that:
a)he was misled into believing that the RRT had considered any particular relevant information (that is, the applicant has not identified the particular information he was mislead into believing would be considered); and
b)as consequence the applicant did not ensure that such information was placed before the RRT.
These matters need to be established in order to enliven the Muin principle: NADR v Minister for Immigration [2002] FCAFC 293 at [24] and [26]. Further, and in any event, the RRT’s decision clearly records that it had regard to the information before the delegate (court book, page 94.8).
The decision of the RRT is a privative clause decision. Accordingly, I must dismiss the application and I do so.
On the question of costs, it is clear that costs should follow the event. Ms Francois tells me that the Minister's solicitor and client costs are in the order of $4,700. The Minister does not seek costs on anything other than the ordinary party party basis. The applicant did not wish to make any submissions on costs. On a party party basis I have decided that costs fixed in the sum of $3,500 would be appropriate. 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 $3,500.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 July 2004
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