SZATR v Minister for Immigration - [2004] FMCA 641

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZATR v MINISTER FOR IMMIGRATION

[2004] FMCA 641

MIGRATION – Review of RRT decision – where applicant claims to have a well-founded fear of persecution for Convention reason of imputed political opinion and his membership of a particular social group – whether Tribunal considered whether the applicant would be imputed with political opinion as a result of his brother’s association with political gangs – where Tribunal found the applicant’s claims to be fabricated – where Tribunal found that the harm feared would not amount to persecution under s.91R Migration Act – where applicant essentially seeking merits review.

Migration Act 1958 (Cth), s.91R

Federal Magistrates Court Rules

WACO v MIMIA [2003] FCAFC 171
NAAK of 2002 v MIMIA [2004] FCA 113
Applicant A27 of 2002 v MIMIA [2004] FCA 259
NARE v MIMIA [2003] FCA 554

Applicant:

SZATR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1082 of 2003

Delivered on:

1 September 2004

Delivered at:

Sydney

Hearing date:

1 September 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in Person

Counsel for the Respondent:

Ms S Kaur-Bains

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent's costs assessed in the sum of $3,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1082 of 2003

SZATR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh. He arrived in Australia on 24 February 1994 having spent approximately a year in New Zealand as a student. On 17 October 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 22 October 2001 a delegate of the Minister refused to grant a protection visa and on 18 December 2001 the applicant applied for review of that decision.
The Tribunal interviewed the applicant in the presence of his migration agent and on 5 May 2003 determined to affirm the decision not to grant a protection visa. The Tribunal handed down its decision on 27 May 2003.
The applicant claimed to hold a well-founded fear of persecution for the Convention reasons of imputed political opinion and membership of a social group. The facts which he claimed established these grounds were that in August 1995 his brother was killed whilst trying to help someone else involved in a fight between political gangs. The applicant stated that his family tried to have the police investigate the killing without success and that the protagonists are still at large even though he produced some newspaper articles, which the Tribunal accepted as genuine, that seemed to identify those persons.
The imputed political opinion arose because the friend whose life the brother had saved was an Awami League supporter and the clash was with BNP supporters. The brother would be imputed with an Awami League association and that would also be imputed to the applicant. The claim that the applicant belonged to a social group related to his being a member of his deceased brother's family. These matters were all put to the Tribunal in a letter dated 23 April 2003 from the applicant's adviser [CB 83] – [CB 85]. There was also put to the Tribunal a letter from the applicant's family lawyer in Bangladesh.
The Tribunals findings and reasons set out at [CB 85] – [CB 86] are short and it as well to set out the relevant paragraphs in which the claim is dismissed:
“The applicant claimed initially, and this is what the letter allegedly sent by the applicant's lawyer states, that the threats allegedly made to the applicant and his family is to persuade the family to "drop the matter". [A reference to charges arising out of the death of the brother] However, when this claim was queried at the hearing the applicant stated that the threats were to say in court that the perpetrators did not kill their son. Given that any prosecution will be by the authorities, and the family members’ interest in the case would not be determinative of any conviction, the Tribunal finds there would be no reason for the perpetrators to be harassing the applicant's family, particularly given that there were no family members (apart from the murdered brother) at the scene of the crime and so their testimony would not be credible. [The Tribunal presumably means relevant]. The Tribunal finds the manner in which the applicant changed the reason for the alleged harassment of the family, that is from having the family drop the matter to having them testify that the perpetrators are innocent, as evidence of the fact that the applicant's claims are a fabrication and that the applicant has arranged for a lawyer's letter to fraudulently state this. In making this finding, the Tribunal notes the independent evidence, cited above, as to the ease with which it is possible to arrange the writing of such letters by lawyers. In the light of this evidence, and in the light of the implausibility of the applicant's claims, the Tribunal finds the letter to have been either fabricated by person or persons unknown, or to have been written by the lawyer merely to support the applicant's refugee application. Indeed, the Tribunal is strengthened in its finding with regard to this by the fact that in the almost eight years since the murder there is no tangible evidence presented, apart from a lawyer's letter, that such threats are occurring nor that the press is still pursuing the case as argued.”
The application for review was prepared by the applicant's migration agent, a solicitor of known experience and reputation in this field. The grounds upon which he argues that the Tribunal constructively failed to exercise its jurisdiction under the Act were particularised as:
(a) The Refugee Review Tribunal was required to make a finding whether or not the applicant would be imputed by the BNP to have an adverse political opinion, as a result of his brother's opposition to, and subsequent murder by, BNP activists in August 1995. The Refugee Review Tribunal failed to make a finding one way or the other and as such could not have reached the level of satisfaction required by law.
Regrettably, the court did not have the advantage of Mr Bitel's argument in relation to this matter but Ms Kaur-Bains who appears on behalf of the respondent argues that the association with the Awami League, which would impute an adverse political opinion to the applicant, was made plain to the Tribunal in the letter which I have previously referred to and noted by the Tribunal at [CB 79] and [CB 83].
Ms Kaur-Bains argues that this is so clearly a part of the applicant's claim that when the Tribunal finds at large that "the applicant's claims are a fabrication" it must be implied that it is making a finding concerning the imputed political opinion.
Although I think Ms Kaur-Bains is probably right in her submission it may not be necessary for me to give that matter further consideration. The essential finding of the Tribunal was that the applicant did not have a well-founded fear of persecution for a Convention reason should he return to Bangladesh and the reason that he did not have such a fear was that his claims that he would be subject to persecution within the meaning of s.91R Migration Act 1958 was not believed. If there was no real subjective fear then it matters not whether the allegation of such fear arose out of imputed political opinion or otherwise.
There is one additional matter which I would wish to mention. The Tribunal has made serious findings in relation to the letter. Such findings are of the type considered by the Federal Court in cases such as WACO v MIMIA [2003] FCAFC 171; NAAK of 2002 v MIMIA [2004] FCA 113 and Applicant A27 of 2002 v MIMIA [2004] FCA 259.
It is clear from a consideration of these cases and in particular the views of the Full Court in WACO at [40] that if the Tribunal had concerns about the authenticity of this document it should have put those concerns to the applicant for response. A reading of the Tribunal's decision does not make it clear that this was done. Because of my concern I questioned the applicant who has excellent English about the matter. He has confirmed to me, and it will be revealed on the transcript, that the question of document fraud in Bangladesh and the possibility that his family put the lawyer up to writing the letter was clearly mentioned by the Tribunal. In those circumstances I do not believe that it is appropriate for me to take any further steps in relation to this aspect of the matter such as arranging for a transcript of the evidence to be obtained.
When I asked the applicant what he could say as to why he believed the Tribunal had erred in law in the manner in which it came to its decision in his case he referred me to the current political situation in Bangladesh and to certain further evidence which he wished to adduce. It is appropriate then to set out once again the seminal views of Allsop J in NARE v MIMIA [2003] FCA 554 in relation to the role of the courts on review at [10]:
“What the applicant may not well appreciate, not being a lawyer, is that the process and purpose of review to 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 says must be dealt with, not dealing with matters 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.”
In all the circumstances I am unable to find any grounds upon which the decision of this Tribunal can be reviewed. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $3,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 23 September 2004