SZAUV v Minister for Immigration
[2004] FMCA 647
•10 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAUV v MINISTER FOR IMMIGRATION | [2004] FMCA 647 |
| MIGRATION – Review of RRT’s decision not to grant refugee status – whether the RRT acted in bad faith or denied the Applicant natural justice – whether RRT failed to consider relevant facts – no ground of jurisdictional error made out – application dismissed. MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZAUV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1134 of 2003 |
| Delivered on: | 10 September 2004 |
| Delivered at: | Sydney |
| Hearing date: | 10 September 2004 |
| Judgment of: | Baumann FM |
REPRESENTATION
Applicant appearing in person
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the first-named applicant pay the respondent’s costs fixed in the sum of four thousand dollars ($4,000.00) within six months.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
SZ1134 of 2003
| SZAUV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(settled from ex tempore reasons)
The applicants are citizens of Bangladesh and arrived in Australia on
15 January 2002. Shortly thereafter they applied for a protection visa which on 13 June 2002 was refused by a delegate of the Minister. The first named applicant claimed a well founded fear of persecution if he is returned to Bangladesh as a result of his political opinions. On
2 July 2002 the applicants applied to the Refugee Review Tribunal (RRT) for a review of the delegate's decision and on 28 May 2003 the RRT decided to affirm the decision not to grant protection visas.
The application before me filed on 23 June 2003 seeks a review of the RRT decision. The first named applicant (who for the purposes of these reasons I shall call the applicant) speaks some English and represented himself and his family before the court today with the assistance of the interpreter.
Background
The applicants claims were summarised by the Tribunal as follows.
"He was politically active in the Awami League for over 30 years; he lived in Dhaka and had business interests there but he politics in the Barisal district, especially in the period from 1994; he helped his cousin/brother-in-law in the Barisal district in the 1996 and 2001 elections and helped an Awami League candidate back in Bakerganj constituency; claims he and his family were "tortured" on election day October 2001 with the election in his area being postponed for a week; the result of the election was that there was a change of government from Awami League to essentially BNP candidates; he says the attention he received or feared he would receive from his political opponents and extortionists got worse after the election. He left the country briefly in November 2001 and says he was hiding in Bangladesh after that; two cases were lodged against him in January/February 2002 and police were after him; he says he had to leave Bangladesh for his own sake and for the sake of his family.”
The Tribunal presiding member in a well structured and thorough analysis set out in the statement of reasons took the overall view that:
"These claims (some of which were made for the first time in May 2003) soon lost any credibility as pointers to persecution when they were set against the original claimed addresses, the changes in claims over time, the clear exaggerations in claims and supporting documents, the country information and common sense."
Despite a direction made 14 August 2003 to file any amended application and written submissions the applicant did not do so other than to hand up some written submissions today. I read those submissions as did Mr Kennett who appears for the respondent.
I allowed the applicant to rely upon them other than for his attempt to introduce new evidence (through Internet copies of newspapers, etcetera) of troubles in Bangladesh. I made the observation that I accept we live in a world where unexpected and tragic events occur daily. However, the task of this court in this matter means that any new evidence not before the Tribunal would rarely be received by this court.
I attempted to explain to the applicant and in a sense to the members of his family who were in the gallery of the court and clearly anxious observers of the process, that it is not the function of the court in these matters to review the merits of the Tribunal's decision. (MIEA v Liang (1996) 185 CLR 259 at 272.) I am focussed on ascertaining whether any jurisdictional error can be established which will require this court to remit the matter back to the RRT for determination according to law. There is no error of law let alone a jurisdictional error in the Tribunal even making a wrong finding of fact. (Abebe v Commonwealth (1999) 197 CLR 510).
The applicants application raises nine separate grounds for review.
I intend to deal with them all shortly although as will be seen a number of them can correctly be categorised as a "attack" on the findings of fact made by the Tribunal.
I note, of course, that touching on the assessment on the facts before the member was the overall perception of exaggeration by the applicant of the risks in returning to Bangladesh. This is essentially an issue of credibility which has been described as "the function of the primary decision-maker par excellence". See McHugh J in MIMA; Ex parte Durairajasingham (2000) 168 ALR 407.
I deal with the respective issues raised in the application now.
Didn't take into account the conviction of court case against me in Bangladesh for Convention base reason
When I asked the applicant to provide me with some evidence of the conviction he acknowledged that at this stage he has no evidence of the conviction. He relies upon the evidence before the Tribunal to show that in fact there were cases against him pending. He says that arrest warrants still exist. At best, the highest the applicant can put it is that he asked this Court to believe that alleged pending arrest warrants would crystallise in convictions and imprisonment with dire consequences for him. The respondent contends that the Tribunal expressly refused to accept that there were any ongoing court proceedings and that on the evidence such a finding was open to it.
I formed the view on the basis of the evidence that the finding was open to the Tribunal and therefore there is no merit in this ground.
Tribunal made decision in bad faith
The applicant in his written argument filed with my leave today says that paragraph 40 of his reasons as follows:-
"My claim that the decision‑maker acted in bad faith. This is very easy to find the RRT decision dated 28 may 2003 in my refugee application. This means that the decision-maker got the facts wrong, took into account irrelevant matter, did not take certain matters into consideration. The decision-maker did not make an honest attempt to come to the right decision also the decision-maker intentionally made a wrong decision, in other words acted in bad faith."
I took some time to take the applicant through each of the elements which he says may have existed in relation to his claim that the decision was made in bad faith.
I had to explain to the applicant that certain aspects about the facts were of course not matters for this court in accordance with the law earlier referred to in these reasons.
The applicant was unable to identify any irrelevant matter which was taken into consideration and could have infected the Tribunal process. Also he was unable to identify for me any factor that ought to have been considered that wasn't considered, although he again pressed his contention that clearly, in his view, the Tribunal could not have considered the effect of the persecution upon him and have come to the decision it had made. In respect of whether an honest attempt to come to the right decision was made the applicant says that there was an investigatory obligation upon the Tribunal. I deal with this issue a little more fully later in these reasons.
I asked specifically of the applicant whether he was asserting that the Tribunal member was biased. He said initially that he was not, in his view, biased but that he had a closed mind. The applicant said from the bar table that I have a perception "as a politician" and "in my heart" that he intentionally made a wrong decision. I raised with Mr Kennett, counsel for the respondent, some concerns I had (but were not raised by the applicant in his application) in respect of comments made by the presiding member about the applicant's adviser, in particular:-
(a)at page 178 of the court book (paragraph 28):
“I noted that the circumstance in which the documents were supplied were suspicious. I noted the many cases I had handled in which his current adviser was involved.”
(b)at page 190 of the court book (when dealing with failure to mention the Dhaka "false case" in January 2002) that:
“I see two likely explanations for this state of affairs. One is that it was the current adviser who submitted the document and that he wanted the applicant to take responsibility because the adviser knows that I have good reason to question his behaviour and documents in other cases. (See decision in case NA2/43456).”
(c)at 191 of the court book when giving five reasons for finding that there was no case against the applicant:
“Third, because the material in paragraph 15(b) is inherently incredible, or is tainted by association with the discredited adviser.”
The applicant says when I raised these matters with him from the bar table that concerns raised in the reasons about the adviser were not raised for his comment. The adviser was at the hearing but did not act as the applicant's advocate. I do not have a transcript and therefore the only record of the proceedings are the reasons of the member. I infer that when the member says, "I noted", he means he noted "to the applicant". I infer that that was done by mentioning the issue to the applicant.
Are my reservations of these comments sufficient to find an allegation of bias or apprehension of bias such as to make the process flawed and the result unsafe? I have come to the view that they are not of that prominence. The obvious lack of respect for the honesty of the applicant's adviser held by the member is only one of the issues identified in finding that the applicant had no case against him in Bangladesh. That was but one of the aspects in assessing whether a well founded fear of persecution existed.
It was an element of that consideration but not a determinative one. For example, there was ample other evidence available to the member which made this critical finding (of the prospects of persecution) open to the member. I am not satisfied that the level of concern about the adviser was such so as to distract the member from the important task before him.
The Tribunal deprived me of natural justice
Essentially the applicant says that the Tribunal ought to have conducted some further investigations about some of his claims. He acknowledges that he had an opportunity to present his case and to respond to adverse likely contentions. The respondent in dealing with this matter relies on paragraphs 16, 17, 18, and 19 of the written submissions. I've read those submissions and adopt them as an appropriate response to the allegation made by the applicant.
Tribunal denied evidentiary proof of my claim
Again, this is a matter where the applicant says he ought to have been believed and that by not doing so he was unfairly treated. As I have already indicated, such a matter directly goes to the merits of the RRT decision, and that is not a matter that I am capable of disturbing on the findings and facts.
The Tribunal's decision did not reflect the material facts of my claim
Similar comments as I've already made in relation to the earlier matter on paragraph four apply to paragraph five.
The Tribunal has given decision which was pre-set in the back of its mind
I have essentially, by dealing with other grounds in these reasons, dealt with this concern. I find no merit in it.
The Tribunal mixed up many facts with this decision which effected this decision
This is a matter which goes directly only to the merits of the application and is not a matter which I can disturb on the findings which I find are open to the Tribunal.
The Tribunal concentrated on particular fact while ignored many other facts in this decision
The respondent initially indicated that the applicant had not identified any relevant matters which the Tribunal failed to consider. None are apparent from the examination of his claims and the Tribunal's reasons. When I raised this with the applicant he again, quite understandably said that he felt the Tribunal had ignored the reality of the risks which he and his family would face if they returned to Bangladesh and the problems it would cause for all of them.
The Tribunal made up his mind about any inquiry regarding my claim and he did not believe my genuine convention reason based refugee claims
Essentially this is a repeat (as the applicant himself indicated when he began his submissions to me orally) of earlier claims with which I have not found favour and which I found there is no merit in.
It was of course the general view expressed by the applicant that the RRT had an obligation when it decided not to accept his evidence of possible persecution to make further inquiries and investigations. Whilst it is true the RRT has certain discretionary powers to investigate (see section 427(a)(b)) the duty of the Tribunal is essentially inquisitorial not investigative. It is for the applicant to satisfy the RRT that he is entitled to the protection under the 1951 Convention and the 1967 Protocol. The applicant failed before the Tribunal because in many respects the member simply did not accept his evidence.
Relocation
The applicant had an opportunity to respond to a suggestion that relocation to other areas in Bangladesh would minimise any prospects of difficulties for the applicant and his family. It should be recalled that the applicant generally says that he holds a genuine fear and if he returned he would be arrested and charged on illegal charges; that demands of money would be extorted from him; he fears that his family would be kidnapped; and at worst he believes he will be killed.
In response to a letter of 16 May 2002 in which the applicant referred to mass vote rigging, persecution of Hindus and treatment of Awami League activists, he also gave a response to relocate in these terms:
“There is no safe location or area in Bangladesh where my life might be saved than Barisal but ironically I see threat of killing from BNP cadres in Barisal after the election of 2001. Subsequently, relocation to elsewhere in Bangladesh is ..... for me and for my family.”
Conclusion
Unlike many applicants who come before the court on these types of matters from many countries around the world, the applicant is a very successful businessman with a good education and linguistic skills and possesses wealth through assets in Bangladesh which were in parts of the material estimated at $A2 million. Where the per capita annual income of Bangladesh citizens is reported to be less than $400.00, one gets a sense of his level of success.
Any person in judicial office dealing with these difficult problems and issues cannot escape the quite human concerns that a result of an order, it may plunge an applicant back into a country where harm and persecution may occur. This is heavy burden for anyone dealing with these matters. Bangladesh has had a volatile recent political and social history. However, I am satisfied that the difficult task for the member of determining the merits of the application was undertaken fairly and thoroughly and that the critical findings necessary to assess whether the applicant should succeed were open to the member in finding that it could not.
No jurisdictional error having been established, I am bound to dismiss the application as a matter of law. I also order a dismissal of the first named applicant's application as necessarily fatal to the applications for his wife, son and daughter who are members of his family unit.
I think that costs should follow the event. In this case I propose to make an order that the first named applicant pay costs fixed in the sum of $4000.00 within six months.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
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