SZAZR v Minister for Immigration
[2004] FMCA 295
•10 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAZR v MINISTER FOR IMMIGRATION | [2004] FMCA 295 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Bangladesh – claim rejected on credibility grounds and on the basis of country information – no reviewable error found – application filed out of time – objection to competency upheld. |
Migration Act 1958 (Cth), ss.474, 477
Abebe v Commonwealth (1999) 197 CLR 510
Chan v Minister for Immigration (1989) 169 CLR 379
Linett v McIntyre (2002) 117 FCR 189
Minister for Immigration v Respondents S152/2003 [2004] HCA 18
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration; Ex parte Lam (2003) 195 ALR 502
| Applicant: | SZAZR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1413 of 2003 |
| Delivered on: | 10 May 2004 |
| Delivered at: | Sydney |
| Hearing date: | 10 May 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The objection to competency filed in court on 10 May 2004 is upheld.
The application is dismissed as incompetent.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1413 of 2003
| SZAZR |
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 14 November 2002 and handed down on 11 December 2002. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and made claims of religious persecution. The relevant background facts are set out in paragraphs 1 to 4 of written submissions prepared on behalf of the Minister by Mr Reilly. I adopt those paragraphs for the purposes of this judgment.
On 11 December 2002 the RRT handed down a decision affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visas.
The applicant applied for the visa on 28 July 2000: court book, pages 1-28. On 20 September 2000 the delegate refused the visa: court book, pages 29-38. The applicant applied to the RRT for review on 28 September 2000: court book, pages 39-42. The RRT held a hearing on 11 November 2002: court book, page 46.
The applicant claimed to fear persecution in Bangladesh for reason of his religion. He claimed to have been born a Sunni Muslim but to have converted to the Ahmadia faith in 1995. He claimed that he was a prominent Ahmadia organiser and speaker, and was assaulted in 1996 by Sunnis and received death threats and was threatened with false charges. He claimed that he was thereafter in hiding before leaving for Malaysia in 1997. See generally court book, pages 25-28, 54-58.
The RRT found the applicant’s claims to have been harassed, in hiding and facing false charges to be unconvincing, noting that on his own claims the applicant was a prominent businessman and was able to leave Bangladesh on his own passport. Further the RRT found that even if the applicant had been assaulted in 1996 as he claimed, the applicant’s own evidence and the independent country information before it did not indicate that the applicant’s fears of further harm in Bangladesh were well founded. See generally court book, pages 61-62.
The applicant relies upon his application filed on 23 July 2003. That application, although it sets out 10 purported grounds of review, is substantially an attack upon the merits of the RRT decision. As I explained to the applicant, the jurisdiction of the Court is limited to identification of jurisdictional error on the part of the RRT. I cannot review the merits of the RRT decision.
The application asserts procedural unfairness but the applicant has not given any particulars. The application also, in general terms, asserts a lack of an adequate investigation of the applicant's claims. I asked the applicant to identify for me which of his claims he asserts were not considered or not properly considered. He referred to claims that he was beaten and threatened with death by Sunni Muslims. In my view, there is no substance in this assertion.
The applicant’s claims are adequately summarised in the presiding member's reasons for decision on pages 54 to 58 of the court book. The applicant was unable to provide independent documentary evidence in support of his claims, but that is not the fault of the RRT. The claims made by the applicant were considered and were dealt with properly by the RRT on pages 61 to 63 of the court book.
The applicant's claims that he had come to harm in the past by reason of his religion were rejected by the presiding member as lacking credibility. In any event, the presiding member also concluded, based on country information which had been discussed with the applicant, that members of his religion are not subject to persecution in Bangladesh. It was reasonably open for the presiding member to conclude, based upon the information before him, that the applicant did not have a well-founded fear of persecution by reason of his religion.
I note that the application asserts that the RRT hearing was a mere formality and that the setup of the hearing of the RRT was more bureaucratic than judicial. To the extent that this is a claim that there was an actual or constructive failure on the part of the RRT to perform its review function, I reject it. It is clear that the RRT adequately performed the review function conferred upon it. This ground in the application indicates a probable misunderstanding on the part of the applicant. The RRT is part of the Executive Government. It does not exercise judicial power. In the circumstances, it is quite reasonable to expect that what the applicant describes as the setup of the hearing would appear more bureaucratic than judicial.
The application does not identify any other jurisdictional error on the part of the RRT. The applicant has not identified any other jurisdictional error in his oral submissions. For completeness I adopt paragraphs 5, 6 and 7 of Mr Reilly's written submissions:
It is apparent that the applicant was unsuccessful because of the view the RRT took of the facts, in particular its finding that the Applicant’s fears were not well founded. This is a finding of fact: Minister for Immigration v Respondents S152/2003 [2004] HCA 18 at [34]. The Tribunal’s findings were open for the reasons it gives, including the independent country information to which the RRT refers. It is unlikely that the RRT is expected to grant refugee status to a person whose account, although plausible and coherent, is inconsistent with the RRT’s understanding of conditions in his or her country of nationality: Chan v Minister for Immigration (1989) 169 CLR 379 at 428 per McHugh J (although here the RRT has not found the applicant’s claims to be “plausible and coherent”).
The application does not properly particularise any error in the RRT’s decision, and appears to seek merits review. However the Court cannot review the merits of the RRT’s decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272; Respondents S152/2003 at [123], and there is no error of law, let alone a jurisdictional error, in the RRT making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
As there is no arguable jurisdictional error in the RRT’s decision, it is strictly unnecessary to discuss the effect of s.474 of the Migration Act 1958 (Cth) (the Act) or Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. However the distinction between jurisdictional and non-jurisdictional errors remains: Re Minister for Immigration; Ex parte Lam (2003) 195 ALR 502 at [77]; Linett v McIntyre (2002) 117 FCR 189 (FC) at [5], [30-35], [86-87]. The RRT was plainly addressing the right question, and the applicant’s complaints can at most concern the weight given to evidence before it, which cannot be a jurisdictional error: Linett. It follows that the RRT’s decision is a “privative clause decision” within s.474 of the Act and so the application is out of time under s 477(1) and the respondent’s notice of objection to competency should be upheld.
The decision of the RRT is a privative clause decision. It follows that the objection to competency filed on behalf of the Minister in court today must be upheld. The application for review was filed well outside the prescribed time limit under s.477 of the Migration Act. The court has no power to enlarge that time period. The application must therefore be dismissed as incompetent.
On the question of costs, the application having been dismissed, costs should follow the event. Mr Reilly seeks an order for costs fixed in the sum of $4,000. This was a relatively straightforward matter. Relatively little preparation has been required on the part of the Minister. On a party/party basis, I am satisfied that an award of $3,000 would be appropriate recompense to the Minister. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application which I fix in the sum of $3,000.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 May 2004
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