SZBAE v Minister for Immigration

[2004] FMCA 311

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBAE v MINISTER FOR IMMIGRATION [2004] FMCA 311

MIGRATION – Application for review of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958

Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham (2000) 74 ALJR 405

Muin v Refugee Review Tribunal (2002) 190 ALR 601
VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186
VHAP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82

NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262
Minister for Immigration & Multicultural Affairs, Re Exparte Miah (2001) 206 CLR 57

Applicant: SZBAE

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1438 of 2003

Delivered on: 7 April 2004

Delivered at: Sydney

Hearing date: 7 April 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr JD Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed.

2. That the Applicant pay the Respondent’s costs set in the amount of $4,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1438 of 2003

SZBAE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for a review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 1 July 2003 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.  The applicant is a citizen of Bangladesh who arrived in Australia on 10 March 2002 and lodged an application for a protection visa on 23 April 2002.  On 27 June 2002 a delegate of the respondent refused the application.  On 5 August 2002 the applicant applied to the Tribunal for review of that decision. 

2. The applicant claimed broadly that as a member of the Jatiya Party (JP) in Bangladesh he had been persecuted by followers of the Bangladeshi Nationalist Party (the BNP).  He claimed that he had been a member first of the student wing of the party (from 1985) and then of the party itself (from 1992).  He claimed moreover that from 1986 he had been heavily involved in campaigning for the party and that he had been elected to office as an executive member of the district committee.  He claimed that his political activities meant that he was targeted by members of the BNP, that he was beaten and seriously injured in 1994, that a false charge was filed against him in 1994 and that after this he left Bangladesh for Saudi Arabia.  He worked in Saudi Arabia until 2001.  He claimed the BNP and Awami League governments prevented him from returning to Bangladesh.  He returned to Bangladesh for a month in December 2001 but claimed local BNP supporters were looking for him.  He came to Australia in March 2002. 

3. The Tribunal reasons for decision record the applicant's claims.  He indicated to the Department and also to the Tribunal that he intended to provide supporting documentation.  He did not do so.  The Tribunal sets out the evidence given by the applicant in the course of a Tribunal hearing on 7 May 2003 and issues considered at the hearing. 

4. The Tribunal accepted that the applicant was a Bangladeshi as he spoke the language and produced a valid passport.  The Tribunal found that the applicant’s evidence in relation to most aspects of his claim was vague and generalised, lacked specific detail and was implausible.  It did not consider him a reliable or credible witness. 

5. The Tribunal was unable to accept that the applicant was the subject of persecution in Bangladesh as a result of his political activities.  It was unable to accept that the applicant was a member of the JCS (the student wing) and the JP in Bangladesh.  The Tribunal found that the applicant gave only vague and generalised information about his political activities especially at the hearing.  The knowledge that he showed of the Jatiya Party was not the knowledge that even a general member of the political organisation would have, let alone a claimed student leader and organiser of some standing and duration.  In addition the Tribunal relied on independent country information in relation to the political situation in Bangladesh, including the fact that from 1986 to 1990 the JP was in government, that from 1996 the JP was a junior partner in government and that a faction of the Jatiya Party was part of the BNP Alliance Government elected in October 2001.  Moreover the applicant claimed that he had been in Saudi Arabia for some seven years to 2001 and had disavowed any involvement with the Jatiya Party or politics since 1994.  The Tribunal found it implausible that local BNP supporters would have had any adverse interest in the applicant after such a lapse of time in those circumstances and having regard to the country information about the situation of the Jatiya Party in Bangladesh. 

6. In light of the vague and generalised evidence and the country information the Tribunal was unable to accept that the applicant was or had ever been a member or office holder in the JCS or JP.  It was of the opinion that the claim had been fabricated by the applicant to provide him with the profile of a refugee.  The Tribunal found support for that opinion in country information which indicated that illegal immigration facilitators routinely advise clients to request political asylum as JP members and in the applicant's evidence in relation to how he came to have a visa and to come to Australia. 

7. As the Tribunal did not accept that the applicant was or ever had been a member of the JP and JCS it did not accept that he was harassed, subjected to harm, attacked or persecuted by BNP members, forced to flee the country or that false cases were brought against him or that he had to escape for his safety.  In these circumstances it did not accept that the claims that he could not return to Bangladesh because he would be attacked by BNP supporters had any credibility or veracity.  The Tribunal was not satisfied that the applicant was the subject of persecution for his political opinion in Bangladesh or that he faced a real chance of persecution in the foreseeable future if he returned to Bangladesh. 

8. The applicant raised a number of general and unparticularised grounds in the application filed in this court.  He filed an outline of written submissions which to some extent addressed his claims and which in other ways appeared to address the claims of some other person (such as claims that were not made by the applicant in relation to association with a drama organisation and being a member of a Christian minority). 

9. The first ground in the application is that the Tribunal did not take into account the court case against the applicant in Bangladesh.  However, in the reasons for decision, as it did not accept that the applicant was ever a member of the JP and JCS, the Tribunal addressed but was not able to accept that there were false cases brought against him as claimed or that he was forced to escape Bangladesh for his safety. 

10. The Tribunal did not ignore the applicant's claims in this or any other respect.  It properly considered the applicant's claims in light not only of the material before it from the applicant but also country information and concluded that it did not accept the credibility or veracity of the applicant's claims.  Findings in relation to credibility are a matter for the Tribunal; Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham (2000) 74 ALJR 405 at 417. The findings were open to the Tribunal on the material before it and no error is apparent in this respect.

11. The applicant claimed that he provided various relevant documents to the Tribunal which were not taken into account.  The only document which he appears to have provided to the Tribunal was his passport and that was taken into account by the Tribunal in accepting his Bangladeshi nationality.  There is nothing in the material before me to suggest that the Tribunal undertook to make any further inquiries.  This is not a case in which the Tribunal was obliged to make further investigations as submitted by the applicant.  It is for the applicant to present his claims to the Tribunal. 

12. The claim that the Tribunal did not follow the procedures required by the Migration Act 1958 is not particularised other than by a claim that this case is analogous with Muin's case (see Muin v Refugee Review Tribunal (2002) 190 ALR 601). The reliance on Muin is not established in this case on the evidence before the court.  The factual matrix that was either agreed upon or accepted in that case is not established in this case.  The Tribunal indicated that it had considered material before the Department.  There is no evidence or suggestion, other than the claimed analogy with Muin’s case, that the applicant was misled in any particular way or that he would or could have done something if he had not been misled. 

13. The applicant makes a number of other claims of jurisdictional error including a claim that the Tribunal failed to investigate his claim of persecution as a Christian minority.  There is no such claim apparent on the material before the Court.  Nor does the claim that the Tribunal failed to make findings as to the future in Bangladesh establish any jurisdictional error.  In this instance the Tribunal rejected the claim that the applicant was ever a member or officer holder in the JP or JCS or was ever subject to harm in the past, or that he faced a real chance of persecution in the future.  Insofar as necessary it considered the current political situation in Bangladesh. 

14. The applicant claimed that the Tribunal did not provide him with particulars of information which formed part of the reason of the Tribunal's decision, namely, that ‘persecution against the political activists  of Bangladesh had subsided’.  The Tribunal does refer in its reasons for decision to country information in relation to the current situation in Bangladesh, particularly since the October 2001 election. 

    
    

    I have considered whether the Tribunal failed to comply with section 424A(1) of the Act or to afford procedural fairness.  However, such general country information as is complained about in the applicant's written submission is within the exception in section 424A(3) (see VHAJ v MIMIA [2003] FCAFC 186 and VHAP v MIMIA [2004] FCAFC 82) in relation to the construction of subsection (3) and the need to determine the operation of the exception by reference to the reason for which the material is relevant to the Tribunal decision). The nature of the material in question is not of the kind considered by the majority in NARVv Minister for Immigration [2003] FCAFC 262 to be outside the s.424A(3) exception.

15. I have also considered the issue of natural justice.  Insofar as the country material relates to a change of government, the approach that was taken in Re Ex parte Miah;MIMA, (2001) 206 CLR 57 is not of assistance to the applicant. In this instance the delegate brought specific relevant information to the attention of the applicant so that he was aware of it. Also the applicant referred to and was clearly aware of the then current political situation in Bangladesh in his claims. No lack of procedural fairness is apparent. Hence it is not necessary to determine the precise effect of section 422B of the Migration Act.

16. The applicant’s complaint that he was deprived of natural justice and that the procedures of the Migration Act were not complied with is not made out. Except as set out above the applicant makes no claim that particular information was not brought to his attention. There is no particularisation of claimed non-compliance with procedures. None is apparent in the material before the Court.

17. The applicant claims generally that the Tribunal made its decision in bad faith and denied him natural justice and that actual bias was established.  On the material before the Court - and in this case the material consists of the reasons for decision of the Tribunal but nothing further in relation to the conduct of the hearing - there is nothing to support the unparticularised claims of bad faith and actual bias.  The complaint that the Tribunal ignored relevant evidence and made findings in the face of contradicting independent evidence takes issue with the weight given to particular information and the merits of the Tribunal decision and does not establish actual bias or any jurisdictional error. 

18. The applicant was invited to attend a hearing.  Matters of concern were put to him by the Tribunal.  His comments were taken into account.  Actual bias in the sense of pre-judgment or apprehended bias is not made out on the material before the Court.  As no jurisdictional error has been established the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful. It is appropriate that he meet the respondent's costs. Bearing in mind the nature of this and other similar matters I consider that an appropriate amount is the sum of $4,000 and that costs should be fixed in accordance with the Federal Magistrates Court Rules.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  7 April 2004