SZBAQ v Minister for Immigration
[2004] FMCA 648
•9 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBAQ v MINISTER FOR IMMIGRATION | [2004] FMCA 648 |
| MIGRATION – Review of RRT’s decision not to grant refugee status – no ground of jurisdictional error made out – application dismissed. MIMA v Liang (1995) CLR 259 |
| Applicant: | SZBAQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1452 of 2003 |
| Delivered on: | 9 September 2004 |
| Delivered at: | Sydney |
| Hearing date: | 9 September 2004 |
| Judgment of: | Baumann FM |
REPRESENTATION
Applicant appearing in person
| Counsel for the Respondent: | Mr Jordan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of four thousand dollars ($4,000.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
SZ 1452 of 2003
| SZBAQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(settled from ex tempore reasons)
The applicant is a citizen of Bangladesh. He claims to have a well founded fear of persecution. As a result of his political opinions he has sought protection under the Refugee's Convention and Protocol. He arrived in Australia on 2 September 2001 having spent five years in the United Arab Emirates which was his home after leaving Bangladesh in June 1996. He says he came to Australia as there was no system for refugee protection in the UAE like the system available under Australian law.
Immediately upon arrival in Australia he lodged an application for a protection visa which was assessed and refused by a delegate on 8 January 2002. An application for review was filed with the RRT on 3 February 2002 and as a result of some adjournments because of the applicant's ill health, the matter was heard in the presence of the applicant on 20 May 2003. In reasons handed down on 1 July 2003, the member affirmed the delegate's decision to refuse a protection visa to the applicant.
Within the time limits prescribed the applicant filed an application to this court claiming in somewhat generic terms:-
a)Jurisdictional error involving an incorrect interpretation of the applicable law to the facts;
b)A challenge to the findings of fact;
c)Relying on the country information "which is not realistic with the present situation in Bangladesh" was improper by the Tribunal; and
d)A failure by the RRT to afford him natural justice by not providing him with an opportunity to comment on "information which the Tribunal relied on for its decision".
There were directions made on 25 September 2003 in the applicant's presence with his chosen interpreter, that after receipt of the bundle of relevant documents, he was to file and serve any amended application and affidavits in support. He has not done so nor has he filed any written submissions. Essentially, therefore, the claims of the applicant in the application are not particularised or founded on any further evidence offered to this court. No transcript of the proceedings before the RRT was made available to this court.
Background
The RRT member summarised the claims of the applicant in some detail (see RD75 to 80) arising from his initial application; further submissions before hearing; evidence at the hearing and a submission of a medical report on the applicant after the hearing. It is not necessary for the purposes of these reasons to recite those claims. The applicant does not say that the historical facts have been inaccurately recorded in the reasons of the presiding member. The applicant does claim that any of the findings made by the RRT on the facts found by it were wrong.
It is trite law to observe that this court cannot review the merits of the Tribunal's decision. (See MIMA v Liang (1995) CLR 259 at 272) and that there is no error of law let alone a jurisdictional error in the Tribunal making a wrong finding of fact (See Abebe v Commonwealth (1999) 197 CLR 510 at 137). Counsel for the respondent Minister at paragraphs 4 to 7 of his written submissions accurately summarised the material findings and reasons for those findings and I adopt that summary as follows:
“The Tribunal accepted that the applicant was a member of the Jatiya Party. However, the Tribunal was not satisfied that the applicant was a high profile member of the party. It found that his activities were confined to menial tasks such as distributing flyers. This finding was based upon the applicant's evidence in relation to his limited responsibilities as a party member and his inability to explain the philosophy of the Jatiya Party in any detail.
(5) The Tribunal was not satisfied that the applicant's claims of false charges gave rise to any well founded fear of persecution:
(i)The Tribunal gave the applicant the benefit of the doubt in relation to his claims that a false charge was laid against him in 1990. The Tribunal accepted the applicant's evidence that although he was initially detained he did not experience any further action in relation to this charge over the following six years that he remained in Bangladesh until his departure for the United Arab Emirates in 1996. In the circumstances and given the charge was some 13 years old the Tribunal concluded that this claim did not provide a basis for any well founded fear of persecution.
(ii)The Tribunal did not accept the claim that a false charge alleging murder had been brought in 1996. The Tribunal noted that the applicant departed Bangladesh legally using his own passport very shortly after he claimed that this charge was laid. Given its finding that the applicant was only a low profile member of the Jatiya Party the Tribunal did not accept that his political opponents would have felt the need to lodge a false murder charge against the applicant.
(iii)In any event the Tribunal found that even if the applicant was to face a charge of murder or any other offence such charges would be subject to the independent consideration of courts in Bangladesh. This finding was based upon country information which indicated that the judiciary in Bangladesh was independent and had previously intervened in cases where charges were politically motivated.
(6) The Tribunal accepted medical evidence submitted after the hearing to the effect that scars on the applicant's body were not caused by surgery. This evidence recorded that the applicant had told the consulting doctor that the scars were caused by machete attacks. The Tribunal did not accept this explanation for the scars because if machete attacks had occurred information of such obvious importance would have been referred to in the initial application for a protection visa, the application for review to the Tribunal and submissions to the Tribunal lodged by the applicant's adviser shortly before the hearing.
(7) Ultimately the Tribunal accepted that the political situation in Bangladesh can be volatile but relied upon country information which indicated that the current government is not pursuing a campaign of persecution against its political opponents and confirmed the independence of the judiciary. On this basis and given the passage of time since the applicant's departure from Bangladesh in 1996 and the finding that the applicant had a low political profile the Tribunal was not satisfied that there was any well founded fear of persecution.”
As can be seen from that summary the applicant was unsuccessful before the RRT essentially because the presiding member did not believe many of his allegations. Such findings relied not only on an assessment of the "vague" and "uncertain" evidence of the applicant but also a finding generally that he was not creditable. As was observed by McHugh J in MIMA, Ex Parte Durairajasingham (2000) ALR 407 at 67 "a finding of credibility is the function of the decision maker par excellence". The Tribunal observed that:
“ The applicant had only a low political profile and while accepting that at some stage he may have been involved in street or gang fighting or brawls the Tribunal does not accept that the applicant has been attacked, beaten or seriously injured because of his political opinion or for any other Convention reason and again finds the applicant has embellished his claims with the objective of enhancing his claims for a protection visa.”
And further concluded at RD88:
“In short, having considered all the claims made by the applicant the Tribunal is not satisfied that there is a real chance that the applicant would experience serious harm amounting to persecution for a Convention reason if he returned to Bangladesh either now or in the foreseeable future and finds he is not a refugee.”
In my view the findings made by the presiding member were clearly open on the evidence. Purely as an example, I agree that it offends logic to contend as does the applicant, that having been charged with a number of "false cases" but in particular murder he was able within a week to leave the country. He was also able to renew his passport at his request in 1998. No real probative explanation was offered as to why he chose to live five years in UAE and seemingly made no attempt before coming to Australia to seek protection under the Convention within that five year period in a country other than UAE.
Of course it is concerning that a medical report prepared by the applicant's doctor describes five separate "scars" or "ragged wounds" which the doctor says was "consistent" with the applicant's version of a machete attack in 1996. (Rather than surgery - see RD67). However, it was open to the RRT to reject the version of attacks offered by the applicant for the reasons stated by the presiding member.
The applicant asserts that the country information relied upon by the Tribunal does not accurately portray the situation currently in Bangladesh. Contrary to the claims of the applicant I am satisfied that the Tribunal did disclose the significance of the relevant country information and the applicant was invited to respond in my view. It was open to the member to prefer the independent country information where it was at odds with the applicant's own assessment.
No jurisdictional error has been established. I am bound therefore to dismiss the application for review. I so order.
I propose to order that the applicant pay the respondent's costs fixed in the sum of $4,000.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
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