SZBBM v Minister for Immigration - [2004] FMCA 872

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBBM v MINISTER FOR IMMIGRATION

[2004] FMCA 872

MIGRATION – Review of RRT decision – where applicant claims to have a well-founded fear of persecution for the Convention reason of political opinion – whether Tribunal breached s.424A Migration Act – whether Tribunal obliged to consider future socio-political changes when reaching its decision – whether findings and reasons of the Tribunal evidence jurisdictional error or lack of procedural fairness.

Migration Act 1958 (Cth), s.424A

Federal Magistrates Court Rules 2001

Abebe v Commonwealth (1999) CLR 510
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576

Applicant:

SZBBM

Respondent:

MINISTER FOR IMMIGRATION & MUTLICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1489 of 2003

Delivered on:

19 November 2004

Delivered at:

Sydney

Hearing date:

19 November 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in Person

Counsel for the Respondent:

Ms R Francois

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the respondent's costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1489 of 2003

SZBBM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh. He arrived in Australia on

6 November 2001. On 30 November 2001, he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958. On 26 February 2002 a delegate of the Minister refused to grant a protection visa and on 12 March 2002 the applicant applied for a review of that decision. The Tribunal held a hearing into the applicant's claims which he attended. On 23 June 2003 it determined to affirm the decision not to grant a protection visa and that decision was handed down on 22 July 2003.
The applicant's claim to have a well founded fear of persecution for the Convention reason of political opinion arises out of his membership first of the Chattra League and then of the Awami Jubo League and finally of the Awami League itself between 1995 and the day he left Bangladesh in November 2001. The Chattra and Jubo Leagues are respectively student and youth wings of the Awami League.

The applicant claimed that he was an important organiser in his locality for these parties and had been harassed in different ways by members of the BNP and the Jubo Dal, which is the youth wing of that party.

He stated that he organised election meetings during the last week of September 2001. Shortly before the elections he said that the meetings that he organised had been attacked by BNP supporters, bombs were thrown into the crowd, BNP supporters were injured in cross-fire and he became the object of false cases and was being sought for arrest.
The matters recited above were discussed between the applicant and the delegate who had written to the applicant on 15 January 2002 with some queries about his claims based upon relevant country information. The applicant had not responded to those queries. At the hearing before the Tribunal the applicant repeated the claims which he had been made previously. The Tribunal discussed with him the position that he held within the party and questioned him about his claim to have been a university student in Dhaka studying Social Science.
The applicant told the Tribunal that the false charge made against him was one of murder. The applicant discussed with the Tribunal relevant country information regarding the political situation in Bangladesh and political violence there and the Tribunal put to him that as a member of the Awami League, he would not be at risk of harm for reasons of that membership alone. After considering a substantial quantity of independent evidence, the Tribunal, in its findings and reasons accepted that the applicant was a member of the Chattra, Jubo and Awami Leagues but not that he was an office bearer.
The Tribunal made that finding on the basis of the applicant's lack of knowledge of the organisations and his own admission that he was not a high profile or prominent person within the Awami League.

The Tribunal did not accept that the applicant attended college in Dhaka. It found that the applicant had so little knowledge of the course he was meant to have been undertaking that it was unlikely that he had been enrolled in it.
The Tribunal did not accept a claim that the applicant's father had been kidnapped and bashed by BNP supporters looking for him. It believed that claim was inherently implausible. The applicant produced in evidence a letter from the Awami League going to the applicant's membership. The Tribunal did not make any findings about the genuineness of this document but stated at [CB 109]:
“When viewed in the context of the evidence given by the applicant about his student and political activities at hearing, the Tribunal gives the information in that letter little weight.”
After considering the information concerning the Awami League as a political party within Bangladesh, the Tribunal came to the conclusion that as there was no evidence of targeted discrimination against people for reasons of membership of the Awami League or for serving as low profile local officials, the applicant would have no well founded fear of persecution on that count. The Tribunal also noted that if the applicant did really face harm in the place of his former residence, he could relocate to another part of Bangladesh for the reasons given at [CB 111].
The Tribunal also noted the independent country information concerning the independence of the judiciary in Bangladesh so that if the charge against the applicant really was false it could be defeated. The Tribunal indicated that it did not believe that the charge had been laid because it did not believe that the applicant could have left the country with a murder charge hanging over his head. Finally, the Tribunal said at [CB 111]:
“If the applicant returned to Bangladesh and resumed his activities at the same level as he was involved prior to leaving Bangladesh, the Tribunal is of the view that his chance of facing persecution for reasons of political opinion are less than remote. The country information indicates that Bangladeshis are free to belong to the Awami League and to express their political opinions and be involved in political activity without being victims or perpetrators of violence. There is no evidence that former or current members or local officials of the Awami League are at risk of persecution under the BNP Government since October 2001 and the Tribunal is not satisfied that there is a real chance that the applicant would face persecution for reasons of his political opinion if he returned to Bangladesh now or in the foreseeable future.”
The applicant filed an amended application on 30 January 2004. In this application he gave full grounds for seeking review of the Tribunal's decision. The first related to certain information allegedly taken into account by the Tribunal, namely that violence against the political party Awami League had subsided. The applicant argued that this is information which should have been brought to his attention under the provisions of s.424A of the Migration Act. I do not agree. It seems to me that this information is information that was just about a class of persons, namely members of the Awami League, and was thus exempt under subsection 424A(3). In any event, the matter was discussed with the applicant at [CB 99] and this would effectively remove any failure to provide the information in some other way as a ground of review.
The second matter is that the Tribunal did not put to the applicant its doubts about documents containing personal information from the Awami League. This is the letter to which I have previously referred. So far as I can see from the decision, the Tribunal did not suggest that it had doubts about the letter, only that weighing up the letter against the applicant's own evidence and the evidence of independent country information, it was not prepared to give it much weight. This is part of the Tribunal's reasoning process and that is not required to be advised to an applicant: Abebe v Commonwealth (1999) CLR 510 at [187]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at 590 - 591.
The third complaint by the applicant is that the Tribunal did not complete the exercise of its jurisdiction as it made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future. There is a vast quantity of independent country information concerning the situation in Bangladesh found in the court book. The gist of that information is that, to a very reasonable extent, Bangladesh operates as a democratic country where governments are able to change at regular intervals as a result of general elections.
It would not be unreasonable for the court to infer that the Tribunal member took that knowledge into account when making the comments concerning the risks in the reasonably foreseeable future that I have already extracted. If the applicant wished to persuade the Tribunal that he had a well founded fear of persecution because of something that might occur in the future then, whilst not having any onus as such, he did have an obligation to satisfy the Tribunal and that satisfaction could only come by way of assertion supported by some evidence.
Finally, the applicant claims that:
“The RRT’s decision on 23 June 2003 was not based upon circumstances giving a rational foundation for the belief entertained as the RRT's findings, when applied to the applicable criteria, meant that the RRT should have been satisfied that the applicant had met those criteria.”
This particular seems to me to be seeking no more than a merits review of the Tribunal's decision. It is a complaint that the Tribunal should have believed the applicant and made a finding in his favour. If it is a complaint that there was no evidence upon which the Tribunal could make the finding that it did make, then I reject it. There was plenty of evidence available to the Tribunal from which it could come to the conclusions that it did.
I am unable to find any circumstances in which the Tribunal in this case fell into jurisdictional error and therefore I am unable to provide the applicant with the review that he seeks. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 24 November 2004