SZBCD v Minister for Immigration

[2004] FMCA 1007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCD v MINISTER FOR IMMIGRATION [2004] FMCA 1007

MIGRATION – Review of RRT decision – where applicant claims to have a well-founded fear of persecution for the Convention reason of political opinion – where applicant alleged that he had had false charges laid against him – where Tribunal found that the acts of harm complained of did not amount to persecution under the Act – where Tribunal found it reasonable for the applicant to relocate within Bangladesh – whether findings and reasons of the Tribunal decision evidence jurisdictional error or a denial of procedural fairness – whether the Tribunal is obliged to make inquiries into the claims made by the applicant – whether the Tribunal failed to comply with ss.424A and 418 Migration Act.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.418, 424A
Federal Magistrates Court Rules 2001

Singh v MIEA (1996) 42 ALD 271
MIEA v Singh (1997) 144 ALR 284
VCAK of 2002 v MIMIA [2004] FCA 459
Hong v MIMIA [2004] FCA 1308
MIMIA v SGLB [2004] HCA 32
SZATG v MIMIA [2004] FCA 1595
Meadows v MIMA (1998) 90 FCR 370
Randhawa v MILGEA (1994) 52 FCR 437
NARE v MIMIA [2003] FCA 554

Applicant: SZBCD

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 1507 of 2003

Delivered on: 9 December 2004

Delivered at: Sydney

Hearing date: 9 December 2004

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Applicant in Person

Counsel for the Respondent: Mr J D Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. 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 1507 of 2003

SZBCD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

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

   
   

   11 June 2002.  On 12 July 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 30 July 2002 a delegate of the Minister refused to grant a protection visa and on 20 August 2002 the applicant applied for review of that decision.  The applicant attended a hearing before the Tribunal on 30 May 2003 and on 20 June 2003 the Tribunal determined to affirm the decision not to grant a protection visa.  It handed down that decision on 16 July 2003.

2. The applicant, who is a legally qualified medical practitioner, claims to have a well founded fear of persecution for the Convention reason of political opinion.  There is set out between [CB 159] and [CB 161] a statement which deals with the claims that he has to have been persecuted as a result of his membership first of the Chattra League and later of the Awami League.  He claims that he was targeted in the early 1990s by BNP leaders because of his support for Awami League candidates and that in 1994 during anti government riots he was suspected of being involved in the death of a BNP worker.  As a result, what he claims to have been false charges were made against him.

3. The applicant accepts that between 1996 and September 2001 when the Awami League was in power he had no problems, but following the general election in which the BNP became the government of Bangladesh, things took a turn for the worse.  He claimed that certain property of his in the countryside had been burned for political reasons and that he was the subject of an attack for carrying out illegal abortions, as evidenced by a newspaper article found at [CB 150].  He claimed that as a result of the newspaper article both his life and his livelihood were in danger and so he decided to seek asylum in Australia, to which country he came on a visa to attend a health workshop.

4. The Tribunal, in its findings and reasons between [CB 169] and [CB 173], concluded that the applicant was a person who did not hold any official positions in the Awami League after finishing his medical degree and was not a person who had a significant political profile within Bangladesh. It found that although an agricultural shed on the applicant's land was burned in October 2001, it could not be satisfied that the incident took place as a result of the applicant's political activities. Neither was the Tribunal satisfied that the incident caused the applicant serious harm or significant economic hardship that threatened his capacity to subsist so that the persecution that he alleged to have suffered fell within s.91R of the Migration Act.

5. The Tribunal also accepted that the applicant may have been attacked and chased in 1994 but considered this incident not to be so serious as to warrant being considered persecution within the Act, and it also noted that the false case which the applicant alleged had been filed against him in 1995 had, according to the applicant, been dismissed in 1996.

6. The Tribunal also considered the newspaper cutting concerning the allegations about the applicant's alleged activities in an abortion clinic.  At [CB 170] it said:

   “The applicant claims that the people in his area accused him of performing abortions in his clinic which is against Islamic law.  In support of this claim the applicant provided a certified translation of a Bangladeshi newspaper article, dated 28 July 2002, alleging that the applicant was operating an illegal abortion clinic alongside his normal medical practice in Maulavibazar.  The article, however, contradicts aspects of the applicant's oral evidence regarding the claimed false accusations.  The article implies that the rumours or the accusations and efforts to 'stop' the applicant began when Awami League was in power.  However, the applicant was clear at the hearing that the accusations against him started after the October 2001 elections when Awami League lost power.  Moreover, the article states that the applicant deserted his locality 'in the darkness of night on 20 April last year [2001]'.  Contrary to this assertion, the applicant had remained in his locality until June 2002.  When this was put to him at the hearing he stated that it was a translation mistake or a mistake by the reporter.  Having regard to these inconsistencies, the Tribunal does not attach any weight to the newspaper article and is not prepared to accept the applicant's claims.”

7. The Tribunal then went on to conclude that even if the accusations had been levelled at the applicant they were not sufficient as to put him at a real risk of harm in Bangladesh.  The reasons given are found at [CB 171].  The Tribunal also found, at [CB 172] from the use of independent country information, that political activists that engage only in legitimate political activities and advocacy usually have little or nothing to fear from rival political groups.  Finally, the Tribunal considered at [CB 173] the possibility of the applicant relocating, and whilst accepting that upon relocation he may not have been able to build a practice of the quality or size of the one he currently enjoyed, it was not satisfied that:

   “This would put the applicant at a significant economic disadvantage.  The applicant has agricultural land which produces cash crops and his wife is working in Dhaka.  He is intelligent, highly educated, a qualified medical practitioner with many years of professional experience and he is clearly able to adapt to new environments given his ability to live and support himself in Australia over the last year.  The Tribunal, therefore is satisfied that in all the circumstances it is reasonable for the applicant to relocate within Bangladesh.”

8. The applicant proceeded before me on the basis of an amended application under s.39B of the Judiciary Act dated 8 December 2003 and some written submissions which were filed with the court on 3 December 2004. There is some, but not great, connection between the two documents. Mr Smith, who appears on behalf of the respondent, has attempted to deal with the applicant's claims by addressing the written submissions, those being the latest in time.

9. The first claim made by the applicant was that the Tribunal denied him procedural fairness and natural justice.  In support of that the submissions indicate the applicant believed that in the absence of clear evidence the Tribunal was obliged to verify the authenticity of documents and evidence given by the applicant before calling it into question.  The applicant cited in support of this assertion the decisions in Singh v MIEA (1996) 42 ALD 271 and MIEA v Singh (1997) 144 ALR 284.

10. The response to this complaint is firstly that a careful reading of the Tribunal's decision reveals that it did not, with the exception of the newspaper report, call into question the documents asserted by the applicant to be supportive of his situation.  Apart from the newspaper articles and Amnesty International and US State Department country reports, there were two documents.  One was an original letter written by an ex Awami League Member of Parliament indicating that he was sure that the local political opponents would physically attack the applicant if he returned to the country.  The second was a letter from another former Member of Parliament confirming that a false charge had been filed against the applicant and that he had been physically attacked.  The Tribunal accepted all the facts contained in that letter.  The Tribunal's reasons for not accepting the statement made in the first letter would appear to be that it preferred its own independent country information to the statement of the former Member of Parliament.  There is no suggestion that the letter from the former Member of Parliament was other than genuine.

11. This applicant raises, in a familiar form, a general complaint that the Tribunal has failed to inquire into the situation in Bangladesh.  It is now well settled that whilst the Tribunal has a power to inquire it is not an obligation.  These matters have been considered by the Federal Court in such cases as VCAK of 2002 v MIMIA [2004] FCA 459 at [27], Hong v MIMIA [2004] FCA 1308 at [40-41], MIMIA v SGLB [2004] HCA 32 at [42-44], where at [43] Gummow and Hayne JJ said:

    “This ground of error is misconceived for two reasons. ... Whilst s. 427 of the Act confers powers on the Tribunal to obtain the medical report, the Act does not impose any duty or obligation to do so.  Rather, section 426 provides that even if an applicant requested that the Tribunal takes oral or written evidence from a witness (such as a medical practitioner or psychiatrist) the Tribunal is not required to obtain such evidence.  Thus the Tribunal is under no duty to inquire.”

    The matter was also considered by Hely J in SZATG v MIMIA [2004] FCA 1595 at [23]-[27].

12. The written submissions go on to discuss notions of basic fairness requiring the Tribunal, before making a finding of dishonesty, to give the party an opportunity to address that issue in evidence.  I am not aware from my reading of the Tribunal's decision that it considered that the applicant was dishonest; it merely was not satisfied that he was a person to whom this country owed protection obligations.  Thus the principles outlined in Meadows v MIMA (1998) 90 FCR 370 are not relevant.

13. The applicant then makes complaint that the Tribunal exceeded its jurisdiction in failing to accord him procedural fairness as required under s.424A(1) and 418(3) of the Migration Act. Regrettably the applicant does not provide me with any assistance as to what information the Tribunal was required to provide particulars of and I accept Mr Smith's submission that the applicant has the onus to establish that he wasn't given an opportunity to address matters. This applicant has not sought to establish that by any evidence before this court.

14. The submissions of the applicant continue with a misunderstanding of the principles contained in Randhawa v MILGEA (1994) 52 FCR 437 per Beaumont J which is authority for the proposition that there is no need for contrary evidence before rejecting evidence provided by an applicant.

15. The applicant also complains that the Tribunal did not give consideration to his subjective fear of persecution.  Whilst I think that it can be inferred from the decision of the Tribunal that this matter was considered and that the Tribunal was aware of the necessity to consider it as part of the whole equation of a well founded fear of persecution, it is the fact that the subjective fear is cumulative with the objective fear.  The Tribunal, having found there was no objective fear for the reasons it gave, cannot have failed to exercise its jurisdiction by not making a particular finding in relation to the subjective fear because whatever view it came to, it would not have mattered.

16. The submissions in relation to s.418(3) of the Act would appear to encompass those made in the High Court cases of Muin and Lie, but the applicant has been unable to establish in evidence that s.418 was not complied with by the secretary. Furthermore, there is absolutely no evidence that the Tribunal had told the applicant that it had documents and that it had read them and that they were favourable, or that if none of these things had been the truth, the applicant would have put forward those documents or other documents in support of his claim.

17. The balance of the applicant's written submissions are matters of a factual nature and to the extent that they seek to bring in new evidence I am unable to consider them.  As Allsop J said in NARE v MIMIA [2003] FCA 554 at [10]:

    “What the applicant may well not appreciate, not being a lawyer, is that the process and purpose of review to this court does not and cannot involve simple re-finding of facts found by the Tribunal.  Rather, the review is broadly speaking to ensure that the Tribunal has made the decision lawfully... It is not the court's job to review the factual findings of the Tribunal unless their quality or lack thereof is such as to betray a failure to undertake properly the required task.  That is why it is not open to the primary judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual error in those conclusions by the Tribunal.”

18. In all the circumstances, I am unable to find any grounds upon which the decision of the Tribunal could be reviewed. 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 eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  20 December 2004