SZBCU v Minister for Immigration - [2005] FMCA 29

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCU v MINISTER FOR IMMIGRATION

[2005] FMCA 29

MIGRATION – Review of decision of RRT – where applicant failed to attend Tribunal hearing – where applicant alleges jurisdictional error – where applicant files submissions – whether Tribunal was biased – whether applicant has substantiated his allegations of jurisdictional error.

Federal Magistrates Court Rules
Migration Act 1958 (Cth), ss.422B, 424A(3), 426A, 427 and 440

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Minister for Immigration v NAOS of 2002 (2003) FCAFC 142

Applicant:

SZBCU

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1532 of 2003

Delivered on:

10 January 2005

Delivered at:

Sydney

Hearing date:

10 January 2005

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr C Mantziaris

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant 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

SYG1532 of 2003

SZBCU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh. He arrived in Australia in July 1999. He first applied for a protection visa on 1 September 1999. That application was rejected on 1 October 1999 and on 20 October 1999 he applied to the RRT for review of that decision. He promised further information which was not supplied until 27 March 2002.
On 8 April 2002 the Tribunal affirmed the delegate's decision not to grant a protection visa and handed that decision down on 2 May. On 13 June 2002 the department decided to permit a further application because the previous protection visa decision was made upon an invalid application. On 30 July 2002 a delegate of the Minister refused to grant a protection visa and on 11 August 2002 the applicant applied to the Tribunal for review.
Although the applicant appeared before the first Tribunal and the Tribunal's views on his credibility were considered by the second Tribunal he did not attend the second Tribunal hearing. The applicant told me today that he was sick at the time but I have no evidence before me that this was ever communicated to the Tribunal itself.
On 12 June 2003 the Tribunal determined to affirm the decision not to grant a protection visa and handed down that decision on 9 July 2003. On 5 August 2003 the applicant sought review from this court of the decision of the Tribunal being the second decision to which I have referred. The application lists 12 grounds although one is an apology for lodging his application late.
The applicant claims to have a well founded fear of persecution for the convention reason of political opinion. He claims that he and his family were supporters of the Muslim League during the Liberation War of 1971. He claims that false charges were brought against him on the grounds of murder and holding illegal arms in 1974. After two years he was found innocent of those charges but this did not bring an end to his problems with the Awami League, the Muslim League's rival.
The applicant claimed to have joined the BNP and became publication secretary in a town known as Noakhali. When the BNP lost power he joined the Jatiyah Party. He returned to the fold of the BNP in 1991 and remained with them until he left the country. He claims not to have taken an active role in politics.
The applicant's ability to indulge in politics would have been limited by the fact that in 1984 he went to sea. He spent about 9 months of every year out of the country. He claimed that in 1994 he was beaten up by members of the Awami League when he went home to visit his wife.
The Awami League came to power in 1996 and the applicant claims that after that time he was the victim of their discrimination. He claims that members of that party went to his home in November 1998 looking for him. When they did not find him they tortured his children and destroyed his business premises. He was told to leave the country and in 1998 boarded a ship which eventually arrived in Australia in 1999. In the year 2000 he claims that one of his nephews was shot by Awami League terrorists, another nephew was attacked with a gun and a knife and a cousin was injured.
Although the Tribunal refers at some length to the previous decisions of the delegate and of the earlier Tribunal it is the findings of this Tribunal that are in issue in the proceedings before me. On 16 April 2003 the Tribunal wrote to the applicant advising him that it had considered the material before it relating to his application but was unable to make a favourable decision on that information alone. He was invited to give oral evidence and present arguments at a hearing on 12 June 2003. He told the Tribunal that he would attend the hearing but he did not do so. He did not provide the Tribunal with any reason for that occurrence.
The Tribunal therefore determined to deal with the matter pursuant to the provisions of s.426A of the Migration Act 1958 (Cth) (the “Act”). The Tribunal's assessment of the case is set out at [CB 121]. It says:
“Taking account of the course of his claims since he first applied to DIMIA in September 1999, the following story emerges: he has been involved with various political parties in Bangladesh for more than thirty years, most recently the Jatiya Party and the BNP; he never played an active role in politics; he was eventually exonerated in connection with a case which began in 1974 but the Awami League continued to express its enmity towards him; he was at sea from 1984 until 1999; he went home from time to time; nothing happened to him from 1984 until 1994; two brothers went to Dubai to save themselves; another brother disappeared; when the applicant was in Bangladesh from 1984 until 1998 he spent most of his time in Chittagong or Noakhali; he was beaten up in 1994; in 1998 his children were tortured and his business was destroyed; he had to leave Bangladesh because of the threat to him; he left legally; relatives were attacked in 2000; all attacks on him or relatives appear to be in the Noakhali or Feni districts. However, all claims remain nothing more than mere assertions because the applicant, who left Bangladesh almost 5 years ago and lodged his latest protection visa application 13 months ago, has provided no support for his claims despite several opportunities to do so.
The applicant's inaction in the present case is part of a pattern which began in his first case. He did at least attend the RRT hearing in the first case but the member did not find him a credible witness. The inaction in the present case means that I am unable to be satisfied that the applicant's claims have any truth to them. That inaction, including especially the failure to attend the 12 June 2003 hearing, leads me to include that the applicant is indifferent to the fate of his claims and that the reason for that indifference is that the applicant has exaggerated or fabricated his claims.”
The Tribunal goes on to say that it does not rely solely on those matters for its decision and between [CB 121] and [125] it explains the other matters that influenced it. Perhaps the most significant part of the remainder of the decision is that contained at [CB 123], where the Tribunal makes a finding that the applicant could relocate:
“Districts in Chittagong division were the focus of his claim, but he has claimed he never played an active role in politics and he has been away from Bangladesh for almost five years, so I see no reason to suppose that he had much of a profile in those districts and I see no reason to suppose that he had any profile outside of those districts. Accordingly, I see no reason to suppose he was pursued, or is being pursued, or would be pursued by the AL or anyone else outside those districts. If for any reason the applicant does not wish to live in the districts in which he claimed to have had difficulties, the country information on pages 8 and 11 leads me to conclude that there are many other parts of the country in which it would be reasonable to expect him to be able to relocate. He has managed to support himself, or be supported in a foreign country (Australia) for almost four years, so I have no doubt of his ability to support himself in the country in which he was born, spent most of his life, and still has family. As he has had 19 years experience of living amongst strangers (I am including his period at sea from 1984), I do not think it harsh to expect him to live away from his home districts in Bangladesh if he feels that it is necessary for his safety.
The applicant claims that he has had to leave Bangladesh to escape his difficulties there. I do not believe that claim because, as indicated above, I believe he could relocate within Bangladesh to find safety.”
In addition to the application grounds the applicant prepared a written submission in excess of 25 pages. The applicant admitted to me that he was assisted in this by a friend and the document itself is a hotch potch of extracts from various decisions of the courts dealing with migration matters and some comment upon them which will be familiar to those who deal with matters of this nature in these courts. There is a substantial amount of what would appear to be country information concerning Bangladesh and finally some submissions which could be said to be directed at this applicant's personal case. As Mr Mantziaris has said the submissions are either matters which were raised in the initial application or they deal with matters that can be responded to speedily.
The applicant claims that the Tribunal breached ss.426, 427 and 440 of the Act but these are matters which are within the discretion of the Tribunal and raise no questions of obligation on its part. Any breach that might have occurred, and there is no evidence that any did, would not ground review.
The applicant claims that country information relied upon by the Tribunal was not sent to him. It is well established that if information is not provided in this way to an applicant no jurisdictional error occurs provided that the Tribunal makes the applicant aware of the nature of the information during a hearing. In this particular case the applicant did not attend the hearing so it was impossible for the Tribunal to put the matters to him. But in any event the information utilised by the Tribunal was information of a general nature which to my mind falls clearly within the exception found in s.424A(3).
The applicant complains that he was not provided with natural justice in relation to his claim. It is not entirely clear where he says that this did not occur but he appears to ignore the fact that his case was heard pursuant to the provisions of s.422B of the Act. A reading of the Tribunal's decision makes it clear that those provisions were complied with.
The applicant also alleges that his case has many similarities with that of Muin and Lie; Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 although at some point during the course of his lengthy submissions he acknowledges that there are also differences. What he does not do is to acknowledge that there is no reference to Part B documents in the delegate's decision and he otherwise fails to provide that evidence of factual matters which formed the basis of the agreed statement of facts in Muin and Lie that the courts have consistently held is necessary in order for an applicant to succeed in a case in which similar allegations are made.
When I asked the applicant to address me he did so without any reference to the submissions or the grounds upon which he based his application. He told me that the Tribunal did not understand him and did not try to understand his application. He told me that he had been unable to explain himself to the Tribunal and that he had wanted the Tribunal to consider his application and justify its decision. I took these references to be to the first Tribunal's decisions because it would have been difficult for the second Tribunal to have obtained clarification from an applicant who did not attend. I explained to the applicant that the first decision was not being considered in this court.
In response to the arguments of Mr Mantziaris the applicant told me that he did not know much about the law and then proceeded to explain why he was being considered a traitor in his own country and why he feared to return there. These are matters which go directly to the merits of the case and not to any grounds of judicial review.
In the application the applicant complains that the Tribunal made a decision in bad faith and also gave a decision which was preset in the back of its mind. An allegation of bad faith is a serious matter which must be made out in accordance with the principles stated in the Minister for Immigration v NAOS of 2002 (2003) FCAFC 142. The applicant has not made any impression upon the requirements there set out. He has also not clearly alleged or proved the claim. He has not given any indication of where he finds personal fault or absence of honesty on the part of the decision-maker. These remarks apply equally to a suggestion that the Tribunal's decision was preset, this being another form of actual bias.
Having considered the terms of the Tribunal's decision and noting the failure of the applicant to attend I cannot see how the Tribunal has fallen into jurisdictional error when it concluded that it had not obtained the degree of satisfaction required by the Act in order to hold that this applicant was a person to whom Australia held protection obligations.
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 2001.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: