SZBDE v Minister for Immigration
[2005] FMCA 42
•20 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBDE v MINISTER FOR IMMIGRATION | [2005] FMCA 42 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – no reviewable error found – application dismissed. |
Migration Act 1958 (Cth)
Abebe v Commonwealth (1999) 162 CLR 510
Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
WAIJ v Minister for Immigration [2004] FCAFC 74
| Applicant: | SZBDE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1553 of 2003 |
| Delivered on: | 20 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 20 January 2005 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Ms R Pepper |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1553 of 2003
| SZBDE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 19 June 2003 and handed down on 15 July 2003. The RRT affirmed a decision of a delegate of the respondent Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and had made claims of political persecution. The relevant background facts are set out comprehensively by Ms Pepper in paragraphs 3-12 of her written submissions. I adopt those paragraphs for the purposes of this judgment:
The applicant was born in Bangladesh on 1 July 1957. The applicant arrived in Australia on 6 November 2001. On 7 December 2001 he lodged an application for a protections visa (Class XA) with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (“the Act”) (court book, pages
3-26).The applicant claims persecution on the ground of political opinion. In brief, the applicant claims that he was a member and officeholder of the Awami League (“AL”) which was targeted for persecution by the Bangladeshi Nationalist Party (“BNP”) and Jamat-e-Islami (“JI”). He worked for senior officials and organised processions, demonstrations and campaigns for AL. The applicant further claims that BNP and JI members attacked the applicant, ransacked his business, threatened his family and filed false suits against him. Furthermore, because it was anticipated that the BNP would be successful in the upcoming elections, the police took no action to protect the applicant.
Proceedings Before the RRT
The RRT was not satisfied on the evidence before it that the applicant had experienced Convention related persecution. First, the RRT accepted that the applicant was a member of AL (court book, page 95) but rejected his claim to be an officeholder or prominent figure because it was inconsistent with his lengthy absences from Bangladesh and the applicant had a very limited knowledge of the history and structure of the AL (court book, page 95).
Second, the RRT was not satisfied that the ransacking of the applicant’s business was Convention related (court book, page 96), and moreover, it found that the applicant’s political opinion was not the “essential and significant reason” for the attack (court book, page 96).
Third, the RRT rejected as implausible the applicant’s claim that police withheld assistance on the basis of the outcome of a future election (court book, page 97) and found that there was insufficient evidence to suggest that the police had acted unreasonably, noting that the applicant had never made a complaint about the assault (court book, page 97).
Fourth, the RRT was not satisfied that the applicant’s family was at risk as they had remained living at their home (court book, page 97).
Fifth, the RRT also rejected the claim that false prosecutions had been brought against the applicant because it was never raised by the applicant himself, no details were provided in support and because the applicant had left Bangladesh without incident on a valid passport (court book, page 98).
Sixth, the RRT concluded that the applicant would not suffer persecution if he returned to Bangladesh because the applicant’s involvement in politics was “low level” and independent country information indicated that lower ranking AL members and officials did not suffer targeted discrimination (court book, page 98).
Last, the RRT found that it was, in any event, reasonable for the applicant to relocate within Bangladesh to avoid any difficulties arising from his membership of AL (court book, page 99).
In summary the applicant was unsuccessful before the RRT because it was of the view that: his claims either lacked credibility or were not Convention related; that his involvement in politics was insignificant; that he was not of adverse interest to the authorities or opposition parties and that he could, in any event, relocate to avoid difficulties. Thus the RRT concluded that it was not satisfied that there was a real chance that the applicant would be persecuted for a Convention reason if he returned to Bangladesh or that he had a well founded fear of persecution (court book, page 99).
The applicant relies upon his judicial review application filed on 7 August 2003. The application purports to set out 10 grounds but the last is a simple promise to provide further details. The nine operative grounds follow a form with which the Court is familiar. In the absence of particulars they do not provide a proper basis for the Court to review the decision of the RRT.
On 15 October 2003 the applicant was ordered to file and serve an amended application by 15 December 2003 giving complete particulars of each ground of review relied upon in the application.
No amended application was filed but on 9 November 2004 the applicant filed written submissions. Those written submissions traverse in some detail the consideration of the applicant's claims by the RRT. Ms Pepper deals with both the judicial review application and the applicant's written submissions in paragraphs 13 - 22 of her written submissions. I find myself in complete agreement with those submissions and adopt them for the purposes of this judgment:
The usual ‘template’ grounds of review are pleaded by the applicant in his application. They lack particulars and absent further detail do not plead any jurisdictional error on the part of the RRT. For the sake of brevity the grounds of review are not set out in these submissions.
The submissions provided by the applicant on 15 November 2004 effectively seek merits review and attempt to introduce evidence that was not before the RRT.
Failure to take into account court case
In addition to repeating the submission the respondent makes at paragraph 21, it is clear that the RRT did consider the claim made by the applicant that he was being persecuted by reason of the false prosecutions commenced against him in Bangladesh (see above at paragraph 9). Therefore this ground of review must be dismissed.
Breach of procedural fairness
The applicant does not provide any details of how it is said that that RRT denied him natural justice (ground 3) or “denied the evidentiary proof of his claim” (ground 4). It is clear that the independent country information which the RRT relied upon was discussed with the applicant (court book, page 85). In the absence of any additional particulars this ground ought to be dismissed.
Bias
No particulars are given of this ground of review (ground 6). Because the applicant has not identified any particular material or findings in support of the claim and there is no evidence in the present case of an actual state of mind of the RRT which would constitute actual (Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [71]-[72]), or even apprehended bias (Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at 344), this ground of review ought to be rejected.
Bad faith
Again, no particulars have been provided as to how the RRT is said not to have acted in good faith. There is no evidence on the face of the RRT reasons to impugn the decision in this way and this ground of review must be rejected.
Failure to take into account relevant considerations
In relation to grounds 5, 7 and 8, insufficient particulars have been given as to what facts the RRT is alleged to have mixed up, ignored or failed to reflect in its decision.
In his written submissions the applicant further complains that the RRT did not consider the applicant’s claims regarding the targeting of his family or that an AL leader was killed. In response, the respondent submits that the former was expressly considered by the RRT (court book, page 97) and because the latter was never raised before the RRT the RRT cannot be said to have erred for not considering it.
In any event, the applicant seeks to take issue with the factual findings of the RRT. To review the decision of the RRT on these grounds would amount to the Court engaging in merits review, especially given that there is no evidence that the RRT did anything other than exercise its power in a bona fide way: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272. The RRT weighted up the evidence of the applicant and made findings of fact that were open to it on the material before it. It was entitled to do so in the circumstances: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 558-559; WAIJ v Minister for Immigration [2004] FCAFC 74 at [30]. Accordingly, these ground of review must also fail.
Failure to make inquiries
It is for the applicant to advance whatever evidence he seeks to rely upon in support of his case and not the RRT: Abebe v The Commonwealth (1999) 162 CLR 510 at [90], [187] and [190]. Accordingly this ground of review ought, especially without more, to be rejected.
I explained to the applicant this morning that in the absence of any demonstrated jurisdictional error I would have to dismiss his application. I explained that his written submissions were substantially a complaint about the merits of the RRT decision which this Court cannot review. I also explained that to the extent his application and submissions raise asserted legal issues there was no substance in those assertions.
In his oral submissions the applicant confirmed that he genuinely fears persecution should he be required to return to Bangladesh. He says that he has additional information, including information concerning the killing of a friend a few months ago which adds weight to his fear of harm. As I told the applicant, these are matters that he should raise with the Minister for Immigration. They are beyond the scope of these proceedings.
There is no jurisdictional error in the decision of the RRT. Accordingly, the decision is a privative clause decision. I must dismiss the application. I now do so.
On the question of costs, I am satisfied that costs should follow the event. Ms Pepper seeks an order for costs fixed in the sum of $4,000. I am satisfied that costs of that amount have been reasonably and properly incurred on behalf of the Minister assessed on a party/party basis. The applicant did not oppose a costs order in principal but drew attention to the fact that he may be unable to pay them. That is a matter that he can take up with the Minister's Department or her legal advisers.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 21 January 2005
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