SZBEI v Minister for Immigration
[2005] FMCA 351
•7 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBEI v MINISTER FOR IMMIGRATION | [2005] FMCA 351 |
| MIGRATION – Review of Refugee Review Tribunal decision – citizen of Bangladesh – Awami League – political activities – Chattra League – procedural fairness – evidence provided by applicant – findings of fact – no error of law – application dismissed. Migration Act 1958 (Cth), s.424A Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 |
| Applicant: | SZBEI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1588 of 2003 |
| Delivered on: | 7 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 7 March 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Mr McInerney |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,250.
FEDERAL MAGISTRATES |
SYG1588 of 2003
| SZBEI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 30 June 2003 and handed down on 29 July 2003.
The applicant is a citizen of Bangladesh, who arrived in Australia on 17 September 2001. On 11 October 2001 he applied for a protection visa, which was refused by the delegate of the Minister on 11 January 2002.
The applicant lodged an appeal with the Tribunal on 12 February 2002, and as I have already noted, the Tribunal affirmed the decision of the Minister’s delegate on 30 June 2003 and handed down its decision on 29 July 2003.
Claims before the Department and the Tribunal
The applicant’s claims before the Department and the Tribunal centred upon his political involvement with the Awami League in Bangladesh. He says he is from Borokhal, Suganagor, Borlekha, Moulvibazer, Sylhet, Bangladesh.
He claims he began political activity with the Bangladesh Awami League in 1987 in his home region of Suganagor, as he was attracted to its philosophy. At that time the Jatiya Party was in power, the Awami League was in opposition, and the Bangladesh Nationalist Party (BNP) was influential at the local level.
The applicant claims that in his local area the student wing of the BNP, Chattra Dal, operated as terrorists. They operated all business and social activities illegally and also frequently violated human rights.
The applicant was an active and dedicated Awami League member, and was elected Thana Organising Secretary in its Borlekha Moulvibazer branch. As a result of his vital role in local politics, local BNP terrorists were angry and tried to stop his political activities, forcing him to move from the area.
He claims the BNP murdered Awami supporters in various local areas, and he decided to leave Borleka and live in hiding in the greater Sylhet.
In 1996 when the Awami League formed government he returned to Borlekha and resumed political activity, gaining popularity as a promising politician. However, in 1998 the Chattra Dal held an annual conference in Borlekha with the national leaders in attendance and a procession afterwards.
He says that a terrorist Jatiya group attacked both events, injuring BNP supporters and police officers. However, the BNP filed an allegation that the applicant was involved in the organisation of the attacks.
He claims that his house and other places were searched. Fearing BNP aggression and possible death he left for Qatar for a few months. He then returned to Bangladesh resuming political activity.
But an arrest order was issued against him by local BNP leaders. He says that from late 1998 to 2001 he lived in different places to avoid police harassment and BNP terrorists. His family asked him to leave Bangladesh and he again went to Qatar where he worked as a sales representative. As the BNP had since formed government he feared party and police harassment and arrest under Bangladesh public safety law.
When BNP had been in power previously human rights violations and police and BNP sanctioned killings were rife according to the applicant. As there was no avenue for seeking political asylum in Qatar the applicant came to Australia on a tourist visa in September 2001.
Tribunal decision
The essential elements of the Tribunal’s decision are set out in the respondent’s submissions:
14.The gist of the applicant’s claim was that he had suffered persecution in Bangladesh between 1998 and 2001.
15.The applicant’s claim [in the Tribunal] failed, in essence, for four reasons.
16.First, the Tribunal was not satisfied that he was a member and supporter of the Chattra League.
17.Secondly, the Tribunal was not satisfied that the applicant was an Awami League activist, found that his involvement in politics was at a very low level, and that he had a low profile, such that his chance of suffering harm if he were to return to Bangladesh were remote.
18.Thirdly, the Tribunal was not satisfied that the applicant had suffered any past persecution in Bangladesh between 1998 and 2001, in circumstances where the Tribunal found that it was not satisfied that the applicant lived in Bangladesh after 1998.
19.Fourthly, the Tribunal was satisfied that it would be reasonable for the applicant to relocate to another part of Bangladesh to avoid persecution if he were to return to Bangladesh, and that it was reasonable for him to do so, and that if he did he was not at risk of harm from BNP supporters, or the BNP Government.
Consideration
The amended application of 15 December 2003 contained five grounds for review. I will consider each of these grounds in turn.
Procedural fairness under s.424A and at common law
While noting that s.422B does not apply to this case, s.424A requires that certain information related to their case should be given to applicants. The applicants should also be made to understand why that information is relevant, and invited to comment upon it. This obligation does not arise if the information is not specifically about the applicant or another person, and is just about a class of persons of which the applicant or other person is a member.
The applicant has not directed the Court to any specific material relied on by the Tribunal for which the obligation under s.424A would arise. In any case to the extent the Tribunal relied on independent country information, on examination it is apparent that this information falls within the exclusion in s.424A(3)(a) of the Migration Act 1958 (Cth) (the Act) (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264).
Grounds 1 and 4 in the amended application provide:
1. The Tribunal exceeded its jurisdiction, in failing to accord the Applicants procedural fairness, as required under section 424A (1) of the Migration Act 1958.
...
4. The Tribunal did not provide the applicant with particulars of information, which formed part of the reason of the Tribunal’s decision, namely, that violence against Awami League supporters/leaders had subsided, and that information was not “just information about a class of persons”.
An examination of the country information relied upon by the Tribunal satisfies me that this information falls within the exclusion in that it is not specifically about the applicant or another person. Rather it is about a class of persons of which the applicant is a member.
Furthermore, and critically, the applicant was aware of much of the material that was before the Tribunal and had the opportunity to put further information to the Tribunal. For example, in his statutory declaration attached to his initial application to the Department (Court Book page 35), he refers to what he describes as the “Human rights report of the US foreign ministry of February 2000”.
In his decision (Court Book page 42) the delegate refers to a certain amount of independent country information. And the list of documents relied on was provided to the applicant with the decision of the delegate.
The applicant provided a large number of newspaper clippings to the Tribunal (Court Book pages 51 to 123). His migration agent later furnished a further submission to the Tribunal (Court Book pages 130 to 136), which also refers to independent country information.
At the hearing which the applicant attended the Tribunal Member reports that the relevant information was discussed with the applicant. I note there is a typographical error which says “The applicant discussed relevant country information with the applicant”. I assume that what was meant was that the Tribunal discussed the relevant country information with the applicant. Indeed that meaning is clear from the remainder of the Tribunal decision.
Nothing has been put to me by the applicant in his written or oral submissions which suggests that the Tribunal denied the applicant procedural fairness as understood at common law in relation to these matters.
The two letters relied on by the applicant
When the applicant’s migration agent provided a submission to the Tribunal dated 4 April 2003 he also forwarded two letters in support of the applicant’s claims (Court Book pages 137 to 138): one from a Member of the Bangladesh Parliament; and the other from a President of the Bangladesh Awami League, Sylhet District Branch.
The contents of these letters are summarised by the Tribunal (Court Book page 161):
The contents of the first letter stated that the applicant was an active member of the Awami League and organising secretary of the local branch. The author claims that because of the applicant’s political success he went into hiding and the BNP have been searching for him and lodged false cases against him. The second letter is from another Awami League official and contains much the same information except that he gives no dates for the applicant’s activities. The letters appear to have been written to support the claims of the applicant. No other evidence of the applicant’s claims has been submitted.
Ground 5 of the amended application provides:
The Tribunal did not put to the applicant its doubts about documents containing information personal to the applicant from different sources of [sic] Bangladesh, and those doubts formed part of the reason for the Tribunal’s decision.
First, it must be noted that neither of the letters are dated, nor do they provide any particular reference number. Secondly and more importantly, the Tribunal made no finding about whether or not they were genuine. It did not suggest that they were false or fabricated, nor did it suggest any dishonesty on the part of the applicant. Instead it said (Court Book page 170):
The Tribunal has considered the contents of the letters submitted on the applicant’s behalf. It is clear that those letters were produced to support the applicant’s claims for refugee status. When considered in the context of the applicant’s lack of knowledge of important Awami League matters the letters do not have the appearance of reliable evidence and the Tribunal places no weight on their contents.
As the respondent has said:
A finding by the Tribunal that the letters did not have the appearance of reliable evidence, in a context where the Tribunal had already found that the applicant lacked “knowledge of important Awami League matters”, was a finding open to the Tribunal.
The High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 has said that the weight that is to be attached to evidence is a matter quintessentially for the Tribunal. This well known principle finds support in many other High Court authorities.
I can discern no legal error in the way the Tribunal has handled these two letters.
The other grounds
Grounds 2 and 3 of the amended application state:
2.The RRT did not complete the exercise of its jurisdiction as it made no findings as to what sociopolitical changes might occur in Bangladesh in the reasonably foreseeable future and it thus failed to assess whether the applicants’ fears of being persecuted for being a member of a political party were well founded in the reasonably foreseeable future.
3.The RRT’s decision on 30 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.
These grounds, when taken with what the applicant has put in his written submissions and what he has said to the Court at the hearing, make it clear that his real concern is with the findings of fact made by the Tribunal. He was obviously especially concerned that the Tribunal had not been satisfied about a number of factual claims that he had made. These included his claims that he was a member and a supporter of the Chattra League and that he was an Awami League activist. The Tribunal found that he had a very low profile, such that his chance of suffering harm if he were to return to Bangladesh was remote.
The Tribunal was not satisfied that he suffered any persecution in Bangladesh between 1998 and 2001, as it was not satisfied that he lived in Bangladesh after 1998. And on this particular matter, the Tribunal gave the applicant an opportunity to adduce further evidence by presenting his passport. The applicant does not appear to have provided such evidence (Court Book pages 160 and 161).
Furthermore, the Tribunal found that it would be possible and reasonable for the applicant, if he returned to Bangladesh, to relocate within Bangladesh.
On the evidence the Tribunal’s findings were open to it. Once the Tribunal had made these findings the applicant had no chance of success (see Court Book pages 172 and 173).
This Court can not generally interfere with the findings of fact made by the Tribunal. The Tribunal’s factual findings, if properly made, as they were in this case, are not indicative of legal error and it is not within the power of this Court to upset them.
Conclusion
Counsel for the respondent has submitted to me that the application must be dismissed as no reviewable legal error has been disclosed.
I agree. It is apparent that the Tribunal did not accept the most significant of the applicant’s claims. As I have said, the findings made by the Tribunal were reasonably open to it on the material before it.
I am satisfied the Tribunal made no legal error going to jurisdiction in coming to its decision. I find that the decision of the Tribunal is a privative clause decision, having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the Act and to the powers conferred on the Tribunal.
In the circumstances, I dismiss the application.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 15 April 2005
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