SZBEJ v Minister for Immigration
[2005] FMCA 84
•3 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBEJ v MINISTER FOR IMMIGRATION | [2005] FMCA 84 |
| 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), s.424A
Applicant S20 v Minister for Immigration [2003] HCA 30
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
WAIJ v Minister for Immigration [2004] FCAFC 74
| Applicant: | SZBEJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1591 of 2003 |
| Delivered on: | 3 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 3 February 2005 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Respondent: | Ms R Pepper |
| Solicitors for the Respondent: | Blake Dawson Waldron |
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 |
SYG1591 of 2003
| SZBEJ |
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 28 June 2003 and handed down on 24 July 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and had made claims of political persecution. Relevant background facts relating to his visa application and the RRT’s examination of it are set out in written submissions prepared by Ms Pepper, on behalf of the Minister. I adopt as background, for the purposes of this judgment, paragraphs 2-9 of Ms Pepper's written submissions.
The applicant is a citizen of Bangladesh. The applicant arrived in Australia on 26 April 2001. On 3 May 2001 he lodged an application for a protection visa (Class XA) with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (“the Migration Act”) (court book, pages 3-58).
The applicant claims persecution on the ground of political activity. In brief, the applicant claims that he was a member of the BNP from 1989 to 2001 and that during this time he was targeted and attacked by local Awami League (“AL”) members. These attacks included an incident on 22 January 2001 where he was shot in the leg and later in march 2001 where his shop was ransacked and bombed. The applicant provided documentary and written evidence to support his claim.
Proceedings before the RRT and the RRT decision
The applicant gave oral evidence at the RRT hearing. The applicant conceded before the RRT that now that the BNP was in government in Bangldesh he no longer had fear of persecution from the AL (court book, pages 146, 159).
However the applicant went on to claim at the hearing that he had a fear of persecution from his former BNP colleagues. He claimed that they conspired to expel him from the party and that they would kill him if he returned to his region in Bangladesh. When asked by the RRT why he had not raised this initially he stated that he did not think it was important (court book, pages 144-145). The applicant then further claimed that his former BNP colleagues could bring false charges against him under the Public Safety Act were he to return to Bangladesh (court book, page 144).
The RRT was not satisfied on the evidence before it that the applicant would experience persecution for his political opinions if he were to return to Bangladesh. While the RRT accepted the applicant’s claim that he had been a member of the BNP and that he had suffered persecution at the hands of the AL, it found that, as the applicant himself accepted, because the AL were no longer in power in Bangladesh the applicant no longer feared persecution from them (court book, pages 146 and 159).
With respect to his claims of persecution from his former BNP colleagues the RRT rejected, because of inconsistencies in his supporting documentation, the claim that the applicant had been expelled from the party (court book, page 159), and moreover, the RRT found that internal politics aside there was no evidence that any expulsion from the local branch of the party would, in any event, lead to injury or death upon the applicant’s return (court book, pages 146, 159-160).
In relation to the claim of possible persecution due to malicious and false prosecutions brought against the applicant should he return to Bangladesh, the RRT found that due to the applicant’s low profile in the party then and the fact that he was no longer politically active now this meant that he would not be considered apolitical target (court book, pages 146, 160). Furthermore, the RRT noted that the government was attempting to minimise the number of malicious prosecutions under the Public Safety Act and that the courts were willing to intervene and overturn such prosecutions (court book, page 160.
Finally, the RRT rejected the applicant’s claim that he needed to use an incorrect birth date and address in order to obtain his passport and that he left Bangladesh legally and without difficulty and thus he was not a person of interest to the authorities (court book, page 160).
These proceedings commenced with the application for judicial review filed on 12 August 2003. That application set out a series of unparticularised and formulaic grounds of review. The applicant was given an opportunity to file an amended application and did so on 4 May 2004. The author of that document devoted more care to the formulation of proper grounds of review. Ms Pepper sets out the grounds in paragraph 10 of her written submissions.
The grounds are first, that s.424A(1) of the Migration Act has been breached; secondly, that the RRT failed to consider if persecution could occur in the foreseeable future due to changed political circumstances; thirdly, that the RRT decision was not rational; fourthly, that the RRT ignored the applicant's evidence of being targeted by the Bangladesh Nationalist Party (the BNP); and lastly, that the RRT did not put to the applicant doubts about documents containing personal information about the applicant and that these doubts formed part of the decision of the RRT. No particulars were provided of any of those grounds.
The applicant filed written submissions by leave in court this morning. Ms Pepper objected to the written submissions on the basis that they raised serious allegations of actual bias and bad faith that had not been raised in the amended application.
The written submissions is a remarkable document. The applicant told me that it was not his own work. He told me that it was prepared by Mr Zahirul Hoq Mollah, who has been assisting him in these proceedings. He told me that he had not paid Mr Mollah any money for his assistance. Regrettably, the submissions are worthless in dealing with the proceedings before me. They do not address in any meaningful way the issues raised in the amended application. They raise in an incoherent way assertions of actual bias and bad faith, for which there is no evidence whatsoever. The applicant conceded that there was no substance to those allegations. The submissions refer to a breach of the rules of natural justice but fail to relate that to the grounds advanced in the amended application.
There is, in my view, no substance to any of the grounds advanced by the applicant. I agree with, and adopt for the purposes of this judgment, paragraphs 11-17 of Ms Pepper's written submissions:
Breach of s 424A of the Act
The applicant does not provide any details of how it is said that the RRT breached s 424A of the Act. It is clear that the independent country information which the RRT relied upon was put to the applicant (court book, page 146), likewise all adverse personal information (court book, pages 144-145 and 160). In the absence of any additional particulars this ground of review ought to be rejected.
Failure to consider persecution by reason of changed political circumstances
The RRT must consider if the applicant has a well founded fear, or real chance, of persecution for a Convention reason in the reasonably foreseeable future if he returns to his country of origin. This the RRT did and found against the applicant by reason of his low political profile in the BNP (see at court book, page 160).
The persecution must not be speculative or hypothetical. That is, the RRT cannot consider what might occur at some undefined point in the future when assessing the applicant’s claim of a well founded fear of persecution. Accordingly, the RRT did not err in this regard and this ground of review ought also be rejected.
Irrationality
In the absence of further particulars this ground of review is not clear. The RT weighed up the evidence of the applicant and made findings of fact that were open to it on the material before it: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 558-559; WAIJ v Minister for Immigration [2004] FCAFC 74 at [30].
Even if the reasoning process leading to a factual conclusion can be described as illogical or unreasonable (which is denied in the present decision) this in itself will not amount to jurisdictional error. A relevant error will only be found if the faulty reasoning was itself evidence of a failure to act judicially or exercise jurisdiction: Applicant S20 v Minister for Immigration [2003] HCA 30 at [36]. This is not the case here. Accordingly, this ground of review must fail.
Failure to put doubts about the applicant’s documentary evidence to the applicant
Again no details are provided by the applicant as to what doubts the RRT had that it omitted to discuss with the applicant. If this ground refers to the documents provided by the applicant to support his claim that he was expelled from the BNP due to inconsistencies contained within those documents then these doubts were put to the applicant for comment (court book, pages 144 and 145). In any event, the RRT found that even if he had been expelled, the applicant had not provided any evidence to indicate persecution occurred in the past against former BNP members, and thus he would not have had a well founded fear of persecution (court book, page 146). Therefore this ground of review ought to be dismissed.
Failure to take into account the applicant’s evidence that he was a target of the BNP
It is clear that the RRT did consider the claim made by the applicant that he was being targeted by the BNP (see at court book, pageS 159-160). Therefore this ground of review must also be rejected.
The applicant is unable to sustain the assertions of jurisdictional error in his amended application, and the assertions of actual bias and bad faith in the written submissions are obvious nonsense. On my own examination of the court book, I am satisfied that the decision of the RRT is free from any jurisdictional error. The decision is, therefore, a privative decision.
Accordingly, I dismiss the application.
On the issue of costs, the application having been dismissed, costs should follow the event. Ms Pepper seeks an order for costs fixed in the sum of $4,000 on a party/party basis. I agree that costs of $4,000 have been reasonably and properly incurred on behalf of the Minister assessed on that basis. The applicant did not wish to make any submissions on costs.
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 ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 February 2005
0
2
0