SZBFE v Minister for Immigration - [2005] FMCA 189

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBFE v MINISTER FOR IMMIGRATION

[2005] FMCA 189

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – asserted procedural unfairness and constructive failure of jurisdiction – failure by the RRT to make a clear finding on the status of an embezzlement charge – consideration of the operation of Article 1F(b) of the Convention – rehearing by the RRT futile – application dismissed.

Migration Act 1958 (Cth), s.425

Luu v Minister for Immigration (2002) 127 FCR 24 (FC)
Minister for Immigration v NAMW [2004] FCAFC 264
NABE v Minister for Immigration (No 2) [2004] FCAFC 263
NAOA v Minister for Immigration [2004] FCAFC 241
SZANS v Minister for Immigration [2004] FMCA 445

Applicant:

SZBFE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1621 of 2003

Judgment of:

Driver FM

Hearing date:

1 March 2005

Delivered at:

Sydney

Delivered on:

1 March 2005

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr T Reilly

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

SYG1621 of 2003

SZBFE

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 30 June 2003 and handed down on 25 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. He arrived in Australia on 30 August 1997 and was admitted under a visitor class TU sub class 676 visa granted in Dhaka on 19 August 1997 and valid for three months. On 12 April 2001, he made an application for a protection class XA visa with the Minister's Department. On 31 May 2001, the Minister's delegate refused to grant the visa. On 28 June 2001, the applicant applied to the RRT for a review of that decision.
The applicant claimed a fear of persecution for reasons of his political opinion and religion in Bangladesh. He claimed to be a supporter of the Bangladesh National Party and to have been harmed for this reason on a number of occasions by members of the rival Awami League. He claimed he was the subject of a number of false charges. In addition, he claimed that his fiancee in Bangladesh was a Hindu whereas he was a Muslim. He claimed that he had been and would, in the future, be harmed by Muslim fundamentalists because of his relationship with the Hindu woman. The RRT summarised the applicant's claims which appear in the court book from pages 96 to 130 of the court book. The presiding member satisfied himself that the applicant agreed with his description of his claims.
The RRT accepted that the applicant had been active in the BNP and had suffered harm from the Awami League, but found on the basis of independent country information concerning political developments in Bangladesh since the Awami League lost power and, secondly, on the basis of the renewal of the applicant's passport that the applicant would not face persecution on account of his political opinion in the future in Bangladesh.
The RRT did not accept the applicant's claims concerning harm suffered because of the religion of his fiancé. The presiding member was concerned that the claims were unsubstantiated and inconsistent with independent country information. Further, the presiding member found that the applicant could relocate within Bangladesh if he wished. The presiding member also took the view that the harm feared by the applicant was not serious harm within the meaning of the Convention and the Migration Act 1958 (Cth) (“the Migration Act”) in any event.
The applicant relies upon his amended application filed on 12 February 2004. He also relies upon written submissions filed on 22 February 2005. The application and the written submissions assert numerous grounds of review.
The applicant asserts a constructive failure by the RRT in exercising its jurisdiction. He asserts a failure to make proper inquiries and a failure to accord procedural fairness. He asserts that the RRT placed undue emphasis on the ability of persons of mixed religion to marry while not concentrating sufficiently on the societal consequences of such a marriage. The applicant asserts that the RRT did not give weight to documents supporting his claims and did not permit him to give evidence in accordance with s.425 of the Migration Act. He asserts that the RRT failed to take into consideration the threats he faced in Bangladesh, including the impact of a fatwa which he alleged he was subject to because of his relationship with a Hindu woman. The applicant also asserts that the RRT presiding member did not have an open mind, which I take to be an allegation of bias. In the light of all of these asserted errors the applicant claims that the decision of the RRT is not a privative clause decision.
Mr Reilly, in his written submissions, dismisses the applicant's assertions in general as an attack upon the merits of the RRT decision. Generally, I agree with him. I accept that it is not open to the Court to review the merits of the RRT’s decision. To the extent that Mr Reilly identifies complaints that rise beyond a simple dispute over the merits of the RRT decision, Mr Reilly deals with those complaints in paragraph 6 of his written submissions. I agree with that paragraph and adopt it for the purposes of this judgment:
Complaint is made (ground 1) that the RRT did not investigate the applicant’s claims and failed to take into account the supporting documents he submitted. However the RRT did investigate the applicant’s claims, and indeed accepted many of them. No clearly relevant and easily accessible information has been suggested that the Tribunal could have investigated within the principles discussed in Luu v Minister for Immigration (2002) 127 FCR 24 (FC) at [50]. Nor is there any reason to suggest that it did not take into account the applicant’s supporting documents, which appear consistent with the RRT’s findings at court book, page 129.6. Complaint is also apparently made (ground 3) that the RRT did not consider a social group claim that seems similar to the applicant’s claim of religious persecution, but no such social group claim was put to the RRT, and it cannot be said to so clearly arise on the material before the RRT that it was nevertheless required to be considered: NABE v Minister for Immigration (No 2) [2004] FCAFC 263. Finally complaint is made that the applicant was denied procedural fairness in that the RRT did not give the applicant an opportunity to respond to “adverse material” (ground 8). This claim is meaningless in the absence of particularisation. The RRT discussed adverse country information at length with the applicant: court book, pages 114-115, but the Court could not infer that any material not mentioned in the RRT’s account of the hearing was not raised with him: NAOA v Minister for Immigration [2004] FCAFC 241 at [21]; Minister for Immigration v NAMW [2004] FCAFC 264 at [121-122]. It is for the applicant to prove what occurred at the hearing if he wishes to rely upon it. The remaining grounds either repeat versions of these complaints or seek merits review.
I questioned the applicant at some length during the hearing this morning in order to satisfy myself whether or not there was any substance in the applicant's claims. Subject to the comments which follow I am satisfied that the applicant is merely concerned about the outcome of the hearing before the RRT rather than with any real legal issues.
The two issues which exercised my mind and which I raised with Mr Reilly were, first, observations made and conclusions reached by the presiding member in relation to whether the harm claimed to be suffered by the applicant would be serious harm under the Convention and the Act in relation to his intended marriage to the Hindu woman and, secondly, the manner in which the presiding member dealt with an apparent charge of embezzlement against the applicant. The presiding member dealt with the mixed marriage claim in the following way on page 130 of the court book. He said:
Dealing with the mixed marriage based claim, there is no supporting evidence of the planned marriage, or the engagement party, or the beating and subsequent injury sustained, other than the applicant's assertion. The independent information, which the Tribunal accepts, is to the effect that the people of Bangladesh are in the majority tolerant, the religious relationships are generally good, the mixed marriages are not uncommon in Bangladesh, that the law specifically recognises them, that Fastwas are required to be in writing (which this one is not) and that protection from them and other sectarian violence is provided by law, albeit more effective in cities than in rural areas. Further while inability to marry the person of one's choice is most unfortunate, the Tribunal is not satisfied that it constitutes serious harm as described in the Act.
On the basis of this information, the Tribunal finds that the applicant has not suffered serious harm as a result of his planned marriage, nor will he if he returns to his country, or his intended becomes a Muslim. The Tribunal also finds that, as the applicant's difficulties are local, re-location in Dhaka or elsewhere is reasonably available to this tertiary educated, business executive and chef who has three languages.
It is not entirely clear to me from that statement to what extent the presiding member found that the applicant's claim of fear was not genuine and to what extent he found that the claim, if genuine, was not well-founded. It appears to be a mixture of both. I take the presiding member to have made a finding that the claim was not genuine but that if the presiding member was wrong the claim was not well-founded because he could relocate, because the harm he feared was not serious harm for the purposes of the Migration Act and because Bangladesh society is more tolerant than the applicant believed.
I have great difficulty reconciling the presiding member's statement that the harm feared by the applicant was not serious harm for the purposes of the Act with my decision in SZANS v Minister for Immigration [2004] FMCA 445. However, even if the presiding member erred in making that finding, and I think he probably did, it was not, in my view determinative of the outcome of the application before the RRT. The presiding member did not believe the applicant's claim. Further, even if the claim was genuine it was not supported by the independent country information. Also, the applicant had the opportunity to relocate to avoid the feared harm.
Even if I am wrong and the finding by the presiding member on the application of the Act was in some way determinative of the claim it would, in my view, be futile to return the case to the RRT for further consideration, having regard to the other findings made by the presiding member. Beyond that, the fact that some eight years have now passed since the applicant left Bangladesh would provide, in my view, a further obstacle to the favourable reconsideration of this claim before the RRT.
The other issue of concern to me was the presiding member's treatment of the alleged false charge of embezzlement. The presiding member asked the applicant about this at the hearing. On page 112 of the court book, the presiding member said:
To set the information in context, the Tribunal asked a number of questions about the applicant's visas for Australia. The Tribunal drew attention to information on file that the applicant originally applied on 19 August 1997 for a visa for Australia as an independent, special skills. He also applied to visit Australia for three months, calling himself an accountant, saying he wished to explore business opportunities while in Australia. The application for a skilled migrant visa, which was investigated further during his time in Australia, was subsequently withdrawn by him on 9 February 2001 following advice by the Department of adverse information. That information was about embezzlement from his former employer. Would he like to comment? The applicant said that he had said in his statement that the embezzlement charges were false, and were initiated by his political opponents in the Awami League.
On page 113 of the court book the presiding member explored the issue in another way with the applicant:
The Tribunal asked why he had waited nearly four years to apply for protection, following events in 1997? He responded that he had been advised that the special skills migrant category was easier for him. When the answer to that was ‘no’, he applied for protection. The Tribunal noted that his passport had been renewed which could be seen as inconsistent with his claim of charges outstanding against him. He said he took his passport to Canberra where he went for a social function. An officer took it from him, a bribe was paid and he said it would be fixed and sent back to him.
In his reasons for decision, the presiding member dealt with this issue in the following way. On page 128 of the court book, the presiding member summarised the applicant's claims of political activity. On page 129 of the court book, the presiding member says:
In Australia he became aware of another false charge, of embezzling hotel funds. His political opponents, the Awami League, arranged for the police to lay the charges. He fears that if he returns, he will be involved again in BNP politics and targeted by the Awami League, who while no longer in government, are still powerful in the area. Hence the police will not protect him.
Later in the page, the presiding member said this about the political claim:
Dealing with the political claim, the Tribunal is satisfied that the applicant has been active in the Bangladesh National Party for many years and has held office in it. The Tribunal is also satisfied, from his evidence and the independent information which it accepts, that whilst in power, the Awami League used the machinery of government, including the police, to target its political opponents and that, during the period he may have been injured or otherwise harmed, as well as having false charges laid against him under the various relevant security acts. The Tribunal accepts too, the independent information that violence is endemic in Bangladesh politics and that all governments have used their power against their opponents.
The above statement goes close to but does not quite reach the point of accepting that the embezzlement charge was a false charge. Later in the page the presiding member goes further. The presiding member referred to the change in government in Bangladesh and then continued:
There is also the conflict between the applicant's Statutory Declaration and his claims and the fact that he delayed from August 1997 to August 1998 before leaving Bangladesh (12 months) and until April 2001 before seeking protection, an option he chose when his special skills visa application was unsuccessful. The Tribunal is also satisfied that, on the basis of his passport renewal, that he was not a person of adverse interest.
The presiding member then went on and ultimately concluded that the applicant would not face serious harm because of his political opinion should he return to Bangladesh.
It was not in dispute in the RRT that the applicant initially sought a skilled migrant visa but abandoned that claim when confronted with the evidence of the embezzlement charge. If the information that led to the applicant withdrawing that visa application was accurate a serious question then arose whether the applicant was entitled to protection under the Refugees Convention at all. Article 1F(b) of the Refugees Convention provides that a person is not entitled to protection under the Convention if he has committed a serious non-political crime outside his country of refuge prior to his admission to that country as a refugee. The presiding member did not consider the issue of the operation of the Convention in these circumstances and made no finding of the question of whether in fact the applicant was a fugitive from justice in Bangladesh who should be returned to that country.
Alternatively, if the charge was a false charge the applicant had explained that he only became aware of it after he came to Australia. This may have been regarded as a plausible explanation for his initial application for a skilled migrant visa. The presiding member did not so regard it. Further, if the charge was a false charge, the applicant had been induced by the Minister’s Department to withdraw his skilled visa application on an entirely false basis. In those circumstances, the RRT could hardly use the withdrawal of that visa application against the applicant. The presiding member did make an adverse finding on credibility based upon the applicant's conduct in initially applying for a skilled migrant visa and later changing his mind and applying for a protection visa.
The question in my mind was whether there was a constructive failure on the part of the presiding member to exercise his jurisdiction without making a clear finding on the status of the embezzlement charge. This might in ordinary circumstances have warranted a grant of relief in the form of a constitutional writ requiring further consideration of the issue by the RRT. However, the applicant told me from the bar table this morning that the embezzlement charge had been heard and dismissed in Bangladesh. He did not have the court documents with him but he said he had them at home. I have no reason to disbelieve him.
As the embezzlement charge has been dealt with by the courts in Bangladesh and dismissed it could no longer provide continuing support to a claim for a protection visa. In the circumstances, it would be futile to return the matter to the RRT for further consideration by reference to the embezzlement charge.
I would therefore decline to provide relief on that basis. Notwithstanding my doubt as to the validity of the RRT decision on this point, I will dismiss the application.
The application having been dismissed, Mr Reilly seeks an order for costs. I agree that costs should follow the event. Mr Reilly estimates the Minister's costs on a party/party basis at $4,500. The applicant seeks a lower award. There have been two hearings in this matter. The applicant filed an originating application and a lengthy amended application which raised many issues. He also filed detailed written submissions. Those required a response from the Minister although Mr Reilly was able to deal with them relatively simply. The Minister was also required to prepare a court book and supplementary court book. I am satisfied that costs of at least $4,000 have been properly and reasonably incurred on behalf of the Minister when assessed on a party/party basis.
I will order that the application be dismissed and that the applicant pay the Minister's costs and disbursements of and incidental to the application, that I fix in the sum of $4,000.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 7 March 2005