SZBGC v Minister for Immigration
[2005] FMCA 307
•10 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBGC v MINISTER FOR IMMIGRATION | [2005] FMCA 307 |
| MIGRATION – Review of RRT decision – where applicant claims to have a well-founded fear of persecution for Convention reason of political opinion – where Tribunal found that applicant’s political activities were of a low level and would not suffer persecution for his beliefs – where Tribunal found that applicant could relocate within Bangladesh – whether Tribunal failed to provide the applicant with particulars of certain country information relied upon – whether Tribunal considered whether the applicant would face persecution if returned to Bangladesh – whether the findings and reasons of the Tribunal evidence jurisdictional error or lack of procedural fairness. |
| Migration Act 1958 (Cth), s.424A Federal Magistrates Court Rules 2001 |
| The Minister v NAMW [2004] FCAFC 264 Abebe v The Commonwealth (1999) 197 CLR 510 |
| Applicant: | SZBGC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1650 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 10 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 10 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Counsel for the Respondent: | Mr A McInerney |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to 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 |
SYG 1650 of 2003
| SZBGC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh. He arrived in Australia on
8 October 2001. On 20 November 2001, he lodged an application for a protection (class XA) visa with the Department of Immigration, Multicultural and Indigenous Affairs. On 23 February 2002 a delegate of the Minister, having previously sent the applicant a detailed letter containing material which may lead the decision-maker to reject his application [CB 44] – [CB 47], did reject his application. On 27 March 2002 the applicant applied for a review of that decision. The applicant provided, through his migration agent, material to the Tribunal [CB 67 et seq] and the Tribunal held a hearing which the applicant attended. On 24 June 2003, the Tribunal determined to affirm the decision of the delegate and handed that decision down on 22 July 2003.
The applicant's claim to have a well founded fear of persecution for the Convention reason of political opinion arose out of his claimed membership of the Jubo League of the Awami League and later, his membership of the Awami League itself. The applicant claimed that he had come from a politically involved family and that his brother who was a leading activist for the Awami League had been murdered by BNP party supporters in July 1999. He claimed that as a result of this, his family were targets of the BNP and his surviving elder brother had moved to another part of the country.
The applicant claimed that he had been attacked on 9 September 2001 when taking part in a procession and was confined to a clinic for three days. He claimed to have been arrested on 15 September for taking part in another procession and was released on the payment of a bribe. On 17 September 2001, his father was kidnapped and beaten before being released. The applicant claims that complaints were made to the police but nothing was done. The applicant claimed that he would be persecuted if he returned to Bangladesh.
The Tribunal took the applicant through his claims and through the documents which he had provided in support of them. These included a document purporting to be the death certificate of his brother, a document purporting to confirm that he was a member of the Jubo League and some photographs. The Tribunal at [CB 92] – [CB 93] took up with the applicant those matters upon which it had concern.
At [CB 94] the Tribunal discussed relevant country information with the applicant and on the same page refers to the documents produced by him. The Tribunal sets out in later pages some independent country information upon which it relied that was known to the applicant because it was also referred to by the delegate and appears to have been pointed out to the applicant by the Tribunal itself.
The Tribunal's findings and reasons are set out between [CB 104] – [CB 107]. Although it accepts that he was a supporter of the Awami League and had joined the youth wing of that political party, it was not satisfied that he was an office bearer of the Jubo League or of the Awami League. The Tribunal's reasons for coming to that conclusion are clearly set out and based upon the evidence available to it.
The Tribunal expresses doubt about the evidence concerning the applicant's brother and notes at [CB 105] that:
“Those who take part in such demonstrations are well aware of the risk of violence. Political workers who engage in legitimate political activities usually have little or nothing to fear from rival political groups …With respect to the applicant's brother's death the police investigated and arrested persons in relation to the death. There appears to be no failure of state protection in this particular case.”
The Tribunal was not satisfied that the applicant's brother's death made the applicant a target for the BNP. It noted that the applicant could not give a plausible reason as to why this should be the case [CB 105]. The Tribunal could not be satisfied that the applicant's father had been kidnapped or beaten for any convention related reasons [CB 106].
Finally the Tribunal declared itself satisfied that the applicant's involvement in politics was at a very low level and that he did not have a profile which would result in his mistreatment by members of the BNP or the present Government of Bangladesh. As a result the Tribunal was not satisfied that he faced harm throughout Bangladesh for reasons of his political activities on behalf of the Awami League or for his political opinions.
The Tribunal then came to a separate finding that in the event that the applicant did not wish to return to the place of his former residence he could relocate to another part of Bangladesh where he would not be well known and that such relocation would be reasonable. I note in regard to this matter that the applicant's own evidence was that his brother had relocated and I believe that this gives support to the Tribunal's finding in regard to the applicant himself.
The applicant filed an application in this Court on 18 August 2003. The form of that application would be familiar to persons dealing with matters of this nature. It contains no particulars of the claims and the applicant was ordered to file an amended application. This was done on 24 February 2004. There are three grounds. The first is that the Tribunal failed to accord the applicant procedural fairness. The second is that the Tribunal did not follow proper procedures and the third is that the Tribunal fell into jurisdictional error in assessing whether or not the State was able to offer adequate protection if the applicant returned.
Five sets of particulars were provided. The first was that the Tribunal did not provide the applicant will particulars of information in Australian Embassy reports or other adverse materials which form part of the reason for the Tribunal's decision. It is quite clear from the Tribunal's decision that this allegation cannot be sustained. The applicant was well aware of the independent country information which might have been relied on by the Tribunal from the letter from the delegate and from the Tribunal's own reference to it. In any event, all that material seems to me to fall within the exception found in s.424A(3)(a) of the Migration Act: see The Minister v NAMW [2004] FCAFC 264 at [127] – [139].
The second complaint particularised is that the Tribunal Member erred in not finding that the delegate of the respondent had not dealt with a key component of the applicant's claim namely, the serious persecution he would face if he returned to Bangladesh in the foreseeable future. Of course, the hearing before the Tribunal is a hearing de novo, it is not an appeal from the decision of the delegate. I am satisfied that this Tribunal did consider whether the applicant would face serious persecution if he returned to Bangladesh and justifiably came to the view that he would not.
The next two particulars indicate quite clearly that the document entitled “Amended Application” was not produced for the purposes of this case but in all probability for some other case in which complaints about alleged false documents created for the purposes of attempting to establish that false charges had been brought against an applicant were made. I asked the applicant whether he had prepared the document himself and he told me that he had not. I asked him whether he could read it and he told me he could not.
At some stage a Court with more authority than this may opine upon the necessity of having to deal with applications which are clearly not in the ownership of the applicant, of which the applicant has little knowledge and which do not respond to the facts of his or her case. Until such time as that occurs I would be disinclined to dismiss the case purely on those grounds.
What is clear from the document and from what the applicant said to me in the hearing is that no challenge was raised to the finding by the Tribunal that he could relocate. This seems to me to be fatal to the applicant's claim because no jurisdictional error is alleged in respect of it and it is an answer to his claim for asylum. The application can and should be dismissed on this basis alone but it is appropriate for me to indicate that I would have dismissed it on the basis that no jurisdictional error is shown in any other area of the Tribunal's decision.
The matters raised by the applicant orally were discursive of the factual findings of the Tribunal and these are not matters which ground jurisdictional error: Abebe v The Commonwealth (1999) 197 CLR 510. I dismiss the application. I order that the applicant pay the respondent's costs which I have assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 16 March 2005
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