SZBGH v Minister for Immigration - [2005] FMCA 68

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBGH v MINISTER FOR IMMIGRATION

[2005] FMCA 68

MIGRATION – Application to review decision of Refugee Review Tribunal – Applicant did not attend Tribunal hearing – no jurisdictional error.

Migration Act 1958

Abebe v The Commonwealth (1999) 162 CLR 510
Kopalapillai v Minister for Immigration (1998) 86 FCR 547

Applicant:

SZBGH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1655 of 2003

Delivered on:

21 January 2005

Delivered at:

Sydney

Hearing date:

21 January 2005

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms R. Pepper

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application is dismissed.
That the applicants pay the respondent's costs fixed in the amount of $3500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1655 of 2003

SZBGH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 24 July 2003 affirming a decision of a delegate of the respondent not to grant the applicants protection visas.
The applicants are mother and daughter, however only the mother made a Refugees Convention related claim. The applicant mother has been appointed the applicant child's litigation guardian in these proceedings.
The background to these proceedings is that the applicants who are from Bangladesh, arrived in Australia on 3 February 2001. On 19 March 2001 they lodged an application for protection visas. The applicant mother (referred to as the applicant) claimed to fear persecution on the ground of her ethnicity. In brief, she claimed that because of her Bihari descent she had lost her citizenship when Bangladesh became independent in 1971 and that thereafter she lived as a stateless member of the Bihari community in a refugee camp. She claimed that whilst at the camp she was harassed and tortured on several occasions by Bangladeshis and Awami League activists, particularly because they could not locate her husband and that in July 1999 the camp was attacked and she was abducted, detained, raped and tortured. She also claimed that in 2000 her eldest daughter was killed when the camp burnt down. She claimed that she escaped from Bangladesh and came to Australia on a false passport given to her by her employer. However, she also produced a Bangladeshi passport in her own claimed name which recorded her permanent address as being in Dhaka in Bangladesh and recorded that she had two children. She claimed that if she returned to Bangladesh she would be at risk of persecution from fanatic Bengalis and Awami League activists because she is a Bihari.
The Tribunal wrote to the applicant on 6 November 2002 at the address provided in her application for review. A copy of the letter was sent to her migration agent as notified to the Tribunal by notice of appointment of person to act as agent dated 17 July 2001. The address to which this notification was sent was in accordance with the applicant's notification of change of address.
The letter of 6 November 2002 advised the applicant that the Tribunal had considered all the material before it relating to the application but was unable to make a decision in favour of the applicant and her daughter on that information alone. The applicant was invited to give oral evidence and present argument at a hearing on 5 December 2002. A request for a joint hearing on that day with the hearing of a separate application for review by her husband was made by the applicant's migration agent, accepted by the Tribunal and notified to the migration agent.
On the day scheduled for the hearing the applicant's migration agent contacted the Tribunal by telephone and advised that the applicant would not be attending. The Tribunal reasons for decision record that the applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear. In those circumstances, pursuant to s.426A of the Migration Act 1958, the Tribunal made its decision without taking further action to enable the applicant to appear before it.
In its reasons for decision the Tribunal set out the applicant's claims and described the material before it, including a written submission provided by the applicant's adviser dated 4 December 2002 and received on 11 December 2002. The Tribunal accepted that the applicant entered Australia on a false passport but was unable to accept that this was because she was a stateless Bihari. It accepted that the other passport she held in the name which she claimed was hers was her genuine and valid passport. The applicant had provided no explanation as to how she managed to obtain a passport in her own name in light of her claims of lost citizenship and statelessness. The Tribunal accepted that the passport accurately reflected her status and indicated that she was a Bangladeshi national and citizen previously living in Dhaka. The Tribunal also accepted that this disavowed the applicant’s claims of statelessness and also of having lived in the refugee camp because her passport indicated that she lived elsewhere. Having found that the applicants were Bangladeshi and citizens of Bangladesh and on the evidence of the applicant mother's passport, the Tribunal was unable to accept that the applicants had lived in the refugee camp as claimed. Consequently it was unable to accept that the applicant was the subject of harassment, abduction, rape or other discrimination and violence as a stateless camp living Bihari. This conclusion was reinforced by the applicant mother's inconsistent and contradictory evidence concerning her employment situation, her access to education outside the Bihari camps and the fact that she delayed by six weeks the making of her application for a protection visa after arriving in Australia.
Accordingly, the Tribunal did not accept that the applicant was persecuted in Bangladesh for being Bihari or that she would face a real chance of persecution if she returned to Bangladesh on that basis. It was not satisfied that she had a well-founded fear of persecution for a Convention reason in Bangladesh.
The applicant sought review by application filed in this court on 19 August 2003. The grounds of review are expressed generally without particulars that the Tribunal made an error of law, denied her procedural fairness and did not take into account her evidence and persecution in Bangladesh. She also contended that her husband and daughter were victims of circumstance and severely persecuted by the Bangladeshi authorities and nationals.
The complaint that the Tribunal failed to take into account evidence and the applicant's persecution appears to raise a claim that the Tribunal failed to make a proper inquiry. This is also apparent from the oral submissions made to the court by the applicant's husband on her behalf. No such jurisdictional error has been established. It is for the applicant to advance whatever evidence she seeks to rely upon in support of her case, Abebe v The Commonwealth (1999) 162 CLR 510 at 90, 187 and 190. No particulars are given in relation to this contention. There is nothing in the circumstances of this case on the material before the court to indicate that this was a situation in which the Tribunal was under an obligation to make further inquiries as contended.
More generally, insofar as it is argued that the Tribunal failed to take into account the applicant's evidence, again there are no particulars. Merits review in not available in this court. The Tribunal considered the evidence before it and made findings of fact concerning the credibility of the applicant's claims that were open to it on the limited material before it. It was entitled to do so in the circumstances: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 558 to 589, WAIJ v MIMIA [2004] FCAFC 74 at [30]. On the material before the court that it has not been established that the Tribunal failed to take into account the integers or elements of the applicant's claims.
The applicant also contends that there was a denial of natural justice without elaboration of how this is said to have occurred. There is nothing in the material before the court to suggest that there was any lack of procedural fairness in the Tribunal procedures or decision. In particular, the applicant was, as indicated above, properly invited to a Tribunal hearing in accordance with the Tribunal obligations under s.425 of the Migration Act and there is nothing in the material before the court to suggest that the notice failed to meet the obligations in s.425A of the Act. Accordingly, the Tribunal properly proceeded under s.426A to make its decision without taking further steps to enable the applicant to appear before it. As the applicant had elected, for whatever reason, not to attend the scheduled hearing, the Tribunal was entitled to proceed in the manner that it did. It is notable that it nonetheless had regard to the material before it in relation to the applicant's claims.
The applicant also claimed that her husband and daughter had been persecuted in Bangladesh. Only the applicant mother made claims to be a refugee in the application under review. No specific convention claims were made by or on behalf of the applicant's daughter. The Tribunal specifically considered the situation of the applicant’s daughter and concluded that there was no basis on which it could be satisfied that she was a refugee as the fate of her application depended on the outcome of her mother's application. As her mother did not satisfy the criteria for a protection visa it followed that the daughter could not be granted a protection visa. No jurisdictional error is apparent in the manner in which the Tribunal assessed the application of the applicant daughter.
The husband of the applicant was not included in the protection visa application under consideration in this Tribunal decision. He had made a separate protection visa application and a separate application for review to the Tribunal as discussed in the Tribunal reasons for decision. The claim by the applicant in relation to her husband's persecution does not establish any jurisdictional error in the Tribunal consideration of her claims. As no jurisdictional error has been established, the application must be dismissed. I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

The unsuccessful applicants should meet the costs of the respondent. This application has, in effect, run in tandem with the application by the applicant's husband, both matters being listed for hearing at the same time. However it dealt with a separate decision of the Tribunal. It required a separate application for judicial review, the production of a separate court book and preparation of written submissions addressing the particular circumstances of the Tribunal decision in issue. There should have been some minor savings in costs because of the conjunction of the two matters and the similar background, although the applications for judicial review were heard separately, one after the other. Given the nature of this and other similar matters in these circumstances I consider that an appropriate amount of costs is $3,500.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 2 February 2005