SZBHO v Minister for Immigration

[2004] FMCA 907

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBHO v MINISTER FOR IMMIGRATION [2004] FMCA 907

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Abebe v the Commonwealth (1999) 197 CLR 510
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263

Applicant: SZBHO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1701 of 2003

Delivered on: 18 November 2004

Delivered at: Sydney

Hearing date: 18 November 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr JD Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed.

2. That the applicant pay the respondent’s costs set in the amount of $4,200. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1701 of 2003

SZBHO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This an application for review of a decision of the Refugee Review Tribunal handed down on 25 July, 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant, who is a citizen of Bangladesh, arrived in Australia on

   
   

   3 October 2001 and lodged an application for a protection visa on

   
   

   12 November 2001.  That application was accompanied by a statutory declaration in relation to the applicant's claims and a statement that relevant documents were to follow.  The Department's delegate wrote to the applicant on 11 January 2002 seeking comment on a number of issues. 

2. The applicant's migration agent responded by letter dated 13 February 2002 which included copies of some documents in support of the applicant's claims.  The Department made a decision on 18 February 2002 refusing his application in which it noted that he did not receive any evidence in support of his claims despite the time that had elapsed since the filing of the application and that the delegate was not prepared to delay further.  The applicant sought review of the delegate's decision by application lodged with the Tribunal on

   
   

   12 March 2002 in which he stated that he would provide a detailed submission in support of his claim as soon as possible. 

3. On 20 January 2003 the Tribunal wrote to the applicant advising him that it had considered the material before it but was unable to make a decision in his favour on that information alone.  The Tribunal invited the applicant to a hearing.  Included in the letter was an invitation to the applicant to send any new documents or written arguments he wanted the Tribunal to consider.  Although the invitation was dated

   
   

   10 January 2003 the hearing was not scheduled until 27 May 2003.  On 27 January 2003 the applicant's migration agent responded to the hearing invitation indicating that the applicant would attend and was willing to provide some more relevant documents as soon as possible that may help for the appropriate assessment of his claim. 

4. There is nothing in the material before the Court which would suggest that any further documents were provided by the applicant to the Tribunal.  The Tribunal held a hearing. 

5. The applicant claimed in support of his application that he was a member of the Awami League being was an office bearer who had come to the attention of the authorities in 1981.  He claimed that he fled to Dubai to escape arrest and detention in 1982 and while in Dubai continued his political activity joining the Dubai branch of the Awami League and becoming organising secretary in 1985. 

6. After the military government in Bangladesh was replaced by a parliamentary democracy he returned to his country a few times but claimed that on each occasion he faced opposition from anti-liberation supporters as well as from the BNP government.  After the Awami League came to power in Bangladesh in 1996 he returned to the country and claimed that he became involved in local politics and took an office in his party.  However, he claimed that he was severely beaten by opposition thugs in 1998 and that his family and home were attacked and a false case filed against him. 

7. He left Bangladesh again in 2000 and returned in September 2001.  He was again attacked by BNP thugs.  He then left Bangladesh on

   
   

   21 September 2001.  He claimed that since the October 2001 election of the BNP to government, Awami League activists were being targeted, killed and harassed and that the authorities were taking no actions to prevent this.  He claimed to fear for his safety if he returned and that he would be targeted as part of the government crack-down on Awami League workers or people active against the government. 

8. The Tribunal found that on his own account the applicant had spent most of his time between 1982 and 2001 on his own account, living and working in Dubai.  It noted that his evidence at the hearing had differed significantly from his written claims and considered that his claims at hearing represented his case.  It accepted that he was a supporter of the Awami League but was not satisfied that he was a member or office bearer for the Awami League since he knew little about the organisation and policies of the League, contrary to what would have been expected of an office bearer.  While noting the copies of letters from various Awami League organisations that the applicant had provided, in the overall context of the evidence at the hearing, the Tribunal gave little weight to the information in those letters.  The Tribunal found that much of the applicant's evidence was vague, inconsistent and contradictory.  It did not accept that he became involved in the Awami League when he went back to Bangladesh, that he was targeted for harm by BNP supporters or that he went into hiding when he returned to Dubai in 2000.  It found aspects of his claims to be implausible and from its observations of the applicant during the hearing, formed the view that he fabricated his evidence as the hearing continued. 

9. However, the Tribunal went on to consider the situation if the applicant were to return to Bangladesh as an Awami league supporter.  It found on the basis of country information regarding the nature of the BNP Government and its attitude to Awami League members as well as the nature and constitution of the Awami League, that as the applicant had not been involved in Awami League politics as a member or office bearer, he did not have a profile which would result in mistreatment by members of the BNP or the present government were he to return.  It also had regard to the fact that independent evidence indicated that political violence between members of the main political parties resulting in civil strife had become a routine feature of the political process and that those who take part in activities such as political street demonstrations are well aware of the risks of violence but found that political workers who engage in legitimate political activities usually have little or nothing to fear from rival political groups. 

10. It considered the applicant's specific claim that he was injured in a public protest meeting in 1998 and was satisfied if that occurred as alleged, the essential and significant reason for the harm was because of his participation in a street procession where it was highly likely that such violence would take place.  It found that if he returned to Bangladesh his chance of facing persecution for reason of political opinion was remote.  Country information indicated that Bangladeshis were free to support the Awami League and express their political opinions and be involved in political activities without being victims or perpetrators of violence and there was no evidence that former or current supporters of the Awami League were at risk of persecution under the BNP Government since October 2001.  For these reasons the Tribunal affirmed the decision of the delegate. 

11. The applicant sought review of the Tribunal decision by application filed in this Court on 22 August 2003.  He filed an amended application on 16 April 2004.  He has not filed any other evidence or filed written submissions.  However, the amended application is quite lengthy and raises a number of grounds each of which have been addressed at some length by the respondent's written submissions. 

12. The first ground is expressed generally as a contention that the Tribunal made an error of law amounting to jurisdictional error.  It makes a number of allegations.  The first is that the Tribunal did not consider that the applicant was targeted by BNP activists.  However, that is not the case.  The Tribunal did address this claim and rejected it.  Insofar as the applicant in this and in other claims takes issue with the merits of the Tribunal decision, merits review is not available in this Court.  The applicant also claimed that the Tribunal had failed to consider the documents he submitted as evidence in support of his claim.  Again, this is not established.  The Tribunal did consider the documents but gave them little weight in light of the overall context of his evidence at the hearing.  The question of the weight to be given to particular items of evidence is a matter for the Tribunal. 

13. The applicant takes issue with the Tribunal's use of independent country information, contending that such reports do not cover every political persecution related to all anti-government activists and the persecution experienced by a person like him.  First, the Tribunal findings were open to it on the material before it including the independent information.  Secondly, as is apparent from the Tribunal reasons for decision, which is the only material before the Court as to the conduct of the hearing, the Tribunal discussed relevant country information with the applicant, including information on the current political situation and political violence in Bangladesh.  Hence he had an opportunity to comment on such information and its relevance to his claims.  No jurisdictional error is established as contended. 

14. The applicant also contended that the decision would be different if the Tribunal would investigate the genuineness of his claim and take into account the supporting documentation.  The Tribunal did not fail to take into account the supporting documentation.  This is not a case in which there is anything on the material before me to suggest that the Tribunal either undertook or was required to make further inquiries to investigate the applicant's claim.  It is well established that a decision-maker has no duty to make his or her own inquiries in order to make out the applicant's case.  (See Abebe v the Commonwealth (1999) 197 CLR 510 at [187], per Gummow and Hayne JJ). There is nothing in the material before me to suggest that there was any material readily available, centrally relevant to the decision which the Tribunal might be under some obligation to consider or obtain. (Cf Prasad v MIEA (1984) 28 6 FCR, 155 at 170 per Wilcox J).

15. The second ground relied on by the applicant was that the Tribunal failed to consider that he had real chance of persecution for a Convention reason in Bangladesh because of his relationship with the Awami League.  The ground goes on to state that the applicant wished to inform the Court that his peer political activists were being targeted by the authority since the 2001 election and that that was not considered by the Tribunal.  The Tribunal did consider whether the applicant had a real chance of persecution for a Convention reason in Bangladesh.  It also considered the situation since 2001.  Having rejected the applicant's claims that he was a member or office bearer in the Awami League, it considered the present and future situation on the basis that he was an Awami League supporter.  This ground does not establish a jurisdictional error. 

16. In ground three, the applicant contends that the Tribunal failed to consider his well-founded fear of persecution owing to membership of a political group in opposition.  However it is the precisely the claim of membership of the Awami league that the Tribunal considered and rejected.  The applicant also claimed that the Tribunal erred in not considering the amount of discrimination he would experience on return to Bangladesh in every sphere of his life and liberty.  However, this was not the claim made by the applicant either in connection with his original protection visa application or in the Tribunal hearing (according to the Tribunal reasons for decision).  The applicant had claimed that he would be targeted as part of a government crack-down on people active against the government, that pro government or political activists would be vindictive against him and that he feared for his safety on return, that activists would use the Special Powers Act to intimidate political opponents and repress Awami League activists and that the government would create a Draconian law and use hooligans to harass political opponents.  There is nothing in the material before the Court to suggest that the applicant made a claim in the terms expressed in ground 3 of his application relating to a suppression of his human rights in every sphere of his life and liberty.  As the Full Court observed in the decision of NABE v MIMIA (No.2) [2004] FCAFC 263 at [55] – [68], before a claim must be considered it must emerge clearly from the material before the Tribunal. It has not been established that the Tribunal failed to take into account relevant considerations or in the sense of the integers of the applicant's claims.

17. Ground four contends that the Tribunal reached its decision on the basis of the applicant’s political and organisational knowledge.  It seems that this is a complaint that it was not possible for the applicant to present everything at the hearing, not being a highly qualified person, being in a different environment and not feeling comfortable but rather nervous.  Insofar as this is an attack on the merits of the Tribunal's finding as to the extent of his political knowledge it seeks merits review and does not establish jurisdictional error.  Insofar as it takes issue with the conduct of the hearing there is nothing in the material before me to suggest that there was anything in the manner in which hearing was conducted which would establish a claim of a lack of procedural fairness. 

18. Ground five complains that the Tribunal reached its decision without further investigation.  As indicated above this is not a case in which further investigation was required.  In any event, contrary to what is asserted in the ground, the Tribunal did not find that the documents relied on by the applicant were vague, inconsistent and contradictory, but rather that it was his oral evidence that was of this nature. 

19. In Ground six the applicant claims that the Tribunal did not properly consider whether non-violent harassment can fall within the notion of ‘serious harm’ under section 91R of the Migration Act 1958. The claims made by the applicant related to his safety. He was worried about his safety because some of his colleagues had been killed and because he claimed that he had been badly bashed in the past. He expressed concern about his safety. He wanted to establish a business in Bangladesh but was not able to because of all the political problems. The applicant did not make a claim in terms of, or raising issues, of non-violent harassment in the manner contended in ground six. Accordingly, while the Tribunal may have been required to consider the application of section 91R had such an issue been raised, in this case there was no error in the Tribunal proceeding without express consideration of whether non violent harassment could constitute serious harm within section 91R.

20. In ground seven, the applicant again complains about the Tribunal's failure to make inquiry, first into the obligation to act according to substantial justice (sic).  This aspect of the claim does not establish any ground for review.  The second complaint is that the Tribunal failed to inquire into the applicant’s membership of a particular political group although he had provided substantiating details and documents.  However there is no obligation on the Tribunal to make such inquiries and it is notable that in the course of the Tribunal hearing the Tribunal in fact raised with the applicant its concern that much of his story was implausible and that there were unexplained inconsistencies.  This gave him an opportunity to comment.  No error is established. 

21. In ground eight the applicant complains that the Tribunal failed to accord him procedural fairness in not giving him any opportunity to respond to any adverse material that it possessed.  There are no particulars and the applicant did not expand on this ground in submissions.  It is not evident what documents or information the applicant is claiming that he was not given an opportunity to address.  Moreover the Tribunal expressly stated, as I have indicated, that it discussed relevant country information with the applicant in the course of the hearing. 

22. Ground nine very generally suggests that the Tribunal reached its conclusion and formed a requisite state of satisfaction not by a correct application of the applicable law.  There is nothing in the material before me to suggest that the Tribunal failed to understand the task that was before it and to apply the applicable law. 

23. Ground ten is that the Tribunal constructively failed to exercise its jurisdiction in arriving at its decision.  This ground is so lacking in particularity as to be incapable of further consideration.  It does not establish a jurisdictional error nor is any constructive failure apparent on the material before me. 

24. Ground eleven complains that the Tribunal exceeded its jurisdiction; first by not permitting him to give evidence in accordance with section 425 of the Act.  This claim is clearly contrary to the evidence.  The Tribunal invited the applicant to a hearing.  The applicant attended a hearing and had the requisite opportunity to present argument and give evidence.  It is then contended that the Tribunal erred in that it failed to take into consideration the threat to the applicant’s life and liberty and the significant discrimination he would face on return for membership of the Awami League.  Again this does not establish an jurisdictional error.  The Tribunal rejected the claim that the applicant was a member of the Awami League and so did not have to consider any significant discrimination that a person would suffer on that basis.  The next aspect of this claim is not established.  Contrary to the applicant's assertion, the Tribunal did consider whether the applicant had a well-founded fear of persecution for a Convention reason on return to Bangladesh but found that he did not.  The applicant contended that these circumstances meant that he was not accorded procedural fairness.  This is not established on the material before the Court. 

25. Nor does the claim that the Tribunal had taken isolated incidents and facts out of context which were misleading and failed to take into account the cumulative effect of the applicant's experience establish a jurisdictional error. The Tribunal considered but rejected most of the applicant's claims. As counsel for respondent pointed out, in such circumstances there was no obligation on the Tribunal to assess the criteria under section 36(2) of the Migration Act on the basis of all the applicant’s claims as if they were accepted.

26. The Applicant also contended that the Tribunal failed to make proper attempts with an open mind to clarify alleged inconsistencies and resolve any contradiction in a further hearing or to give him an opportunity to make an explanation.  This ground is not supported by any evidence and is contrary to the Tribunal account of what occurred in the Tribunal hearing.  In particular the Tribunal reasons for decision record that at one point the applicant told the Tribunal that he did not have the scope to tell his story at the hearing.  The Tribunal invited him to go ahead and tell his story.  The Tribunal also brought to the applicant's attention its view that much of his story was implausible and that there were many unexplained inconsistencies.  There is nothing in the material before me to suggest that there was any reason for the Tribunal to give the applicant a further hearing.  In so far as there is an allegation of bias implicit in this ground, it is not supported by any evidence. 

1. In oral submissions today the only issue addressed by the applicant, apart from the merits of the Tribunal decision, was a claim that the Tribunal provided him with insufficient opportunity to be heard, that he was not mentally prepared at that time and that he wanted further time to submit further documents, in particular documents that he had not had available to him at the Tribunal hearing because of the circumstances of his family in Bangladesh. 

2. I have recounted the circumstances leading up to the Tribunal hearing.  From those circumstances it is apparent that, certainly by no later than the time of the delegates' decision, the applicant was on notice that his claims and evidence to date were not sufficient to satisfy at least that decision-maker of his claim.  This was also spelt out in the letter from the Tribunal inviting him to a hearing which was sent on 10 January 2003.  In that letter the Tribunal stated that it had considered the material before it in relation to the application but was unable to make a decision in his favour on that information alone.  Despite a suggestion in the review application that a detailed submission would be provided, and a suggestion by his migration agent in January 2003 that some more relevant documents would be provided, that did not occur.  Moreover in the Tribunal hearing the Tribunal raised relevant issues with the applicant, gave him an opportunity to put his case as he wished to do and put relevant material such as the country information to him for comment.  There is nothing in the material before the Court to suggest that the applicant raised with the Tribunal the complaint that he now raises, that is that he was not mentally prepared at the time of the hearing.  Nor did he seek an adjournment or an opportunity to put further material before the Tribunal.  The only comment of such ilk is a remark that he could not go back to Bangladesh because he could not think clearly, that there was too much stress and that it was very comfortable in Australia and the health system was very good.  There is nothing in the material before me to suggest that the applicant sought to put any further material before the Tribunal after the Tribunal hearing in the time before it handed down its decision.  On all of the material before me and in particular in light of the considerable time that elapsed between the protection visa application in November 2001 and the handing down of the Tribunal decision in July 2003, I am satisfied that the applicant had every opportunity to make his case, to put forward relevant documents and to answer information put to him. 

3. More generally, the Tribunal findings, in particular the findings of fact based on its findings as to the credibility of the applicant and its assessment of the current political situation in Bangladesh were open to the Tribunal for the reasons that it gave.  No jurisdictional error has been established and the application must be dismissed.  I will hear submissions in relation to costs.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  The respondent seeks that he pay the costs of these proceedings.  There is nothing in the material before me to warrant departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.  The applicant raises his lack of money because he says he does not work.  That is not a reason for not awarding the costs although it may be a matter taken into account by the respondent in determining how and when to seek to recover the costs.  In light of the nature of this and other similar matters, I consider that the amount of $4,200 which is sought is appropriate. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  9 December 2004