SZBJQ v Minister for Immigration
[2005] FMCA 626
•12 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBJQ v MINISTER FOR IMMIGRATION | [2005] FMCA 626 |
| 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 |
| Minister for Immigration v Jia Legeng (2001) 205 CLR 507 Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 |
| Applicant: | SZBJQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1795 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 12 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 May 2005 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondent: | Ms R Pepper |
| 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 |
SYG1795 of 2003
| SZBJQ |
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”) completed on 9 July 2003 and handed down on 6 August 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 are contained in written submissions prepared by Ms Pepper on behalf of the Minister. I adopt by way of background paragraphs 2-8 of those written submissions:
The applicant was born in Bangladesh and claims to be a citizen of that country. The applicant arrived in Australia on 10 March 2003. On 3 April 2003 he lodged an application for a visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Migration Act”) (court book, pages 1- 29).
The applicant claims persecution on the ground of political activity. In brief, the applicant claims that he was a member and office holder of the Jatiya Party (“JP”) and was persecuted as a result.
In his written statement accompanying his visa application (court book, pages 27-28) the applicant claims that he led demonstrations, worked for an election candidate and was at the forefront on the campaign to have General Ershad released from prison. He also claims that activists from the Bangladeshi Nationalistic Party (“BNP”) attacked the applicant in 1994 leaving him unconscious and that he required treatment in a clinic for two days. He states that his brother reported the attack to the police but that they did not take any action. He further claims that false cases were lodged against him so he fled to Bangladesh in 1996.
Finally, the applicant claims that while overseas the applicant sent money to JP candidates and his house was ransacked by Awami League (“AL”) members. Then when the applicant returned to Bangladesh in 2002 he found that false cases were still pending against him and the police raided his house on several occasions but that he managed to escape each time. The applicant stated that if he were to return to Bangladesh he would be arrested.
RRT decision and proceedings
Before the RRT the applicant additionally stated he had been attacked twice after he returned to Bangladesh (court book, page 198.3). When asked by the RRT why he had not mentioned this in his visa application the applicant stated that he had forgotten to tell his adviser this (court book, page198.4).
The Tribunal, accepting that the applicant was a national of Bangladesh (court book, page 201.5), was not satisfied on the evidence before it that the applicant had a well founded fear of persecution for a Convention reason. This was because the RRT did not find the applicant to be a credible or reliable witness (court book, page 201.5). In so finding, it rejected the applicant’s claims of memory loss which he advanced as an explanation for presenting new claims at the hearing (court book, page 203.1).
In particular, the RRT:
a)rejected the claim that the applicant was a member of the JP because he could demonstrate virtually no knowledge of the party (court book, pages 201.5 – 201.2);
b)found it implausible that as a JP member he would leave Bangladesh at a point in time when a neutral caretaker government was in power with elections held shortly thereafter, whereupon a pro JP government was elected (court book, page 202.3);
c)found it implausible that the applicant, if he genuinely feared persecution, would return to Bangladesh within months of the BNP winning a general election particularly when there was no compulsion to do so (court book, page 202.5);
d)found that the applicant gave internally inconsistent evidence, for example, he claimed at the hearing to have been attacked twice on his subsequent return to Bangladesh but failed to make this claim in his protection visa (court book, page 202.7) and failed to mention during the hearing until prompted, his claim that he would be arrested if he returned to Bangladesh (court book, page 202.8); and
e)concluded that the applicant had fabricated his claims in an attempt to fit himself within the definition of a refugee (court book, page 203.2).
The applicant relies upon an amended application filed in court by leave on 16 August 2004. That amended application asserts that the RRT was bound to consider, in assessing the chance of the applicant being arrested and persecuted in his return to Bangladesh, the fact that he was a political activist in Bangladesh. The amended application asserts that the RRT’s satisfaction on the question of whether he was entitled to a protection visa was not based upon reasoning which provided a rational or logical foundation for that belief. The amended application promised further details after the applicant received legal advice.
The applicant confirmed to me this morning that the amended application replaces the original judicial review application filed on 2 September 2004. That application was defective in that while it asserted jurisdictional error in general terms, it contained no particulars. No doubt, in light of that defect, the Minister sought last year to have the original judicial review application summarily dismissed. That application was unsuccessful. I considered that the issue raised in the amended application merited a hearing.
The amended application is supported by written submissions filed in court today by the applicant. Regrettably those written submissions bear only a tenuous relationship with the applicant's protection visa claims and the RRT’s examination of them. The applicant told me that the written submissions were prepared by a friend and that he did not pay any money for them. I noted that the applicant had formerly been assisted by Mr Sirajul Haque and I inquired whether the submissions had been prepared by Mr Haque. The applicant told me that Mr Haque had been earlier involved in assisting him, but that these submissions were not produced by Mr Haque. The applicant's written submissions are of no assistance in dealing with the issue raised in the amended application. It is difficult to say that they even go to the merits of the RRT decision. That is because the RRT decision was based on an adverse credibility assessment. The written submissions do not address that credibility assessment. The written submissions simply talk about what is said to be the situation in Bangladesh at a political level and assert errors made by the RRT in general terms.
The applicant also relies upon a document filed in court on 16 August 2004 in opposition to the Minister's summary dismissal application. While that document raises a number of legal issues, it does not deal with the ground of review in the amended application.
Ms Pepper has dealt with the applicant's arguments as best she understands them in paragraphs 11 to 18 of her written submissions. There is no substance to the argument of irrationality in the amended application. The adverse credibility finding made by the presiding Member on page 201 of the court book[1] was clearly open to the presiding Member on the material before her. To the extent that the other issues raised by the applicant are in any way relevant to the determination of the judicial review application, I agree with and adopt paragraphs 11-17 of Ms Pepper's written submissions as follows:
[1] and confirmed on page 203 of the court book
The applicant does not provide any details of how it is said that the RRT denied him natural justice. In the absence of any additional particulars this ground ought to be dismissed.
Insofar as it seems to be alleged that the RRT did not give the applicant the opportunity to comment on the DFAT independent country information (court book, page 200.6), the respondent submits that there is no evidence that it was not discussed with the applicant and in any event the information was not required to be discussed with applicant pursuant to s.424A(3)(a) of the Act (the application for review by the RRT having been filed after 4 July 2002).
Accordingly, this ground of review should be rejected.
Incorrect translation
The applicant contends that “a number of areas of translations were not taken place properly” (see paragraph 4 of the grounds in the original application). In the absence of further detail this is nothing more than a bald assertion that must be rejected. There is no evidence whatsoever before the Court that there were any translation problems or that they had any bearing on the outcome of the RRT proceedings.
Bias
It is suggested by the applicant in his Arguments for Competency that he “was suspicious about the neutrality of the member” and thus that the RRT was presumably biased. No particulars are given of this ground. Because the applicant has not identified any material or findings in support of the claim and there is no evidence in the present case of an actual state of mind of the RRT which would constitute actual (Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [71]-[72]), or even apprehended, bias (Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at 344), this ground of review ought to be rejected.
Failure to take into account relevant considerations
This ground of review is raised in relation to paragraphs 4 and 8 of the Arguments for Competency and 2 of the amended application. Again insufficient particulars have been given as to what facts the RRT is alleged to have failed to properly, or at all, considered in making its decision.
Insofar as the complaint in paragraph 2(a) of the amended application is concerned, the RRT did not need to consider “the chance of the applicant being arrested on his return to Bangladesh based on the fact that he was a political activist in Bangladesh” because the RRT found as a matter of fact that the applicant was not a political activist and that he had fabricated his claims in this regard (court book, pages 201.6 and 203.2). This ground of review ought therefore be rejected.
There is no jurisdictional error in the decision of the RRT. The decision is therefore a privative clause decision. I must dismiss the application and I do so.
On the question of costs, the application having been dismissed, Ms Pepper seeks a costs order fixed in the sum of $4,000 on a party and party basis. I understand the applicant opposes an order for costs because of his impecuniosity. That, however, is not a reason for the Court to refrain from making a costs order. I am satisfied that costs of not less than $4,000 have been reasonably and properly incurred on behalf of the Minister in this matter when assessed on a party and party basis. In making that assessment I take into account the costs order previously made by me on 16 August 2004. The costs order I make today is additional to that costs order.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, fixed in the sum of $4,000. I note that that costs order is in addition to the costs order made by the Court on 16 August 2004.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 May 2005
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