SZBJZ v Minister for Immigration
[2005] FMCA 639
•13 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBJZ v MINISTER FOR IMMIGRATION | [2005] FMCA 639 |
| 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.430 |
| Minister for Immigration v Jia Legeng (2001) 205 CLR 507 |
| Applicant: | SZBJZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1842 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 13 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2005 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondent: | Mr J D Smith |
| Solicitors for the Respondent: | Blake Dawson Waldron |
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 |
SYG 1842 of 2003
| SZBJZ |
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”). The decision was made on 21 July 2003 and handed down on 14 August 2003. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. Relevant background facts are set out in written submissions prepared on behalf of the Minister by Mr Smith. I adopt as background paragraphs 3-9 of those written submissions:
The applicant is a citizen of Bangladesh who arrived in Australia on 30 December 2002 and lodged an application for a protection visa on 29 January 2003. He claimed to fear persecution for reason of his political opinion and in particular his support and activities involving the Jatiya Party in Bangladesh. He claimed that he had been attacked on this account in 1990, 1994 and 1995. In 1998 the applicant’s wife was threatened by extremists of the opposite party who demanded to know the whereabouts of her husband. He also claimed to be the subject of false cases brought against him by his political opponents.
On 3 April 2003 a delegate of the respondent decided to refuse to grant the applicant a protection visa because he had been able to leave Bangladesh legally on a passport in his own name and had never been convicted of any offence in that country. Further the delegate found that the applicant would reasonably be able to relocate within Bangladesh and also that his delay in applying for refugee status was inconsistent with that of a person who has a genuine fear of persecution in his home country [court book, page 57].
On 10 April 2003 the applicant applied to the RRT for review of that decision and on 10 July 2003 attended a hearing held by the RRT and gave evidence and made submissions in support of his claims. The RRT handed down its decision on 14 August 2003.
RRT’s decision
The RRT found that the applicant had fabricated his claims in an attempt to create for himself the profile of a refugee [court book, page 88.7]. It did not accept that the applicant had ever been politically active in Bangladesh, principally because he was unable to demonstrate much knowledge of the history of the parties that he had claimed to join. In addition, the applicant’s history of travel between 1997 and 2002 (coming to Australia on some 20 occasions, and also travelling to a number of other countries including several European countries) showed that he had not, during that period, feared persecution for a Convention reason in Bangladesh because if he had, he would have sought protection during that time.
The RRT did not accept that the applicant had ever been physically attacked for reason of his political activity with the Jatiya Party or that his home or other property was raided and it was not satisfied that he would become involved with the party if he returned to Bangladesh [court book, page 88.1].
The RRT found that even if the applicant had been a member of the Jatiya Party and was active in the 1980s, by his own evidence, his activities effectively ceased in 1991. For this reason the RRT rejected the claim that there was any continuing adverse interest in him by reason of his former political activities.
Having rejected the applicant’s factual claims the RRT found that the applicant did not have a well-founded fear of persecution and so was not a person to whom Australia had protection obligations under the Convention. For this reason the RRT affirmed the decision of the delegate.
The applicant relies upon his amended application filed on 7 March 2005. As Mr Smith observes in his written submissions the amended application is discursive in nature. However, three assertions can be identified in it. The first is that the presiding member was actually biased. The second is that the RRT proceeding was unfair. The third is that the RRT misunderstood or misapplied the test for the determination of who is a refugee.
The amended application also contains what might be described as written submissions. The applicant did not wish to make any oral submissions. The amended application is dealt with by Mr Smith in his written submissions in paragraphs 10-20. I agree with and adopt for the purposes of this judgment those submissions dealing with the issues of bias and procedural unfairness (or a breach of the rules of natural justice):
The applicant alleges actual bias by reason of the fact that the RRT relied simply on the delegate’s decision and did not undertake its own review of the applicant’s claims. The assertion underlying this ground is clearly inconsistent with any reasonable reading of the RRT’s Statement of Reasons. Before turning to those reasons, it is important to note that an assertion of actual bias is a very serious matter and cannot be made unless clearly stated and clearly proven. In Minister for Immigration v Jia Legeng (2001) 205 CLR 507 Gleeson CJ and Gummow J said, at 532 [72]:
The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.”
Ordinarily, it is very difficult to establish bias merely from an examination of the Statement of Reasons from the RRT. That is principally because the Statement of Reasons is prepared, necessarily, at the end of the process of review and so does not necessarily shed any light upon the RRT’s state of mind at the beginning of, or prior to, the process of review. In this case, the only evidence of the RRT’s state of mind is its Statement of Reasons as well as some formal correspondence between the RRT and the applicant during the process of review. There is no transcript tendered by the applicant and no other evidence.
The Statement of Reasons prepared by the RRT under s.430(1) of the Migration Act 1958 (Cth) (“the Migration Act”) reveals that the RRT has examined the claims made by the applicant and given its own consideration to those claims based on the evidence before it. First, after some preliminary matters, it sets out the claims given by the RRT in writing [court book, pages 78-79] and the documents presented by the applicant in support of those claims [court book, pages 79]. The RRT then proceeds to set out a summary of the evidence given by the applicant at the hearing [court book, pages 80-82]. This summary reveals that the applicant was asked questions dealing with the background to his claim including his family, his involvement in business and the nature of that business and the travel to Australia in connection with it [court book, page 80].
At the hearing the applicant gave evidence in respect of his history or connection with the Jatiya Party and some small amount of the history of that Party [court book, page 81.2]. It shows also that the RRT put to the applicant various matters which were, in its opinion, adverse to the applicant such as the Jatiya Party was part of the Coalition Government after the 1996 election and that he could have returned to Bangladesh safely at that time [court book, page 82.3]. It also shows that the RRT asked questions directly relating to the authenticity of the documents relied upon by him [court book, page 83.4].
The RRT then set out the independent evidence that it considered in respect of the Jatiya Party and the situation in Bangladesh including document fraud [court book, pages 83-86].
The RRT next set out its findings and reasons. As noted above, the main reason for the RRT’s decision was that it did not accept the credibility of the applicant because of his lack of knowledge of the Jatiya Party and his history of travel. It is clear that the RRT did not merely reiterate the findings and reasons set out by the delegate in his Statement of Reasons. For example, the RRT did not rely on the fact that the applicant was able to leave Bangladesh legally or that he had never been convicted of committing any offence in Bangladesh. It didn’t consider the principle of relocation within Bangladesh or the fact that the applicant’s wife and daughters continued to live in that country despite the threats in 1998. In other words, it came to its own conclusions based on the material that it had before it including the evidence that the applicant had given before the RRT at the hearing in July 2003 (which necessarily was not information that was before the delegate).
There is no foundation for the claim of bias and it ought to be rejected.
Natural justice
It is unclear exactly what the applicant means in respect of this ground. He appears to argue that he ought to have been given more time to address adverse information and that if he had been given that time he would have forwarded some relevant RRT decisions and independent information. Unfortunately, the applicant does not specify what adverse information he means and does not indicate what previous relevant RRT decisions he would have provided or what other independent information he would have provided. More importantly though, the applicant has not proven that he was denied an opportunity at all.
The applicant was invited to, and attended a hearing held by the RRT [court book, page 65], [court book, page 67]. He was represented by a solicitor and migration agent, Mr Kumar, who provided further documents to the RRT shortly before the hearing [court book, page 68]. By letter dated 22 July 2003 [court book, page 71] the applicant was informed that the RRT had made its decision and was going to hand down that decision on 14 August 2003. Nevertheless in that time the applicant made no effort to put further submissions to, or other evidence or material before the RRT to support his claims. On that basis it is not credible that the applicant was denied a reasonable opportunity to present his case or that had he been given some other opportunity he would have made an effort to put further information before the RRT.
This ground must be seen in light of the operation of s.422B of the Migration Act given that the applicant for review was made on 10 April 2003. The RRT clearly invited the applicant to attend the hearing and there was no suggestion that that hearing was no more than an empty gesture.
For these reasons, there is no basis for the argument that there was a denial of natural justice and it too, ought to be rejected.
The only other issue is whether there was any legal error by the RRT in applying the test for the determination of refugee status. It is clear from a reading of the decision and reasons of the RRT that the claim was determined on the basis of an adverse credibility finding. The factual conclusion of the presiding member is set out on page 88 of the court book in the last paragraph before the heading "Conclusion". In the preceding paragraph on that page the presiding member purports to make an alternative finding independent of the adverse finding on credibility. In his oral submissions Mr Smith put to me that this was in reality not an alternative finding. This is on the basis that it was apparent from the presiding member's reasons that she was in no doubt on the credibility finding.
I do not myself think that the presiding member has expressed herself in such clear terms that the alternative finding can be dismissed as mere surplusage. Nevertheless, I see no legal error in that alternative finding. It is apparent from the rest of the decision and the reasons of the RRT that the presiding member set out and understood the appropriate test for determining refugee status. The alternative finding dismisses the applicant's claims on the basis that on his own account his involvement was a long time ago and the problems asserted were unlikely to recur. I see no legal error in the approach taken by the presiding member.
I find that the decision of the RRT is a privative clause decision. Accordingly, the application must be dismissed and I do so.
On the issue of costs, the application having been dismissed Mr Smith seeks an order for costs fixed in the sum of $4,000. The applicant was uncertain what, if any, submissions to make on costs. I am satisfied that costs of not less than $4,000 have been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis. It was reasonable for the Minister to be represented by counsel and an instructing solicitor at the hearing today. The Minister was represented at an earlier directions hearing. There has been correspondence prepared on behalf of the Minister as well as written submissions. The solicitors have briefed counsel.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 May 2005
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