SZBMD v Minister for Immigration
[2005] FMCA 851
•31 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBMD v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 851 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – no reviewable error found – application dismissed. |
| Judiciary Act 1903 (Cth) |
| MZWBW v Minister for Immigration [2005] FCAFC 94 NAHI v Minister for Immigration [2004] FCAFC 10 SAAP v Minister for Immigration (2005) 215 ALR 162 |
| Applicant: | SZBMD |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1943 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 31 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2005 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Ms S Burnett |
ORDERS
The Refugee Review Tribunal is joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1943 of 2003
| SZBMD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The RRT decision was made on 30 July 2003 and handed down on 26 August 2003. The applicant is from Bangladesh and had made claims of political persecution. The background to this matter is set out in written submissions prepared on behalf of the Minister by Mr Potts. I adopt by way of background paragraphs 2-30 of those written submissions:
The applicant is a 39 year old Bangladeshi national from Dhaka.[1] He is a Muslim and was apparently an artist.[2] He entered Australia on 1 September 2001.[3] He submitted an application for a protection (Class XA) visa on 4 September 2001.[4] The applicant claimed a well founded fear of persecution on the grounds of political opinion, and because he was a supporter of feminist author Taslima Nasreen.[5]
[1] court book, pages 11-12 and 14.
[2] court book, page 12.
[3] court book, page 13.
[4] court book, pages 1-54.
[5] court book, page 27.
On 5 November 2001 the applicant was sent a letter pursuant to s 56 inviting him to comment on adverse information.[6] His adviser responded by letter dated 30 November 2001.[7]
[6] court book, pages 57-58.
[7] court book, pages 59-61.
After the Minister’s delegate refused the application for a protection visa on 17 December 2001, on 15 January 2002 the applicant applied to the RRT for review of the delegate’s decision.[8]
[8] court book, pages 77-80.
The applicant attended a hearing before the RRT on 31 March 2003.[9]
[9] court book, page 129.7.
After the hearing, the applicant’s adviser submitted further documentation.[10]
[10] court book, pages 98-119.
The RRT’s decision, made on 30 July 2003, and handed down on 26 August 2003, affirmed the decision not to grant a protection visa.[11]
[11] court book, page 126.
The applicant’s claims
The applicant’s claims originally appeared in a statement provided with his protection visa application.[12] The applicant claimed to have had an interest in politics from an early age. He said that after completing High School he attended Tejgoan college at Dhaka. He claimed that whilst there he was influenced by student leaders and joined the Bangladesh Nationalist Party (“BNP”) student wing Jatiotabadi Chatra Dal. He claimed to have joined various political rallies and demonstrations directly arranged by the student wing of the BNP. He said he was an activist of the student wing in 1990-91. He claimed that the Awami League student wing cadres attacked him a number of times.
[12] court book, pages 23-27.
The applicant said that the Awami League came to power in 1996, and started taking revenge on BNP leaders, workers and students.
The applicant said that he became the Assistant Secretary of the BNP student wing of Dhaka City (North) and was an influential student leader. Then the Awami League started a conspiracy against him, and he became their target. They allegedly threatened him at home and tried to kill him twice in the year 2001. On 14 October 2001 the applicant said that Muslim terrorists killed nine artists at an open air concert where he was performing. After that “they” threatened him to make him leave Bangladesh.
The applicant also claimed that government agents had filed a false case against him, and a warrant was issued for his arrest.
The applicant also asserted that he was a supporter of feminist author Taslima Nasreen and the student group leader of the Taslima Nasreen supporter club.
In a letter sent by his adviser to the Department on 30 November 2001,[13] further claims were made. The adviser asserted that the applicant organised many party related meetings and delivered speeches, participated in lots of demonstrations and rallies, and was connected with BNP central committee leaders, such that it made him quite famous within his region, and as a result the anti-BNP party leaders and activists became political rivals and started threatening to kill him.
[13] court book, pages 59-61.
The applicant gave evidence at the hearing where he further explained his claims.[14] The applicant claimed that he was persecuted because of his involvement with politics and because he was an artist, and that they could kill him. He claimed that fundamentalists were always against artists and had threatened to kill him. For example, on 7 December 2002 they had bombed a cinema killing a number of people, and they had also attacked a program they had been undertaking at Ramna Batomool in April 2001. He was injured and taken to hospital.
[14] court book, pages 132.10-135.1.
The applicant also said that because of his political involvement he had lots of cases filed against him at the police station. These were fabricated and used only to harass him because of his political involvement.
The applicant also asserted that he had been tortured physically and attacked. He said that in 2000 he had been attacked at a meeting and had had a problem from that time. He said local Awami League supporters had threatened him many times.
The applicant said that he had been involved in clashes between the respective student wings. Asked whether he had been charged or arrested because of involvement in violent student clashes, the applicant said that before he came to Australia lots of false cases had been filed against him.
With respect to Taslima Nasreen, the applicant said that he had been a member of her fan club and went to a lot of meetings, mainly in 1994, but also before and after that. The applicant was unable to say what Nasreen’s profession had been, or to name the well-known book by her, written and banned in the late 1990s.
The RRT’s decision
The RRT did not attach importance to minor inconsistencies of detail arising from the applicant’s original submission, it considered more significant variations in the claims arising from the oral evidence given at the hearing. The applicant’s evidence and responses were unsatisfactory in a number of significant respects.[15] The RRT did not find the applicant to be a satisfactory witness whose evidence could be relied upon where implausible or inconsistent with independent information.[16]
[15] court book, page 135.7.
[16] court book, pages 135.10-136.1.
The RRT approached the submitted documentation cautiously, in light of its reservations about the applicant’s credibility, and against the background of evidence about the pervasiveness of false or fabricated documents provided in Bangladeshi cases, evidence which was consistent with the RRT’s own experience and observations.[17]
[17] court book, page 136.2.
The RRT referred to a letter provided post-hearing,[18] purportedly from a local political leader in Bangladesh. The RRT found this to be less than compelling and gave it no weight.[19] As for the other material submitted, the RRT found that even taken at face value it demonstrated no more than that the applicant was admitted to hospital for a few days at the time of the Ramna Batomool bombing in April 2001, and that he was later wanted on charges relating to violent clashes with police in July 2001.[20]
The RRT was not satisfied that the applicant had any significant ongoing political involvement or profile after college, other than as a participant in demonstrations. The RRT was not satisfied that the applicant was subjected to two attempts by the Awami League to kill him in 2000.[21]
The RRT accepted at face value the material submitted in relation to the charges against the applicant. The RRT found that that material did not suggest or demonstrate that the charges were fabricated, or so implausible or unreasonable that the preferring of such charges was prima facie persecutory.[22] The RRT said that there was ample evidence that all of the major Bangladeshi parties, and in particular their student wings, had been involved in mutual violence over a number of years, although it appears that this has often been essentially territorial and criminal or personal rather than political.[23] The complaints or charges suggested by the specific sections of the Bangladesh penal code cited in the applicant’s initial statement are consistent with the kind of atmosphere described in the country information, and it did not appear to the RRT self-evidently unreasonable or persecutory that the police should treat seriously and act in accordance with any complaints or allegations to this effect.[24] The RRT said that it was by no means self-evident that difficulties in relation to any outstanding complaints or charges arose essentially and significantly for a Convention reason, rather than because of the applicant’s involvement in the alleged offences, or that they amounted to persecution.[25]
The RRT referred to country information relating to a recent crackdown in Bangladesh, where action was being taken to arrest and bring to trial people against whom there were serious charges, regardless of political or other affiliations. The RRT said that this did not of itself amount to persecution of the applicant for a Convention reason.[26]
The RRT did not accept that the applicant had a well founded fear of persecution for any Convention reason.[27] The RRT observed that people fleeing from prosecution or punishment for an offence are not normally refugees by that reason alone, unless the person may be liable to excessive punishment amounting to persecution, or that the charge itself violates accepted human rights standards. The RRT found that there was no claim or evidence that these exceptions were applicable in this case.[28]
The RRT noted that the BNP, the applicant’s own party, triumphed in national elections in October 2001, securing an almost two-thirds parliamentary majority, sweeping all the seats in the applicant’s home city of Dhaka, and that it now formed the government of Bangladesh. The RRT did not accept that a claimed BNP member would be targeted for that reason by local Awami League supporters with impunity and be unable to have recourse to the authorities or that he would be unable to resolve fairly any false charges laid by political opponents.[29] The RRT did not accept the unsupported assertions that after the October 2001 elections BNP activists were more insecure, or that Bangladesh was not controlled by the BNP.[30]
The applicant’s evidence did not satisfy the RRT that the applicant had more than a passing acquaintance with the words of Taslima Nasreen. The RRT did not accept that the applicant had significant involvement in any organised support group of Nasreen or that he was the leader of such a group. The RRT did not accept that the applicant had any significant profile or role in relation to Taslima Nasreen which would have made him of interest of Muslim fundamentalists or anyone else then, or that he had faced or would face continuing difficulties amounting to persecution for that reason.[31]
The RRT accepted that the applicant was a member of a musical group that performed at a very large open-air concert where there were bomb blasts in April 2001, and that he was injured. None of the press reports supported the applicant’s contention that it was an attack on Bangladeshi artists generally, or the applicant’s group in particular, or that those killed were performers rather than members of the crowd. The attack, attributed to a Muslim group, was condemned by the Awami League government, the BNP and Jamaat-e-Islami. A number of arrests were made, and the police subsequently sought to arrest the secretary-general of the Muslim group responsible. The was no evidence of subsequent bombings involving performance artists.[32] The RRT did not accept that the attack targeted Bangladeshi artists in general or the applicant in particular, or that he had been subsequently black-listed or targeted for this reason, or that the bomb blast was indicative of a real chance of persecution of the applicant for a Convention reason, or a denial of reasonably available protection by the authorities.[33]
The RRT was not satisfied that the applicant faced a real chance of harm or persecution for a Convention reason on return to Bangladesh.[34]
In any event, the RRT was satisfied that the applicant could avoid any local difficulties from people to whom he was personally known in his own district by living in one of the other large and densely populated cities of Bangladesh.[35]
[18] court book, page 99.
[19] court book, pages 136.5-136.6.
[20] court book, page 136.7.
[21] court book, pages 136.8-136.9.
[22] court book, pages 136.10-137.1.
[23] court book, page 137.2.
[24] court book, page 137.5.
[25] court book, page 137.6.
[26] court book, page 137.9.
[27] court book, pages 122.10-123.1.
[28] court book, pages 137.10-138.1.
[29] court book, pages 138.4-138.6.
[30] court book, page 138.8.
[31] court book, pages 139.2-139.4.
[32] court book, pages 139.4-139.7.
[33] court book, pages 139.10-140.1.
[34] court book, page 140.1.
[35] court book, page 140.2.
These proceedings commenced with the application for judicial review filed on 22 September 2003. That application was inadequate in that it simply set out broad assertions of error in a template form. An amended application was called for which the applicant provided on 15 April 2004. That amended application contains the following grounds, first, the RRT failed to take into account a relevant consideration when it assessed whether the delegate of the Minister raised reasonable grounds for not granting a protection visa. The particulars are that the RRT failed to consider in assessing the chance of the applicant being arrested and or persecuted on his return to Bangladesh based on his genuine claims. The second ground is the RRT’s satisfaction that the applicant is not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief. The applicant repeats the particulars given in support of the first ground.
This matter came before me for hearing on 21 June 2005. At that time the applicant pointed out to me that he had not had the benefit of advice from the panel adviser appointed to assist him. In the light of that I adjourned the hearing until today. The applicant confirmed today that he has now received advice from his panel adviser. He has also filed written submissions on 29 August 2005. Unfortunately, those written submissions are unhelpful. They have been used as an opportunity by whoever prepared them to resurrect the template grounds of review in the original application. Those grounds do not assist the applicant in the absence of particulars.
The applicant also seeks to take advantage of the decision of the High Court in SAAP v Minister for Immigration (2005) 215 ALR 162.
I explored with the applicant this afternoon what information, if any, was not disclosed to him by the RRT that should have been. He was not able to point to any but told me that he relies on all of the documents he has filed in these proceedings and that his claims made to the RRT were true and should have been accepted. He asserts that the RRT erred in not investigating his claims more thoroughly.The claims in the amended application are adequately dealt with in Mr Potts' written submissions. I agree with and adopt for the purposes of this judgment paragraphs 33 to 36 of those written submissions:
First Ground – failed to take into account a relevant consideration
This ground rests, at least in part, on a misapprehension about the nature of the RRT’s role. The RRT does not merely review a delegate’s decision, in the sense that it examines the decision to determine whether the decision was right, but rather, the RRT conducts a review de novo, itself examining the evidence and determining what the correct or preferable decision is in the circumstances of the case.
The ground does not identify any specific consideration that the RRT was bound to take into account but did not. The RRT considered and accepted that the applicant faced charges. It did not accept that they were persecutory, or motivated by a Convention reason.
The reality is that this ground seeks impermissible merits review. It is not within the jurisdiction of the Court to review the case on its merits. This ground of review should be rejected. To engage in fact finding about the merits of the applicant’s case is no part of the function of the Court in dealing with an application for relief under jurisdiction equivalent to that held by the Federal Court under s 39B of the Judiciary Act 1903 (Cth). It is necessary for the applicant to establish jurisdictional error. Whatever be the boundaries of jurisdictional error, they do no comprehend errors of fact as to the merits of the case put to the RRT: NAHI v Minister for Immigration [2004] FCAFC 10 at [10]. It is not a jurisdictional error to make a wrong finding of fact: MZWBW v Minister for Immigration [2005] FCAFC 94 at [28].
Second ground – illogical or irrational
There are no proper particulars to this ground. There was no want of logic or irrational foundation for the RRT’s reasons. They were based on logically probative material and exhibit a logical process of reasoning.
Having examined myself the decision and reasons of the RRT I can see no other basis for asserting jurisdictional error. It follows that the decision of the RRT is a privative clause decision. The application for judicial review must be dismissed.
On the question of costs, the application having been dismissed, Ms Burnett seeks an order for costs fixed in the sum of $4,800. That represents 75 per cent of the Minister’s costs actually incurred. The applicant indicated that he would attempt to pay what costs might be awarded. There is no specific proportion of solicitor and own client costs that are recoverable on a party/party basis. Commonly, party/party costs are awarded in the range of somewhere between
50 per cent to 75 per cent of actual costs. Frequently around two thirds of actual costs are recovered. In this matter I accept that costs should follow the event. I also accept that not less than $4,500 has been properly and reasonably incurred on behalf of the Minister when assessed on a party/party basis. I will order that the applicant pay that sum.Consistently with the High Court decision in SAAP I will order that the Refugee Review Tribunal be joined as the second respondent to the proceedings.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 7 September 2005
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