SZBMI v Minister for Immigration - [2007] FMCA 121

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBMI v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 121

MIGRATION – RRT decision – Bangladeshi applicant – claimed persecution by Awami League supporters and Muslim extremists for political and secular activities – Tribunal found no real chance of persecution – no jurisdictional error identified.

Migration Act1958 (Cth), ss.424A(1), 474, 476

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
SZBMI v Minister for Immigration [2005] FMCA 1005
SZEEU v The Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant:

SZBMI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2270 of 2006

Judgment of:

Smith FM

Hearing date:

22 January 2007

Delivered at:

Sydney

Delivered on:

22 January 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mrs S A Sirtes

Solicitors for the Respondent:

Ms M Palmer

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2270 of 2006

SZBMI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 16 August 2006, which has been set down for a final hearing on whether the applicant is entitled to relief under s.476 of the Migration Act1958 (Cth) in respect of a decision of the Refuge Review Tribunal dated 3 July 2006 and handed down on 25 July 2006. The Tribunal affirmed a decision of a delegate taken on 17 December 2001, refusing to grant the applicant a protection visa.
The long delay between the decisions of the delegate and of the Tribunal is accounted for by an earlier decision of the Tribunal, constituted differently, which was handed down on 26 August 2003. The applicant sought judicial review in this court. Driver FM dismissed the application on 19 July 2005 (see SZBMI v Minister for Immigration [2005] FMCA 1005), but a Full Court allowed an appeal and ordered the issue of writs of certiorari and mandamus (see SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at [11], [157] and [218]). Their Honours held that the previous Tribunal failed to observe the requirements of s.424A(1) in relation to some information which they considered formed a part of the Tribunal’s reasons for affirming the delegate’s decision.
No similar argument was presented to me in relation to the decision of the reconstituted Tribunal, but I have considered its reasons, and am unable to identify any similar error made by this Tribunal.
Under s.476 the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(5) of the Constitution”, but its powers are confined by s.474 so that I do not have power to send the matter back to the Tribunal unless I am satisfied that its decision was affected by jurisdictional error. I do not have power myself to decide that the applicant would be at risk of persecution if he returned to Bangladesh, nor whether he is entitled to a protection visa.
The present applicant arrived in Australia in September 2001, and soon after his arrival an application for a protection visa was lodged by a migration agent, Mr Mollah. Apart from a number of general documents concerning Bangladesh, no corroboration of the applicant’s claim was ever presented either to the Department of Immigration or the Tribunal as originally constituted, or as reconstituted.
Among the general information was a press cutting reporting a bomb explosion at an open-air concert in Dhaka in April 2001. The concert “had attracted a crowd of about 15,000”, and the bomb killed “at least nine people” and “wounded nearly 50 …A second blast about 45 minutes later wounded a policeman”.
The applicant’s written statement narrated a confused chronology. The applicant claimed that he had joined the student wing of the BNP party in the early 1990s. He referred to that party taking government in February 1991 and to its supporters being attacked by the Awami League at that time, and also after the Awami league won an election in 1996. He claimed:
When I became the Asst. Cultural Secretary of BNP student wing Central Committee and an influential Cultural leader of the Chatral. Then and then Awami League started conspiracy against me. Subsequently I became their target from that day. They threatened me at home and they tried to kill me twice in the year 2000. Luckly I was saved twice. But 14/4/01 muslim terrorist attacked in an open air concert I was injured and Hospitalised. And they threatened me to leave Bangladesh. For save of my life I decided to leave Bangladesh. I arrange student visa from Australian High Commission, Dhaka, Bangladesh”.
He claimed to have gone into hiding, and to having false cases and a warrant issued against him. He also claimed: “I was attack by fundamentalist Muslim Terrorist because I am a supporter of feminist author Taslima Nasreen. I also the student group leader of Taslima Nasreen supporter club.”
At a hearing held by the previously constituted Tribunal on 26 August 2003, the applicant claimed that he had been involved in a cultural group, and that the fundamentalist Muslims did not like cultural activities in Bangladesh. He referred to the 2001 bomb, and said that “his group had been scheduled to be the next act on stage when the attack had occurred.” He claimed to have been injured in 1996 or 1997 when he had been attacked by supporters of the Awami League. He claimed that a false case had been filed against him in 1999, and that he had been convicted in his absence after arriving in Australia.
It was put to the applicant that the press reports of the bomb attack on the concert suggested that the attack had not been on artists as such but on a Hindu gathering. It was also put to him the BNP had won a large majority at the elections in October 2001, and that Taslima Nasreen had left the country when he was still at high school.
The applicant attended a second hearing held by the reconstituted Tribunal on 30 June 2006. He maintained his claims that he would be persecuted by the authorities or by political opponents in the Awami League, and said that extremists in the Jamaat-e-Islami party “hated artists like ‘us’”. He claimed “that the Jamaat-e-Islami had telephoned him from Bangladesh around six months previously. He said that they had threatened that they would torture him and kill him if he returned to Bangladesh.”
In relation to his association with the feminist author:
The Applicant confirmed that, as he had said at the previous hearing, his association with Taslima Nasreen had involved being present at meetings she had attended before she left the country in 1992 or 1993 and reading her books.
The Tribunal said that it put to the applicant country information which it had in relation to the BNP - which was then in Government in Bangladesh, as to the influence on that party of the Jamaat-e-Islami, and as to the absence of evidence that fundamentalists were targeting singers or artists in Bangladesh. The Tribunal also put to the applicant its difficulty accepting that the applicant had been the subject of criminal charges filed in 1999, that he would be targeted by fundamentalists, and that his association with the feminist author would put him at risk if he returned.
Under the heading “Findings and Reasons”, the Tribunal made findings such as it had foreshadowed to the applicant at the hearing. It appears to have assumed or accepted the truth of his claim of an association with the BNP while in college and in the course of his cultural activities. However, it concluded:
Having regard to the fact that the BNP is now in Government in Bangladesh I do not accept that there is a real chance that the applicant will be persecuted by the authorities or by his political opponents in the Awami League for reasons of his involvement in the BNP if he returns to Bangladesh now or in the reasonably foreseeable future.
The Tribunal then addressed the applicant’s claim to fear of persecution by the Jamaat-e-Islami, including his claimed recent telephone call, and his claim that fundamentalist Muslims and extremists or terrorists would target him because he is a singer or an artist. The Tribunal’s conclusion in relation to these claims was:
I do not accept on the evidence before me that there is a real chance that the Applicant will be targeted by fundamentalist Muslims and extremists or terrorists including the members of the Jamaat-e-Islami as a singer or artist if he returns to Bangladesh now or in the reasonably foreseeable future, whether this claim is based on his membership of a particular social group such as singers or artists or his real or imputed political opinion or religious beliefs as a result of his involvement in such cultural activities whether as a member of the BNP or otherwise. While I accept that terrorists have on occasion attacked venues at which singers or artists have been present, as with the concert on 14 April 2001 to which the Applicant referred, I do not accept on the evidence before me that, as the Applicant claims, fundamentalist Muslims and extremists or terrorists including the members of the Jamaat-e-Islami are targeting singers or artists as such. I consider that if these elements were targeting singers or artists in this way it would be referred to in the independent evidence available to me.
At the hearing before me the Applicant claimed that the Jamaat-e-Islami had telephoned him from Bangladesh around six months previously and had threatened that they would torture him or kill him if he returned to Bangladesh. He said that they had also demanded money from him. Having regard to my rejection of the Applicant’s claim that the Jamaat-e-Islami is targeting singers or artists I do not accept the Applicant’s evidence in this regard. As I put to the Applicant, I do not accept on the evidence before me that there is a real chance that he will be killed or otherwise persecuted by fundamentalist Muslims and extremists or terrorists including the members of the Jamaat-e-Islami for a Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future.
The Tribunal then addressed the applicant’s claims to be the subject of false criminal charges brought against him in 1999. The Tribunal did not believe this claim. It referred to his evidence that he had been performing as a singer or artist around the country after 1999, and it said:
I do not accept that false charges were filed against him in 1999 nor that a warrant was issued for his arrest nor that the police were trying to arrest him before he left Bangladesh. I do not accept that the applicant has been convicted in his absence on these charges. Having regard to the view I have formed of the applicant's credibility I do not accept that false charges were ever laid against him in Bangladesh nor do I accept that there is a real chance that he will be arrested or imprisoned for a Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future.
Finally, the Tribunal addressed the applicant’s claims in relation to his association with the feminist author. It concluded:
Likewise, having regard to the Applicant’s evidence given to the Tribunal both at the previous hearing and at the hearing before me that his association with Taslima Nasreen was limited to being present at meetings she attended before she left the country in 1992 or 1993 and reading her books, I do not accept that he was ever attacked by fundamentalist Muslim terrorists because he was a supporter of Taslima Nasreen nor do I accept on the evidence before me that there is a real chance that he will be attacked by fundamentalist Muslim terrorists for reasons of his support for Taslima Nasreen if he returns to Bangladesh now or in the reasonably foreseeable future. I note for the sake of completeness that once again I do not consider that it matters whether this claim is characterised as being based on the Applicant’s real or imputed political opinion or religious beliefs or his membership of a ‘particular social group’ in Bangladesh such as the ‘Taslima Nasreen supporter club’.
I have considered the reasoning and procedures followed by the Tribunal as reconstituted, and am unable to identify any jurisdictional error affecting its decision.
The applicant’s original application contained four grounds, but these are expressed in such generality that it is impossible to address them in a meaningful way.
His amended application contains the following grounds and particulars, which were repeated in a written submission which he filed at the hearing:
1. The Refugee Review Tribunal constructively failed to exercise its jurisdiction under the Act:
Particulars: A. There was no evidence to support the Refugee Review Tribunal’s finding that: (i) it is difficult to accept that the false criminal charges were filed against him in 1999.
2. The Refugee Review Tribunal acted in excess of its jurisdiction:
Particulars: A. The Refugee Review Tribunal acted in excess of its jurisdiction to make the following comment that: (i) I do not accept that there is a real chance that the Applicant will be persecuted by the authorities or by his political opponents in the Awami League for reasons of his involvement in the BNP if he returns to Bangladesh now or in the reasonably foreseeable future.
3. The Refugee Review Tribunal did not act accordingly what is required to do by the Migration Act:
Particulars: A. There was no evidence to support that the Refugee Review Tribunal asking em any single question from the point of ‘particular social group’ context that: (i) how I suffered as a singer or artist; and (ii) how I suffered as a member of the Taslima Nasreen Supporter Club.
In relation to the first ground, in my opinion, the material before the Tribunal did support its finding which rejected the applicant’s claim that he was the subject of false criminal charges in 1999. The Tribunal was required to assess the credibility of this claim in the absence of any corroboration. It gave rational reasons for disbelieving the claim, and I can see no error in the Tribunal reasoning in that way.
The applicant’s written submission suggests that the reasoning revealed “the negative attitude about my application” by the Tribunal. If this is a claim that the Tribunal’s decision was affected by actual or apprehended bias, I do not consider that such a submission has any substance.
The written submission also complains that “the Tribunal did not put any efforts to prove its possibility before to make such a comment.” However, the task of the Tribunal was to assess the credibility of the claims presented by the applicant upon such evidence as was presented by him. The Tribunal has considered his claims. It has considered the evidence presented by the applicant at both hearings, and I do not consider that there was any obligation on the Tribunal to conduct further investigations into its truth (c.f. Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187], WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73])
In relation to the second ground, I consider that it was open to the Tribunal to decide that the fact that BNP was in Government at the time of the Tribunal’s decision was relevant to its assessment of whether there was a real chance that the applicant would be persecuted by his political opponents if he returned to Bangladesh. The applicant’s written submission essentially argued with the merits of this assessment, and I do not consider it has established any jurisdictional error affecting this part of the Tribunal’s reasons.
The third ground of the amended application is not easily understood. Its premise that the Tribunal did not “ask me any single question” from the point of a “particular social group” is unclear. What is clear, is that the Tribunal was fully aware of the claims made by the applicant that he was at risk as a result of belonging to a group of persons in Bangladesh who were members of cultural groups or performers. In my opinion, it sufficiently addressed that claim. The Tribunal afforded the applicant natural justice in relation to its reasoning, by putting to the applicant its concern based on the absence of any country information to suggest that fundamentalists were targeting singers or artists in Bangladesh. I am unable to identify any error in how the Tribunal has addressed these parts of the applicant’s claims. Nor, can I find any error in how the Tribunal addressed the applicant’s claim to be at risk as member of a supporter’s club, or by being present at meetings, or by reading the books of the feminist author.
Taking into account all that the applicant has put in his written submission and his amended application, I am unable to identify jurisdictional error affecting this Tribunal decision.
The applicant’s oral submissions relied upon his written submission. He also maintained that he is at risk if he returns to Bangladesh. However, as I have explained to him, that is not a matter which I am able to assess for myself.
For the above reasons I consider the decision is a privative clause decision and I must dismiss the application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM.

Associate: Michael Abood

Date: 16 February 2007