SZBOB v Minister for Immigration
[2005] FMCA 489
•4 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBOB v MINISTER FOR IMMIGRATION | [2005] FMCA 489 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958, ss.424, 427 |
| Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212 |
| Applicant: | SZBOB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2045 of 2003 |
| Judgment of: | Barnes FM |
| Hearing date: | 4 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 4 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms M Allars |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application is dismissed.
That the applicant pay the respondent's costs set in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2045 of 2003
| SZBOB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant seeks review of a decision of the Refugee Review Tribunal handed down on 10 September 2003, affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.
As a preliminary point, I note that at the commencement of the hearing today, the applicant sought an adjournment of 2 weeks in order to provide a written submission. The applicant indicated that the nature of the information he wanted to provide related to the situation in Bangladesh (information which would not assist in determining whether the Tribunal made a jurisdictional error). He said that he had only collected half of the documents that he wished to prepare and collate.
This application was filed on 2 October 2003. The applicant attended a directions hearing on 28 January 2004 and agreed to orders pursuant to which he was to file written submissions five working days prior to the hearing. He did not do so. He also had the benefit of advice under the Legal Advice Scheme which was provided with the assistance of an interpreter, in March 2004. I did not grant the adjournment sought by the applicant. He then chose to make no submissions at all to the Court. Nonetheless, I have considered the grounds in his application on all of the material before me in determining whether or not any jurisdictional error is apparent in the Tribunal decision or review procedure.
The background to this application is that the applicant, who is a citizen of Bangladesh, sought a protection visa initially on the ground that he had a well-founded fear of persecution by reason of his political opinion. He claimed to fear persecution from the Awami League, as a member of the student wing of the Bangladesh National Party (the BNP) and as a member of the BNP.
After the applicant’s protection visa application was lodged the Awami League lost power to a BNP-led coalition in elections held in Bangladesh in October 2001. In the Tribunal hearing the applicant conceded that the Awami League was no longer a threat to him. His claim was then presented on the basis of a fear of a threat of persecution primarily by the locally powerful Jamaat-e-Islami and also by the anti-liberationist faction of his party, the BNP, by reason of his membership of its pro-liberationist faction.
He also claimed to fear persecution because false charges had been filed against him. He suggested that the anti-liberationist faction of the BNP would ensure that such false charges proceeded. He provided the Tribunal with copies of an arrest warrant dated 15 January 2001, a first information report in relation to offences of 7 November 2000, a charge sheet and a statement from a policeman as to the breaking up of an Awami meeting and an affray in which a policeman was injured. He also provided a letter from a barrister suggesting that these cases would proceed in his absence and that the law prevented representation in absentia, as well as a supporting letter from the President of the local branch of the BNP in relation to his fear of the Awami League.
The Tribunal accepted that the applicant was a citizen of Bangladesh who had been politically active in the BNP and that he had held a series of elected offices and may have been a branch executive member until coming to Australia in May 2001. It found, as the applicant had conceded, that the Awami League was no longer a threat to him. It was not satisfied on the limited evidence before it that the applicant was ever attacked or threatened by Awami League activists or that an attempt to kill him was made.
The Tribunal also accepted that the applicant was a member of the secularist faction of the BNP but found no evidence of direct harm or threats to him in Bangladesh as a result of his factional affiliation or independent policy stances. Nor was there any evidence to indicate that any person in his branch of the BNP or his city had experienced direct harm or threats as a result of factional affiliation. The Tribunal noted the applicant's evidence about the support for him in his party and was not satisfied that he had a well-founded fear of harm from his party factional opponents. The Tribunal also found there was no evidence of threats or harm to the applicant from the Jamaat-e-Islami in the past and found that there was no country information to indicate threats or harm by the Jamaat-e-Islami to members of the BNP or to anyone in the applicant's branch of the BNP or locality.
On the basis of the evidence before it, the Tribunal was not satisfied that the applicant had or has a rational reason to fear action against him from the Jamaat-e-Islami. It also noted that the applicant's fear was essentially local and was satisfied that relocation was a reasonable option and gave reasons for that finding.
The Tribunal addressed the documentary evidence of charges against the applicant. It made no finding as to the authenticity of this evidence. However if the charges had been laid and were false, it was satisfied that, on the basis of country information since the change of Government, it was common practice for politically motivated charges to lapse, to be struck-out or no longer to be progressed.
The Tribunal also had regard to independent information, which it accepted, that a very high percentage of politically-based charges were dismissed by the High Court. The applicant had argued that although the Awami League which instigated the charges had lost power, the charges remained on foot because of the power of the local Jamaat-e-Islami and because of the unwillingness of his local party branch to have those charges struck-out because of factional hostility. However based on the independent information the Tribunal was satisfied that pending charges, if authentic and false as claimed, were not a barrier to the applicant’s return to Bangladesh. The Tribunal also found that the delay between the time of the charge and the arrest warrant and the applicant obtaining a visa and leaving Bangladesh was not consistent with a strongly held fear.
The Tribunal had regard to independent information in relation to departure processes in Bangladesh which indicated that the issue of a passport and departure was prevented for a person with an outstanding warrant against him or her. It noted that, had the police wished to do so, they had many months to alert the authorities at the departure point to apprehend the applicant. The applicant had not said that any special measures were needed to facilitate his departure from Bangladesh. From this information the Tribunal found that he was not a person of adverse interest to the authorities at the time he left Bangladesh. Nor was he now of such interest, or his passport would have been cancelled. This, amongst other things, supported the Tribunal’s conclusion that the authorities were not pursuing the charges against the applicant.
The Tribunal was satisfied there was no significant threat to the applicant from the Awami League, from his factional enemies in the BNP or from Jamaat-e-Islami now and that there was no well-founded fear or real chance of persecution from them or arising from the politically inspired charges in the reasonably foreseeable future. It concluded that the applicant was not a person to whom Australia had protection obligations.
The application for review filed in this Court on 2 October 2003 relies on four grounds. Ground one is that the Tribunal's decision ‘involved a jurisdictional error of law, being an error of law involving an incorrect interpretation of the applicable law to the facts of the case’. There is no particularisation of this ground. There is nothing to establish the applicant's claim that the Tribunal engaged in an incorrect interpretation of the law or application of the law to the facts of the case. The Tribunal correctly set out the principles applying to the construction and application of the test of whether a person has a well-founded fear of persecution on a Convention ground. No error is established on this basis.
Ground two is that ‘the issue of the case was not considered by the Tribunal. Particularly the applicant represented the pro-liberation forces within the party. As such the applicant will be the victim of his own people within the party’. This appears to be a claim that the Tribunal failed to consider his claim to fear persecution from the anti-liberationist faction or his enemies in the BNP.
This claim was not made in his application for protection visa but was raised the day before the Tribunal hearing in submissions by the agent and orally at the Tribunal hearing. However the Tribunal not only set out the claim in its reasons for decision in its description of what occurred in the hearing (and the reasons are the only evidence before me of what occurred in the hearing) but also addressed the claim in the findings and reasons part of its decision. The Tribunal accurately summarised his claim that his independent and pro-liberationist views had led to opposition to him from the anti-liberationist faction in his own party, and that that faction was preventing the striking out of the false charges laid against him by the Awami League, that a warrant had been issued for his arrest and was still current and that if he was required to return to Bangladesh he feared arrest, detention, torture, imprisonment and possibly death. The Tribunal records that in the hearing it asked the applicant whether he had any evidence of harm or threats to him from his factional enemies. He did not and he conceded through his agent that there was no serious movement in Bangladesh to reunite with Pakistan and that the pro-liberationist movement was about different ideas regarding how the State should develop.
The Tribunal had regard to country information about factions in the BNP and the absence of any claim of actual harm or threats by the BNP against the applicant. It was willing to accept that the applicant was a member of the secularist faction, that feelings between such factions might be strong and that violence occasionally results, but found no evidence of direct harm or threats to the applicant or to others in his branch or city as a result of factional affiliations or independent policy stances. It noted that the applicant had been elected often to office and had personal support for him and for his views. On this basis, the Tribunal was not satisfied that he had a well‑founded fear of harm from his party factional opponents. It also considered whether he had a well-founded fear of persecution in the future from his factional enemies in the BNP. In those circumstances it cannot be said, as ground two contends, that the applicant's claim in this respect was not considered by the Tribunal. Insofar as the applicant takes issue with the merits of the Tribunal decision, merits review is not available in this Court.
Ground three is that “a number of false cases were filed against him during the Awami regime in Bangladesh which are still pending and the Tribunal without any investigations denied the existence of these cases which ignored procedural fairness by the Tribunal.”
The applicant submitted several documents in relation to his claim that false charges had been laid against him. The Tribunal stated that it had formed no view on whether or not the police and Court documents about the charges were genuine, but it proceeded to make its decision on the basis that the charges had been laid as claimed by the applicant. The applicant takes issue with the fact that the Tribunal failed to make any further investigations. However, this is not a case in which the Tribunal was under an obligation to make such an investigation. The absence of investigation does not indicate any lack of procedural fairness or other legal error. In MIMIA v SGLB (2004) 207 ALR 12, the High Court held that section 427(1)(d) of the Migration Act 1958 (C’th) confers a power to obtain information but does not impose any duty or obligation to make inquiries. Similarly, section 424(1) of the Act is an enabling provision conferring a power rather than a duty to obtain further information, Win v MIMA (2001) 105 FCR 212 at 15. There is nothing in this case to suggest that the applicant asked the Tribunal to make further inquiries or that it undertook to do so.
Insofar as this ground involves a contention that the Tribunal failed to put to the applicant its concerns, again, no error is established. The factual basis for such claim has not been established in the absence of a transcript of the Tribunal hearing. Furthermore, it is contrary to the Tribunal account of what occurred in the Tribunal hearing. The Tribunal stated that it raised with the applicant issues relating to the charges. In particular the Tribunal raised with the applicant the question of whether after the government had changed, there was little interest in pursuing outstanding charges lodged under the Awami League government and also that the ability of the Awami League to threaten or harm the applicant through false charges had lapsed with the change of government. According to its reasons for decisions the Tribunal also put independent information to the applicant in relation to politically motivated charges being all but dropped once the BNP came to power and indicating that charges laid at the instigation of the Awami League were unlikely to be proceeded with now.
The Tribunal did not, as claimed, deny the existence of the false cases relied upon by the applicant. It was open to the Tribunal to decline to make a finding as to whether the documents provided as evidence of the false charges were genuine, given the manner in which it proceeded. It was satisfied on country information that in any event, with the change in Government, any politically motived charges would lapse, would be struck-out or no longer progressed or would be dismissed by the High Court. It was not required to make further inquiries in relation to the applicant's evidence or claims. No denial of procedural fairness or other jurisdictional error has been established in the manner contended.
The final ground is as follows:
The Tribunal mentioned in its decision at page 31, that: The Tribunal also noted the independent information on departure process from Bangladesh, which indicate that the passport issue and subsequent departure is prevented for persons with outstanding warrants against them.
The Tribunal failed to accommodated (sic) that such documents with its decision.
This ground is not expressed clearly, but it appears that the applicant is contending that there is an inconsistency in the Tribunal not making a finding as to the genuineness of the documents relating to false charges yet taking the false charges into account in finding that the applicant was able to leave Bangladesh without being apprehended. However, there is no such inconsistency. The Tribunal proceeded on the basis that, even if there were false charges issued against the applicant, he had been able to leave Bangladesh without difficulty and that this suggested that the authorities were not pursuing charges against him and that he was not a person of adverse interest to the authorities at that time.
The ease of his departure could have suggested either that no false charges had been laid or that charges were not being progressed and the Tribunal did not speculate on the reason. However, its approach is consistent with its earlier reasoning that it was not necessary to make a finding as to the genuineness of the documents relating to the false charges. Insofar as this is a claim that the Tribunal failed to take into account either independent information or the claims about arrest warrants, such claim is not established. There is nothing to suggest that the Tribunal failed to take into account any relevant information in relation to the situation in Bangladesh in a manner constituting jurisdictional error and, as indicated, it took into account the warrant but found that the delay in the applicant leaving Bangladesh was not consistent with a strongly held fear. This was a finding that expressly addressed the arrest warrant and, indeed, the charges. The Tribunal consideration of the information in relation to departure processes was in the context of discussing the applicant’s claim to have an outstanding warrant against him and, among other things, was relied on in support of the conclusion that the authorities were not pursuing the charges against the applicant. In those circumstances, no jurisdictional error is established by ground 4 of the application.
As no jurisdictional error on the part of the Tribunal has been established the application must be dismissed. I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing to warrant a departure from the general rule that the unsuccessful applicant should meet the costs of the respondent. In light of the nature of this and other matters I consider that the amount sought is appropriate.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 18 April 2005
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