SZBUH v Minister for Immigration
[2005] FMCA 1318
•9 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBUH v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1318 |
| 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, s.424A |
| SAAP v Minister for Immigration (2005) 215 ALR 162 |
| Applicant: | SZBUH |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2322 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 9 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr R Bromwich |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal be joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the second respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG232 of 2003
| SZBUH |
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 decision was made on 11 September 2003 and handed down on 7 October 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. I adopt as background for the purposes of this judgment paragraphs 1-5 of written submissions prepared by Mr Bromwich on behalf of the Minister:
On 17 January 2003, the applicant, a citizen of Bangladesh, arrived in Australia. On 12 February 2003 he lodged an application for a protection visa (class XA) with the respondent’s department (court book, pages 1, 3). That application was supported by a statement by the applicant (court book, pages 27-30). The substance of his claim for the grant of a protection visa turned on what he said was his support for the Awami League, including the holding of a senior position, and fears of persecution by the Bangladeshi Nationalist Party (the BNP) arising from his political activism. He claimed that he had been arrested in July 1995 and beaten, attacked in March 2002 and beaten almost to death, attacked and beaten again in November 2002 and have had his house raided by police in December 2002.
On 3 April 2003, a delegate of the respondent refused the grant of a protection visa (court book, pages 42, 44-50). On 23 April 2003 the applicant applied for a review of the delegate’s decision by the RRT (court book, pages 51 - 54).
On 22 July 2003 the RRT wrote to the applicant and invited him to a hearing of the RRT on 10 September 2003 as it was unable to make its decision in his favour on the material that was before it (court book, page 57). On 5 September 2003, a migration agent acting for the applicant responded to the hearing invitation providing other information in support of the application for review (court book, pages 58-60). On 7 September 2003 the migration agent provided additional documents in support of the application for review (court book, pages 61-69). On 8 September 2003 the applicant’s migration agent sent further material comprising a bundle of documents concerning oppression towards the leaders and activists of the Awami League (court book, pages 70-213). On 9 September 2003 the applicant’s migration agent provided submissions in support of his client’s application for review (court book, pages 214-218).
The applicant gave oral evidence to the RRT on 10 September 2003 as invited (court book, page 243.7). On 7 October 2003 the RRT handed down a decision made on 11 September 2003 affirming the delegate’s decision (court book, pages 240-259). In reaching its decision the RRT:-
a)accepted that the applicant was a national of Bangladesh, that his ethnicity was Bengali and that his religion was Islam (court book, page 253.5);
b)accepted that the applicant was a member of the Chatra League and was involved in student politics undertaking fairly menial tasks and that he helped organise some demonstrations and participated in protests, but did not accept that outside of student politics the applicant had a high political profile (court book, page 254.6);
c)accepted that in November 2000 the applicant and his wife went to Saudi Arabia for 10 days on a pilgrimage and was satisfied that if the applicant had a well-founded fear of serious harm for any reason whatsoever at that time he would have used that opportunity to seek international protection (court book, page 254.8);
d)was further satisfied that if at that time the applicant thought there was a real chance he would be subjected to serious harm in Bangladesh, then he would not have returned to Bangladesh and therefore that as at November 2000 he did not have a well‑founded fear of persecution for a Convention reason (court book, page 255.1);
e)referred to various claims as to what had happened to the applicant but was unable to satisfy itself that the essential and significant reason for any of the incidents was Convention-related (court book, page 255.2);
f)accepted that the general security situation, safety and political stability in Bangladesh were not as sound and secure as in Australia but also accepted that the applicant had a valid Bangladesh passport issued on 15 November 2000. It was satisfied that if he had a well-founded fear of serious harm because of the incidents to which he referred or for any other reason he would have left Bangladesh at any time immediately after they occurred but that he did not do so for some 10 months after his claimed attack on 27 March 2002 and over 2 months after he claims police beat him during a demonstration on 10 November 2002. It was satisfied that any subjective fear that the applicant may have had because of those incidents and the general security and political situation in Bangladesh was not a well-founded fear of serious harm amounting to persecution for a Convention reason (court book, page 256.5);
g)accepted that serious charges have been made against the applicant for “blasting bombs” and having illegal weapons and that he would be wanted for at least questioning by the appropriate authorities and therefore accepted that the police had a legitimate reason to visit his house in December 2002 and that they were matters properly for determination by the courts in Bangladesh (court book, page 257.5);
h)accepted independent country information that showed the courts in Bangladesh were independent and accordingly found that even if the applicant were to face false and politically motivated charges on his return (a claim not accepted) he could seek legal redress from the courts and that accordingly there was not a real chance that in the course of such a process he would be subjected to serious harm amounting to persecution for a convention reason (court book, page 258.7).
In substance, the applicant failed because on his own account of his involvement in the Awami League, and his conduct and in particular his movements following the incidents he complained about, the RRT was not satisfied that he held any subjective fear of persecution. The issue of false charges was found to be something that the Bangladesh courts system was able to deal with properly.
These proceedings commenced with the application for judicial review filed on 3 November 2003. The applicant filed an amended application on 8 July 2004. He also filed written submissions on 26 August 2005. Annexed to those submissions was the decision of the High Court of Australia in Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24, and also the cover-sheet and a copy of the orders made by Madgwick J in SZFKL v Minister for Immigration [2005] FCA 931. The decision of the High Court is obviously relevant. I could not see any relevance in the cover-sheet and orders in SZFKL. Also annexed to the applicant's written submissions was a purported transcript of the hearing conducted by the RRT. I accepted that as an exhibit, together with handwritten corrections to certain parts made by the Minister's solicitors. I also received as evidence the court book filed on 29 March 2004.
I raised with the applicant in oral argument which judicial review application he relied upon. He confirmed what appeared from ground 15 of the amended application that he relied upon both judicial review applications. There are six grounds in the original application and 15 in the amended application. I spent some time discussing the various grounds with the applicant to both make sure I understood them and to seek to tease out detail that might support the grounds. The applicant confirmed my belief that he received some assistance in preparing both his judicial review applications and his written submissions. He told me that he received assistance from a friend. Given the style of these documents I assume that they were not prepared by Mr Mark Tarrant who was appointed to provide advice to the applicant under the Minister's Panel Advice Scheme. I note that Mr Tarrant provided advice to the applicant on 15 October 2004.
The difficulty with the two judicial review applications is that, while jurisdictional error is asserted in general terms, supporting particulars are either non-existent or very sparse. The applicant's written submissions are also not particularly helpful in that they are somewhat discursive and do not draw out clearly the various grounds in the two applications. The only specific issue raised in the submissions that I thought might require attention was an asserted breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). I explored with the applicant what, if any, information should have been disclosed to him by the RRT that was not. I explained to the applicant that it appeared to me that the decision of the RRT turned on information provided by the applicant himself for the purposes of his review application to the RRT and also general country information. Neither of those two classes of information required disclosure pursuant to s.424A. The applicant was not able to point to any other information upon which the RRT decision turned.
In exploring his claims in oral argument it quickly became apparent to me that the applicant is concerned about the merits of the RRT decision. He asserts a genuine fear of persecution in Bangladesh because of his political activities. However, as was explained both by me and by Mr Bromwich, the Court cannot deal with the merits of the RRT’s decision. The applicant’s submissions, both orally and in writing, struggle to rise at all above that basic dispute over the merits of the decision.
The applicant asserts that he was not given a fair hearing. In particular, he asserts that he was not given a sufficient opportunity to present and explain his claims. However, that assertion is not supported by the record of the RRT proceeding in the court book and in the transcript. The applicant asserts that the RRT failed to consider the real issues inherent in his claim. Once again, that assertion is not supported by the decision record. The applicant asserts both bias and bad faith but there is no evidence at all to support those allegations.
I agree with and adopt for the purposes of this judgment paragraphs 7‑19 of Mr Bromwich's written submissions:
The applicant’s submissions do not have page or paragraph numbers, but contain wide-ranging allegations over about 36 paragraphs (second to sixth pages). There is no proper identification of any legal error, let alone jurisdictional error. In large measure they constitute an attempt to engage this Court in an impermissible review of the merits of the case that was before the RRT for the grant of a protection visa. This is particularly so for the second page and much of the third page.
In parts the submissions bear no relationship to the present case, suggesting that they have been prepared on a formula basis and without particular regard to what the RRT did or did not do in this case. For example:-
a)the middle of the third page refers to a finding of “fabrication to secure a protection visa”, whereas no such finding was made in this case;
b)two paragraphs later there is a reference to a finding that letters were fraudulent produced, which again forms no part of the RRT’s findings in this case;
c)in the middle of the third page and following, reference is made to a different court book and to a decision of Barnes FM which does not appear to have anything to do with this case.
The bottom of the third page and the fourth page refer to and quote from s 424A of the Migration Act, but it is clear that the country information relied upon by the RRT was not of a kind that fell within that provision by reason of s 424A(3)(a).
The fifth page (in a different font) alleges a failure to observe procedures, bad faith, ignoring evidence, actual bias, and some other denial of procedural fairness. There does not appear to be any foundation for any of these allegations.
The sixth and final page refers to various authorities, but does not explain how they have any relevance to this matter.
Nothing in the applicant’s written submissions supports a finding of jurisdictional error on the part of the RRT.
The original application for review (filed 3/11/03)
Paragraph 1 alleges a jurisdictional error, but nothing more. Paragraphs 2, 3, 5 and 6 criticise the RRT’s approach to fact finding, and suggest that the “real issue” was not considered but do not identify any jurisdictional error nor what the issue was that was missed. Paragraph 4 alleges that the RRT failed to consider the applicant as a member of a particular social group, but no such group independently of the applicant’s political opinion has ever been identified or made the subject of any claim.
The application for review does not raise any proper allegation that would permit a finding of jurisdictional error.
The amended application for review (dated 7/7/05, faxed 8/7/05 & apparently not filed)
Paragraphs 1, 2, 5, 6, 8 and 9 appear to do no more than take issue with the RRT’s fact finding and do not raise any issue of jurisdictional error.
Paragraphs 3, 4, 7 and 10 allege bad faith, denial of procedural fairness and bias, but do not provide any foundation for those allegations. No such failing on the part of the RRT is apparent.
Paragraphs 11 to 12 take issue with the country information and suggest that a failure to conclude that favourable aspects of that material should have meant that his claims were accepted, failing which the RRT was biased. That has never been an accepted basis upon which to allege or establish bias.
Paragraph 13 alleges that the RRT should have made further inquiries in order to find out if judicial rulings were respected by the government and suggests that further country information will be submitted to the court, apparently with a view to establish that such rulings are not in fact accepted. This is not a course that this Court can embark upon as it amounts to a review of factual matters that are the sole province of the RRT. The same conclusion applies to paragraph 14, by which the applicant alleges that the judiciary in Bangladesh are not independent.
The amended application for review does not afford any basis for a finding of jurisdictional error.
I find that the decision of the RRT is a privative clause decision because there is no jurisdictional error in it. It follows that the judicial review application must be dismissed.
In accordance with the decision of the High Court in SAAP v Minister for Immigration (2005) 215 ALR 162 the Refugee Review Tribunal should be joined as the second respondent and I so order. I note that the Minister's solicitors have undertaken to file a submitting appearance on behalf of the RRT.
On the question of costs, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $6,500 on the basis of actual costs incurred between $8,000 and $8,500. The applicant did not wish to be heard on the question of costs. Rather more work than usual was required of the Minister's legal advisers in this case. The applicant relied both upon his original judicial application and his amended application. A very large number of grounds were asserted. The applicant also raised issues in his written submissions. There is also a significant amount of information that needed to be included in the court book. The applicant provided a transcript which the Minister's solicitors needed to check. I find that costs of not less than $6,000 have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. I will order that the applicant pay that amount.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 15 September 2005
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