SZBUY v Minister for Immigration - [2005] FMCA 1321

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBUY v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1321

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – significance of the applicant’s failure to seek protection in India considered – India being a non party to the Refugees Convention – whether the RRT failed constructively to consider a claim of a fear of harm while in detention awaiting a hearing on false charges considered – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.424A, 425

Minister for Immigration v NAMW (2004) 140 FCR 572
NAQG v Minister for Immigration (2004) FCA 163
SZBRQ v Minister for Immigration & Anor [2005] FMCA 1101

Applicant:

SZBUY

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2355 of 2003

Judgment of:

Driver FM

Hearing date:

12 September 2005

Delivered at:

Sydney

Delivered on:

12 September 2005

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr J D Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Refugee Review Tribunal be joined as the second respondent to the application.
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 $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2355 of 2003

SZBUY

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 16 September 2003 and handed down on 9 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. Relevant background is set out in paragraphs 2-7 of the Minister's written submissions which I adopt for the purposes of this judgment:
The applicant is a citizen of Bangladesh who arrived in Australia on 14 October 2002 and lodged a protection visa application on 12 November 2002. A delegate of the respondent made a decision to refuse to grant the applicant a protection visa on 10 April 2003 and on 29 April 2003 the applicant applied to the RRT for review of that decision.
The applicant based his claims to be a refugee on his political opinion and in particular his membership and leadership of the Awami League in Bangladesh. He also claimed that he had been involved in setting up and running 3 NGO’s and feared persecution on this account as well.
The RRT invited the applicant to attend a hearing on 15 September 2003 and the applicant accepted that invitation and attended to give evidence and to make submissions in support of his claims.
The RRT handed down its decision affirming the decision under review on 9 October 2003.
RRT’s decision
The RRT made the following findings:
a)the applicant was a member of the Chatra League in 1988 and was arrested, detained and beaten for a week at that time;
b)while he was involved in politics the applicant set up 3 NGO’s, all of which were funded by the business community;
c)the applicant performed work in a support role for a politician, Mr Abdulla, in an unpaid, voluntary capacity but it was not his ceaseless efforts that led to Mr Abdulla winning a seat in Parliament, and the applicant did not thereafter become a full time politician or the unofficial private secretary to Mr Abdulla.
However, none of these matters led to the applicant having a well-founded fear of persecution for a Convention reason;
d)the applicant did not have a political profile of such significance that he would be targeted for serious harm by Mr Sawpanm, a member of the BNP Government;
e)the applicant went to India and Nepal as a tourist in August 2001 and again to India as a tourist on 8 January 2002. However, he did not seek any protection at those times and so did not have a well-founded fear of persecution for any reason whatsoever;
f)if the applicant had any subjective fear about returning to the area in or around Barisal it would be reasonable for him to live in another part of Bangladesh without those fears being well founded;
g)although the applicant was the subject of a random beating at the hands of a Police Inspector in October 2002, the essential and significant reason for that mistreatment was not a Convention reason;
h)the applicant was the subject of false charges in 1988 but those were dismissed within 7 or 8 days like those made in respect of thousands of other students at the same time;
i)there were no serious charges outstanding against the applicant when he left Bangladesh in January 2002 or October 2003;
j)even if there were, there was no real chance that in the course of the process borne of those charges the applicant would be subjected to serious harm and persecution for a Convention reason;
k)any harm that might come to the applicant as a result of the military operation or crackdown across the country would not have an essential and significant Convention reason.
On the basis of these findings the RRT concluded that the applicant did not have a well-founded fear of persecution for a Convention reason and so did not meet the criteria for the grant of the protection visa.
The applicant relies upon his amended application filed on 17 May 2004 and written submissions filed on 23 August 2005. I also have before me the Minister's written submissions filed in my chambers on 6 September 2005 and the court book of relevant documents filed on 5 April 2004. I received the court book as evidence. That is the only evidence that I have before me.
The amended application and the written submissions prepared in support of it do not assist the applicant. While the applicant asserts a breach of the rules of procedural fairness and a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) there is nothing in the available material to support those allegations. Mr Smith deals effectively with the issues raised by the applicant in the Minister's written submissions. I agree with and adopt paragraphs 8-12 of those written submissions for the purposes of this judgment:
The amended application contains a number of formulaic grounds that do not relate to the decision made by the RRT in October 2003.
The first ground is that the RRT relied on independent evidence as to the availability of false and fraudulent documents in Bangladesh and failed to afford the applicant the opportunity to deal with that information. The factual foundation for that claim however, cannot be made out. Firstly, the RRT did not rely on any such information; secondly, the applicant has not established that the RRT did not, during the course of the hearing held by it on the 15 September 2003 give the applicant an opportunity to deal with the information; and thirdly, such information is excluded from the operation of s.424A(1) because it is not specifically about the applicant or another person: Minister for Immigration v NAMW (2004) 140 FCR 572.
The second ground is met by the same answers as the first.
Insofar as the particulars to the second ground raise different matters, they are not particularised and do not sensibly give rise to any jurisdictional error on the facts of this case.
The RRT’s decision turned upon its consideration of the facts before it. It dealt with each of the claims made by the applicant. It made findings that were available to it on the evidence put forward by the applicant as well as the independent evidence that was available to it. It invited the applicant to attend a hearing in accordance with its obligations under s.425 of the Migration Act and indeed the applicant took the opportunity to accept that invitation and attend the hearing.
In his oral submissions the applicant made clear that he is dissatisfied with the outcome of the RRT proceeding and disagrees with the presiding member's findings. As I explained to the applicant, however, a disagreement with the merits of the RRT decision needs to be expressed in terms of jurisdictional error. Neither I nor the applicant was able to convert the applicant's concerns over the merits of the RRT decision into an argument over jurisdictional error.
Two issues did occur to me independently of anything raised by the applicant. The first of those concerns the RRT finding on page 248 of the court book that the applicant's failure to seek protection in India in either of two visits there was inconsistent with a well founded fear of persecution. The presiding member said:
The Tribunal also accepts that the Applicant went to India and Nepal as a tourist in August 2001 and returned to India as a tourist for 7 or 8 days on 8 January 2002. The Tribunal is satisfied that if the Applicant had a well-founded fear of serious harm amounting to persecution at that time for any reason whatsoever (including for example his claim that on 10 December 1988 he was arrested and detained for a week during which "I was beaten by the police mercilessly"), especially as the second visit to India occurred some three months after the October 2001 election that brought the BNP and Jamat-e-Islami to power, then he would have taken the opportunity of seeking international protection at that time. However, the Tribunal finds that not only did he not seek such protection but he was also willing to return to Bangladesh in January 2002: something it is satisfied he would not have done if he had a well-founded fear of persecution for any reason whatsoever (including because of his involvement in the NGOs and because he claims his house was ransacked by the BNP and Jamat-e-Islami and his family were insulted by them in October 2001).
It is not apparent from the court book what discussion occurred at the RRT hearing about this issue. If there had been evidence of what occurred at the RRT hearing an argument of procedural unfairness might have been available to the applicant. Relevantly, India is not a party to the Refugees Convention or Protocol although it was a member of the UNHCR’s Executive Committee as at 2004. There may be very good reasons why a person fearing persecution may not seek protection in a country which is not a party to the Refugees Convention. A person may be concerned that a non-party would be at liberty to report such a claim to his country of origin and to refoule him to that country.
In the absence, however, of evidence of what, if any, discussion occurred at the RRT hearing, it is not open to me to make a finding of procedural unfairness in respect to this issue. Neither, I find, is it open to me to make a finding of jurisdictional error in relation to this RRT finding for any other reason. The presiding member referred to the failure by the applicant to seek international protection rather than Indian protection and may well have had in mind that the applicant might seek protection in India from the UNHCR or even a foreign diplomatic mission rather than necessarily seek protection from the Indian authorities.
The other concern I have relates to the manner in which the RRT dealt with the false charges claim made by the applicant. The RRT had accepted that the applicant had been subject to a false charge in 1988 and had been mistreated at that time. The RRT was unable to be satisfied that there were any outstanding charges at the time the applicant left Bangladesh and came to Australia. This is dealt with on page 250 of the court book. The presiding member said:
In regard to the more recent (post October 2001) charges, the Applicant was not able to provide any details about them such as exactly where, when and the details of what they are (only claiming they relate to illegal arms), and claims he has only heard about them from friends. Nor did he provide any evidence to support this claim. The Tribunal accepts, however, that the Applicant was able to leave Bangladesh legally and without any difficulty whatsoever on his own passport on two occasions since the October 2001 elections (firstly on 8 January 2002 and then again on 13 October 2003, over two years after the BNP formed government) and has not been able to satisfy itself that this would have been the case [if] these serious charges were outstanding.
This on its face appears to be a rejection of that claim. However, the presiding member continued:
More importantly, the Tribunal is satisfied that independent country information shows that the courts are independent in Bangladesh and further finds that they can be relied upon to provide protection for those falsely charged even if a governing party's activists persist in filing false charges.
The presiding member then considered available country information concerning the use of false charges since 1974 in Bangladesh and the manner in which they have been dealt with by the judiciary. On page 251 of the court book the presiding member concluded:
Accordingly, in the light of all the above, the Tribunal finds that even if the Applicant were to face false and politically motivated charges on his return (a claim not accepted by the Tribunal), he can in these circumstances seek legal redress from the courts in Bangladesh. It follows that the Tribunal is satisfied that there is not a real chance that in the course of such a process he will be subjected to serious harm amounting to persecution for a Convention reason.
My concern is that if the applicant had made a claim of a fear of harm through torture while in detention awaiting the hearing of charges or the dismissal of them it is no answer to refer to the independence of the judiciary in ultimately dealing with those false charges. This issue was dealt with by Allsop J in NAQG v Minister for Immigration (2004) FCA 163 at paragraphs 45 to 48. I followed that decision recently in SZBRQ v Minister for Immigration & Anor [2005] FMCA 1101 at paragraphs 23 to 26. It is in my view clearly arguable in this case that the RRT constructively failed to deal with the applicant's claims to fear physical harm at the hands of the Bangladesh police in the manner in which it dealt with the outstanding false charges issue.
It is a pity that the applicant was not well advised in framing his application and did not himself raise that issue. Nevertheless, if I considered that jurisdictional error was apparent on the record of the RRT decision the failure of the applicant to raise the issue would not deter me from dealing with that error. For several reasons, however, I consider that this case can be distinguished from SZBRQ. In the first place it is not so clear in this case that the presiding member considered that the issue of the existence of outstanding false charges was so doubtful as to require consideration of the claim as if it were true. The presiding member pointedly states on page 251 of the court book that the claim was not accepted. It is not clear to me in these circumstances that the consideration of the independence of the judiciary is part of a “what if I am wrong?” consideration by the presiding member.
Secondly, the claim of a fear of physical harm in detention is not as clear in this case as it was in SZBRQ where I found that the RRT had accepted that the applicant had suffered physical harm while in detention on false charges previously. It is true that in this case the RRT had accepted that the applicant was subject to false charges in 1988 and had been mistreated at that time, but that was many years ago. The applicant's claims concerning recent physical harm related to being beaten by an identified police officer in October 2002 (court book, page 249). This was not so much a claim to fear physical harm in detention but rather a claim to fear physical harm from a particular policeman because of the applicant's political profile. The RRT found that there was no Convention nexus with the physical harm that may have been suffered by the applicant at that time.
I find that a claim of fear of physical harm while in detention awaiting the hearing of false charges was not clearly before the RRT. In all the circumstances, I find that jurisdictional error in the decision of the RRT has not been established. I must therefore dismiss the application as the decision of the RRT is a privative clause decision.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the amount of $5,000. The applicant did not wish to be heard on the question of costs. I have no difficulty in accepting that costs of that order have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. I will therefore order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.
I will order in addition that the Refugee Review Tribunal be joined as the second respondent to the application.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 16 September 2005