SZCNP v Minister for Immigration - [2006] FMCA 247

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCNP v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 247

MIGRATION – RRT decision – Bangladeshi with some involvement in Awami League – Tribunal found fears of persecution not well-founded – no error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 424A(3)(a), 425, 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293
NAHT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1049
SBBS v Minister for Immigration& Multicultural & Indigenous Affairs (2002) 194 ALR 749

Applicant:

SZCNP

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG160 of 2004

Judgment of:

Smith FM

Hearing date:

13 February 2006

Delivered at:

Sydney

Delivered on:

13 February 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms T Wong

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG160 of 2004

SZCNP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 21 January 2004 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 November 2003 and handed down on 17 December 2003. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth) but the repeal does not affect the continuance of this proceedings (see Sch.1 cl.41 of the amending Act and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s jurisdiction under s.483A is the same as the Federal Court jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have power to set aside the Tribunal’s decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed nor whether he qualifies for a refugee visa.
The applicant arrived in Australia on a one month temporary business visa in June 2002. On 15 July 2002 he applied for a protection visa, assisted by an agent Mr Syed. The application was accompanied by a statutory declaration explaining the circumstances in which he claimed protection from Australia against return to his country of nationality, Bangladesh. It was also accompanied by documents to corroborate a claim that the applicant was in November 2001 the subject of charges in relation to explosive substances and unlawful assembly. Other documents were also submitted, including documents supporting his involvement in 1990 in the “mass movement against the autocratic government of Ershad”.
The Tribunal summarised the applicant’s claims accurately, in my opinion, in the following way:
17.The applicant elaborated on these claims in a seven‑page statutory declaration accompanying his protection visa application.
•He had started his political career as a general member of the Bangladesh Chattra League, the student forum of the Awami League, in 1985. In 1987‑88 he was elected general secretary of the Chattra League at his college.
•On graduation he joined the family business and became one of the directors of [Company] Industries Limited. In parallel to this, he continued his political activities as an activist of the Awami League. He contributed in his area to activities designed to overthrow the anti‑democratic Ershad regime.
•In 1990 he was elected joint convener of the youth league and organised meetings and demonstrations in various areas of [City]. He delivered lectures encouraging people to participate in the anti‑Ershad movement. He became very popular in his area through this political activity. He was also active in community activities such as the National Anti‑Tuberculosis Association of Bangladesh.
•In 1993, after the fall of the Ershad government, he became organising secretary of the Joy Bangla Cultural Forum in [City]. He was committed to the objectives of the Bangladesh Awami League in establishing the rights of the people and ensuring equal opportunity for all. The goal of his party was to free the nation of autocracy and corruption of the Ershad government.
•In the general election of 1991, the BNP came to power. It saw the Awami League as its principle opponent, and targeted activists of the League. The applicant organised demonstrations to protest against such activities and called for the release of Awami activists convicted of false charges. This brought him to the attention of the authorities.
•He delivered lectures, organised demonstrations and hartals [strikes] to generate growing support for the anti BNP movement. He therefore became a target for armed BNP supporters; his business place was targeted, he was deprived of government facilities to run his business and the banks restricted their facilities to him.
•In August 1994 BNP thugs attacked his place of business and incited his workers to go on strike. He was physically or verbally abused and harassed on a few occasions. The BNP filed a false case against him in June 1995: a warrant of arrest was issued and he went into hiding to escape persecution and torture.
•The BNP government came to an end in 1995; after the change of government a free and fair trial took place and he was proved not guilty of that false charge. The Awami League formed government after the elections of 1996, and all false politically motivated cases against him were withdrawn; he was able to engage in business and lead a normal life.
•However, the BNP never accepted the Awami League in government. As an activist of the Awami League, the applicant protested against the hartal declared by the BNP in August 1999. He was severely injured in a clash with BNP activists near [City].
•The BNP became the government after the general election of October 2001, and on coming to power targeted leaders and members of minority religions and workers for the Awami League. The applicant’s life became very insecure.
•It had become apparent that the present government, in collaboration with the fundamentalist Islamic party Jamat‑e‑Islami, were determined to crush the Awami League. The government continued, in the name of national security, to deploy repressive laws to violate political rights and the right to life, liberty, and the security of the person.
•In November 2001 the Awami League called a full day hartal, and the applicant was given the responsibility of organising demonstrations and picketing in his area. The police filed a charge against him of possessing explosives and unlawful assembly, which was totally politically motivated.
•On 13 November he was detained. On 20 November a bail petition on his behalf was rejected. He was severely assaulted physically and mentally in police remand. On 20 December 2001 he was sent to Hazat gaol, without any specific allegation. Another bail petition was rejected on 3 January 2002.
•On 20 January 2002 his bail petition was granted and he was released from detention on condition he report to the court once a week. He did not do so, and his case was still under investigation.
A delegate considered the applicant’s claims and refused the application on 24 October 2002.
The applicant, with the assistance of his agent, appealed to the Refugee Review Tribunal on 22 November 2002. The body of the application did not give more supporting material but said: “I request you for an appropriate assessment of my application and set aside the decision of the delegate”. A lengthy submission by the agent to the Tribunal at several points assumed that the Tribunal would be receiving and considering all the documents which were before the delegate. Thus it said: “we note that the applicant has provided a large number of documents in support of his application, which provide clear evidence of his claims and fears”. At other points it said:
The applicant’s fears of persecution from the current coalition government are evident because of their adverse interest on him. He has provided all relevant information and documents in support of his claims for refugee status. …
We urge you to look into the evidence provided by our client to justify that our client’s fears are well‑founded. If there is any doubt then our client is entitled to the benefit of doubt as noted above.
In my opinion, in these circumstances there was a republishing to the Tribunal, by or on behalf of the applicant, of the whole contents of his original visa application and supporting documentation.
The applicant attended a hearing held by the Tribunal on 11 September 2003, and after the hearing was allowed a further opportunity to put forward additional submissions and material. His agent took that opportunity, and made a further submission on 13 October 2003.
In its reasons, the Tribunal referred to its questioning of the applicant at the hearing, including about his involvement in the family company. The applicant described his duties, and: “he acknowledged that this was a very full time occupation”. The Tribunal also said that it questioned the applicant about his claim to have gone into hiding before coming to Australia, and suggested to him that the records of travel shown in his passport, which he had brought with him to the hearing, did not support that claim. The applicant had travelled to Nepal and India in April 2002.
Under the heading “Findings and Reasons”, the Tribunal assumed the genuineness of the documents tendered by the applicant, but concluded:
44.The Tribunal is unable to be satisfied, based on the information provided to the Tribunal about his past activities and his treatment by the authorities, that the applicant’s profile as a political activist was prominent enough at any point, including his brief periods of holding minor political office, to put the applicant in danger on return to Bangladesh of facing a real chance of experiencing harm or mistreatment at a level amounting to Convention persecution as discussed in para 8 above now or in the reasonably‑foreseeable future. Taking account of the applicant’s evidence together with independent country information, the Tribunal therefore finds that the applicant does not have a well‑founded fear of persecution within the meaning of the Convention, and is accordingly not a refugee as defined in Australian law.
In reaching that conclusion, the Tribunal rejected some aspects of the applicant’s evidence, and it explained at the start of its reasons a general concern about the credibility of the fears which he claimed.
The Tribunal said that it accepted that it was plausible that the applicant held positions in the Awami League during his student days, and had held office in the “Joy Bangla Cultural Forum in 1993”, but it said:
From his oral testimony the Tribunal understands that, following his graduation, he became fully occupied with his senior role in the family business, and the Tribunal is not satisfied that he remained active in politics in his adult life.
The Tribunal said “against this background” it did “not accept as plausible” his claims “to have been targeted by armed BNP supporters following the BNP success in the 1991 election, to have been harassed, verbally abused and physically attacked in August 1994 and subjected to false charges in 1995 or to have been injured in a clash with BNP activists at an unspecified date in association with a hartal in 1999”. It did not think that those claims were credible, due to its finding that he was “not of such political prominence at those times as to have been targeted for political reasons”.
The Tribunal gave additional reasons for not accepting the applicant’s claim to have gone into hiding in February 2002, referring to his statements that he had continued to work in the family business, and forming the view that his travel to India and Nepal was more likely to have been travelling on business. The Tribunal also noted that the applicant had used a Bangladeshi passport in his own name issued in February 2002.
In relation to the applicant’s claim to have been charged with possessing explosives and unlawful assembly in November 2001, the Tribunal said that it “notes the documentation provided by the applicant in connection with these charges and accepts his claim as plausible”. It said:
… the Tribunal considers it possible that these charges resulted at the time they were made from political motivation, taking account of independent country information on political confrontation in this period. There was considerable politically‑motivated violence throughout Bangladesh during and following the October 2001 election against leaders and supporters of the Awami League and others …
The Tribunal notes however that, as with other periods when he claims to have been harmed over his political opinion, the applicant does not claim to have been involved in any prominent way in political life or the holder of any political office at this time. The Tribunal also considers it possible that these charges against the applicant were not politically motivated, but arose from other information leading the authorities at the time to mount and investigate these serious charges.
Addressing these alternative hypotheses, the Tribunal said that if the charges had been politically motivated, taking into account the applicant’s ability to obtain a passport in February 2002: “the authorities are unlikely to proceed with them now in view of the changed political circumstances applying since early 2002”. If, on the other hand, the charges arose as a matter of serious criminal investigation: “this would be an application of the law in a non‑selective, non‑discriminatory way in relation to the applicant and would not amount to persecution for a Convention reason”.
The Tribunal then referred to “two new elements” introduced by the applicant’s advisor in his post‑hearing submission, which the Tribunal found to be “without basis” and “to be contrived and without credibility”. These were claims that, if the applicant returned to Bangladesh, his prolonged absence “would raise the suspicion of the authorities”, and that the applicant was suffering from post‑traumatic stress disorder. The Tribunal’s conclusion that those two claims were not genuinely based was, in my opinion, open to it.
I have considered the Tribunal’s reasons for forming the opinion that the applicant did not have a well‑founded fear of persecution, notwithstanding his involvement in Awami League activities and being subject to charges in 2001, and consider that its reasoning was open to it on the evidence before the Tribunal. I consider that the Tribunal identified and addressed all claims made by the applicant. I am unable to identify any jurisdictional error affecting its decision to affirm the delegate’s decision.
The applicant’s application in this Court contains numerous unparticularised assertions of jurisdictional error. It is unnecessary for me to address them, since they appear to have been fully replicated and given some substance in an amended application filed on 11 August 2004. This also contains numerous grounds, some of which are difficult to understand.
Counsel for the Minister has carefully analysed the contentions made in the amended application, and I think she has identified them and responded to them in a manner which I consider to be appropriate. I adopt her responses as my reasons for not accepting any of the claims made in the amended application. I shall set out the relevant parts of her written submission as a schedule to my reasons.
The applicant did not file a written submission, and did not attempt in his oral submissions today to address any of the grounds in his amended application. His simple submission to me was that all his documents submitted were true, and his statements to the Tribunal were true, and the decision of the Tribunal was therefore unfair. He also submitted that if he were given an opportunity he would be able to bring forward more documents to establish his claims. However, these contentions do not identify jurisdictional error in how the Tribunal decided his case. As I have explained to him, in the absence of jurisdictional error I have no power to give him the opportunity he desires of persuading the Tribunal again.
For the above reasons, I consider that the Tribunal’s decision is not affected by jurisdictional error. It is therefore a privative clause decision for which relief is barred under s.474(1), and I must dismiss the application.

I certify that the preceding twenty‑three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 24 February 2006

SCHEDULE

Ground 1: Failure to Consider Claims

The Applicant states in his Amended Application that the RRT:
a)“failed to take any steps to identify my problems” (para. 1);
b)“failed to consider that I do not [sic] have a real chance of persecution for a convention reason in Bangladesh” (para. 2);
c)“failed to consider the well‑founded fear of my persecution owing to membership of a political party” (para. 3);
d)“failed to take into consideration the politically motivated charges against me”(para. 3);
e)“erred not considering the amount of discrimination I shall be experiencing on my return to Bangladesh” (para. 3);
f)“has not considered how current coalition government and their thugs persecuted me prior to my arrival in Australia and my peer political activists have been experiencing the similar situation till now” (para. 4);
g)“has not taken into consideration the reasons of my leaving country” (para. 5);
h)“fail[ed] to take into consideration the threat of my life and/or liberty” (para. 11);
i)“failed to take into account of the cumulative effect of my experience” (para. 11).
Contrary to the Applicant’s assertions, the RRT considered each and every claim made by the Applicant including:
a)the Applicant’s claims to have suffered harassment and threats by BNP supporters in August 1994 and August 1999 (CB 123);
b)the Applicant’s claims to have been falsely charged with criminal offences in June 1995 and November 2001, and to have been placed in gaol in December 2001 and released in January 2002 (CB 123‑125);
c)the Applicant’s claim that as a result of prolonged absence from Bangladesh, the suspicions of the authorities would be raised (CB 125); and
d)the Applicant’s claim that he suffered post traumatic stress disorder (CB 125‑126).

The RRT also considered the documents presented by the Applicant in support of his claims, and accepted that several of those documents were genuine: CB 122, 124. The RRT conducted a thorough analysis of the information provided by the Applicant and concluded that the Applicant did not face a real chance of persecution upon his return to Bangaldesh: CB 126. Ground 1 should be dismissed.

Ground 2: Failure to Investigate

The Applicant claims that the RRT should have “investigate[d] the genuineness of my claim” and that the RRT should have investigated the harassment and abuse suffered by the Applicant before deciding against him. However, it was for the Applicant to present information to the Tribunal to advance his arguments that he had a well‑founded fear of persecution for a Convention reason, and for the Tribunal to decide whether that claim was made out on the basis of the information before it: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ. As stated by Gray, Cooper and Selway JJ in MIMIA v SCAR (2003) 198 ALR 293 at [36]:
It is clear that s 425 of the [Migration Act 1958] does not require that the tribunal actively assist the applicant in putting his or her case; nor does it require the tribunal to carry out an inquiry in order to identify what that case might be.
Nor are there any exceptional circumstances such as to impose a duty of inquiry or investigation upon the RRT. Ground 2 does not disclose jurisdictional error.

Ground 3: Failure to consider non‑violent harassment

The Applicant argues, at paragraph 6 of the Amended Application, that:
Having received the evidence about “non‑violent harassment”, the Tribunal did not properly consider whether “non‑violent harassment” can fall within the notion of “serious harm” under s91R in the Migration Act.
This ground of review misconceives the basis upon which the RRT found against the Applicant. The RRT did not find against the Applicant because the harm he claimed to have suffered did not fall within s.91R of the Act. Rather, the RRT found against him on the following bases:
a)the Applicant’s claims to have suffered Convention‑related persecution in August 1994, June 1995 and August 1999 were not credible;
b)the authorities would be unlikely to proceed against the Applicant with charges laid against him in November 2001, as the political violence, confrontation and harassment surrounding the October 2001 election subsided in early 2002;
The Applicant has failed to particularise any “non‑violent harassment” which was not the subject of consideration by the RRT. Ground 3 should be dismissed.

Ground 4: Failure to accord procedural fairness

The Applicant states that the RRT failed to accord procedural fairness because it “did not give me any opportunity to respond to any adverse material that it possess[ed]”.
The Applicant does not provide any particulars of the material claimed to be in the possession of the RRT which was not brought to the Applicant’s attention. To the extent the RRT took into account independent country information, it was not required to provide the Applicant with an opportunity to comment on such information prior to reaching its decision: s.424A(3)(a) of the Act; MIMIA v NAMW (2004) 140 FCR 572 at [138].

Ground 5: Failure to apply the correct principles of law

The Applicant has not provided particulars of the principles of law said to have been incorrectly applied by the RRT. It is apparent from the face of the RRT’s decision that it applied the correct analysis when determining whether the Applicant had a well‑founded fear of persecution, and in particular, applied the test set out in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 when determining whether the Applicant had a “real chance” of persecution for a Convention reason: see CB 113‑114 and 126. Ground 5 does not demonstrate jurisdictional error.

Ground 6: Constructive failure to exercise jurisdiction

The Applicant has failed to particularise this ground.

Ground 7: Failure to permit the Applicant to give evidence

The Applicant claims that the RRT exceeded its jurisdiction by “not permitting me to give evidence in accordance with s425 of the Act”. The evidence establishes that the Applicant did attend a hearing before the RRT, and in fact, received an adjournment of a previous date set down for hearing on the basis that the Applicant had misunderstood the date upon which he was to attend: CB 118. No jurisdictional error is made out in this regard.

Ground 8: Failure to give an opportunity to explain inconsistencies

The Applicant claims that the RRT “failed to make proper attempts with an open mind to clarify the alleged inconsistencies and to resolve any contradiction in a further hearing or granting an opportunity to me to give the explanation”.
The difficulty with this submission is that the RRT did exactly what the Applicant claims that it failed to do. In its reasons for decision, the RRT states (at CB 120):
In his final comments, the applicant said he was anxious that the Tribunal undertake a careful investigation of his case and ensure that natural justice was given to him. He sought permission to make a further submission to the Tribunal, with additional documentation. Offered a date two weeks from his hearing for the submission of this material, he said that this would not be enough time for him to obtain documents from Bangladesh and asked for a four‑week period; the Tribunal agreed that he might make a further written submission by Friday 3 October 2003.
In any event, the Applicant does not give any particulars of the inconsistencies which he would have addressed had the RRT given him an opportunity to do so. Ground 8 should be dismissed.

Ground 9: Bona fides

The Applicant claims that the decision of the RRT “was not a bona fide attempt to act in the course of the Tribunal’s authority”. The only evidence before the Court of the conduct of the RRT consists of its letters to the Applicant and its decision to refuse the Applicant a protection visa. This evidence demonstrates that the RRT has “made an honest and genuine attempt to undertake the task required by the legislation”, which rules out the availability of any claim of lack of bona fides on the part of the RRT: NAHT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1049 at [36] per Beaumont J; see also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749.