SZCUQ v Minister for Immigration
[2007] FMCA 233
•8 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCUQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 233 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, s.91X Federal Magistrates Court Rules 2001, r.44.12 |
| Abebe v Commonwealth (1999) 197 CLR 510 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR Tran v Minister for Immigration & Multicultural Affairs [2006] FMCA 961 General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Agar v Hyde (2000) 21 CLR 552 |
| Applicant: | SZCUQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2789 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 5 February 2007 |
| Date of Last Submission: | 5 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Anthony |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2789 of 2006
| SZCUQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application dated 5 February 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) dated 24 August 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 24 April 2003 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
The Applicant is aged in his mid-twenties. According to the details in his original application he completed 12 years of education in Bangladesh in 2000 before studying at a university in Fiji in 2001-2002. According to his passport he returned to Bangladesh on 28 October 2002. He said in his original application that he had last left Bangladesh on 19 April 2003 and he entered Australia on 21 April 2003 on a transit visa. In a statement accompanying his original application he said that he had been involved in politics from an early age …
The Applicant said that after he had completed his Higher Secondary Certificate he had been admitted to Dhaka University but he said that he had been compelled to leave the campus as he had been attacked by activists of the Chhatra Dal (the student wing of the BNP)... (Court Book (“CB”) pages 301-302)
The applicant claims to fear persecution in Bangladesh because of his political activities.
Facts alleged in support of the applicant’s claim for a protection visa and taken from a written submission produced to a previous and differently constituted Tribunal are set out on pages 5-6 of the Tribunal’s decision (CB 302-303). Relevantly, they are in summary:
a)the applicant was a student political leader of the Awami League, the main opposition party in Bangladesh. He claimed that because he had become the General Secretary of the Thana Committee of the Chhatra League he had become the target of “BNP terrorists” and he had been threatened many times and beaten. He said that some BNP “thugs and goons” had tried to kill him;
b)the applicant also claims that due to his father’s involvement in the Awami League and his father’s protests against Islamic fundamentalism, his family had been boycotted and harassed in various ways, including being threatened “that they would kill me if I continue my association with progressive activities” (CB 302);
c)the applicant said that because of persecution his other family members had “left their areas and now living other areas of the countries” and that many of his friends had left Bangladesh and had sought shelter in India (CB 302);
d)the applicant said that the “Jamaat based Mullahs tried to kill me wherever I went” and that he had already been victimised by “a known group of Islamic terrorists” in Bangladesh. He said that the Government along with the Jamaat-e-Islami and its student wing, the Islami Chhatra Shibir had filed a false case against him. He said that he had left Bangladesh for the security of his life.
The Tribunal’s fuller recounting of the facts alleged by the applicant is found on pages 4-14 of its decision (CB 301-315) and records what was submitted by him first in his original application, then to the first Tribunal and finally to the subject Tribunal in written and oral form.
The Tribunal noted inconsistencies between the various versions of events which the applicant had supplied.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal did not accept that the applicant had been telling the truth about his claimed problems in Bangladesh and highlighted five issues which led it to this conclusion. Those issues were:
a)inconsistencies in the applicant’s versions of the events concerning whether his father’s business activities had been affected by opposing political activists;
b)the applicant gave inconsistent evidence concerning why he did not complete his education at Dhaka University such that it cast doubt on his claim that he was not able to complete his education there because he had been attacked by opposing political activists;
c)inconsistencies in the applicant’s evidence concerning the looting and ransacking of his home by opposing political activists was such as to cast doubt on his claims that his home was attacked after the October 2001 general election and that he had to leave his home and go elsewhere in Bangladesh;
d)the inconsistencies in the applicant’s evidence concerning why he travelled to Fiji in October 2001 suggested to the Tribunal that he was prepared to tailor his evidence to what he perceived to be his advantage without regard for the truth; and
e)in the Tribunal’s mind, the fact that the applicant had travelled to Fiji and claimed to fear persecution in Bangladesh but returned to Bangladesh on 28 October 2002 and did not leave again until 19 April 2003 cast doubt on his evidence that he feared he would be persecuted if he returns to Bangladesh.
The Tribunal said:
I do not accept that the Applicant is telling the truth about his claimed problems in Bangladesh or his fears with regard to what will happen to him if he returns to Bangladesh. I do not accept that the Applicant was involved in the Awami League, its student wing, the Chhatra League, or its youth wing, the Jubo League, in Bangladesh. I do not accept that he was ever General Secretary of the Chhatra League or the Jubo League in his Thana, nor that he was ever elected as an executive member of the Dhaka District Committee of the Chhatra League, as he claimed in the statement accompanying his original application. (CB 318)
Proceedings in this Court
The hearing in this matter was a show cause hearing pursuant to Rule 44.12 of the Federal Magistrates Court Rules 2001. That rule provides:
(1)At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed -- dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed -- adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c)without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2)To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory.
To determine what order to make under that rule, it is necessary to consider the application which has been made by the applicant.
The grounds of the amended application can be summarised as follows:
a)factual matters said by the Tribunal to amount to inconsistencies regarding the applicant’s father’s business and employment and how it was affected by opposing political activists were not really inconsistencies;
b)factual matters concerning the claimed looting and ransacking of the applicant’s claim were not really inconsistencies;
c)the Tribunal misconstrued the motivation for the applicant’s departure for Fiji and should have taken into account the timing of his departure from Bangladesh as evidence that his departure was, at least in part, motivated by a fear of persecution following the general election on 1 October 2001.
In submissions, the applicant’s Counsel also raised the following issue:
a)the applicant’s evidence concerning his travel to Faridpur was adequately explained by the applicant in his evidence to the Tribunal.
Dealing with each of these grounds in turn:
Factual matters said by the Tribunal to amount to inconsistencies regarding the applicant’s father’s business and employment and how it was affected by opposing political activists were not really inconsistencies
The applicant submits that, in reality, there were no inconsistencies, or no inconsistencies of substance in the applicant’s evidence at various stages of his claim for refugee status. This is not correct. As the Tribunal’s decision records:
First, in the statement (CB 26) accompanying his original application he said that after the parliamentary election in October 2001 his father had been sacked from his job and his business had been ruined by the BNP activists along with the anti-liberation forces in his region. At the hearing on 11 July 2006, however, he said that his father had retired from his job and that he continued to run some businesses in their village. When I put to the Applicant that he had said in the statement accompanying his original application that his father had been sacked from his job, the Applicant said that his father had been sacked or he had quit but that now he was retired. When I put to the Applicant that he had said in the statement accompanying his original application that his father’s business had been ruined by BNP activists he said that before he had left the country his father had been running a business in Dhaka City but now he just had businesses in their village area. (CB 315-316)
Notwithstanding such explanations of the differences in the versions as the applicant may have given in his evidence to the Tribunal, the fact is that they are different and to that extent are inconsistent. Therefore, the claim that there was no evidence for the finding of inconsistencies is not made out.
The applicant invites the Court to draw a conclusion on these facts different from the one at which the Tribunal arrived. The Court cannot do this even were it to take a view of the facts different from the Tribunal’s: Abebe v Commonwealth (1999) 197 CLR 510. As the Full Court of the Federal Court said in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 16 [53]:
It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
‘Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.’
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 481 [35] per McHugh J.Further, it is of no utility for the applicant simply to say that if an inconsistency is demonstrated then the Tribunal’s determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. Assertions of that sort have to be framed in the context of a recognised ground of judicial review: VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [16]-[18]. The reference to illogicality in the applicant’s submissions was not framed in such a way in this case.
Factual matters concerning the claimed looting and ransacking of the applicant’s claim were not really inconsistencies
In its findings, the Tribunal recounted the evidence in the following terms:
Thirdly, in the statement accompanying the Applicant’s original application he said that on 2 October 2001 (the day after the general election) his house had been looted and ransacked by BNP and Jamaat-e-Islami activists. He said: ‘I left home for Dhaka and later I went FIJI [sic] to get rid of the situation.’ At the hearing before the Tribunal (differently constituted) the Applicant said that he had left home on the night of the election in October 2001 and had gone to a friend’s house. He said that it had been two or three days after the election had finished that the Jamaat-e-Islami and the BNP had attacked his home in the village and his family. He said that he had been in Faridpur at the time. At the hearing before me the Applicant said that his home had in fact been attacked one day after the election and he said that what he had stated at the previous hearing had been a mistake. He repeated that he had been in Faridpur at the time and he sought to explain what he had said in the statement accompanying his original application (to the effect that he had left home for Dhaka) by saying that he had had to pass through Dhaka to get to Faridpur and that he had spent one or two hours in Dhaka. (CB 316)
The comments and conclusion which relate to the first ground of review apply equally to this asserted ground of review.
The Tribunal misconstrued the motivation for the applicant’s departure for Fiji and should have taken into account the timing of his departure from Bangladesh as evidence that his departure was, at least in part, motivated by a fear of persecution following a general election on 1 October 2001
In relation to this asserted ground of review, the Tribunal set out the following facts:
Fourthly, the Applicant’s passport indicates that his visa to travel to Fiji was issued on 19 September 2001 and that he had already drawn over $US7,000 to pay his university fees on 5 September 2001. At the hearing before the Tribunal (differently constituted) on 25 November 2003, however, he initially claimed that he had been in Faridpur when he had obtained his visa to travel to Fiji and that he had just given his passport to one of his leaders together with his academic results. He subsequently said that one of his friends had been going to Australia to study and that it had been this friend to whom he had given his documents and who had obtained his visa for him. He also said that his father had given the tuition fees to his friend because he himself had not been able to return to his home at the time.
Only after the Member constituting the Tribunal had pointed out to the Applicant that his passport indicated that his visa to travel to Fiji had been issued on 19 September 2001 and that he had already drawn over $US7,000 to pay his university fees on 5 September 2001 did the Applicant concede that he had got his visa to travel to Fiji before the election in October 2001. The Applicant said that it had been before the election that he had given his friend everything to obtain his visa. At the hearing before me he said that he had in fact decided to go overseas to study when he had finished his classes at Dhaka University in February or March 2001. As the Tribunal noted in its letter, this information suggests that the Applicant’s decision to go to Fiji to study had nothing to do with the persecution he claims to have suffered after the election in October 2001. (CB 316-317)
The applicant seeks to challenge the Tribunal’s fact finding and the same considerations in relation to a challenge to the Tribunal’s fact finding apply to this asserted ground of review as apply to the first asserted ground of review.
The applicant’s evidence concerning his travel to Faridpur was adequately explained by the applicant in his evidence to the Tribunal
To the extent that this is a ground of review, it is really subsumed as a factual consideration associated with the second ground of review. Whatever explanation may have been given by the applicant to the Tribunal, the fact remains that it is for the Tribunal not this Court to weigh the facts and arrive at a conclusion on those facts.
The asserted grounds of review generally
The authorities demonstrate the applicant seeks to agitate matters which Parliament has allocated to the Tribunal for determination.
As the Full Court of the Federal Court said in Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR at 558:
… it is important for us to bear in mind that it is not open to the appellant to seek a review of the merits of the decision of the RRT. Parliament has determined that ordinarily the RRT is to be the final arbiter on the merits for applications for protection visas. As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in doing so, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
Moreover, for present purposes, the crucial criterion for the grant to the appellant of a protection visa was that the Minster, or on review the RRT, is “satisfied” that the appellant is a person to whom Australia has protection obligations under the Refugees Convention. A decision as to “satisfaction” is not immune from review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). However, it is not to be overlooked that the criterion reflects a decision to make the satisfaction of an administrative decision maker, and not the satisfaction of a judge or a court, the determinant of eligibility for the grant of a protection visa.
The essence of the application brought in this Court is that the Tribunal’s decision is affected by jurisdictional error because the Tribunal arrived at findings of fact, leading to an adverse view of the applicant’s credit, which the applicant says were wrong. The applicant’s complaint is with the Tribunal’s evaluation of the evidence which was before it. This Court is not empowered to substitute its own factual conclusions for those of the Tribunal.
No arguable case
Counsel for the applicant referred the Court to the decision of McInnis FM in Tran v Minister for Immigration & Multicultural Affairs [2006] FMCA 961 and I adopt what his Honour said at [8]:
… Summary dismissal proceedings and/or proceedings under the new rules, referred to as "show cause" proceedings, should not be regarded as a mere formality simply because an assessment has been made of arguments advanced for and on behalf of an Applicant which a party, that is, a respondent, does not regard as meritorious. An arguable case does not mean a case likely to succeed. I accept in this instance that "arguable" means what it says, that there are arguments that can be advanced for and on behalf of an Applicant.
The authorities show that an application should not be dismissed under r.44.12 unless the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), or the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 21 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).
In this case it is clear that the applicant’s action is certain to fail because his claim for judicial review on the basis of jurisdictional error is groundless.
Conclusion
In my view the applicant does not have an arguable case for the relief claimed.
Therefore, pursuant to rule 44.12 the application will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate: Parisra Thongsiri
Date: 8 March 2007
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