SZDCD v Minister for Immigration

[2006] FMCA 910

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDCD v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 910

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 65, 91X, 426A, 483A

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Minister for Immigration v Eshetu (1999) 162 ALR 577
NABE v Minister for Immigration [2004] FCAFC 263
NADH of 2001 v Minister for Immigration (2004) 214 ALR 264
Re Minister for Immigration; ex parte Applicant S20/2002 (2003) 198 ALR 59
S58 of 2003 v Minister for Immigration [2004] FCAFC 283
SAAP v Minister for Immigration [2005] HCA 24
SZECF v Minister for Immigration [2005] FCA 1200
SZECI v Minister for Immigration [2005] FCA 1201
SZEZI v Minister for Immigration [2005] FCA 1195

Applicant: SZDCD

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG839 of 2004

Judgment of: Lloyd-Jones FM

Hearing date: 12 May 2006

Delivered at: Sydney

Delivered on: 12 July 2006

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Bengali interpreter

Counsel for the Respondents: Mr J Mitchell

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent.

2. The name of the first respondent should be amended to read Minister for Immigration and Multicultural Affairs.

3. The application filed on 22 March 2004 is dismissed.

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG839 of 2004

SZDCD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 22 March 2004 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 21 August 2002 and handed down on 11 September 2002, affirming a decision of the delegate of the first respondent made on 22 August 2000, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.

2. The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZDCD”.

3. The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].

Background

1. The Tribunal decision of Mr Rodney Inder, reference N00/35046, provides the following background information.  The applicant claims to be a citizen of Bangladesh and to have arrived in Australia on

   
   

   25 July 1999. On 20 July 2000, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 22 August 2000, a delegate of the Minister refused to grant a protection visa and on 6 September 2000, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant had previously lodged an application for a protection visa, which was refused. The applicant then applied for review of that decision. However, in that case, the Tribunal found that his application was invalid and therefore had no power to consider it.(Court Book (“CB”) 100)

2. The applicant claims he was born in Bangladesh, is of Bengali ethnicity and a Muslim.  The applicant claims that he is a seaman and cook who jumped ship in Fremantle on 25 July 1999 without his passport.  He claims he worked on United Arab Emirates registered vessel M. V. Al Khaleej from February 1998 until he jumped ship in Australia.  He claims that he was a leader in the youth branch of the Jatiya Party in Sandwip.  Further that his political contribution and association with the Jatiya Party angered the Awami League such that he was harassed and attacked by Awami League hooligans, who also threatened to kill him.  He claims that political hostility compelled him to leave Bangladesh and seek refugee protection in Australia.  He fears that his political opinion may cost him his life and of being attacked by Awami League members.  Also that he is further jeopardised by his contribution to his party during national elections in 1991 and 1996.(CB 103-104)

Tribunal’s decision and reasons

1. A convenient summary of the Tribunal’s reasons are contained in the respondents’ written submissions prepared by Mr Mitchell and I adopt the following paragraph for the purposes of this judgment:

   4.1    The RRT member concluded that:

   (a)  The Applicant is a national of Bangladesh.

   (b)  The Applicant’s claims were very vague and general and no details were given in support of his claims.

   (c)  The RRT wanted to discuss and explore the matters raised by the Applicant at a hearing.

   (d)  On the basis of vague and unsubstantiated claims the RRT was unable to establish the relevant facts and was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason.

   (e)  The Awami League was no longer in power in Bangladesh and there was no evidence that the current government was pursuing a campaign of persecution of its opponents.

   (f)   The Applicant does not have a well-founded fear of persecution for a Convention reason if he returns to Bangladesh, either now or in the foreseeable future.

Application for review of the tribunal’s decision

1. On 22 March 2004, the applicant filed an application for review under s.39B of the Judiciary Act 1903.  On 1 July 2004, the applicant filed an amended application and on 17 September 2004, filed a further amended application, which contained the following grounds:

   (a)That the RRT decision was effected to take into account a relevant consideration when it assessed whether the delegate of the Minister raised reasonable grounds for not granting a protection visa.  The tribunal to consider in assessing the chance of the applicant being arrested and or persecuted on his return to Bangladesh based on the fact of my political opinion.

   (b)The Tribunal’s satisfaction that the applicant is not a refugee was not based on reasoning which provided a rational or logical foundation for this belief.

   (c)The Tribunal exceeded its jurisdiction, in failing to accord the Applicants procedural fairness as required by s.424A(1) of the Migration Act 1958.

   (d)The RRT did not complete the exercise of its jurisdiction as it made no findings as to what sociopolitical and religious changes might occur in Bangladesh in the reasonably foreseeable future and it thus failed to assess whether the applicant’s fears of being persecuted for being a member of a highly marginalized religious group were well founded in the reasonably foreseeable future.

   (e)The RRT’s decision was not based upon circumstances giving a rational foundation for the belief entertained as the RRT’s findings, when applied to the applicable criteria, meant that the RRT should have been satisfied that the applicant had met those criteria. (Copied without alteration or amendment)

Reasons

1. The applicant is a self-represented litigant and appeared with the assistance of a Bengali interpreter.  The applicant appeared at first directions on 11 May 2004 and indicated his desire to participate in the Court’s Legal Advice Scheme.  He was subsequently allocated a panel lawyer and participated in a conference with that lawyer.  The applicant also filed an amended application and a further amended application.  He did not file any written submissions prior to the hearing.  When invited to make oral submissions, the applicant did not address any of the grounds of review, but instead, advised the Court of circumstances surrounding his claims.  He indicated to the Court that his father had been killed and that his home had been attacked and damaged.  The applicant further claimed that he had been injured in 1997 and that it was not safe for him to remain in Bangladesh.  No reference was made to the grounds of review, or any aspect of the Tribunal hearing.

2. Mr Mitchell provided written submissions which were supplemented by oral submissions during the hearing.

3. In respect of the first ground of the further amended application at [7](a) above, the applicant claims that the Tribunal did not assess the applicant’s chance of being arrested and/or persecuted based on his political opinion, upon his return to Bangladesh. This claim is contrary to the Tribunal decision, as clearly the Tribunal member did consider the applicant’s chances of persecution in the future. The Tribunal specifically made the following finding (CB 109):

   The Tribunal accepts this independent country information over the vague and unsubstantiated claims made by the Applicant, which does not accept, and is satisfied that the Applicant does not have a well-founded fear of serious harm amounting to persecution for a Convention reason if he returns to Bangladesh, either now or in the foreseeable future.

4. The applicant’s claims in his protection visa application were vague and general and there were no details or evidence to support the claim that he had been harassed or attacked by Awami League members.

5. The Tribunal indicated in its decision that it wished to discuss and explore these claims with the applicant directly during the Tribunal hearing.  The applicant failed to attend and the Tribunal was not prepared to make a decision in the applicant’s favour on the material available to it, without exploring in some detail the credibility and plausibility of his claims.  The Tribunal had forwarded an invitation to the applicant to attend the hearing indicating that the Tribunal was unable to make a decision in the applicant’s favour on the information he had submitted alone.  The applicant had responded to that invitation by indicating that he intended to be at the hearing and would be accompanied by his migration advisor and that he also required a Bengali interpreter.  That response had been forwarded to the Tribunal.

6. At the date of the Tribunal hearing there was no appearance by the applicant. The applicant did not contact the Tribunal to provide an explanation for his non-appearance. The Tribunal proceeded appropriately and consistent with s.426A of the Act to make a decision without taking further evidence from the applicant. This approach has been endorsed by the Full Federal Court in S58 of 2003 v Minister for Immigration [2004] FCAFC 283 at [26] per Ryan, Merkel and Conti JJ:

   In our view, the appellant was offered the opportunity to appear before the Tribunal and address any concerns it may have had about his claims and to put forward the documents upon which he relied. He cannot complain if his application was rejected because, amongst other reasons, he failed to take up that opportunity.

7. In respect of the claims raised at [7](b) and (e) above, the Tribunal reasoning was based on its lack of satisfaction as to the claim made by the applicant.  It is not necessary for the Tribunal to have a positive state of disbelief about the applicant’s claims in order to form a view that it was not satisfied the applicant had a well-founded fear of persecution.  It was for the applicant to satisfy the Tribunal that he had such a well-founded fear.  The findings made and inferences drawn from the evidence before the Tribunal were open to it; those findings were not therefore erroneous on the basis of error of law or illogicality: NADH of 2001 v Minister for Immigration (2004) 214 ALR 264 at [129]; Re Minister for Immigration; ex parte Applicant S20/2002 (2003) 198 ALR 59; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367; Minister for Immigration v Eshetu (1999) 162 ALR 577.

8. In respect of the claim at [7](c) above, Mr Mitchell submits that the Tribunal’s reasoning was based on the inadequacy of the material provided by the applicant. An evaluative conclusion founded on a perceived inadequacy of the information does not mean the information was the reason or part of the reasons for the decision: SZECF v Minister for Immigration [2005] FCA 1200 at [26] – [28]; SZEZI v Minister for Immigration [2005] FCA 1195 at [29]; also see SZECI v Minister for Immigration [2005] FCA 1201 at [24].

9. In respect of the claim raised at [7](d) above, Mr Mitchell submits that the Tribunal was not obliged to consider claims in respect of the applicant’s membership of a highly marginalised religious group, which were not made before the Tribunal and did not clearly arise from the evidence before it: NABE v Minister for Immigration [2004] FCAFC 263 at [58] – [63].

10. After reviewing the material provided by the applicant and that provided to the Tribunal from its own resources, it made the following finding (CB 109):

    The Tribunal accepts this independent country information over the vague and unsubstantiated claims made by the Applicant, which it does not accept, and is satisfied that the Applicant does not have a well-founded fear of serious harm amounting to persecution for a Convention reason if he returns to Bangladesh, either now or in the foreseeable future.

11. The Tribunal reviewing a delegate’s decision for a protection visa is required to reach a state of satisfaction or otherwise, under ss.36 and 65 of the Act. The decision must be directed to the relevant subject matter, or perhaps more widely, to the subject matter of the Act. In this decision the decision was based on a lack of satisfaction about the credibility and plausibility of the applicant’s claim.

Conclusion

1. The applicant appeared at the hearing as a self-represented litigant, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. Counsel for the respondents assisted the Court with written submissions which were supplemented by oral submissions in respect of the further amended application. It was apparent that the applicant did not comprehend the significance of the contents of further amended application or the operations of the proceedings. I am satisfied that none of the grounds identified by the applicant can be sustained. Neither is it apparent that any other ground of review exists that suggested the Tribunal made a jurisdictional error in its decision making process. The applicant’s claim should be dismissed.

2. I am satisfied that an order for costs should be made in this matter.  I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  11 July 2006