SZDIK v Minister for Immigration - [2005] FMCA 242

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDIK v MINISTER FOR IMMIGRATION

[2005] FMCA 242

MIGRATION – RRT decision – Bangladeshi member of BNP claiming fear of fundamentalist Muslims – Tribunal found evidence not credible – no jurisdictional error.

Migration Act 1958 (Cth), ss.422B, 424A, 424A(3), 424A(1), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

NARV vMinister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

SZDIK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1127 of 2004

Judgment of:

Smith FM

Hearing date:

25 February 2005

Delivered at:

Sydney

Delivered on:

25 February 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms McNaughton

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1127 of 2004

SZDIK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Refugee Review Tribunal dated

27 February 2003 and handed down on 20 March 2003. The Tribunal affirmed a decision of a delegate taken on 31 May 2001 refusing the applicant a protection visa. The applicant applied for the visa on

17 May 2001 with the assistance of solicitors who also subsequently helped him in his appeal to the Tribunal. He had been in Australia since 15 March 1997, having entered Australia on a one month visitor's visa.
Under s.483A the court has “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, I must find that the Tribunal decision was affected by jurisdictional error before I have power to set aside the decision and remit the case to the Tribunal.
The Court has no power to set aside the Tribunal decision merely because it has sympathy for the applicant, or thinks that he should have an opportunity for his case to be further investigated. It is not the function of the Court to assess the merits of the claim to be a refugee and to have a protection visa, except in so far as these may reveal jurisdictional error.
As I have indicated, the application for protection visa was lodged by solicitors, Messrs Parish Patience, on 2 May 2001. In the covering letter the solicitors said:
The applicant fears persecution in Bangladesh because of his political and religious principles which has (sic) brought him into conflict with his family and other members of society there and the current political elite.
The solicitors also provided general comments in relation to the applicant and the situation in Bangladesh. In the body of the application, which was verified by statutory declaration by the applicant, only brief claims were set out. These are set out in full and explored by the Tribunal in its reasons. At the end of its reasons it sufficiently summarised them as follows:
The applicant claims that he has been a member of the BNP since his college days in the 1980s, he claims that he had problems with corrupt police in the family's garment factory. He claims that his free-thinking religious ideas has caused him to have problems with his family and he believes that fundamentalist Muslims will attack him because of his beliefs. He also fears harm from Awami League activists. He also has claimed that the family business has been taken over by criminals with links to the Awami League.
The Tribunal said that it was prepared to accept that the applicant had been a BNP activist in the past, but noted that that party was now in government, that is at the time of the Tribunal decision. It said:
If he is facing harassment from people with Awami League backing as he claims, then the Tribunal finds he can call on the assistance of the government in dealing with them. The Tribunal therefore does not accept his claim that he would not be protected.
It then addressed the applicant's claim that the harassment occurred, or would recur, because criminal elements related to the Awami League had taken over his family business. The Tribunal found “his evidence in this regard not to be credible”. It said that it was not satisfied that “the difficulties he claims he is having with a take-over of the family business ever occurred”.
It then unnecessarily dealt with the hypothesis "even if they had occurred", and concluded that the difficulties would not be "for a Convention reason", and that his links to the BNP would now "put him in a position where he can call on the current government to protect him from harm."
The Tribunal then dealt with the applicant's claim that his non-conformist religious beliefs would be the basis of future harm from fundamentalist Muslims who knew him at College. The Tribunal concluded that the claim was "implausible" and did not accept it. It considered that the independent evidence did not support a conclusion that there had been any general fundamentalist take over of Bangladesh society such that non-conformists such as the applicant could not live their lives in peace and without harm.
Finally, the Tribunal dealt with the applicant's claims that alienation had occurred between him and his father because of his beliefs. Due to conflicts in the applicant's accounts of his relationship with his father, it found that claim also to be "implausible", and did not accept that the father only learned of the applicant's non-conformist beliefs after he departed Bangladesh. Moreover, it considered that alienation from one's parents without more would not be something protected by the Convention. The Tribunal said that it "simply does not accept there is a serious threat from his father".
The Tribunal concluded:
In the circumstances of the applicant's case, the Tribunal is not satisfied by the totality of the evidence before it, that there is a real chance the applicant would be harmed now or in the foreseeable future if he returned to Bangladesh.
Overall, the Tribunal is not satisfied that the applicant has a well founded view of persecution for a Convention reason and finds that he does not satisfy the requirements of the Convention such that he could be found to be a refugee.
The applicant's application in this court shows him appearing and filing his application for himself without the assistance of legal or any other adviser. It recites a list of general heads of judicial review familiar to the court and totally lacking in particulars.
His application was filed on 16 April 2004, which was over one year after the Tribunal decision, and he has not filed any evidence explaining his delay except in his application where he says “I refer to support my review application recent High Court case, Plaintiff S157”. That case had been handed down several years earlier, and does not explain the delay in his case. However, I need not address whether as a matter of discretion the court should refuse relief due to delay, since I have decided that the has not been able to make out any jurisdictional error affecting the Tribunal’s decision.
The applicant attended a first hearing date in the Court on 27 July 2004 where he was assisted by a Bengali interpreter. He was directed to file and serve an amended application giving complete particulars of each ground of review by 30 October 2004. His application and any notice of objection to competency was directed to be listed for further directions on 28 January 2005.
On 25 October 2004, he filed an amended application which I shall attempt to address below. His case came before me on 28 January 2005 on the request of the respondent, who contended that his amended application did not comply with the direction to provide particulars. Rather than deal with a dispute as to compliance, I directed that the matter be listed for final hearing before me today. I am confident that the applicant understood that this was the effect of my order.
I directed the applicant to file and serve any written submissions 14 days before the hearing. The applicant filed a document headed "Applicant’s Submission" on 11 February 2004. It contains numerous complaints, many of which are misguided, and others of which are impossible to understand. I shall deal with it below, after addressing the claims made in the amended application.
The amended application pleads a number of grounds for review. The first is: “the Tribunal denied the applicant procedural fairness and in so doing made a jurisdictional error”. The particulars of the alleged breach of procedural fairness are that the applicant was not given an opportunity to deal with adverse information contained in independent country information relied upon by the Tribunal.
However, in my opinion the Migration Act did not entitle the applicant to expect the right that he complains was not given, since s.422B excluded his rights of procedural fairness in relation to matters dealt with in the subsequent sections of Division 4 of Part 7. On current authorities, it is clear that the right to comment upon adverse material in country information is a matter covered by s.424A. Moreover within that section, the exclusion in s.424A(3) confines the right to deal with adverse materials to information "specifically about the applicant". Although there was some difference of opinion in the Federal Court as to the effect of the exclusion, the situation is now in my opinion clear and binding upon me as a result of Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264. On that basis the ground pleaded cannot succeed.
I should also indicate that, on the material before me, I am not satisfied that the Tribunal did not in fact sufficiently put to the applicant the adverse country information relied. This principally concerned notorious facts as to the changes in government in Bangladesh. For both of these reasons, I consider that the first ground of review must be rejected.
The second ground in the amended application makes the same complaint, but is framed as a failure to comply with s.424A(3), citing NARV vMinister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494 which was discussed in NAMW (supra). However, I do not consider that there is now room for the applicant to attempt to say that country information not specifically about him falls within s.424A(1).
A number of additional grounds appear in the amended application as paragraphs 3 to 9. They allege that procedures required by the Migration Act were not observed; that the Tribunal ignored the merits of the claim; that the Tribunal gave a decision on the basis of dated information without investigation; that the Tribunal failed to take a relevant consideration into account; that the decision involved a jurisdictional error of law involving an incorrect interpretation of the applicable law; that the Tribunal decision was unjust and made without the taking into account the full gravity of the applicant's circumstances; that the decision of the Tribunal was not justified by the evidence; and that the decision was an improper exercise of power. However the amended application does not attempt to particularise any of those allegations, and I can find no substance in any of them.
Turning to the applicant's six page written submission filed on

11 February 2005, I have endeavoured to see whether that submission raises particulars of any of the general matters I have identified above. It is a difficult document to deal with since it seems to be composed by several different authors, is unfocused and unparagraphed.
Many of its propositions merely challenge the merits of the Tribunal's opinions about the applicant's factual claims. I do not think it necessary for me to say more than that these parts of the written submission do not raise or address any ground of jurisdictional error.
However I shall deal with a series of propositions made in the written submissions as well as I can:
The Tribunal admitted my political position in the party but he did not pay any weight for this. The Tribunal fully denied the material facts of my claims.
In fact, far from not putting weight on the applicant's claimed position in his party, the BNP, the Tribunal seems to have put a great deal of weight it, since it considered that his position would allow him to find adequate protection back in Bangladesh. The proposition contended is not only factually incorrect, but it also does not provide a ground for judicial review.
The Tribunal badly constructed its decision, number of errors are in the decision.
The subsequent paragraphs refer to events in Bangladesh, apparently with the object of persuading me that the Tribunal's factual decision was incorrect. I consider that these arguments raise merely factual matters and do not show jurisdictional error.
The member of the Tribunal misguided the legal framework of the protection obligations towards refugees and failed to apply the following contents of article 1A(2) of the Refugees Convention. (referring to the definition).
No particulars of any misconstruction of the Convention definition are given in the written submission. I am unable to find in the Tribunal's reasons any legal error in the Tribunal's understanding of that definition.
A suggestion is made that the Tribunal did not appreciate “there will be a real chance for the purpose of the test unless it is disproved”.
To the extent that this alleges error of law, I reject it. I cannot find any error by the Tribunal in its appreciation of what is sometimes referred to as the “real chance test”. The reasoning of the Tribunal essentially turned on a rejection of the applicant's claims to fear persecution based on clear findings of fact, in which the Tribunal was not troubled by any doubt. In my view there was no incorrect reasoning on the part of the Tribunal in this respect.
The Tribunal member has taken irreverent (sic) consideration to deciding the fate of claim in accordance with former s 476(3)(d) of the Migration Act.
The allegation appears to be that the Tribunal did not consider the present political situation in Bangladesh. I do not find any substance in this allegation, since the Tribunal plainly did attempt to consider the up-to-date situation in Bangladesh, and based its reasons on its conclusions about that situation. The applicant may disagree with that assessment but his disagreement does not raise jurisdictional error.
Recent High Court of Australia judgment “Muin v refugee Tribunal; Lie and Refugee Tribunal are very relevant of my case.
This submission is not at all elaborated in the submission, nor is it supported by necessary evidence. In my view it has no substance.
Unfortunately the Tribunal overlook (my sufficient documentary evidences to establish my persecution) and made a decision in bad faith.
The “documentary evidences” which are alleged to have been overlooked are not particularised in the applicant's submissions. On my reading of the Tribunal’s reasons, I am unable to find any basis for this allegation. Necessarily, I am also unable to find any substance to the consequential allegation of bad faith.
The Tribunal's satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
This contention is unparticularised. and has no substance.
The Tribunal did not observe Migration Act 1958 properly to making the decision.
The Tribunal fail to consider my documentary evidences in the proper way which the Migration Act 1958 provided in my claims.
The Tribunal did not provide me adequate particulars of the independent information.
The Tribunal did not provide me an adequate opportunity to respond to substance of the information.
…
The Tribunal finding that the totality of the country information does not show that BNP politicians are persecuted in Bangladesh.
The above contentions are in my opinion lacking in substance insofar as I can understand them.
I got an opportunity to attend the Tribunal hearing, I provide oral evidence to support my claims. Unfortunately the Tribunal did not consider my oral evidence.
The written submission does not identify any particular parts of his oral evidence which are alleged to have been overlooked.
Earlier in the written submission, there was a plea:
My kind request to your Honour that you please hear my audio cassette of my interview. I need some time to prepare the transcript of my RRT hearing audio cassette. I mention if I submit transcript of RRT hearing honourable court will find the error of law.
Nowhere in the written submission, is it indicated what particular statements were made in the hearing before the Tribunal which would establish a jurisdictional error by the Tribunal, and in particular a failure by it to address a matter which as a matter of jurisdiction the Tribunal was obliged to address.
The applicant told me today that he did not have the tape with him, and sought an adjournment so that he could obtain a transcript. He was unable to identify with any particularity how listening to the tape or reading a transcript of it would establish a ground upon which the Tribunal decision could be set aside. On all his submissions and all that he has said to me I was left with the strong impression only that he thought that he would gain more time and protract the proceedings by making the request.
He said that he had received the cassette tape on the day that he attended the Tribunal hearing. That is, on the papers before me, on 28 January 2003. He also said the tape was “with Mr Bitel”, his previous lawyer, but that he is unable to obtain it from Mr Bitel because Mr Bitel wanted money. Counsel for the minister told me from the Bar table that a further copy of the tape was provided on 26 November 2004 to a member of the funded Legal Aid panel to whom the applicant had been referred for legal advice. There is no material before me that explains why the applicant does not at present have free access to that tape. Whatever the situation, in my view the applicant has had more than enough opportunity to listen to the tape, identify the parts which give rise to an arguable jurisdictional error, to obtain the transcript of those parts and to put them before the court in the form of a transcript prior to today's hearing. In view of the lack of substance to the request for adjournment and the inadequate explanation as to why it was made at such a late stage in the proceedings I refused the adjournment application.
For the above reasons I have been unable to identify any ground for setting aside the Tribunal decision, and I dismiss the application.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 10 March 2005