SZDIU v Minister for Immigration - [2007] FMCA 531

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDIU v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 531

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – claims found by Tribunal not to be credible – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth)

Applicant:

SZDIU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2462 of 2006

Judgment of:

Driver FM

Hearing date:

12 April 2007

Delivered at:

Sydney

Delivered on:

12 April 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondentss:

Mr D Jordan

Solicitors for the Respondentss:

Australian Government Solicitor

ORDERS

The Court directs that the title of the first respondent be amended to the Minister for Immigration and Citizenship.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2462 of 2006

SZDIU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The Tribunal decision was handed down on 10 August 2006. The applicant sought judicial review of that decision by way of a show cause application filed on 4 September 2006. He asserts notification of the decision on the day that it was handed down. I find that the application to the Court was filed within time. I gave directions in relation to this matter on 4 October 2006 and again on 27 November 2006. I dispensed with the need for a preliminary hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The matter was heard today at a final hearing.
Background relating to the applicant's protection visa claims and the Tribunal decision on them is summarised in the Minister's outline of written submissions. I adopt as background for the purposes of this judgment paragraphs 2 to 8 of those written submissions:
The applicant is a national of Bangladesh. He claimed to fear persecution in Bangladesh for reason of political opinion because he was a leader of the Awami League and a supporter of progressive secularism. He claimed that he had been subjected to physical and psychological abuse by supporters of the Bangladesh Nationalist Party (the BNP) and Islamic fundamentalists associated with Jamaat-e-Islami (JI) and that a false case had been lodged against him. The applicant also claimed that, since his arrival in Australia, BNP and JI supporters had tried to occupy his land and had demanded money from his wife.[1]
The Tribunal found the applicant to be lacking in credibility and rejected his claim that he was a political activist for the Awami League. The Tribunal found that the applicant’s evidence of his political activities was vague and did not describe in any detail what he did on behalf of the party. In particular, the tribunal referred to the applicant’s inability to identify the Awami League candidate for whom he claimed to have worked and the applicant’s absence from Bangladesh for much of the time in recent years while working as a sailor.[2]
The Tribunal accepted that the applicant had been a supporter of the Awami League when he was a student and that this had involved him in clashes with student supporters of the BNP. Although the Tribunal accepted that these clashes resulted in the applicant sustaining some physical harm, the Tribunal was not satisfied that this was sufficiently serious to constitute persecution for the purposes of the Convention.[3]
The Tribunal did not find the applicant’s account of being seriously assaulted by political opponents in October 2002 to be convincing. However, the Tribunal gave the applicant the benefit of the doubt and accepted that he had been seriously harmed on this one occasion because of his political association with the Awami League.[4]
The Tribunal assessed the prospect of future persecution if the applicant returned to Bangladesh. The Tribunal found that the incident of October 2002 was isolated and was satisfied that there was no real chance that the applicant would be the victim of a similar attack in the foreseeable future. Further, the tribunal found that the applicant did not have a profile as an Awami League activist and, as such, there was no credible reason why he should be a target for BNP or JI supporters.[5]
The Tribunal did not accept the applicant’s claims in relation to the political motivation for the attempted occupation of his land and threats of extortion directed to his wife. The Tribunal noted that, on the applicant’s evidence, the dispute was being determined according to law in Bangladesh and found that there was no convincing evidence that the essential reason for the dispute was political, rather than financially opportunistic.[6]
The Tribunal referred to independent country information showing that fraudulent documentation was readily available to Bangladeshi asylum seekers. On the basis of this country information, and deficiencies in the documents provided by the applicant, the Tribunal did not give weight to those documents.[7]
[1] The applicant’s claims are set out at court book (CB) 51 – CB 56, CB 158 – CB 162; his evidence at the tribunal hearing is summarised at CB 219 – CB 222
[2] CB 226 – CB 227
[3] CB 226
[4] CB 227
[5] CB 227
[6] CB 227
[7] CB 228
The applicant now relies upon an amended application filed on 1 November 2006. That application sets out four grounds. The first ground is that the Tribunal failed to exercise its jurisdiction under the Migration Act 1958 (Cth). The particulars are that the Tribunal gave no weight to three documents, those being a first information report, an arrest warrant and a general diary entry, all apparently relating to alleged politically motivated criminal charges. The second ground is that the Tribunal acted in excess of its jurisdiction. The particulars are the Tribunal's finding that there was no real chance that the applicant would be persecuted by his alleged political opponents should he return to Bangladesh. The third ground asserts that the decision of the Tribunal was contradictory and that the presiding member was confused. The particulars refer to the Tribunal's acceptance that the applicant was seriously harmed on one occasion, contrasted with its finding that the incident was an isolated one and that there was no real chance that the applicant would be harmed again. The fourth ground is that the Tribunal made a wrong assumption. The particulars, including a correction of a typographical error, are that there was no evidence to support the Tribunal's finding that the applicant was not a person of high profile within the Awami League or that he had a high level of commitment to it.
Both parties took the opportunity to present written and oral submissions. The only evidence I received was the court book filed on 12 October 2006. It is evident from the terms of the grounds in the amended application as illuminated by the applicant's written and oral submissions that he essentially contests the merits of the Tribunal decision. I explained to the applicant that the merits of the Tribunal decision were beyond the scope of this proceeding, but those merits are his essential and dominant concern. There is no substance to any of the grounds of review advanced.
The first ground fails at several levels. It assumes an obligation to make inquiries in relation to the documents submitted by the applicant, but the Tribunal was under no obligation to make such inquiries. I accept paragraph 10 of the Minister's submissions in that regard:
Ground one of the amended application contends that the tribunal failed to exercise its jurisdiction because it gave no weight to documents provided by the applicant in support of his claims. This contention impugns the merits of the tribunal’s findings and does not articulate any jurisdictional error. The applicant’s written submissions, dated 23 March 2007, further contend that the tribunal could have confirmed the veracity of the documents by contacting the persons there identified. The tribunal was not obliged to make its own inquiries, particularly in circumstances where there were deficiencies on the face of the documents and there was country information which indicated that fraudulent documents were a common feature of Bangladeshi claims for asylum.[8]
[8] MIMIA v SGLB (2004) 207 ALR 12 at [1], [42]-[43]
The according of weight to the applicant's material was a matter for the Tribunal. No jurisdictional error is disclosed. I note, in addition, that the Tribunal took the precaution of inviting comment from the applicant on the information he presented at the hearing conducted by the Tribunal (CB 205). That invitation to comment extended to the Tribunal's concerns about the documents he presented.
The second ground is a patent attack on the merits of the Tribunal decision. No jurisdictional error is disclosed.
Likewise, ground 3 is an attack upon the merits of the decision. Further, there is no lack of logic in the Tribunal decision. The decision is, in my view, a thorough examination of the applicant's claims. The Tribunal was entitled to find that there was no real chance that the applicant would be harmed should he return to Bangladesh, notwithstanding that the Tribunal gave the applicant the benefit of the doubt in relation to one isolated incident (see the Tribunal's reasons at CB 227).
The fourth ground also fails to disclose any jurisdictional error. It is in substance a no evidence challenge to the Tribunal's finding. The Tribunal's finding was based upon the applicant's own evidence and was open to the Tribunal on the material before it.
I find that the decision of the Tribunal is free from any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will further direct that the name of the first respondent be amended to the Minister for Immigration & Citizenship.
Costs should follow the event in this case. The Minister seeks scale costs in the sum of $5,000. The applicant told me that he would be unable to pay costs of that order. However, his ability to pay is not the issue. I am satisfied that costs of not less than $5,000 have been properly and reasonably incurred on behalf of the Minister. I order that the applicant pay the first respondent's costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 16 April 2007