SZDWB v Minister for Immigration
[2005] FMCA 1716
•2 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDWB v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1716 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in Bangladesh for reason of his political opinion or imputed political opinion – denial of procedural fairness – reliance by the Refugee Review Tribunal on independent country information – whether information given by applicant to the Refugee Review Tribunal. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 QAAC of 2004 v RRT [2005] FCAFC 92 |
| Applicant: | SZDWB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1861 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 2 November 2005 |
| Date of Last Submission: | 2 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2005 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr T. Riley |
| Solicitors for the Respondent: | Mr A. Carter, Sparke Helmore |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
That the Applicant’s applications before this Court are dismissed.
That the Applicant pay the costs of the Respondent in an amount of $5500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1861 of 2004
| SZDWB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483A of the Migration Act1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.
The Applicant claims to be a citizen of Bangladesh who arrived in Australia on 17 August 2002.
On 23 August 2002, the Applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (“the Department”). The Applicant claimed that if he returned to Bangladesh, he feared persecution by members of the Jamaat-e-Islami (“JI”)and the Bangladesh National Party (“BNP”) Parties because of his political beliefs and senior roles in the Bangladeshi Awami League Party.
On 19 November 2002, the Delegate refused the Applicant's application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The Tribunal proceeding
On 30 November 2002, the Applicant filed an application for review before the Tribunal. On 13 August 2003, the Applicant attended the Tribunal hearing and gave oral evidence.
The Tribunal had before it the Department's file, including the Applicant's claims in his protection visa which were confirmed by the Applicant at the outset of the hearing.
The Tribunal found that the Applicant is a citizen of Bangladesh and that his father was a freedom fighter.
The Tribunal raised with the Applicant the fact that in his application for a protection visa, he had claimed to have no outstanding criminal charges against him, and yet in his oral evidence before the Tribunal, claimed that there were outstanding charges against him in Bangladesh.
The Applicant responded that such charges were false and had been laid against him by his political opponents, members of the BNP. The Tribunal found it remote that false charges of a political character advanced by the BNP would be progressed by the authorities in power. The Applicant claimed that the false charges outstanding were from 1995, 1997, 1998 and October 2001. The Applicant claimed that they involved allegations of attacking someone's house, murder, attacking someone's shop and stealing.
The Applicant claimed that these charges led to him being arrested and detained on a number of occasions after the BNP came to power in 1991.
The Tribunal noted that the Applicant provided a number of documents in support of his claims. However, the Tribunal found that there was nothing in the documents to support the existence of charges in 1995 or 1998. The documents reflected charges for unlawful assembly and arms offences only, and none were in respect of assaults, murder or stealing.
In relation to the Applicant's claims of being detained and released, the Tribunal noted that the Applicant was unable to provide any detail as to when he was arrested, or why, and that he did not appear to have any knowledge of bail or legal representation arrangements. The Tribunal however noted, that for offences such as murder, bail is not available. The Tribunal also noted that for some of the alleged charge dates, the BNP Party was not in power and the Applicant's own party, the Awami League, was.
Having regard to the scant and uncorroborated evidence of the Applicant in relation to his arrests, detentions, releases and bail arrangements, the Tribunal did not accept the veracity of any of those claims.
The Tribunal found the Applicant to be a witness of low credibility. The Tribunal accepted however the Applicant's claim of being assaulted on 6 June 1996, and that he suffered severe injuries as a result. However, it did not accept that the assailants were from a student wing of the BNP, nor that the incident was reported to police and no action taken. The Tribunal did not accept that the assault on the Applicant was for reason of his political opinion. In reaching that conclusion, the Tribunal noted that the student politics in which the Applicant had been involved had ceased in 1985.
The Tribunal also noted that the Applicant had no corroborative evidence to support his identification of his assailants.
The Tribunal noted that the Awami League came to power shortly after 1985 and found the claim by the Applicant that he reported the incident to the police and no action was taken, unlikely, given the timing of the Awami League's assent to power.
The Tribunal also had regard to the fact that the Applicant stayed in Bangladesh for another seven years, which led it to conclude that the assault was not of great significance to the Applicant in terms of being a well-founded fear of persecution.
The Tribunal did not accept that the Applicant was of adverse interest to the police at the time of his departure from Bangladesh. The Tribunal did not accept that if the police were pursuing the Applicant, that they would be unable to find him given that he was running a business with his brother for most of the time, and from 1997 onwards, was a leading official in a major political party.
Based on all of this information, the Tribunal did not accept that the Applicant has any outstanding charges against him in Bangladesh.
The Applicant further claimed that his home was assaulted on
3 October 2001, by the local branch of the BNP. The Tribunal noted that political violence in Bangladesh often involves a criminal component. However, the Tribunal found, based on independent country information, that shortly after that event, Operation Clean Heart commenced to reduce crime.
The Tribunal found that the Applicant was not at risk of harm for reason of political opinion as a result of complaining about the assault on his family home. The Tribunal noted that the Applicant was not at the home at the time of the assault and further, that he did not leave Bangladesh for nearly 18 months following the incident, leading the Tribunal to conclude that he did not have a well-founded fear of persecution as a result of that incident.
The Tribunal also found that the Applicant's departure would have been prevented if he had outstanding warrants and if his political opponents wished to do so, they could have persuaded the police to arrest him at a departure point. In not so doing, the Tribunal found that the Applicant was not a person of adverse interest to the authorities at the time he left Bangladesh, nor at the time of the Tribunal hearing. The Tribunal did not accept that the police were seeking the Applicant either before or after he left Bangladesh.
The Tribunal was not satisfied that there was a current threat to the Applicant from his political enemies identified by the Applicant as the BNP Party and JI. The Tribunal, in its decision, went on to consider the possibility that such a threat to the applicant may exist in the reasonably foreseeable future. To this end, the Tribunal noted that Bangladesh is an active democracy with elections every five years and that the popularity of politically inspired charges is reducing.
The Tribunal concluded, that it was satisfied that the applicant did not have a well-founded fear of persecution, and that there is not a real chance of persecution in the reasonably foreseeable future. The Tribunal also considered that it was reasonable for the Applicant, in the circumstances, and practical, to relocate elsewhere in Bangladesh if he were to return and if he wished to remain active in politics upon his return. In that regard, the Tribunal noted that the Applicant is well educated, comes from a wealthy family, has business skills and was able to obtain a business visa and travel to Australia.
The Tribunal found that the political positions of the Applicant, that the Applicant claimed to have held as vice president of a local party branch and a member of the executive of his district branch, were positions that were local and therefore of low profile.
The Tribunal concluded that it was not satisfied that the Applicant is a person to whom Australia owes protection obligations pursuant to the Refugees Convention as amended by the Refugees Protocol.
The proceeding in this Court
On 17 June 2004, the Applicant filed an application for judicial review by this Court of the Tribunal decision.
On 6 December 2004, the Applicant filed an amended application (“Amended Application”) seeking relief on the following grounds:
“1. The Tribunal denied the procedural fairness and, in so doing, made a jurisdictional error…
2. The Tribunal failed to comply with the mandatory requirement of the Migration Act 1958 (Cth) in that the Applicant was not provided with the independent country information which was not “just about a class of person of which the Applicant was a member” and which fell outside the meaning of section 424A(3)(a) of the Migration Act, where such information was relevant to the Tribunal’s Decisions not only because it concerned the class of persons, but also because it went to a separate issue in the proceeding: NARV & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494.”
The Applicant was unrepresented before the Court today, although had the assistance of an interpreter. He did not wish to say anything in support of his application beyond his written submissions. He confirmed that the grounds he relies upon before this Court are those contained in his Amended Application.
I understand the Applicant to have identified two grounds for relief in his Amended Application. The first relates to what the Applicant refers to as denial of procedural fairness, and I understand this claim to relate to the reliance by the Tribunal on independent country information, and findings made by the Tribunal as a result of that information, with which the Applicant does not agree.
The authorities make it clear that it is for the Tribunal to obtain country information from sources it deems appropriate and to make such findings in respect of that information as it sees fit. (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11]).
It is unlikely that refugee status will be granted to a person whose account, although plausible and coherent, was inconsistent with the State's understanding of conditions in his or her country of nationality. (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 428).
Further, it is not necessary for the Tribunal to provide copies of the material that it obtains in respect of independent country information, to the Applicant prior to a hearing. The question of the accuracy of independent country information is one for the Tribunal and not for the Court. If the Court were to make its own assessment of the truth of independent country information, it would be engaging in merits review. This Court does not have power to do that.
Accordingly, there is no denial of procedural fairness by the Tribunal in making the findings it did in respect of the country information. The findings it made in respect of the independent country information were open to it on the material before it. It is also for the Tribunal to make findings on the evidence before it and rejection of the Applicant's evidence does not amount to jurisdictional error where such rejection is based on facts before it and reasons are provided. Accordingly, this ground is rejected.
The Applicant's second ground relates to a claim that is based on an authority in respect of which doubt has been cast. The claim is based on the findings in NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262 that s.424A(3)(a) had two components to it, both of which needed to be satisfied before s.424A(3)(a) could apply to exclude such information from the requirements of s.424A(1), which would otherwise oblige the Tribunal to give to the Applicant particulars of any information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review and to invite the Applicant to comment on it. Later authorities have made it clear that s.424A(3)(a) excludes independent country information not specifically about an Applicant. See WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44]-[46] and QAAC of 2004 v RRT [2005] FCAFC 92 at [20]-[22].
Accordingly, this ground is misconceived and is otherwise rejected.
I am otherwise satisfied that there is no other issue arising under
s.424A of the Act, in that the Applicant gave to the Tribunal, during the course of discussion at the hearing, the information provided by him before the Delegate and that such information was given by the Applicant, to the Tribunal, for the purposes of the application for review. Whilst Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 held that it was not possible to adopt claims orally in the course of answering questions by the Tribunal, subsequent authorities have not followed that finding. See SZFKL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 931 at [7]-[8], SZEIE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 987 at [40] and SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221at [10]-[11].
In this case, the Applicant confirmed the accuracy of the information in his application for a protection visa before the Tribunal as true and correct. In the circumstances, I am satisfied that such information was given by the Applicant, to the Tribunal, for the purposes of his review application.
Accordingly, it was open to the Tribunal, as it did, to have regard to inconsistencies in the information provided to the Delegate, with other information provided to the Tribunal. It was also open to the Tribunal to make such findings of inconsistency, including adverse findings, without enlivening the requirements of s.424A to give to the Applicant in writing, in accordance with SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, particulars of any information that the Tribunal considers would be the reason or part of reason for affirming the decision under review.
The conclusions made by the Tribunal were otherwise available to it based on the findings it made, and the findings it made were available to it based on the evidence and material before it. Accordingly, the decision is not affected by jurisdictional error.
The Tribunal decision is a privative clause decision, and pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The applicant's applications filed in this Court are dismissed with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 17 November 2005
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