SZDYV v Minister for Immigration
[2005] FMCA 964
•27 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDYV v MINISTER FOR IMMIGRATION | [2005] FMCA 964 |
| MIGRATION – RRT decision – Bangladeshi fearing political persecution – did not attend Tribunal hearing – claimed incapacity not established – no error found. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 422B, 424A, 424A(1), 424A(3)(a), 426A, 427(1)(d), 474(1), 483A, Pt 8
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407
| Applicant: | SZDYV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2007 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 27 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2007 of 2004
| SZDYV |
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) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 May 2004 and handed down on 10 June 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A gives the Court “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 (2002) 211 CLR 476, the limitations have the effect that I cannot set aside the Tribunal decision and send the case back unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not myself have power to decide whether the applicant is a refugee or whether he should be granted a protection visa or any other visa.
In the present case, the applicant arrived in Australia in October 2003 on a one month study visa. He applied for a protection visa on 24 October 2003 assisted by a migration agent, Mr Haque. In his application he indicated that he was a 38 year old Muslim Bangladeshi national who had departed from Bangladesh in April 1998 and had been living and working in Palau until coming to Australia.
His claims for protection from Australia were contained in a short statement attached to his application. The Tribunal accurately extracted them in its reasons:
In a statement attached to the application form, the applicant says that he was interested in politics from an early age; he abandoned his studies and, in 1981, “joined politics directly” under the leadership of one of the “reputed leaders” of the region who regarded him as a brother. He outlines the recent political history of Bangladesh through the 1982 military coup and the 1986 election of General Ershad against whom he says he “assimilated himself … under the banner of the Awami League”. He refers to the 1991 parliamentary election during which, he says, he worked for the local candidate; the election was won by the Bangladesh National Party (BNP) which formed government with the Muslim fundamentalist Jamaat-e-Islami Party. He says that, in 1992, he was elected “executive member of Laxmipur Thana” and became very close to other Awami League leaders. He faced “many oppression by the BNP leaders and activists”. On 25 August [he] was arrested and remained in custody for a number of days and later released on bail.
The applicant says that, on 13 September 1994, he was surrounded by BNP “hoodlums” who beat him mercilessly and left him on the road; he was in hospital for five days as a result. In 1995 he was elected an executive member for the district committee of the Awami League. He says he campaigned for the local candidate during the 1996 election which was won by the Awami League. In 1998 he left the country for Palau and the BNP won the next election, held in 2001. He says that Bangladesh “has turned into a Taleban‑like state”; all Awami League members are being targeted; he has heard from his wife that a number of false cases have been filed against him; if he returns home he will be persecuted.
No supporting documents were provided in addition to this statement, and the delegate refused the application on 18 February 2004. In his statement of reasons, the delegate drew attention to the fact that the applicant’s claims were “vague, generalised and unsubstantiated”. As to the applicant’s absence from Bangladesh since 1998, the delegate said:
I am not satisfied that the applicant’s political profile was prominent enough so as to attract the adverse attention of the BNP government or party members on his return to Bangladesh.
The applicant lodged an application for review by the Tribunal on 10 March 2004 assisted by Mr Haque, whom the applicant appointed to act on his behalf in relation to the case. No supporting information was provided with the application nor subsequently to the Tribunal. The application form advised the applicant that he should give information, documents or submissions that he wanted the Tribunal to consider or to send them as soon as possible, but all that was said in the application was:
I am not satisfied by the decision of the DIMIA. The delegate of the Minister did not consider the current situations prevails in Bangladesh. A submission will be followed in this regard.
The letter from the Tribunal acknowledging the receipt of the application, which was posted both to Mr Haque and to the applicant at his home address, told them that the applicant might be invited to a hearing and why a hearing was important: “A hearing is your opportunity to give the Tribunal evidence to support your application”. The letter again invited the applicant to send any documents, information or other evidence he wanted the Tribunal to consider.
A letter from the Tribunal dated 23 April 2004, which was sent both to Mr Haque and to the applicant at his home address, told them that the Tribunal had considered the material before it but was unable to make a decision in the applicant’s favour on that information alone. The letter invited him to attend a hearing “to give oral evidence and present arguments in support of your claims”. The hearing was appointed for 18 May 2004 at 1.30 pm. A further advice to send any new documents or written arguments was contained in that letter, and the applicant was asked to return a “Response to Hearing Invitation” form.
That form was returned to the Tribunal on 8 May 2004 and the applicant has today in evidence identified his signature on it. It indicated that he did want to attend the hearing and would attend with his agent Mr Haque.
Mr Haque then, on 16 May 2004, forwarded a submission to the Tribunal. This did not present any more details about the applicant’s case but contained some general information and submissions concerning Bangladesh.
On the day of the hearing, according to the Tribunal:
Mr Haque telephoned the Tribunal to advise that the applicant did not wish to attend the hearing. He subsequently confirmed this advice in writing. The application has therefore been determined on the basis of the written information before the Tribunal.
In the material in evidence before me is a letter sent by facsimile by Mr Haque to the Tribunal at 11.48 am on 18 May 2004 which says:
I refer to our telephone conversation today. The applicant has instructed me in the morning that he will not attend the hearing. He wishes that the Tribunal would make the decision on basis of the documents contained in the file. Furthermore, the applicant is ready to answer any written questionnaires by the Tribunal.
Should you have any queries regarding this matter, please feel free to contact the writer at the above address.
I consider that it is significant that no suggestion is made by Mr Haque that the applicant was disabled by health reasons from attending the Tribunal. There is no evidence before me that at that time the Tribunal was informed of any claimed incapacity, or indeed that any such incapacity actually existed, apart from some evidence presented for the first time today by the applicant from the witness box. I shall refer to this below.
In its reasons, the Tribunal referred to the applicant’s claims for refugee status, and to country information concerning the position of Awami League members in Bangladesh. It said:
The independent evidence indicates that, depending on the circumstances, a member, and even a mere supporter, of the Awami League may have a well‑founded fear of persecution in Bangladesh for reasons of their political opinions. I am not satisfied, however, on the evidence before me, that the applicant in this case is such a person.
The Tribunal then referred to significant gaps in the applicant’s statement which accompanied his visa application concerning his prior involvement in the Awami League, to the absence of a suggestion that there was a political reason for the applicant’s leaving Bangladesh for Palau, and to the lack of detail about the alleged “number of false cases”. The Tribunal noted that the applicant had been put on notice that the delegate had been unable to make a decision on the material before him, and it said:
Despite this, he has not provided any further information to counter the delegate’s findings or otherwise support his claims, and he has declined the opportunity to give evidence before the Tribunal. Moreover, he has had the assistance of a migration agent in completing his application.
The Tribunal referred to authority that it remained for an applicant to satisfy the Tribunal of all the statutory elements upon which someone can be found to satisfy the definition of “refugee”, and concluded:
The applicant has provided almost no information at all about the claims he has made and I have had no opportunity to test their truthfulness. In the circumstances, I am not satisfied, on the evidence before me, that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. He does not, therefore, satisfy the criterion set out in s.36(2) of the Act for a protection visa.
The applicant filed an application for review in this Court on 30 June 2004 which uses a familiar precedent, listing grounds of judicial review without providing any particulars which indicate that they might have any bearing on the present Tribunal decision. They include allegations of bad faith, breach of natural justice, denial of evidentiary proof and bias. I can find no substance in any of them.
The applicant filed an amended application on 21 December 2004 which does attempt to address the present decision of the Tribunal. Its first particularised ground of jurisdictional error is:
The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to Bangladesh based on the member of a Awami League in Bangladesh …
There is no substance to the suggestion that the Tribunal did not consider the claims made by the applicant, and I think this ground attempts only to argue with the Tribunal’s assessment of those claims. As I have indicated above, in the absence of more detail I can see no real complaint available to the applicant in this respect. I certainly cannot find jurisdictional error arising from how the Tribunal has assessed the applicant’s claims.
Ground 2 makes the complaint:
It is true I did not collect relevant documentary evidences to prove my persecution. Because I have no one to help me to collect the document.
I do not think this complaint gives rise to jurisdictional error.
Ground 3 is:
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.
I can find no substance in this ground, since, in my opinion, the Tribunal has dealt with the case rationally.
The next ground (also numbered 3) is:
The Tribunal did not observe Migration Act 1958 properly to making the decision.
In the absence of any particulars, I am unable to identify any provision of the Migration Act which has not been followed.
Ground 4 is:
The Tribunal fail consider my claims without any investigation.
It is correct that the Tribunal decided the case on the papers without investigating the applicant’s claims further, apart from comparing them against country information available to the Tribunal. However, in my view the Tribunal was under no legal obligation to make any further investigations which it has not conducted (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]).
Ground 5 is:
I was not attend the interview because I was sick. I did not collect medical certificate because I am unable to go to doctor for certificate. I was so sick that day.
The author of the amended application seems to have appreciated that this allegation required evidence to be presented to the Court, since it also contains the statement:
I will provide Affidavit after discuss with the pilot Scheme barrister.
However, no affidavit evidence supporting an incapacity to attend the hearing has been filed, and the applicant has not attempted to call Mr Haque or any other person who might be able to corroborate his claimed illness. He presented no medical evidence. At my invitation, he gave evidence under oath in which he said that he had not attended the hearing and had not tried to contact the Tribunal because “my mind was not good”. No details of this ill health were described by him, nor did he provide any description of his mental state such as would allow me to assess his capacity to attend and participate in a hearing. He said that his mental state had become not good due to a phone call he had had with Bangladesh either the day of the hearing or the day before (his evidence on this was contradictory).
Under cross‑examination, the applicant said that he had told his agent that he could not go to the hearing due to his mental condition, and agreed that he had given instructions for the letter sent by Mr Haque, which I have set out above at [12]. The applicant was unable to explain to my satisfaction why Mr Haque had made no reference to a health reason for being unable to attend the hearing.
Counsel for the Minister spent a lot of time cross‑examining the applicant about how he had prepared documents for the Tribunal proceedings and in this Court. The applicant’s evidence about this was contradictory and confusing, and I am not satisfied that the defects in his evidence were solely attributable to the difficulties of taking evidence through an interpreter. He showed an unwillingness to give direct answers to simple questions. I am not persuaded by his evidence that it is true that he had any mental condition preventing him attending a hearing by the Tribunal on 18 May 2004. I consider that if any such condition had existed, it would have been referred to by Mr Haque and an adjournment sought from the Tribunal.
I find that no adjournment was, in fact, ever sought either expressly or implicitly. Further, I am not persuaded that, by reason of incapacity unknown to the Tribunal, the applicant was not afforded a real opportunity to attend and give evidence to the Tribunal at a hearing.
In view of my findings, I do not need to address the state of the law on whether a Tribunal is in breach of a jurisdictional requirement if, unknown to it, an applicant lacked capacity to attend an appointed hearing. There are authorities which support the view that there may be jurisdictional error (see NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30] and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33]). However, these authorities need to be addressed in the present case in the light of s.422B, and the express empowerment of the Tribunal under s.426A to make a decision without taking further action where an applicant has been invited and does not appear (c.f. VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [16] applied in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [12]).
The applicant’s amended application contains only one further criticism of the Tribunal decision which is:
The Tribunal did not provide me adequate particulars of the independent information.
However, in my view there is no substance to that criticism, since the Tribunal did not use country information adversely to the applicant but decided the case based on the apparent gaps in the claims made by the applicant. Moreover, the Tribunal’s obligation to give particulars of such information is excluded by s.424A(3)(a).
The applicant filed a bulky document headed, “Outline of Applicant’s Submission” shortly before the hearing. Largely, this is a collection of irrelevant documents and submissions that have no bearing on the present decision of the Tribunal.
It contains an allegation of actual bias and bad faith on the part of the Tribunal. This allegation has been made without any evidence whatsoever to give it any substance. I reject it.
There is a suggestion that the Tribunal failed to conduct investigations under s.427(1)(d), but as I have indicated above, the Tribunal had no duty to exercise that power.
There is also a statement that:
The Tribunal also rejects my claims because my written evidence was inconsistent in relation to major issues. The Tribunal did not treat the matter as a s.424A issue as I brought the statement, I submitted in connection with the current protection visa application to the Tribunal to ensure that it was before the Tribunal.
I have difficulty understanding what argument is intended in that paragraph. I am unable to find any failure by the Tribunal to perform a duty under s.424A. If this is an oblique submission that the Tribunal has used information from the original visa application without putting it back to the applicant in writing under s.424A(1), then in my view no such duty arose, since the Tribunal has not acted upon any such information, but has based its decision upon an appreciation of the gaps of omissions in the claims made by the applicant (see VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24(iii)]).
The applicant’s outline of submissions then contains many pages of discussion about Hickman’s case and jurisdictional error without any apparent relevance to the present matter. This is followed by a long extract from a United States State Department country report on Bangladesh from March 2003, from which I can find no assistance to the applicant in finding jurisdictional error in the present Tribunal’s decision.
The remaining pages of the document allege that the Tribunal acted in bad faith, which I have rejected above, and also makes the submission:
The grounds and relief is very similar with the High Court judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 …
There is no evidence before the Court giving that contention relevance to the present matter.
The applicant was not able to make further submissions in support of his case to me when appearing today, but sought an adjournment of the case to allow him to get more information and help. However, as I pointed out to him when rejecting his adjournment application, his case has been in the Court for nearly 12 months, and was set down for final hearing today at the first court date in October last year. I consider the applicant has had ample time to gain assistance and prepare his case, and can see no justification in further adjourning the matter.
The applicant has not established that the Tribunal’s decision was affected by any jurisdictional error, and it is therefore a “privative clause decision” for which relief is precluded by s.474(1) of the Migration Act.
For the above reasons I must dismiss the application.
RECORDED : NOT TRANSCRIBED
I order the applicant to pay the respondent’s costs in the sum of $4500.
I certify that the preceding forty‑one (41) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 15 July 2005
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