SZEAC v Minister for Immigration
[2005] FMCA 1231
•30 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEAC v MINISTER FOR IMMIGRATION | [2005] FMCA 1231 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in Bangladesh as a member of the Jatiya Party. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A ; 426A |
| Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NABEv Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 |
| Applicant: | SZEAC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2264 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 24 August 2005 |
| Date of Last Submission: | 24 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2005 |
REPRESENTATION
| The Applicant appearing for himself |
| Counsel for the Respondent: | Ms M. Allars |
| Solicitors for the Respondent: | Ms S. Koya, Phillips Fox Lawyers |
ORDERS
Direct that the Refugee Review Tribunal be joined as Second Respondent to the proceeding.
Direct the Respondent to notify the Refugee Review Tribunal of Order 1 and provide a copy of these Orders to the Refugee Review Tribunal.
That the Applications filed in this Court are dismissed.
That the Applicant pay the Respondent’s costs in the amount of $3500.00.
That the Applicant pay the costs in accordance with Order 4 within 28 days unless otherwise agreed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2264 of 2004
| SZEAC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the delegate”) not to grant a protection visa to the Applicant.
The Applicant was born in Sylhet Bangladesh on 7 July 1967.
The Applicant was born as a citizen of Bangladesh and claims to remain a citizen of Bangladesh.
The Applicant claims to belong to the Sunni ethnic group and is a Muslim.
The Applicant claims that he legally departed from Zia International Airport, Dilaka, on 28 January 2004.
The Applicant arrived in Australia on 29 January 2004.
On 17 February 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”).
On 9 March 2004, the delegate of the Minister 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 Refugee Convention.
On 24 March 2004, the Applicant filed an application for review before the Tribunal. On 28 May 2004 the Tribunal affirmed the decision of the delegate not to grant a protection visa.
On 16 July 2004, the Applicant filed an Application in this Court seeking judicial review of the Tribunal’s decision. The Applicant sought review on grounds set out as follows:
“1. I am a genuine refugee and Tribunal did not consider my case positively.
2. I believe my case was not properly considered by the Tribunal member.
3. I have provided my statement and all supporting documents has been provided by me before the hearing. But Tribunal never inquire my claim. Therefore, I believe my case was not dealt with properly.
4. I would like to request this court to consider my case and grant my protection visa to stay in Australia permanently in Australia.”
Pursuant to directions made on 20 October 2004, the Applicant filed an Amended Application on 28 January 2005 on the following grounds:
“1. From the outset of the applicant’s application for protection visa, he claimed to face harm because he was an active supporter of Jatiya Party.
2. He claims that the local BNP and Awami League leaders were envious of his popularity and therefore tried to destroy his political career and harm his business and they wanted to kill him.
3. He claims that in 1991, when the BNP came to power, local BNP terrorist began harassing him and in 1996 when the awami League came to power, they started threatening him. As a result his life was in danger.
4. The applicant was unable to attend hearing because of his sickness and as a consequence, the applicant lost his opportunity to present evidence or make argument about the adverse information and claims as a refugee. The loss of the opportunity to address adverse information that was considered by the tribunal to be credible and cogent constituted a denial of procedural fairness.”
In the Applicant’s written submission, filed 3 August 2005, the Applicant made the following statements in support of his claim that the Tribunal failed to afford him procedural fairness:
a)The Tribunal did not afford the Applicant an opportunity to give oral evidence and make submissions;
b)The Applicant was not given an opportunity to rebut adverse information;
c)The Tribunal failed to have the arrest warrant and charge sheet examined by the Document Examination Unit (“the DEU”);
d)The Tribunal breached s424A of the Act by failing to disclose the particulars forming the reason of its decision and failing to invite the Applicant to comment on that information.
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s claims
Before the Tribunal, the Applicant claimed, essentially, that he was a 37 year old single man born in Sylhet in Bangladesh. He stated that he left Bangladesh through Zia International Airport legally on a passport issued in his own name and which he obtained without difficulty.
The Applicant claimed that he feared persecution from the Bangladesh National Party (“BNP”) members due to his association with the Jatiya Party (“JP”). He claimed to have joined the youth section of the JP in 1983 and was supported by the local JP leader in the establishment of his own business. He claimed that he was a popular local leader in the community and that the local Awami League (“AL”) and BNP leaders “envied him and tried to destroy his political career and his business, and that they wanted to kill him.”
The Applicant claimed that from 1991, when the BNP came into power, he was harassed and threatened and extorted first by the BNP, then by the AL, after they came to power in 1996. For that reason the Applicant claims he decided to leave Bangladesh for South Africa in December 1997.
The Applicant claimed to have faced harassment from the local black community in South Africa and therefore decided to come to Australia. He claimed that he had been told BNP members still sought him in Bangladesh and visited his family demanding money from them. The Applicant claimed that if he was to return to Bangladesh the local BNP and AL terrorists would attempt to kill him.
The Applicant did not appear at the hearing and no contact was made with the Tribunal to explain his failure to attend. Accordingly, pursuant to s.426A of the Act the Tribunal decided to make its decision on the review without taking any further action to allow the Applicant an opportunity to attend a hearing.
The Tribunal accepted that the Applicant is a Bangladeshi national and that he had residency status in South Africa, and possibly had permanent residency since at least October 2002.
The Tribunal noted that the Applicant did not provide any detail of his political activities on behalf of the JP or of his claim of harassment, discrimination and persecution. The Tribunal noted that his statements of claim were “couched in generalities”. There were no details as to how, where and when he conducted activities, or, how he was harassed and mentally and physically tortured. The Tribunal noted that his statements were “short on the detail of his personal and detailed involvement in the claimed political activities, but long on detailed country information about the purported situation in Bangladesh and what might happen to him if he returned there.” The Tribunal observed that it appeared that the Applicant had merely “superimposed his personal details into a general account of the purported situation in Bangladesh.”
The Tribunal, having noted that the Applicant’s claims and accounts were vague and generalised, was unable to accept that the Applicant is, or ever was, a member or leader of the JP in Bangladesh. For that reason, the Tribunal stated that it was unable to accept that the Applicant was a popular local leader of the JP, that the AL and BNP supporters harassed, terrorised or were openly looking to kill him, that the police wanted him on behalf of the BNP, that his family suffered ongoing harassment from AL and BNP supporters and the police, or that he was forced to flee Bangladesh. The Tribunal stated that it was of the view that the Applicant had “fabricated his accounts to provide for himself the profile of a refugee”. For those reasons, the Tribunal concluded that the Applicant was not a member and leader of the JP and that there was not a real chance that he would suffer persecution at the hands of the AL, BLP or the police if he was to return to Bangladesh because of his political activities on behalf of the JP.
The Tribunal also considered his claims in relation to persecution in South Africa. The Tribunal again noted that the Applicant did not provide any details of how, why, where, when or under what circumstances the persecution took place, except that he claimed “vaguely” that he had tried to do business in South Africa. Again the Tribunal considered the Applicant’s claims vague and generalised and lacking in detail. The Tribunal also had regard to the fact that there had been no opportunity to test the veracity of the Applicant’s claims.
The Tribunal concluded that it was unable to accept that the Applicant had suffered any persecution for a Convention reason in South Africa or faced a real chance of suffering persecution for a Convention related reason if the Applicant was to return to South Africa.
The proceeding before this Court
The Applicant claims that the decision of the Tribunal to proceed with its review in his absence was a denial of procedural fairness to him.
At the heart of the Applicant’s claim before this Court, is his claim that the Tribunal should not have proceeded with its review on 28 May 2004 in his absence.
On 19 April 2004, the Applicant was invited to attend a hearing of the Tribunal and give oral evidence and present arguments in support of his claims. The letter commenced by notifying the Applicant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.
The letter also drew to the Applicant’s attention that, if the Applicant might be unable to attend the hearing, he must contact the Tribunal immediately. The letter went on to say that, if the Applicant did not attend the hearing and the Tribunal did not postpone the hearing, it can make a decision in respect of his application for review without further notice.
On 13 May 2004, a Response to Hearing Invitation was received from the Applicant stating that he did wish to attend the hearing.
On 24 May 2004 the Applicant filed, with the Tribunal, a letter addressed to the Deputy Registrar of the Refugee Review Tribunal signed by the Applicant in support of his application for review. The first part of his letter was in substantially the same terms as his statement in support of his application for a protection visa. However, I note that he also sought some further time to provide original documents in favour of his arguments. I note that request because the Applicant made the same submission before this Court. I further note that, since 24 May 2004, no material has been received from the Applicant, either by the Tribunal, or by this Court.
I explored with the Applicant whether or not he was able to identify the documents, in respect of which, he was seeking time to produce, or evidence of any attempt by him to locate such documents. He was unable to identify the nature of any documents and said that his attempts had been limited to telephone calls. In the circumstances, I cannot be satisfied of the existence or nature of any documents that the Applicant seeks time to produce. Nor am I satisfied that the Applicant has made any genuine attempt to locate any documents in support of his application, either before the Tribunal, or before this Court. For those reasons, I refused the Applicant’s request for more time in which to produce documents
By reason of his Response to Hearing Invitation received by the Tribunal on 13 May 2004, I am satisfied that the Applicant both received the invitation to attend a hearing and was aware that the Tribunal may proceed in his absence if he did not attend the hearing.
The Applicant stated that he had not made contact with the Tribunal to seek an adjournment, that he was too ill to attend the hearing before the Tribunal and that he had not provided any medical certificate from a doctor or other evidence in respect of his illness to the Tribunal. He stated that he had not seen a doctor but had taken some medicine to improve his health. The Applicant acknowledged that with the benefit of hindsight he should have contacted the Tribunal.
The authorities are clear, in respect of a claim by an applicant that he or she has been denied procedural fairness, where he or she has failed to appear at a hearing and the Tribunal has decided to proceed in their absence. The authorities state that, at least, some evidence is required from the Applicant to substantiate his explanation for non attendance by way of a medical certificate or some other evidence. (Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121).
The Applicant is taken to have assumed the risk that unsatisfactory features of his material, including omissions, would be noted by the Tribunal without an opportunity to the Applicant to explain or clarify them (s58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 at [25]). This is particularly so where the Applicant received an invitation to attend a hearing before the Tribunal that clearly stated that the information presently before it was not sufficient to make orders in favour of the Applicant (WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 (“WACO”)). The Full Court of the Federal Court in WACO at [46] stated that:
“There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward”.
I have had regard to the written submissions filed by the Applicant in support of his Application. They essentially relate to his claim that the Tribunal did not provide an opportunity to put his case or rebut adverse information. The Applicant also refers to the Tribunal acting unfairly in not seeking to have an arrest warrant and charge sheet examined. The Applicant also appears to be making a claim that the independent country information to be relied upon by the Tribunal should have been provided to him.
However, it is clear from the Tribunal’s decision that, at the heart of its decision, was its lack of satisfaction as to the claims made by the Applicant having regard to the vague and generalised manner in which they were expressed and the lack of opportunity to test any claims. The Tribunal was not satisfied that the Applicant was a member of the JP. That finding was critical to the Tribunal’s finding that it was not satisfied that the Applicant had a well founded fear of persecution by AL, BMP or the police if he were to return to Bangladesh or that there was a real chance he would be persecuted for any Convention related reason if he were return to South Africa.
In the circumstances, I am satisfied that the Tribunal was entitled to proceed with its review pursuant to s.426A of the Act. Accordingly, the decision of the Tribunal to proceed with its review, without offering the Applicant a further opportunity to attend a hearing, does not amount to a denial of procedural fairness, in circumstances, where the Applicant took no steps to communicate with the Tribunal that he would not be attending the hearing and the Tribunal had otherwise complied with s.426A of the Act.
In relation to the matters raised in (c) and (d) of paragraph 12 herein, the Applicant did not raise those matters before this Court. They are not raised in the Amended Application and no further particulars are provided beyond the assertions. Accordingly, those claims are rejected. Moreover, I am satisfied that there was no other claim that was not considered by the Tribunal, articulated or otherwise, that plainly arises from the material before the Tribunal (NABEv Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [60]).
Accordingly, the decision of the Tribunal dated 28 May 2004 is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The Applications filed in this Court are dismissed with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 30 August 2005
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