SZEEU v Minister for Immigration - [2005] FMCA 360

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEEU v MINISTER FOR IMMIGRATION

[2005] FMCA 360

MIGRATION – RRT decision – Bangladeshi student claiming persecution due to homosexuality and political associations – decision based on credibility finding – no jurisdictional error found.

Migration Act 1958 (Cth), s.483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:

SZEEU

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2554 of 2004

Judgment of:

Smith FM

Hearing date:

16 March 2005

Delivered at:

Sydney

Delivered on:

16 March 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms S Hanstein

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $3,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2554 of 2004

SZEEU

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 25 June 2004 and handed down on 20 July 2004. The Tribunal affirmed a decision of a delegate refusing 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”. Relevant to the present case, that jurisdiction is conferred by 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, these limitations require me to be satisfied that the decision of the Tribunal was affected by jurisdictional error before I have power to set aside the Tribunal decision and order a further hearing into the matter.
The Court does not have power to send a case back for further hearing just because it has sympathy for the applicant. It is not the function of the Court to decide whether an applicant for visa should be believed or disbelieved, and whether he qualifies as a refugee for a protection visa. That function is given, under the Migration Act, to the administrative decision-makers and tribunals.
In the present case the applicant arrived in Australia in November 2003, on a student visa, at the age of 20. On 23 December 2003 he applied for a protection visa. His application was lodged by a migration agent, who said in his covering submission:
He has informed me that he used to do student politics. He had numerous confrontations with the then opposition, the BNP who again returned in power in October 2001 in the general election. As a result the BNP thugs on many cases harassed and intimidated him.
He believes that his life is now under threat in his country for his homosexuality and political associations with the AL, who have just left the power. He advised me that if he returned to Bangladesh, the Muslim terrorist of the present government party would kill him. Considering the circumstance he applied to stay in Australia with protection visa.
The submission and the body of the form indicated that details of the applicant's claims would be provided later. However, no such details were provided within the following month, and on 20 January 2004 the delegate proceeded to make the decision which in the circumstances was inevitable.
The applicant, assisted by the same agent, appealed to the Refugee Review Tribunal on 18 February 2004. His application enclosed a statement of two pages by the applicant, making claims that he was:
... tortured and disgraced due to my homosexuality by the society and by the police in Bangladesh. I could not continue my normal life there and I did not have any freedoms. I was abused regularly, discriminated in everyday life and in employment, and even by the political party of which I am a worker because I am gay.
General statements elaborating these claims were made in the document, including that he lost jobs, was stoned by Muslims, expelled from high schools and colleges, assaulted by the police and discriminated against even in his own political party due to his known homosexuality.
A further document in support of these claims was lodged with the Tribunal shortly before a hearing conducted on 19 April 2004. These statements raised, for the first time, a claim that the applicant had formed a homosexual relationship in Australia with somebody he had met here, and claimed that they were now living together in the course of that relationship.
The agent also submitted, subsequent to the hearing, a lengthy written submission in support of his claim. This sought to establish that people practising homosexuality in Bangladesh are subject to a variety of discriminatory and other measures, amounting to persecution.
In its statement of reasons, the Tribunal recites the details of the claims made by the applicant in the documents submitted, and also narrates evidence given by the applicant in the course of the hearing. The transcript of the hearing is not in evidence before me. The applicant today, in his submissions, referred to some aspects of the hearing which he said would be shown by a transcript, and asked for the hearing to be adjourned. However, I indicated that he had had ample time to obtain a transcript to put before the Court since commencing his case in the Court, and that I did not consider that an adjournment was justified.

It also appeared to me that the matters pointed to by the applicant related only to the Tribunal's assessment of credibility, and did not raise any question of jurisdictional error.
The applicant brought with him to the Tribunal hearing the person who he claimed to have formed a gay relationship with in Australia, and the Tribunal considered that person's evidence.
From the Tribunal's reasons it appears that the Tribunal made a careful analysis of the applicant's written and oral statements. I consider that it has shown itself to be fully aware of the claims made by the applicant, and has addressed all of them.
In its findings and reasons, the Tribunal based its conclusion that it was unable to be satisfied that the applicant had faced persecution in Bangladesh for a Convention reason, or would face a real chance of persecution for a Convention reason if he were to return to Bangladesh, upon a clear finding as to the applicant's credibility.
The Tribunal makes this clear in at the start of its discussion:
59. I accept that the applicant is a Bangladeshi national and is who he claims to be. This is so because he speaks the Bengali language and has a valid and legitimate Bangladeshi passport in his own name. However, notwithstanding the applicant’s claims, I am unable to accept that the applicant’s evidence had any credibility or veracity. This was the same for the applicant’s witness. The applicant's evidence was to various degrees vague, generalised and lacked specific detail, and was inconsistent and contradictory. The lack of credibility and veracity of the applicant's evidence and that of his witness leads me to conclude that I am unable to be satisfied that the applicant had faced persecution in Bangladesh for a Convention reason or will face a real chance of persecution if he was to return to Bangladesh for a Convention reason.
The Tribunal then identified the areas where the applicant's evidence was vague, generalised and contradictory.
In relation to his claims for mistreatment in the course of his political activities, the Tribunal concluded:
63. Notwithstanding extensive statements and submissions, and his oral evidence at the hearing, he did not give any specific details of the his claim of political activism, except to merely claim an association and membership of the AL, and of being involved in some activities. There was no detail of the what, when, where, how or under what circumstances he participated. In the circumstances, and in light of his vague and generalised evidence, I am unable to accept that the applicant has ever been a member of the AL, that he participated in any of its activities, or that he was mistreated by the political opposition and by the police as a result.
The Tribunal then addressed the applicant's evidence concerning his homosexuality and detriment suffered as a result, pointing to inconsistencies in his accounts of his school years and claims of early mistreatment.
It then pointed to inconsistencies in his account of his education. For example, the Tribunal refers to claims that he had been readmitted to one college only through the intercession of the local priest and his father. The Tribunal thought this was contradictory with other claims that the applicant had been threatened at the mosque by the Mullahs, and that his family had been against him and had rejected him.
The Tribunal concluded:
69. In light of the contradictory and inconsistent evidence of his education, I am unable to accept that the applicant had any problems at school in Bangladesh, especially of being expelled on a number of occasions. I am unable to accept that he ever attended a university college in Bangladesh. I accept, as indicated in his protection visa application, that he passed his SSC in 1998 and HSC in 2000, and that was the limit of his education there. Similarly, in light of the contradictory and inconsistent evidence of his schooling in Australia, I am unable to accept that the applicant had problems, other than he was unable to cope with the educational exigencies of studying in Australia. As I was unable to accept that he had problems with his schooling in Bangladesh, so I am unable to accept that the applicant had problems with his schooling in Australia as he claimed, because of his claimed troubles in Bangladesh.
70. In light of the applicant’s vague and generalised, and inconsistent and contradictory evidence, I am unable to accept that the applicant was a homosexual in Bangladesh or that he was mistreated in any way as a result.
The Tribunal addressed the applicant's claim that he had been able to express his homosexuality freely in Australia, and had entered a lasting and enduring relationship with somebody here. It assessed the evidence given by the witness as to this. It was not persuaded by that evidence and concluded:
73. In light of the credibility of the applicant’s evidence generally, the vague and generalised evidence of the relationship by the applicant and his putative partner, the lack of supporting evidence of any relationship, and the timing and nature of the claim of such a relationship, I am unable to accept that such a relationship subsists. As I am unable to accept that the applicant is a homosexual or has a subsisting relationship in Australia as evidence of such sexuality, I am unable to accept that there is a real chance of mistreatment for his homosexuality if he was to return to Bangladesh.
74. Consequently, I am unable to accept that the applicant suffered persecution because of his political activities or homosexuality in Bangladesh or that there is a real chance of persecution for his political activities or homosexuality if he returns to Bangladesh. Accordingly, I am not satisfied that the applicant has a well founded fear of persecution in Bangladesh by reason of his political opinion, sexuality or for any other Convention reason, nor am I satisfied that the applicant has a well founded fear of persecution in the foreseeable future if he returns to Bangladesh by reason of his political opinion, sexuality or for any other Convention reason.
I have carefully considered the Tribunal's reasoning and am unable to find jurisdictional error in how it has dealt with the applicant's claims. It has rejected them on the basis of its own assessment of the applicant's credibility. I do not think its assessment shows irrationality or unreasonableness to such an extent as to allow this Court to overturn its judgment.
I can find no misunderstanding on the part of the Tribunal as to the legal requirements which need to be addressed when considering a claim to be a refugee. I am not satisfied that the Tribunal has followed any procedure in dealing with the matter which was unfair such as to give rise to a failure to follow a procedure required to be followed.
The applicant's application in this Court listed seven general heads of judicial review, which have no apparent application to the Tribunal's decision. In the absence of particulars, I am unable to meaningfully address them.
An amended application filed on 25 November contains, in paragraphs 2-9, general complaints which are unparticularised and in which I am unable to find any merit. The first ground for review does provide and contain particulars:
1.   The Tribunal denied procedural fairness and in so doing made a jurisdictional error.
Particulars
The claim of is that I feared persecution if I will return to Bangladesh by reason of I am a Gay, a member of a particular social group
(a) The Tribunal found that my claims are vague and generalised. It is not true I provided relevant supporting documentary and oral evidence and I have witness, the Tribunal did not consider and did not properly observe Migration Act 1958.
(b)     I have original documents which I provided relevant document page 060-070. The Tribunal did not consider the documentary evidences. I am not agree with the Tribunal comment regarding my homosexuality. Because denied my documentary evidences RD page 115-120.
(c)   The Tribunal failed to understand my situation that I try to explain everything. Which is relevant and significant to my review application;
The complaint made in these paragraphs that the Tribunal did not consider the applicant's supporting documentary and oral evidence is, in my opinion, unfounded. As I have indicated, I consider that the Tribunal has fully addressed the applicant's claims, but has failed to be satisfied by them. That failure to be satisfied does not show that it did not address them.
The absence of discussion by the Tribunal of the general information concerning the situation of homosexuals in Bangladesh submitted by the applicant, does not, in my opinion, show that it has made jurisdictional error, given the course of its reasoning described above. Due to the Tribunal's rejection of the applicant's credibility, it did not have to address the situation of homosexuals in Bangladesh generally, nor to consider how the applicant would be treated there if he were accepted to have been a practising homosexual. I therefore can find no argument raised by the amended application which satisfies me that the Tribunal made jurisdictional error.
The applicant has filed a five page written submission prior to the hearing. In large measure it contains further assertions of the applicant's claims to be a refugee. As I have explained to the applicant, it is not the function of the Court to make that decision and his arguments on those lines did not advance his case in this Court.
The written submission also contains a complaint that the Tribunal:
Fully denied the material facts of my case. The Tribunal indicated that homosexuals are safe in Bangladesh, which is contradicted with the report.
This complaint is elaborated at several parts of the submission. However, as I have indicated above, this complaint erroneously implies into the Tribunal's reasoning a rejection of the material presented concerning the general situation in Bangladesh. The Tribunal did not reject that information on my reading of its reasons.
I can find nothing further in the written submission which I should specifically address.
The applicant has appeared today and explained, understandably, that he did not understand fully the arguments which needed to be presented to this Court. He did attempt to find criticisms of the Tribunal's decisions, but these amounted to a complaint about its credibility finding which concerned the merits of that finding.
The applicant made specific complaints about how the Tribunal had dealt with his claim to have a current homosexual relationship in Australia, in particular, by not addressing particular aspects of his evidence and documents. In my view these criticisms did not show the Tribunal failing to exercise its jurisdiction.
As is common in these cases, the applicant ended with a plea that I should give him more time to present a further case to the Tribunal. However, the Court does not have that power in the absence of jurisdictional error being established. I cannot find any such error.
For the above reasons, I must dismiss the case.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 16 March 2005