SZEFW v Minister for Immigration
[2005] FMCA 453
•22 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEFW & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 453 |
| MIGRATION – Review of decision of Refugee Review Tribunal – citizen of Bangladesh – attempt at merits review – low profile – document fraud – adverse information – procedural fairness – obligation to inquire – no legal error – application dismissed. Migration Act 1958 (Cth), ss.422B, 424A NAAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 113 |
| Applicants: | SZEFW & ORS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2601 of 2004 |
| Delivered on: | 22 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 22 March 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicants: | In person |
| Advocate for the Respondent: | Ms Burnett |
| Solicitors for the Respondent: | Clayton Utz Lawyers |
ORDERS
The application be dismissed.
The applicants pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2601 of 2004
| SZEFW & ORS |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from a transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 30 June 2004 and handed down on
27 July 2004.
The three applicants are husband, wife and son. The second and third applicants, the wife and son, made no claims of their own and relied on their membership of the first applicant’s family unit. For convenience I will refer to the first applicant as “the applicant”.
The three applicants are citizens of Bangladesh. They arrived in Australia on 2 November 2003 and on 4 November 2003 applied to the Department of Immigration & Multicultural & Indigenous Affairs (the Department) for protection visas. These applications were refused on 19 February 2004 by a delegate of the Minister. Appeals were lodged with the Tribunal on 11 March 2004 and two hearings were held: on
15 June 2004 and 23 June 2004. On 27 July 2004 the Tribunal handed down its decision of 30 June 2004 affirming the decisions of the Minister's delegate to refuse to grant protection visas.
Claims before the Department and the Tribunal
The applicant’s claims before the Department and the Tribunal centred on the Convention ground of political opinion, in particular on his role as an active member of the Awami League.
The applicant is a 36 year old married man. His father was involved in the war against Pakistan. When the applicant was at Tejgaon College he joined the Chatra League, the student wing of the Awami League, and was elected vice-president in 1987. He participated in a street procession in 1998 against the Ershad Government and was arrested and detained for a month. After graduation from the College he joined the Awami League and supported Advocate Khatun who was a losing candidate in the 1991 parliamentary elections.
He became involved in a computer business which he says made him wealthy and the target of BNP businessmen. In 1994 he became the vice-president of the Uttara Thana Awami League. In that position he led demonstrations against the BNP, donated to his party and influenced business people to participate in the movement.
In the next parliamentary elections in 1996 he played a significant role in the campaign of a candidate called Mr Ullah. Mr Ullah went on to win in his local constituency and the Awami League formed the Government. The applicant says he was elected an executive member of the Dhaka District Awami League in 2000. He contributed to the development of the new government through his role as a member of the business community.
After the 2001 parliamentary elections in which Mr Ullah lost, the applicant faced serious oppression from BNP activists including threats to his life. He went overseas a few times with his family to avoid risk. He alleges that he was attacked a number of times by BNP supporters between August 2003 and September 2003 and had false cases or charges filed against him. He says that he then paid a large sum of money to an airport officer in order to leave Bangladesh.
Tribunal decision
The essential elements of the Tribunal’s decision are accurately set out in the respondent’s outline of submissions:
11. The Tribunal noted that there were discrepancies between the protection visa application and the first applicant's oral evidence. The Tribunal was prepared to rely on the first applicant's oral evidence in assessing his claims and will not draw any adverse inference from any inconsistencies between the first applicant's written claims and his oral evidence.
12. The Tribunal accepted that the first applicant was a citizen of Bangladesh. It accepted that he joined the Chatra League in 1987, and later became the executive member of the party in the district of Dhaka and vice president of the Uttara Branch until 1999. In the Tribunal's view, however, the first applicant's involvement was not at a high level and was primarily confined to his district. That was because the first applicant's own evidence had been that he was involved in door knocking campaigns and organising meetings. Moreover, the first applicant at the first hearing claimed that he held no positions in the party after 1999 but at the second hearing he stated that he had remained on the executive committee in his district after 1999. The Tribunal felt that this contradiction cast serious doubts on the veracity of his claim. The Tribunal noted that the first applicant repeatedly confirmed that his activities after 1999 were confined to making financial donations to the party but found that if the first applicant had remained on the executive committee, it would be reasonable to expect that he would have done more than this. It therefore did not accept that the first applicant held any positions within the party after 1999. Further, the Tribunal found that the first applicant's knowledge of the party was poor. The Tribunal therefore concluded that he was not involved in politics at a level that gave him a significant profile in Bangladesh.
13. The Tribunal was prepared to accept that the first applicant was arrested and detained for a month in 1988 following his participation in a protest against the Ershard Government. However, having regard to the fact that the first applicant had not claimed to fear Jatiya party supporters, the substantial political changes in the country and the removal of the Ershard government and Jatiya party from power, the Tribunal was satisfied that the first applicant's chance of facing similar harm in the reasonably foreseeable future was remote.
14. The Tribunal found that the attack on the first applicant in September 2003 was not politically motivated but that the first applicant had been the unfortunate victim of a random and opportunistic act of violence.
15. The Tribunal had significant concerns regarding the authenticity of a document produced at the second hearing, which was claimed to be one of two summons. First the first applicant could not satisfactorily explain why, if the summons had been issued three weeks before he left Bangladesh, he was not aware of it until after he had left. The Tribunal was not satisfied that a second summons existed or that the first applicant's brother had lost it. Second, the document had been translated by and attested to by the same two individuals who had translated and attested a letter provided at the first hearing. Given the documents were said to have been translated and attested at different dates, the Tribunal found that this went beyond the realm of coincidence. The advisor’s explanation as to why this was so was rejected as unconvincing. Third, it was unclear in view of the first applicant's evidence as to his activities leading up to 2003, why the BNP’s animosity towards him was so deep that they wanted to see him removed from the locality by filing false charges. Fourth, the independent information indicated a high degree of document fraud in Bangladesh. Fifth, if the first applicant had learnt of serious charges whilst he was in New Zealand, he would have sought asylum there. The Tribunal therefore did not accept the summons as genuine and did not accept it reflected the reality of the first applicant's situation in Bangladesh or that false charges had been filed against the first applicant.
16. The Tribunal referred to independent country information which showed that when the authorities had shown an adverse interest in the opposition, their targets had been high profile members and senior politicians of the Awami League. The Tribunal found that the first applicant did not have a significant political profile in Bangladesh and his activities did not suggest that he was a senior leader or politician. Having found that the first applicant's experiences in the past did not amount to persecution, the Tribunal was satisfied that if the applicant returned to Bangladesh, and continued to engage in political activity at the same level, there was no real chance that he would face harm as a result. It was therefore not satisfied that he had a well-founded fear of persecution.
17. Although strictly unnecessary to dispose of the application, the Tribunal also found that if the applicant remained fearful of violence in Uttara or Dhaka, it was satisfied that it was reasonable for him to relocate to a different part of Bangladesh.
Consideration
The amended application filed on 12 November 2004 contains three grounds of review. I will deal with these grounds in turn and then consider a number of matters raised by the applicant at the hearing.
First ground
The first ground states:
The Tribunal found that the applicant “did not have a significant political profile in Bangladesh and his activities do not suggest that he was a serious leader or politician”, it is not an essential criterion to prove a real fear of persecution. The Tribunal fell into jurisdictional error in making these findings. The applicant was considered, as an executive member of the district committee of the Awami League was a significant level of leadership, which misunderstood by presiding member. Thus, the Tribunal made an error in regard to this issue.
It is not clear what legal ground the applicant seeks to rely on. On one hand he seems to be cavilling with the merits of the facts as found by the Tribunal. That is not something with which this Court can interfere, as the Full Court of the Federal Court has said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]:
To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.
On the other hand it is possible that the applicant is asserting that high level leadership is not an essential criterion to prove a real fear of persecution. On this view he would be alleging that the Tribunal turned the criterion of high level leadership into part of the statutory test. However, this must be rejected on the facts of this case.
What the Tribunal did was find that in the reality of the situation in Bangladesh a person was unlikely to be at risk if that person was not a senior leader or politician. Having found that the applicant was not such a person, that he did not have a significant political profile, the Tribunal was satisfied that on return to Bangladesh there was no real chance that he would face harm as a result of political activities “devoid of criminality and thuggery”.
The first ground therefore must be rejected.
Second ground
The second ground states:
The Tribunal was influenced by the country information and ignoring the real state affairs of the applicant, which the Tribunal fell into jurisdictional error in making the decision. In fact, the country information was significant to the decision made by the Tribunal. In light of the country information the Tribunal was influenced to make a decision negating the real fear of persecution. It is relevant to mention the following c authority of NARV v MIMIA and NAAK of 2002 v MIMIA (2004) FCA 113, section 424A(3) of the Act does not apply to information about the high level of documentary fraud in Bangladesh, and the Tribunal was under an obligation to bring that information to the attention of the applicant in accordance with s 424A.
As the respondent has submitted, the Tribunal’s reliance on independent country information was unobjectionable. Insofar as the Tribunal relied upon general country information, particularly that relating to document fraud in Bangladesh, that country information was information to which the exception in s.424A(3)(a) applied.
The applicant relied on the decisions in NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262 and NAAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 113. However, both these decisions were made before Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264. I am bound to follow the decision in NAMW which specifically rejected the approach followed in NARV.
It is clear that the information to which the applicant refers was excluded from the requirements of s.424A by s.424A(3)(a). That is, it was not specifically about the applicant or another person and was just about a class of persons of which the applicant or other person might be a member.
Furthermore, s.422B in effect provides that s.424A covers the field in relation to the Tribunal’s obligation to disclose information to the applicant. Thus common law procedural fairness can not be relied upon.
It is also obvious from Court Book page 189 that the substance of the information relating to document fraud was actually put to the applicant at the second hearing. The applicant said the summons document was genuine and his family would not do anything against his interests. The applicant’s adviser noted that the reports from the Department of Foreign Affairs and Trade were dated and while he agreed that document fraud was prevalent in Bangladesh not all documents were bogus. Thus, the applicant was given the opportunity to respond to the bogus documents or the document fraud issue.
The second ground must be rejected.
Third ground
The third ground states:
The decision by the Tribunal made jurisdictional error saying that “the applicant’s involvement with the was not at high level and confined”. The Tribunal did not mention about the criterion of High level. The position of the applicant was hypothetically termed by the Tribunal was affected the Tribunal’s assessment to determine the applicant’s case. The Tribunal accepted that the applicant was an executive member of the Dhaka district, which indicates a significant level of leadership. The Tribunal failed to determine the applicant’s case in light of the applicant’s fear of persecution rather the Tribunal aimed to negate the claim to discover the high level of leadership. It is also an issue to this honourable Court to consider.
This ground appears to be claiming that the applicant was not afforded procedural fairness because the Tribunal did not make him aware that his political involvement had to be at a high level.
As the respondent says, it is not a criterion for the visa sought that the applicant had to be involved in politics at a high level. Rather the Tribunal found as a fact that in order to be at risk in Bangladesh an individual had to be involved at a high level, as a leader or as a high profile politician.
At the first hearing the Tribunal put to the applicant independent information before it to the effect that only senior leaders and politicians were targeted for their political views in Bangladesh. The applicant said in response that the current situation in Bangladesh was not as described in that independent information and middle leaders faced most of the problems.
It is evident the Tribunal rejected the applicant’s view and relied on the independent information. This does not amount to procedural unfairness.
To the extent that this ground in effect requests the Court to engage in merits review, it must also be rejected for the reasons that I have given earlier.
Grounds raised at hearing
At the hearing the applicant briefly raised a number of issues which he said indicated the Tribunal had erred.
Firstly he asserted that the Tribunal did not investigate his claims or the Tribunal did not investigate his claims properly. He did not provide particulars.
It is pertinent to note that in NAHI the Full Federal Court said at [10]:
It is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed.
Further, in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32, Gummow and Hayne JJ said at [43] that although the Tribunal has certain powers to obtain additional evidence “the Act does not impose any duty or obligation to do so”.
In any event an examination of the decision of the Tribunal does not support in any way the assertion that it failed to properly investigate the applicant’s claims.
Secondly at the Court hearing the applicant said that the Tribunal misinterpreted his situation. For example he referred to an attack in September 2003 upon himself which he said was politically motivated. However, the Tribunal reached the view, which it was perfectly entitled to do, that it was not satisfied that the applicant was assaulted for reasons of his political opinion or profile but rather that he was an unfortunate victim of a random and opportunistic act of violence.
Thirdly the applicant said that he did not get natural justice in the Tribunal because the Tribunal did not investigate his claim properly. This is just a repetition of the earlier ground expressed differently which I have already rejected.
Conclusion
It is apparent to me that the applicant’s real dispute with the Tribunal is with its findings of fact. He is asking this Court to enter into a fact finding exercise and to substitute its view of the facts for that of the Tribunal. This is something I pointed out to him that the Court cannot do. The Court is confined by law to determining whether or not the Tribunal made any legal errors in its consideration of the applicant’s case and in its decision-making.
Counsel for the Minister has submitted that the application must be dismissed as no reviewable legal error has been disclosed. I agree.
It is clear that the Tribunal concluded, as it was entitled to do, that the applicant did not have a significant political profile in Bangladesh, that his activities did not indicate that he was a senior leader or politician, and that on return to Bangladesh he would be able to continue to engage in political activity at the same level as he had in the past. There was no real chance that he would face harm as a result.
These and the other findings made by the Tribunal were reasonably open to it on the material before it. No legal error going to jurisdiction has been shown. I therefore find that the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
In addition the decision of the Tribunal was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Migration Act 1958 (Cth) and to the powers conferred on the Tribunal.
In the circumstances, the application must be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Zhan Chiam
Date: 28 April 2005