SZEHN v Minister for Immigration
[2005] FMCA 531
•22 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEHN v MINISTER FOR IMMIGRATION | [2005] FMCA 531 |
| MIGRATION – High Court remittal to Department – Review of decision of Refugee Review Tribunal – member of Bangladesh independence movement – mixed marriage to Hindu – fear of Muslim fundamentalists – disclosure of adverse information – actual or apprehended bias – weight to be given to evidence – merits review – no reviewable legal error – privative clause decision – application dismissed with costs. Migration Act 1958 (Cth), ss.422B, 424A Abebe v Commonwealth (1999) 197 CLR 510 |
| Applicant: | SZEHN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2692 of 2004 |
| Delivered on: | 22 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 22 March 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Phillips Fox Lawyers |
ORDERS
The application be dismissed.
The applicant pay the Minister’s costs and disbursements of and incidental to the application fixed in the sum of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2692 of 2004
| SZEHN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 14 July 2004 and handed down on
4 August 2004.
Background
The applicant is a citizen of Bangladesh who arrived in Australia on 9 March 1996. By an application dated 1 April 1996 he applied for a protection visa. This application was refused on 13 May 1997 by a delegate of the Minister. As the applicant did not lodge a review application within the statutory time limit, he was barred from having this decision reviewed by the Tribunal.
He lodged an appeal direct to the High Court seeking constitutional writs in relation to the delegate’s decision. On 3 May 2001 the High Court remitted the matter to the delegate for a decision to be made in accordance with law.
On 1 October 2002 a delegate of the Minister refused the application for a protection visa, and on 14 October 2002 the applicant lodged an application for review in the Tribunal.
A hearing was held on 28 January 2004. Subsequent to that hearing on 18 March 2004 the Tribunal wrote to the applicant providing some country information which was adverse to the applicant’s case. It invited the applicant to comment on this material. On 12 May 2004 the applicant responded with various letters and documents which he claimed supported his case.
As I have already indicated on 14 July 2004 the Tribunal affirmed the decision of the Minister’s delegate and that decision of the Tribunal was handed down on 4 August 2004.
Claims before the Department and the Tribunal
The applicant’s claims before the Delegate and the Tribunal centred upon his concern that he would be in danger in Bangladesh based on Convention grounds of religion and political opinion. He especially feared harm at the hands of Muslim fundamentalists.
He said that his father, a school headmaster, was an unorthodox man who took part in the independence and resistance movement against Pakistan around 1971. His father was killed by Jamat-I-Islam members before Bangladesh’s independence.
The applicant was active in youth culture organisations and in year nine clashed with the student front of Jamat-I-Islam. He started college in 1986 and soon realised that the people in power in society were the “war criminals” who resisted the independence movement of which his father was part. He was disillusioned by both the Awami League and the Bangladesh National Party (BNP) for forming alliances with Jamat-I-Islam at various times.
He therefore decided to stage plays which disclosed the identities of the “war criminals” to the largely illiterate population, offending local Jamat-I-Islam and the Mullas. They called him an atheist, tried to banish him from the village and threatened to kill him.
In 1989 Jamat-I-Islam threatened him if he were to perform at Bangladesh Independence Day celebrations. He refused their advances and was attacked by Chhatra Shibir workers with an axe. His right arm was severely injured. They also attacked him with a knife, injuring his left foot. He was hospitalised and repeatedly threatened with death.
After graduation in 1990 he left for Dhaka because he feared for his life. He worked in a film organisation and his whereabouts were discovered by Jamat-I-Islam who tried to attack him several times at work. The applicant alleged that on a number of occasions bombs were thrown into his office. He was asked to leave his job.
He left for Thailand on 4 September 1993 and returned in December 1995. On his return he was again in constant clashes with Jamat-I-Islam.
He married a Hindu theatrical artist and she did not convert to Islam. This incited the wrath of the local Mullas. Both he and his wife were given 101 lashes in front of the local mosque. His father-in-law was evicted from the village and the couple were given seven days to leave on threat of death.
He is convinced he will be killed by fundamentalist groups if he returns. He is especially in danger from Jamat-I-Islam. He believed that at the time of his application the BNP government consisted of war criminals, including amongst these various senior ministers. The government would not protect him. Furthermore, when he married a Hindu the local government issued a notice ordering him to leave the area because he was an atheist in a Muslim country.
Tribunal decision
The Tribunal’s decision is accurately summarised in the respondent’s written submissions:
4.The Tribunal found that the Applicant’s evidence was internally inconsistent, inconsistent with independent country information, implausible and confused, and concluded that neither he nor his supporting witness was credible: CB 992.7. The Tribunal found the Applicant did not even genuinely fear harm in Bangladesh: CB 992.8. The Tribunal gives detailed reasons for this conclusion, including the Applicant continuing to live in the same village where he claimed to be in fear of his life until 1990, and returning there from Thailand on a number of occasions since 1993; the implausibility of the Applicant’s claims to have survived the allegedly nearly constant attempts by fundamentalists to kill him; changes in his evidence when difficulties were pointed out to him by the Tribunal; inconsistent evidence concerning his alleged pseudonym; and the implausibility and inconsistency with independent country information of the Applicant's claims concerning his marriage and persecution as a result, which the Tribunal concluded had been fabricated: CB 996.9. The Tribunal also took the view that the Applicant's claimed activities as a publisher of a book in Australia was engaged in so as to enhance his refugee claim and therefore was to be disregarded pursuant to section 91R of the Act: CB 997.5, and even if it was taken into account did not lead to a well founded fear of persecution. The Tribunal concluded that the Applicant did not genuinely fear harm in Bangladesh, let alone that he had any well founded fear of harm there.
The conclusions of the Tribunal are reflected in the following extracts from the Tribunal’s findings and reasons.
At Court Book 992:
I accept that the applicant is a national Bangladesh. However, I am of the view that significant aspects of his evidence concerning his activities in Bangladesh were internally inconsistent, inconsistent with the independent evidence, implausible and confused. Overall, I am of the view that neither the applicant nor Mr Akidul Islam were credible or reliable witnesses in relation to the applicant's substantive claims. I am unable to be satisfied that the applicant has a genuine subjective fear of persecution in Bangladesh. Nor am I satisfied that there is a real chance that the applicant would face persecution for a Convention reason if he were to return to Bangladesh.
At Court Book 993 to 994:
I do not accept that the applicant was seriously injured in either the 1984 incident or the 1989 incident, that he was labelled an atheist, banished from the village or that the Jamaat-i Islami repeatedly threatened to kill him. I am of the view that in claiming that he was severely injured in the 1989 incident and was hospitalised for a long time on this occasion, I am of the view that the applicant has exaggerated the seriousness of what happened to him … while I accept that the applicant was physically injured in 1984 and 1989, I am of the view that any injuries that he suffered were slight. … I do not accept that the applicant's family had any ongoing problems of a serious nature with fundamentalists.
At Court Book 995:
Overall, I do not accept that the applicant was of any ongoing adverse interest to fundamentalists or anyone else while he was in Dhaka. I do not accept that the applicant was threatened or attacked while he was living there. I am of the view that the applicant has fabricated his claims in this regard in an effort to enhance his claims to refugee status.
At Court Book 996:
Overall, on the basis of the photographs submitted by the applicant, I am prepared to accept that the applicant was engaged to a Hindu woman. However, I do not accept that they were married … I reject the applicant’s claim that he was beaten, threatened, lashed, or expelled from his village. I also reject the claim made in the applicant’s August 2003 declaration that fundamentalists came to his house, threatened him at gunpoint and tried to stab him and his wife. I am of the view that the letter provided by the applicant to support his claim that he was expelled from his village was contrived. I am of the view that the applicant fabricated his claim that he was persecuted because of his marriage in order to enhance his claims to refugee status.
At Court Book 997:
… even if the applicant did marry her, given that both families accept the marriage and given the independent evidence suggesting that parties to a mixed marriage are not persecuted in Bangladesh, I am not satisfied that this would give rise to persecution for a Convention reason.
Finally at Court Book 998:
Overall, while I accept that the applicant is opposed to Islamic fundamentalism, I am of the view that he has not suffered any harm in Bangladesh for this reason since the 1980s. I am of the view that the harm suffered by the applicant in the 1980s was not serious enough to amount to persecution for a Convention reason. I do not accept that the applicant was of any adverse interest to Islamic fundamentalists prior to his departure from Bangladesh or that he is of any interest to them currently. I do not accept that the applicant has been threatened or otherwise harmed for this reason since coming to Australia. I am not satisfied that the fact that the applicant has been involved in cultural activities or that he is named as the publisher of a book gives rise to a well-founded fear of persecution for a Convention reason. I am also not satisfied that the applicant has a well-founded fear of persecution for a Convention reason arising from his general opposition to Islamic fundamentalism. Finally, I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason arising from his relationship with a Hindu woman.
Consideration
The amended application filed in December 2004 does not set out any well-defined grounds of appeal with supporting particulars. However it appears that the applicant claims that he was denied procedural fairness in a number of ways. For example that the Tribunal failed to disclose certain information to him, and that the Tribunal was biased, or there was a reasonable apprehension of bias. There appear also to be claims that the Tribunal misunderstood the law and that the Tribunal gave the wrong weight to certain material.
For the most part it seems that the applicant seeks merits review by this Court of the facts as found by the Tribunal. As I said to the applicant that is not something that this Court is empowered to do: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Furthermore the High Court in Abebe v Commonwealth (1999)
197 CLR 510 made clear that there is no error of law, let alone a jurisdictional error in the Tribunal making a wrong finding of fact.
It appears that the applicant is claiming that he was denied natural justice in that the Tribunal failed to disclose certain information to him, or in his words:
… to disclose the particular construction it gave to the information from the different independent sources.
However, it is abundantly clear that the relevant country information on which the Tribunal relied was made available to the applicant before the Tribunal made its decision – see for example the Tribunal’s letter to the applicant dated 18 March 2004 at Court Book 814 to 819 and note the report of the hearing set out in the Tribunal’s reasons. There is also no obligation on the Tribunal to “disclose the particular construction it gave to the information from the different independent sources”.
More importantly the ground of common law natural justice is not available to the applicant, given s.422B of the Migration Act 1958 (Cth) (the Act) which applies to this case. If the applicant’s complaint is that the Tribunal breached its obligations under s.424A of the Act, this must also be rejected as the information falls within the exclusion in s.424A(3)(a): NAMW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 264.
The applicant has made claims that the Tribunal was either biased, or that there was a reasonable apprehension of bias in the Tribunal’s decision-making. When asked at the hearing today to provide particulars of these claims which were not detailed in the amended application, the applicant said he had nothing further to add – just that justice had not been done to him.
There was nothing in the evidence before the Court – and the applicant did not seek to adduce any evidence – which would support any claim of bias whether actual or apprehended. Certainly there was nothing that would satisfy the tests for actual bias in Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 or apprehended bias in Re Refugee Review Tribunal and Another; Ex parte H and Another (2001) 179 ALR 425. Making completely unsupported claims of bias and apprehended bias is to be deprecated.
On one reading the applicant appears also to be claiming that the Tribunal misunderstood the definition of a refugee. No particulars were provided to support this claim. It appears to be just another attempt to cavil with the fact finding of the Tribunal. It too must be rejected.
Similarly any claim that the Tribunal wrongly weighed the evidence must be rejected as such weighing is quintessentially part of the Tribunal’s role. As the High Court has pointed out in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 66 ALR 299 it is not a matter for the Court.
Conclusion
It is clear that the application before this Court is essentially a request to the Court to engage in merits review or to revisit the facts as found by the Tribunal. As I have already pointed out this is not something the Court is empowered to do.
It is apparent that the applicant was unsuccessful because of the view the Tribunal took of the facts, in particular its strong findings that the applicant was not credible and that his principal claims were either untrue and/or fabricated. Matters such as credibility are for the Tribunal par excellence as pointed out by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. As the Federal Court has also noted, so long as the Tribunal’s credibility findings were open to it no error is demonstrated in such conclusions: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547.
The Minister’s counsel submitted that the application must be dismissed as no reviewable legal error has been disclosed. I agree. The findings made by the Tribunal in its well researched and considered decision were reasonably open to it on the material before it. No legal error going to jurisdiction by the Tribunal in coming to its decision has been demonstrated to this Court.
I 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 (2003) 211 CLR 476.
In addition, the decision by the Tribunal was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Act and to the powers conferred on the Tribunal.
In the circumstances, I dismiss the application.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate:
Date: 29 April 2005
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