SZFAT v Minister for Immigration
[2006] FMCA 385
•20 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFAT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 385 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution by BNP and Jamat–e–Islami for political opinion, including the laying of false criminal charges – applicant claims Tribunal failed to properly consider his claims and his documents. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; 483 |
| Applicant: | SZFAT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3288 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 March 2006 |
| Date of Last Submission: | 20 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Counsel for the Respondent: | Ms S. Mason |
| Solicitors for the Respondent: | Ms A. Mansour, Clayton Utz |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
The application before this Court is dismissed.
That the Applicant pay the First Respondent’s costs in an amount of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3288 of 2004
| SZFAT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 12 October 2004, 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 applicants.
The applicant is a 32 year old man who claims to be a citizen of Bangladesh and of Bangladeshi ethnicity and Islamic faith (“the Applicant”).
The Applicant arrived in Australia for the first time on 25 December 2001, then departed Australia for Bangladesh on 27 December 2001, and arrived back in Australia for a second time on 15 January 2002, as a transit passenger on a passport issued in Canberra.
On 17 January 2002, 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 Act.
The Applicant claimed that he feared persecution in Bangladesh by the Bangladesh Nationalist Party (“BNP”) government, its supporters, police and the Jamat-e-Islami, by reason of his political opinion and affiliation with the Bangladesh Awami League and Chattra/Juba League. The Applicant further claimed he faced racial persecution in Fiji by reason of his Indian origin.
On 29 April 2002, the Delegate 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 Refugees Convention as amended by the Refugees Protocol.
On 27 May 2002, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 12 March 2003, the Tribunal (differently constituted) affirmed the decision of the Delegate not to grant a protection visa.
On 29 April 2004, the Federal Magistrates Court of Australia remitted the matter to the Tribunal.
The Tribunal (differently constituted) again affirmed the Delegate’s decision on 14 September 2004.
On 8 November 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
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. However, if the decision-maker is not so satisfied then the visa application is to be refused.
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.
Australia owes protection obligations to a refugee on Australian territory.
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.
Tribunal proceedings
The Tribunal had before it the Department’s file, including the protection visa application and the Delegate’s decision record. The Tribunal also had regard to material from a range of sources, including that which the Delegate referred to in its decision. Further, the Tribunal had before it the Applicant’s application for review.
The Applicant gave oral evidence to the Tribunal on 23 August 2004.
The relevant claims and findings of the Tribunal are set out in paragraph 4 of the First Respondent’s outline of submission filed 16 March 2006, as follows:
“The Tribunal:
(a)Found that the applicant was a national of Bangladesh (CB 163.5).
(b)Accepted that the applicant’s brother had recently been injured however was not satisfied that even though such an event took place at a political rally in Bangladesh that this gave rise to any well-founded fear of persecution for a Convention reason on the part of the applicant, and noting that there was no evidence to support the claim that the applicant’s brother had been injured:
(i)Observed that the applicant did not claim that the brother had been injured because of the situation of the applicant.
(ii)Accepted that a number of people were killed during that rally by some 20,000 Awami League supporters.
(iii)Found the bombing was condemned by the government.
(iv)Was satisfied that the police had sought to restore order following the incident which was also a matter which informed the issue of state protection: and
(v)Independent country information indicated that whilst political clashes were a regular occurrence in Bangladesh, there was no evidence the current government was targeting members of the Awami League.
(CB 163.6 to 164.5)
(c)Have considered the applicant’s claim political involvement and history together with the applicant’s evidence at hearing (CB 164.5 to 166.10) the Tribunal was satisfied that the applicant was not involved in politics in anything other than a most basic or menial way and did not accept that the applicant was an “active leader” with any political profile of any sort (CB168.4).
(d)Found consequently that the applicant had embellished his claims in order to enhance his protection visa and found that such a matter affected his credibility to the extent the Tribunal did not consider him to be a credible witness CB 168.4.
(e)Accepted the documents provided by the applicant to the Tribunal on 6 September 2004 were genuine as contended by the applicant and also that the applicant is wanted for involvement in the murder of Monir Hossain (CB 167.1). However, based upon the finding set out in sub-paragraph 4(c) above, the Tribunal was not satisfied that the applicant was perceived by political opponents as such a threat that they filed false charges against him resulting in him being wanted for the murder (CB 167.3). Instead, the Tribunal was satisfied by virtue of the gravity of the charges it was reasonable that the applicant’s name would be on a wanted list and was satisfied that the charges and conviction for such a serious matter were properly matters for determination by the police and Bangladeshi Courts. The Tribunal considered that those matters contributed to the question of an independent Bangladeshi judiciary (CB 167.6).
(f)Found that contrary to the submission of the applicant’s adviser to the Tribunal on his behalf dated 19 August 2004 that he would be subjected to revenge attacks for failing to provide monetary donations to his opponents, the Tribunal noted that the Applicant had not claimed that this had been the reason for the persecution he allegedly suffered in the past and the tribunal was satisfied that in the absence of such past persecution, this was a good guide to indicate that there is not a real chance of such persecution in the future: citing Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 574 (CB 169.5 to 169.8)
(g)Was satisfied that if the applicant had held a subjective fear of persecution he would not have returned to Bangladesh to visit his mother or for any other reason (CB 170.5).
(h)Was not satisfied (again on the basis of the finding set out in sub-paragraph 4(c) above) that the applicant would risk persecution by the BNP or Jamat-e-Islami, or any other political opponents should he return to Bangladesh having regard to his absence from political involvement in the past 6 years and an ability to relocate (CB 171.1 to 171.8).
The hearing before this Court
The Applicant was unrepresented before this Court, although had the assistance of an interpreter and confirmed he had participated in early 2005 in the Court’s legal advice scheme.
Pursuant to orders made on 24 November 2005, the Applicant filed an amended application on 16 March 2005 (“Amended Application”), seeking review on the following particularised ground:
“That the RRT decision was effected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds for not granting a protection visa.
Particulars:
1. The tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to Bangladesh based on the leader of a particular political party in Bangladesh. I was persecuted because my political involvement and opinion. I was active leader of Chattra/Juba league. For my active role I was elected as a General Secretary. Later then I was attacked several times by the terrorists of BNP and Jamat-Shibir as well as I was serious victim of political and social discrimination. Some anti social and political extremists mad my life death risk. I will be persecuted if I return back to Bangladesh. My persecution is a convention base persecution. I refer Court Book page 36 paragraph 3.
2. It is very hard to submit relevant documentary even then I have provide lots of documents but the tribunal did not look properly.
3. 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.
4. The tribunal did not observe Migration Act 1958 properly to making the decision.
5. The tribunal fail consider my claims.
6. The tribunal did not accept my oral interview properly. I have interview’s audio cassette which has been processing to transcript. I will provide later that transcript which is more clear of claims as well as find some law errors.”
The Applicant was invited to make whatever submissions he wished in support of the Amended Application. Each of the grounds was interpreted to the Applicant to assist him in that exercise.
Ground 1
The Applicant submitted that the Tribunal had failed to appreciate that if he was to return to Bangladesh he would be arrested and attacked. The Applicant stated that although the Tribunal accepted his court case in Bangladesh was genuine it found that the case was not as a result of any Convention related persecution, rather it was for the pursuit of a criminal matter. The Applicant posed the question how did the Tribunal know this was a criminal matter.
Such a complaint squarely invited the Court to conduct a merits review of the Tribunal’s findings. This Court has no jurisdiction to do so.
The Tribunal made plain its reasons for accepting the Applicant’s court documents as genuine, whilst at the same time, finding that it was not satisfied that the charges and any conviction were Convention related. The Tribunal’s reasoning is set out as follows:
“The Tribunal accepts that these are genuine documents as the Applicant contends and that he his wanted for his involvement in the murder Monir Hossain. However, given its earlier finding that the Applicant was not involved in politics in anything other than a most basic or menial way in his immediate local area and as a young student, and does not accept that he was an “active leader” with any political profile of any sort, the Tribunal has not been able to satisfy that he was regarded as being of such a threat to any political opponents that they would instigate the making of false charges against him, and the Tribunal does not accept the claim that the charges are false. Indeed, by the very nature of these charges and his conviction for such a serious offence, the Tribunal is satisfied that the police had a legitimate reason to be looking for the Applicant and, as they did not find him since by then he was in Australia, is satisfied it would be reasonable for them to place his name on some sort of wanted list and to have visited his house looking for him. The Tribunal is also satisfied that the charges and conviction for such a serious matter are properly matters for the police and courts in Bangladesh to determine, which goes to the question of the independence of the Courts.”
Those findings by the Tribunal are findings of fact and were open to the Tribunal on the evidence and material before it.
Accordingly, this ground is rejected.
Ground 2
The Applicant submitted that the Tribunal did not properly consider documents provided by the Applicant. The Applicant identified the documents as the court documents including the charges and warrants of arrest in respect of the allegation of murder in the Bangladeshi court.
However, the passage quoted at paragraph 24 above, makes it clear that the Tribunal had regard to the documents, accepted they were genuine but did not accept the Applicant’s claim that the charges were false and were politically motivated.
For the reasons referred to above, these findings were open to the Tribunal on the material and evidence before it.
Accordingly, this ground is rejected.
Grounds 3, 4 and 5
No particulars were provided by the Applicant in respect of any of these grounds. Further, the Applicant made no submission in support, other than to reiterate that, if he was to return to Bangladesh, he would be arrested and “party people will be contacted and try to kill me.”
Such a claim seeks merits review.
Accordingly, these grounds are rejected.
Ground 6
No transcript was provided by the Applicant, nor any details in support of this claim. The Applicant submitted that his “previous migration agent” had taken everything from him and given him no documents. Plainly, if this is the case, it is most unfortunate. However, there is no evidence before this Court to indicate the involvement of a migration agent, beyond the assertions of the Applicant. Moreover, the Applicant does not identify with particularity any part of his oral interview which he appears to claim was misunderstood by the Tribunal.
Whilst it is a matter of great concern that there may be migration agents who conduct themselves in such a fashion, there is little this Court can do about such allegations in circumstances such as those presently before the Court.
It is plain that the Tribunal understood the claims being made by the Applicant for protection. It identified the material to which it had regard, including supplementary material provided by the Applicant and independent country information. It noted that the Applicant adopted as true and correct everything contained in his protection visa application. The Tribunal noted that it put to the Applicant independent country information that disclosed that the courts are independent in the majority of cases and cited a High Court ruling in 1997 finding “political victimisation” by 4 BNP leaders under the Special Powers Act (“SPA”). The Tribunal also noted that it put to the Applicant independent country information that disclosed that there was no evidence, as at 2001, of government persecution of its opponents. It noted that in January 2001, 99% of 69,010 people arrested by the government of the day since 1974 had been judged by the court to be “weak and vague”.
The Tribunal considered the Applicant’s claims in comprehensive detail, made findings and conclusions based on reasoning disclosed in its decision. It found that the Applicant was not a credible witness and that he was involved in politics at a “most basic or menial way in his local area as a young student.” It did not accept that such a person would be the object of false serious charges for a Convention related reason and concluded that the Applicant “embellished his claims in order to enhance his claims for a protection visa.”
In the circumstances, there is no error disclosed in the Tribunal’s decision and the Amended Application should be dismissed.
Conclusion
There being no jurisdictional error, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the application before this Court is dismissed with costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: A D’Addona
Date: 20 March 2006
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