SZFQY v Minister for Immigration

[2009] FMCA 395

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFQY v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 395

MIGRATION – Review of decision of RRT – where applicant alleged jurisdictional error in the Tribunal’s failure to discuss with him independent country information – where applicant alleged Tribunal had not considered corroborating documents.

Migration Act 1958 (Cth), s.424A

SZIUD v Ministerfor Immigration & Anor [2006] FCA 1555
SZGQZ v Minister for Immigration & Anor [2007] FCA 1091
SZBEL v Ministerfor Immigration & Anor  [2006] HCA 63

Applicant: SZFQY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2864 of 2008

Judgment of: Raphael FM

Hearing date: 16 April 2009

Date of Last Submission: 16 April 2009

Delivered at: Sydney

Delivered on: 16 April 2009

REPRESENTATION

For the Applicant: In person

Counsel for the Respondents: Mr Kennett

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2864 of 2008

SZFQY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh who arrived in Australia on 29 June 2004. On 19 July 2004 he applied to the Department of Immigration & Multicultural & Indigenous Affairs for a protection (Class XA) visa. On 22 July 2004 a delegate of the Minister declined to grant him that visa and he sought review of the delegate's decision from the Refugee Review Tribunal. The decision of the Refugee Review Tribunal which I am considering today was made on 3 October 2008 after an interview with the applicant. It was handed down on 16 October 2008. It is the third Tribunal decision relating to this applicant because the decisions of the other two differently constituted Tribunals were both found to contain jurisdictional errors and were remitted. The applicant has come to this court seeking a further remittal on the grounds of jurisdictional error in relation to this decision. 

2. The grounds upon which the applicant claims that he is a person to whom Australia owes protection obligations are that he is associated with the Awami League, a Bangladeshi political party, and was a branch general secretary who had incurred the disfavour of the BNP. He claims that he had been a member of the Awami League for a lengthy period and was elected as assistant secretary of the Uttara Committee in 1988. At that time he was working as a mechanic in the aviation industry. He claims that after the BNP won an election in 1990 he was dismissed from his employment in 1992. He also claimed that in 1988 a false case was lodged against him alleging that he was guilty of attempted murder. In 1996 at a time when the Awami League was in government in Bangladesh the applicant left the country and went to Singapore for two years. He returned to Bangladesh and then went back to Singapore for a further year, starting a business in Bangladesh in 1999. He says in 2001 when the BNP returned to power he thought it was dangerous for him to remain in the country because supporters of that party were attacking his house and his business. So he went to several countries in South East Asia before coming to Australia in 2004. 

3. The Tribunal accepted that the applicant was a supporter of the Awami League, but was not prepared to go so far as to accept that he held a branch position, bearing in mind the evidence that the applicant gave to the first Tribunal and again to this Tribunal. 

   “I do not accept that he was an office bearer of the Awami League as he did not have the knowledge of those matters which I would have expected of a person who had been an active general secretary of the branch from 1988.  His evidence on party activities was vague and overly generalised and he was not able to explain in any detail his role in the branch or the extent of his activities.  I accept that he may have attended rallies and demonstrations and told people he was a supporter.  However, I do not consider his activities go beyond this level.”  [CB 241]

4. The Tribunal considered documents supplied by the applicant to the Tribunal in its various guises, but concluded that they did not outweigh the evidence the applicant gave at the hearing from which it had concluded that he was not a member or office bearer of the Awami League [86] of [CB 242].

5. The Tribunal considered the applicant's evidence both before the original Tribunal and this one about the attacks that he said had been made upon him by members of the BNP and the Jamaat-e-Islami. It felt that the applicant had not provided sufficient details of those attacks to satisfy it that they had a Convention association. The applicant mentioned attempts at extortion from him by a particular person in respect of which the Tribunal concluded at [90] of [CB 242]:

   “I do not accept that the applicant has been threatened, subject to extortion or attack for reasons of political opinion.  Firstly  he has given differing and vague accounts to the Tribunal of when he was attacked and the reasons for those attacks.  At the hearing held on 6 June 2008 he identified M, a local identity with some local influence, as the person responsible for attacks against him.  I consider that M may have instigated threats against him in 2004 because the applicant had run a successful business in his local area and M may have sought to extort money from him for criminal reasons.  I do not accept that he attempted to extort money for reasons of the applicant's political opinion or M's political opinion.  M was a local identity and had been previously a member of the Jayita Party and then later joined the BNP however I consider his political allegiance irrelevant to his actions in relation to the applicant.  I consider that if M was responsible for extortion demands, threats and even physical attacks the reason for this mistreatment was not politically motivated but arose from criminal motivation.”

6. The Tribunal did not accept the applicant's claims of other attacks by BNP activists because it did not accept that he was a member of the Awami League or had a significant political involvement in it. The Tribunal came to the view that the applicant's grounds for coming to Australia were not politically motivated at all, but were brought about as an attempt by him to advance his economic interests.

7. The Tribunal then went on to consider the false case that the applicant said had been raised against him. The Tribunal pointed out to the applicant that the case had been going on for some 20 years and did not seem to have been causing him any problems on his frequent journeys in and out of Bangladesh. It did not accept that the false case, if it existed, was politically motivated. 

8. Finally, the Tribunal considered that given the very large amount of time the applicant had spent outside the country and the years that he had been in Australia, he would not likely be a person who was the recipient of adverse attention from the authorities.

   “There is no plausible reason why the applicant would be targeted by the Bangladeshi authorities as I consider his only involvement in the Awami League has been as a minor supporter of the political party.”  [CB 244]

9. On 5 November 2008 the applicant filed an application in this court.  The grounds of the application are fairly lengthy.  They commence by a suggestion that the Tribunal did not comply with s.424 of the Migration Act 1959 (the “Act”) and breached its obligations under s.424A by not discussing with the applicant independent information or giving him an opportunity to provide an explanation in relation to the findings of the Tribunal. But this is not a ground that can be sustained. In SZIUD v Ministerfor Immigration & Anor [2006] FCA 1555 Spender J said at [15]:

   Finally, there is no obligation in the Tribunal to give advance notice of its proposed adverse findings. The Tribunal is obliged to hear the applicant and the case he wishes to present. Its obligations to inform the applicant concerning matters are exhaustively set out in s 424A of the Migration Act1958 (Cth) (‘the Act’).

10. It is correct that the Tribunal in this case utilised independent country information, but such information is exempted from the requirements of s.424A(1) by the provisions set out in s.424A(3)(a). The balance of the grounds contained in the original application are really submissions on the point raised above and also the submission of additional evidence relating to the caretaker government that was then in power in Bangladesh. The submissions go at some length to complain that the Tribunal breached its obligations to give particulars as to the derivation of adverse evidence which might affect a consideration of whether information is reliable. To my mind, a fair reading of the whole of the Tribunal's decision does not really turn upon evidence adverse to the applicant. It turns upon a view taken by the Tribunal as to the seriousness of the applicant's political involvement and comes to a view which could be said to be adverse to the applicant only because the applicant has been unable to satisfy it that he was as involved as he claims.

11. On 23 January 2009 the applicant filed with this court some written submissions. These state that the Tribunal denied the applicant natural justice and made a jurisdictional error by failing to apply the correct test to determine whether there was a real chance of persecution and failed to consider whether there was a risk of persecution in the reasonably foreseeable future. This is not a submission I can accept, given the views expressed by the Tribunal at [98] and [99] of its reasons [CB 244]. The submissions then go on to allege a breach of s.424A on the same basis as contained in the original application. For the reasons that I have already given, I reject that as a ground. The applicant appears to me to have confused the Tribunal's thought processes and subjective appraisals with some form of contrary evidence. In SZGQZ v Minister for Immigration & Anor [2007] FCA 1091 at [16 - 19] Cowdroy J considered, with the assistance of the authorities including SZBEL v Ministerfor Immigration & Anor [2006] HCA 63 the obligations of the Tribunal in this regard:

    The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice. … Further, the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration [2004] FCA 834 at [11].

12. Before me today the applicant said that the Tribunal did not consider a particular document that is found at [CB 71].  This document is a letter from the general secretary of the Awami League.  It states:

    “This is to certify that (Mr Applicant) is known to me.  He was an active worker of Bangladeshi Awami League.  Due to his political belief and activities he became a target of the present government and has been incriminated in many false cases.  If he returns home now, he will be persecuted by the present government.”

13. This document was considered by the first Tribunal at [CB 84] which noted that it only referred to the applicant as an active worker and not, as he claimed to be, an office holder.  At [CB 110] the second Tribunal makes the same comment and concludes that the applicant might have been a member of the local branch but not an office holder.  The third and instant Tribunal made reference to the document at [CB 230], again pointing out that it stated that the applicant was an active worker and at [86] of [CB 241] says:

    “The applicant submitted a number of documents to support his claim that he has been a member and office bearer of the Awami League and I have considered those documents but they did not outweigh the evidence  the applicant gave at hearing from which I have concluded that he has not been a member or office bearer of the Awami League.”

    I am quite satisfied that this document has been considered by the Tribunal and rejected.  

14. The applicant then told me that he could not run his business because of his political opponents and he was harmed by them.  This is a factual matter which has no bearing on judicial review of a Tribunal's decision.  He then said that the Tribunal had told him that there were no problems if he went back.  But he had four children and he could not afford to send them to private schools for education if he did go back.  He said the country was poor and he was poor.  This appeal is not one that the court is able to consider but it does seem to confirm the view that the Tribunal expressed that the applicant's reason for coming to Australia was more economic than political.

15. Finally, the applicant told me there was no security in Bangladesh.  This again is not a matter that the court can take into account in considering whether the Tribunal fell into jurisdictional error in the manner in which it reached its decision. I am therefore obliged to inform the Applicant that the application must be dismissed and that he must pay the First Respondent's costs which I assess in the sum of $5,000.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: