SZFTE v Minister for Immigration

Case •

[2005] FMCA 1561

•

18 October 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFTE v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1561
MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of Bangladesh claiming a well-founded fear of persecution because of being a member of the Hindu minority – whether RRT complied with Migration Act 1958 (Cth) s.424A – reported cases not covered by s.424A – merits review – natural justice.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424A, 474

SZASX v Minister for Immigration and Multicultural Affairs (2004) FMCA 680
SZASX v Minister for Immigration and Multicultural Affairs (2005) FCA 68
Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZFTE
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 437 of 2005
Delivered on: 18 October 2005
Delivered at: Sydney
Hearing date: 18 October 2005
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Ms McNaughton
Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

  1. Leave to join Refugee Review Tribunal as a Second Respondent in these proceedings.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00. I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 437 of 2005

SZFTE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal made its decision on 12th January 2004 according to the documents, although it would seem to me that that is a typing error and it should be 12th January 2005. The decision was handed down on 1st February 2004 (sic).  The decision was made after a hearing of the Refugee Review Tribunal that took place on


    17th November 2004. The Applicant attended that hearing and gave oral evidence to the Tribunal.

  2. The background to this matter is that the Applicant is a citizen of Bangladesh and he arrived in Australia on 19th March 2004.  He travelled on an Indian passport although he claims the citizenship of Bangladesh and told the Court he was born in that country. 

  3. On 28th April 2004 he lodged an application for a Protection (Class XA) Visa and he claimed a well-founded fear of persecution for a convention reason, namely that he was a member of the Hindu minority in Bangladesh. 

  4. On 20th July 2004 a delegate of the Minister refused the application for a Protection Visa. On 9th August of that year the Applicant sought a review of that decision by the Refugee Review Tribunal.

  5. The Tribunal wrote to the Applicant pursuant to s.425 of the Migration Act advising him on the 19th October 2004 that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour based on that information alone. For that reason the Tribunal held a hearing and invited the Applicant to give evidence and present evidence. 

  6. The Applicant was not legally represented although he did have the assistance of a migration adviser. 

  7. He supplied a number of documents to the Tribunal in support of his case. 

  8. The Tribunal found that the Applicant was a citizen of Bangladesh and noted his claim of a well-founded fear of persecution for reason of his religion as a member of the Hindu faith. The basis of the claim was persecution by Muslims in Bangladesh who form the majority of the population. 

  9. The Tribunal accepted the fact that the Applicant's family had suffered some harassment and discrimination, especially around the year 1992.  The Tribunal noted that the Applicant's father and brothers had relocated from a rural area to the City of Chittagong. The Applicant claimed that they received some degree of harassment even there. 

  10. Whilst the Tribunal accepted, at page 122 of the Court Book, that the Applicant suffered a beating as he travelled by rickshaw to the family home in 2000; the Tribunal did not accept that that incident indicated that Muslim fundamentalists had tried to kill him. The Tribunal was of the view that it was implausible that a deadly attack would be launched in the presence of the rickshaw driver. 

  11. The Tribunal did accept that the Applicant had been subject to petty extortion while working in his photographic studio in Chittagong and noted that this appeared to be a widespread problem affecting a number of shop-keepers in the area. The Tribunal took the view, however, that this extortion did not constitute serious harm amounting to persecution but was better described as petty criminality. 

  12. The Tribunal did acknowledge that some of the Applicant's problems were caused or exacerbated by his membership of a religious minority group. The Tribunal did not accept that the Applicant was forced to flee Bangladesh because of persecution. 

  13. The Tribunal rejected the claim that the Applicant had received death threats over the last 18 months, although did accept the fact that the Applicant and his family and other Hindu villagers had experienced some discrimination. 

  14. The Tribunal did note that there had been some problems in Bangladesh and a recent instance of religious violence took place in November 2003 had been reported by independent observers. The Tribunal took the view, however, that independent evidence showed that attacks on Hindus or Buddhists were random instances rather than state sponsored or even state tolerated persecution.

  15. The Tribunal was not satisfied that the Applicant had suffered harm of a type or severity that could be described as persecution for a convention reason. 

  16. The Tribunal also took the view that the chance that the Applicant would suffer harm of that nature in the future was remote. 

  17. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a convention reason. 

  18. In the Applicant's Amended Application, which was filed on 31st May 2005, the Applicant raised, in effect, two grounds. The first of those grounds alleged a breach by the Tribunal of s.424A of the Migration Act. The Applicant claimed that the Tribunal had regard to information that was part of the reasons for its decision to affirm the decision of the delegate not to grant the Applicant a Protection Visa but did not serve details of this information on the Applicant or did not ensure that the Applicant understood why the information was relevant or give the Applicant notice of the particulars of that information.

  19. The Applicant claimed that this was a breach of s.424A of the Act and therefore it was a breach of natural justice.

  20. The Applicant told the Court that he had not had legal advice in the preparation of his application but that a friend had helped him with the drafting of this document. 

  21. The ground relating to s.424A of the Migration Act is misconceived. The information to which the Applicant refers consists of some seven reported cases dealt with largely by the High Court of Australia. The ground is misconceived for two reasons. First, because the cases referred to were not relied on by the Tribunal to affirm the decision of the delegate of the Minister. Those particular cases were referred to by the delegate at pages 113 and 114 of the Court Book as examples of leading cases where the High Court of Australia has considered the definition of a refugee. It is, in my view, stretching the language of the section to submit that those cases form the reason or part of the reason for rejecting the Applicant's claim.

  22. The Applicant's claim was rejected on the facts as found by the Tribunal, particularly the fact that the Tribunal was not satisfied that the discrimination or harassment suffered by the Applicant amounted to serious harm as set out in s.91R of the Migration Act. The incidence of a beating in year 2000 was described by the Tribunal as a criminal act and the Tribunal was not satisfied that that arose from religious discrimination on the part of the Muslim majority in Bangladesh.

  23. The extortion suffered by the Applicant at his photographic studio at Chittagong was characterised by the Tribunal as criminality which was not directly related to the Applicant's religious beliefs. 

  24. But the application is also misconceived because the High Court cases referred to by the Applicant do not fit within the categorisation of information that formed the reason or part of the reason for the Tribunal decision as set out in s.424A of the Migration Act. This particular point was held by Barnes FM in the Federal Magistrates Court in SZASX v Minister for Immigration and Multicultural Affairs (2004) FMCA 680 at [16] to [35] inclusive. I note that the Applicant in that case appealed to the Federal Court and on 8th February 2005 Tamberlin J dismissed that appeal and the citation for the decision is (2005) FCA 68.

  25. I note from the judgment that the question of the applicability of s.424A to the cases that have been cited was not in fact argued before the Federal Court and presumably the appellant had abandoned that claim. In my view, the findings of her Honour in SZASX on this point remain unchallenged. 

  26. The other ground referred to in the Applicant's amended application is set out in sub-paragraph (f) of that application.  I note that there is no paragraph (e).  The ground says as follows:

    The Tribunal generalised the Applicant's claims with others and failed to accept that the Applicant is really facing persecution in Bangladesh being a member of the minority Hindu community in Bangladesh and failed to grant him Protection Visa on the basis of his persecution in Bangladesh.

  27. In my view, this is no more than an application for a merits review by taking issue with the factual findings that were made by the Tribunal.  A Court conducting judicial review of a decision of the Refugee Review Tribunal does not have the jurisdiction to conduct a merits review of the factual findings made by the Tribunal. This has been well-established law, certainly since Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

  28. The Tribunal considered the Applicant's claims and then rejected them.  In one case, when referring to the attack on the Applicant in the rickshaw in year 2000, the Applicant said that it was implausible that people would attempt to murder the Applicant or otherwise kill him in the presence of a rickshaw driver.  This finding of implausibility is purely within the jurisdiction of the Refugee Review Tribunal and it was open to the Tribunal to make that finding and indeed to make other factual findings on the basis of the evidence before it.  The principle is set out in paragraph 67 of Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407.

  29. In my view, the applicant's grounds for review must fail.  I have considered the decision as a whole, noting that the Applicant is not legally represented. I am unable to identify any other jurisdictional error in that decision. 

  30. As there is no reviewable error, the decision of the Refugee Review Tribunal is a privative clause decision within the meaning of s.474 of the Migration Act. It follows that I must dismiss the application for review.

  31. There is an application on behalf of the Respondent Minister for an order for costs.  The Applicant's application has been unsuccessful and it is the normal practice for a successful party to seek an order that the unsuccessful party should be liable for their legal costs assessed on a party and party basis.  In my view there is nothing to warrant departing from this general rule. I do note however, that the Applicant has said that he has recently been ill and in fact has been hospitalised.  I accept the fact that this not only had an effect on his health but also would have had an effect on his finances.  Whilst that is not a ground not to make a costs order, it is a reason for the Court to consider allowing time to pay.  Hospital treatment is not cheap and people who have been hospitalised are often left in a situation where they do not have reserves of cash behind them.  I do propose to make an order for costs in favour of the First Respondent. 

  32. Having said that; I note that the amount of costs that is sought, on a party and party basis, is $4,000.00 in a lump sum. That, I understand, is inclusive of Counsel's fees and in my view comes well within the scale of costs set out by Schedule 1 of the Federal Magistrates Court Rules. I am satisfied that it is an appropriate figure for the Court to award in a case of this nature. I propose to order that the Applicant is to pay the First Respondent's costs fixed in the sum of $4,000.00.

  33. For the reasons which I have previously mentioned relating to the Applicant's financial situation, I do propose to allow time to pay.


    I allow six months to pay.

  34. I require a transcript of my reasons for this decision and I will remove the application from the list of cases awaiting finalisation. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  25 October 2005

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