SZFWB & Ors v Minister for Immigration
[2006] FMCA 1414
•6 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFWB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1414 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 483A |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Minister for Immigration v NAMW [2004] FCAFC 264 NAOA v Minister for Immigration [2004] FCAFC 241 SAAP v Minister for Immigration [2005] HCA 24 |
| Applicants: | SZFWB, SZFWC, SZFWD, SZFWE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG599 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 October 2006 |
REPRESENTATION
| Advocate for the Applicants: | The applicants appeared in person with the assistance of a Bengali interpreter |
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Clayton Utz Solicitors |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG599 of 2005
| SZFWB & ORS |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 10 March 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 25 January 2005 and handed down on 16 February 2005, affirming the decision of a delegate of the first respondent made on 21 May 2004, refusing to grant the applicants a Protection (Class XA) visa. The applicants seek relief against the decision of the Tribunal.
The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been given the pseudonyms “SZFWB” (applicant husband), “SZFWC” (applicant wife), “SZFWD” and “SZFWE” (applicant daughters).
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
For the purposes of this application the respondents tender and apply for the affidavit of Zoe Elizabeth Brauer sworn on 6 September 2006 ("affidavit of Ms Brauer"), to be admitted into evidence. Attached to that affidavit is a 23 page transcript of the Tribunal hearing of 3 December 2004. A Court Book prepared by the respondents’ solicitors was filed and served on 12 May 2005.
Background
The Tribunal decision of Ms Mila Males, reference numbers N04/49362 and N04/50140, provides the following background information. The applicants claim to be citizens of Bangladesh.
The applicant husband, wife and one daughter (SZFWD) arrived in Australia on 13 February 2004. On 26 March 2004, they lodged an application for a Protection (class XA) visa with the Department of Immigration under the Act. On 21 May 2004, a delegate of the Minister refused to grant a protection visa and on 22 June 2004, the applicants applied for review of that decision. The fourth-named applicant daughter (SZFWE) was born in Australia on 15 September 2004. A protective visa application was lodged with the Department on her behalf on 15 October 2004. A delegate of the Minister refused to grant her a protection visa and an application for review of that decision was lodged with the Tribunal on 9 November 2004.(Court Book “CB” 231)
The protection visa claims were those of the applicant husband’s and the applicant wife and applicant daughter SZFWD applied as members of his family unit. In a statement submitted with the visa application, the applicant husband claims he was not impressed with either the Awami League or the Bangladesh National Party (“BNP”), who came to power after Bangladesh gained independence. He states that he was happy when Hussain Mohammad Ershad took power from the BNP in 1982. The applicant husband claimed to be from a wealthy and renowned family who had good relationships with the Jatiya Party and his business expanded during its regime. He joined that party and became popular in the local area. Due to his popularity and profile, he was assigned to organise party meetings, public relations, make public statements and encourage and recruit members. Local Awami League and BNP leaders did not approve of his activities and success, and tried to destroy his political career and business.(CB 234)
The applicant husband claims that in 1991 the BNP killed hundreds of Jatiya Party activists and Mr Ershad was falsely jailed. He claims that he was harassed by local BNP terrorists who tortured him and demanded money in exchange for allowing him to conduct his business. As a result, he was forced to leave his local area for Dhaka City. When the Awami League came to power in 1996, he returned to his local area to restart his business. However, even though the Awami League came to power with the support of the Jatiya Party, they betrayed the Jatiya Party and tortured Jatiya Party activists.
They warned him to stop his political activities, demanded money from him and tried to destroy his political career and business. He was forced to move back to Dhaka City in 1998 to save his life.(CB 234-5)
The BNP came to power again in 2001, but the applicant husband did not return to his local area as local BNP terrorists were looking for him and wanted him killed. He claims that they had already involved him in a “false case”. The local BNP found out his whereabouts and the “widely known terrorist group” came to his home in Dhaka. He was not there and they told his wife that they would return. He claims he spoke to the police but they were worthless because they were controlled by the BNP and the Awami League. False charges were laid against him for harassment, while he feared harassment by the police and the state. He claims he was denied food, shelter, livelihood, freedom, safety and security. Given the circumstances, he decided to come to Australia. The applicant husband claims that if he returns to Bangladesh he would be killed and he fears for his family.(CB 235)
Tribunal’s Findings and Reasons
A convenient summary of the Tribunal's reasons were contained in the respondents’ written submissions prepared by Ms Clegg and I adopt paragraph 11 of those submissions:
11.The Tribunal made the following observations and findings:
a) despite the applicant claiming that he was unwell at the hearing and was unable to recall much, this was not apparent to the Tribunal at the time of the hearing. The applicant gave evidence in a composed manner, except when he discussed his mother's death. Further, the evidence he gave at the hearing about his medical condition was unconvincing, and as he only raised the matter once the Tribunal began identifying problems with his evidence with the Tribunal observed was opportunistic. The evidence provided by the applicant at the hearing of his mental condition and also after the hearing failed to explain how the condition may have affected the applicant at the hearing and his ability to give evidence. Accordingly, the Tribunal did not accept that the applicant had suffered any condition which adversely affected his ability to give evidence at the hearing;(CB 248)
b)the applicant was not a truthful witness and invented his claims;(CB 249.2)
c)the applicant's evidence was vague and unconvincing, and he lacked requisite knowledge about the political party he claims to have been so closely involved with for nine years (the Tribunal gave examples of this lack of knowledge);(CB 249.4 to 249.9)
d)The applicant's evidence was evasive, and when the Tribunal questioned him about his evidence, he did not provide specifics in relation to his return to his local area after the AL came to power. Accordingly, the Tribunal found that he was not truthful about this matter;CB 250.1 to 250.4
e)The applicant's claims in relation to the problems he incurred after the AL came to power in 1996 were both internally inconsistent and not supported by independent evidence. For this reason, the Tribunal found it was not plausible that the applicant would have been targeted by the Awami League in 1996 or 1997;CB 250.5.
f)The Tribunal found the applicant's claim that the BNP came to his house in December 2003 to kill him implausible, as he had not claimed to have been involved in politics since 1998; CB 250.8.
g)The Tribunal found it implausible that if the applicant had feared for his life since 1991 he would have returned to Bangladesh from overseas trips instead of seeking protection in the countries he visited; CB 151.1.
h)The evidence provided by the applicant's wife has been given in an unconfident and nervous manner and lacked sufficient detail. Accordingly, the Tribunal gave her evidence no weight because it found her husband an unreliable witness; CB 250.3.
i)The Tribunal found that the applicant was not a credible witness. It did not accept that he was a member of the JP or that he suffered harm as a result of his involvement with the JP;CB 251.6.
j)The Tribunal concluded that the applicant's husband did not have a well-founded fear of persecution for a Convention reason. It followed that the remaining family members whose claims relied on the claims of the applicant husband also failed to substantiate a claim of persecution for a Convention reason. CB 252.5.
Application for review of the Tribunal’s decision
On 10 March 2005 the applicant filed an application for review under s.39B of the Judiciary Act. On 30 May 2005, the applicant filed an amended application which contained the following grounds:
1.In making the decision the Tribunal made a jurisdictional error by denying the applicant procedural fairness.
Particulars
(a) The Tribunal made adverse finding as to the authenticity of the arrest warrant, Court case, medical report provided by the applicant.
(b) The Tribunal failed to make proper disclosure of adverse information.
(c) The Tribunal did not afford the opportunity to put their case as required because the first-named applicant was sick and was unable to remember or answer the questions raised by the Tribunal member.
2.In making the decision the Tribunal made a jurisdictional error by violating the duty it was under to satisfy itself as to the eligibility of the applicant for protection visas.
Particulars
a) The Tribunal made adverse findings as to the authenticity of documents provided by the applicant; and
b) The findings were not based on evidence.
3.In making the decision the Tribunal made a jurisdictional error by denying the - misapplying the law.
Particulars
(a) The Tribunal made adverse finding as to the availability to the applicant of protection from persecution.
(b) The Tribunal based that decision upon the ability to escape persecution by taking reasonable steps to avoid it.
(c) That is not the test; and
(d) The findings of the availability of protection were not based on evidence.
Reasons
The applicants in these proceedings were self-represented and appeared with the assistance of a Bengali interpreter. They filed written submissions on 22 August 2006. When invited to make oral submissions to the Court, the applicant husband indicated that he would rely on the written submissions. However, he asked whether his wife could address the Court. The applicant wife indicated that her daughter was suffering from a medical condition which requires ongoing treatment and an operation when the child turns 10 years of age. The applicant wife indicated that their daughter would not be able to receive this treatment should they return to Bangladesh.
The applicants’ written submissions filed on 22 August 2006 refer to four issues:
a)“Suffering brain pain”;
b)Formation of the Jatiya Party;
c)No weight was given to the applicant wife's evidence;
d)The fourth named applicant's Tribunal hearing.
These do not correlate with either the original grounds or those in the amended application. I acknowledge the difficulties facing the applicants as self-represented litigants attempting to prosecute their case in a foreign language and dealing with a legal system they do not understand. Consequently, I will deal with the issues raised in the amended application and then deal with the new issues that arise in the applicants’ written submissions.
Ms Clegg filed written submissions which answer the grounds of review set out in the amended application filed by the applicants.
In respect of the first ground, Ms Clegg submits that the complaint about an arrest warrant is not directed to the facts of the case.
The applicant did not provide the Tribunal with an arrest warrant. Consequently this complaint has no substance and cannot be sustained.
The second particular of the first ground is that the Tribunal failed to disclose adverse information to the applicants. The nature of this information is not particularised and I accept Ms Clegg’s submission that it is not possible to respond to this complaint. Ms Clegg submits that to the extent that the applicants complain about the reliance by the Tribunal on independent country information, the Tribunal was not requested to give the applicants details of such information because it fell within the exception to s.424A(1) which is found in s.424A(3)(a). She submits that such information is plainly information of the kind identified in that exception. It falls within a class of information which is not about the applicant but a class of persons of which the applicant is, or claims to be, a member: Minister for Immigration v NAMW [2004] FCAFC 264.
The third particular in the first ground is addressed in the applicants’ written submissions, “(i) Suffering brain pain”. The applicant husband claimed before the Tribunal that he was “suffering brain pain” and that when he became anxious his brain did not function well.(CB 239)
The applicant husband complains that the Tribunal commented that he did not suffer any condition during the hearing which adversely affected his ability to give evidence. The applicants submit that the Tribunal member could not make such a comment without “any medical certificate or being a doctor herself”.(Applicants’ written submissions) Furthermore, that the Tribunal member did not give the applicant husband time to provide medical evidence to show that his brain condition adversely affected his ability to give evidence. The applicants submit that the Tribunal acted in excess of its jurisdiction by making such a comment and denied them natural justice.
Ms Clegg submits that the Tribunal dealt with this issue clearly and comprehensively in its decision.(CB 248) The Tribunal also went well beyond its obligation in terms of allowing the applicants to present additional information and medical evidence after the hearing to support the claim that a medical condition affected the applicant husband’s performance at the hearing. Ultimately, the Tribunal was entitled to reach the conclusion and proceed in the manner it did.
Ms Clegg submits that no jurisdictional error on this ground can be made out, particularly in the absence of evidence to demonstrate that the Tribunal member’s conduct resulted in the applicants being denied procedural fairness in this regard: NAOA v Minister for Immigration [2004] FCAFC 241 at [21].
In the Tribunal decision under the heading “Claims and Evidence”, the Tribunal set out in some detail the complaint raised by the applicant husband during the hearing — of difficulty that he was experiencing concerning his headaches and the problems with his memory.(CB 239-240, 242) Also detailed in the decision record are the inquiries carried out by the Tribunal in respect of the supporting medical evidence.
The applicant was provided with an extension of time to enable him to provide his evidence.(CB 243-244)
It is apparent that the Tribunal had made contact with all of the medical practitioners that the applicant had consulted and discussed the applicant's condition with those treating doctors. During those inquiries, it emerged that some of the consultations claimed by the applicant husband had not occurred and the nature of the condition and treatment did not accord with the claims being made by the applicants. The Tribunal formed the view that the applicants’ claims were unconvincing. Further, the applicant was given a reasonable opportunity to obtain and present to the Tribunal additional medical evidence supporting his claims. Ultimately, the Tribunal reached the conclusion that the medical condition which the applicant claimed he was suffering from which adversely affected his ability to give evidence was not accepted.(CB 248) I am satisfied that this element of the first ground cannot be sustained.
In respect of the second ground, Ms Clegg submits that there was no finding made by the Tribunal about the authenticity of documents. This is because there were no documents provided by the applicants which could have given rise to such a finding by the Tribunal. It is submitted that this ground of review appears to be formulaic and not directed to the facts of this particular case. The more general complaint contained in the second particular of this ground, that the findings were made without evidence, cannot be answered without identification of the impugned finding. I accept the submissions of
Ms Clegg that the second ground cannot be sustained.
In respect of the third ground, Ms Clegg submits that the Tribunal made no findings in connection with the ability of the applicants to obtain state or any other protection. Nor did the Tribunal make any finding concerning relocation. Again, this ground of review appears to be formulaic and not directed to the facts of this particular case and has no relevance to the Tribunal decision. This ground cannot be sustained.
Conclusion
The applicants appeared at the hearing as self-represented litigants, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. Counsel for the respondents assisted the Court with written submissions which were supplemented by oral submissions in respect of the further amended application. It was apparent that the applicants did not comprehend the significance of the contents of the further amended application or the operations of these proceedings. I am satisfied that none of the grounds identified can be sustained. It is not apparent that any other ground of review exists to suggest the Tribunal made a jurisdictional error in its decision-making process. The applicants’ claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order that the applicants pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 5 October 2006
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