SZFWU v Minister for Immigration - [2007] FMCA 1858

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFWU v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1858

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether RRT affected by bias.

Migration Act 1958 (Cth) ss.474; 424

Applicant:

SZFWU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3756 of 2006

Judgment of:

Emmett FM

Hearing date:

6 November 2007

Date of last submission:

6 November 2007

Delivered at:

Sydney

Delivered on:

6 November 2007

REPRESENTATION

Applicant appeared through her father, her litigation guardian, with a Bengali interpreter

Counsel for the Respondent:

Mr J. Mitchell

Solicitors for the Respondent:

Ms H. Blackman, Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3756 of 2006

SZFWU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Bangladesh and was born in Australia on 22 June 2004 (“the Applicant”). The Applicant claims to be entitled to a protection visa by reason of a fear of persecution if she were to return to Bangladesh, because of her father’s political involvement as a member of the Awami League and an executive member of the Montijheel Dhaka Youth League.
On 9 February 2007, this Court ordered that the father of the Applicant be appointed as the litigation guardian for the Applicant.
On 21 July 2004, an application for a protection visa was lodged on behalf of the Applicant with the then Department of Immigration and Multicultural and Indigenous Affairs. The application was accompanied by a statement made by the Applicant’s father in which he claimed to be “a political activist and known to every household in Bangladesh”. The Applicant’s father claimed that he was “constantly persecuted by the BNP-Jamaat regime in Bangladesh” after 2001 when the BNP-Jamaat coalition came to power. The Applicant’s father stated that he was “taken hostage in several occasions and was forced to pay big amount of money to the BNP activists.” He stated that his business was targeted by his political opponents when he refused to pay money and was threatened with death. He stated that when he sought protection from police, they also sought money from him. He stated that when he was unable to pay the police they tortured him; he was detained in police custody illegally without any charge; and released after “some days” when his family gave them money.
The Applicant’s father stated that he participated in anti-government demonstrations and was arrested several times and was beaten.
On 5 August 2004, a delegate of the Minister for Immigration and Multicultural Affairs refused the Applicant a protection visa (“the Delegate”) on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugee’s Protocol (“the Convention”).
The Delegate accepted that the Applicant’s parents may have been supporters of the Awami League. However, the Delegate found that there was no evidence that the Government in Bangladesh was engaged in systematic harassment of members of rival political parties. The Delegate had regard to independent country information that disclosed that, whilst charges against opposition members were common, they usually involved suspected criminal activities. The Delegate also found that the Applicant could live in another part of Bangladesh and that it would not be unreasonable for the Applicant to relocate.
On 5 September 2004, an application for review was filed on behalf of the Applicant with the Refugee Review Tribunal (“Review Application”). No further material was provided in support of the Review Application at that time.
On 25 October 2004, the Refugee Review Tribunal (“the Tribunal”) wrote to the Applicant informing her that it had considered the material before it in relation to her application but was unable to make a decision in her favour on this information alone. The Applicant was then invited to come to a hearing before the Tribunal and to send any new documents or written arguments she wished the Tribunal to consider. A bundle of documents was then sent to the Tribunal in support of the Applicant’s Review Application.
On 16 November 2004, the Applicant father and mother attended a hearing before the Tribunal and provided further material in support of the Applicant’s claim.
On 18 February 2005, the Tribunal affirmed the decision under review. On 12 July 2005, the matter was remitted by consent to the Tribunal for determination according to law.
On 8 August 2006, the Tribunal wrote to the Applicant’s migration agent informing the agent that the Tribunal had again considered the material before it in relation to the Review Application but was unable to make a decision on that information alone. The Applicant was invited to come to a hearing on 19 September 2006 and to send to the Tribunal any new documents or written arguments that the Applicant wished the Tribunal to consider.
On 19 September 2006, the Applicant’s father and mother attended a hearing before the Tribunal, as reconstituted, and gave evidence.
On 25 September 2006, the Tribunal wrote to the Applicant identifying various concerns it had about the evidence given by her parents in support of her Review Application, particularly in relation to new claims not referred to previously by her parents. The Applicant was informed that the information was relevant to her review because it may cast doubt on the accuracy of her claim to fear persecution in Bangladesh because of the political activities of the father. The Applicant was invited to comment on the information.
On 13 October 2006, a response was received by the Tribunal from the Applicant’s father. On 18 October 2006, the Tribunal received a letter from the Applicant’s father requesting an extension of time to respond further to the Tribunal’s letter dated 25 September 2006. On 23 October 2006 the Tribunal wrote to the Applicant’s father refusing an extension. However, on 23 October 2006 the Tribunal received a letter from the Applicant’s father in further response to the Tribunal’s letter dated 25 September 2006. The responses by the Applicant’s father to the Tribunal’s letter were taken into account by the Tribunal in its decision.
The Tribunal’s decision is accurately summarised in the written submissions of Counsel for the First Respondent as follows:
“2.11 On 16 November 2006 the Tribunal handed down its decision affirming the decision under review. The Tribunal rejected the claims made by the Applicant’s parents on the basis of its appraisal of their credibility and the plausibility of their claims. The evidence of the Applicant’s father was assessed as being generally verbose, vague and devoid of relevant supporting details and which gave an impression of evasiveness at a number of points. The Tribunal gave its reason for that assessment. Specifically:
a) His evidence as to his work as a Social Welfare Secretary of the Matrichaya Bahumukhi Samabay Ltd was affected by contradictions and changes to his evidence. Consequently, the Tribunal found that it was not satisfied that his claims in that respect were credible.
b) His claims as to his involvement in the Awami League were vague and devoid of circumstantial detail. He was unable to name the constituency that he claimed he campaigned in during the 2001 national election. Consequently, the Tribunal was not satisfied that he had any authentic first-hand knowledge of the Awami League or its youth wing consistent with his claims of long political activism and to have been a member of the executive committee since 1999.
c) The Tribunal was not satisfied that the material that corroborated his claims was genuine. The Tribunal observed significant discrepancies and incongruities in the material, which, when considered in light of independent country information concerning document fraud in Bangladesh, led the Tribunal to conclude that it could not be satisfied that the documents had not been fabricated.
d) The Applicant’s father's claims to have been actively involved in the Awami League in Australia were inconsistent with his earlier claims that members of that party had wanted to kill him and that he viewed his involvement in politics as the “worst mistake of his life”. Further, he had not become a member of the party since arriving in Australia. The Tribunal concluded that the evidence of his involvement in the Awami League in Australia did not provide a convincing reason for believing that he was an active member of the party or its youth wing in Bangladesh.
e) The Applicant’s father's claims to have suffered physical harm were marked by vagueness and inconsistencies which cast doubt on their accuracy. So too were his claims regarding his business closing down and his claim to have been subject to an arrest warrant in October 2001 and his claimed conviction and sentencing to five years of imprisonment in May 2003.
2.12 The Tribunal also entertained doubts as to the credibility of the evidence of the Applicant’s mother, specifically her claim that she was not aware of her husband’s political role.
2.13Based on the Tribunal’s appraisal of the credibility of the Applicant’s parents it was not satisfied that either of the parents had suffered physical harm in Bangladesh at the hands of political enemies, the police or military as a consequence of the father’s political activities or any other reason. It was not satisfied that the father had been subject to false charges or that he had been forced to live in hiding in Bangladesh. It was also not satisfied as to the likelihood of future harm, including in the form of economic hardship, for reason of the father’s political opinion. The Tribunal was not satisfied as to the remainder of the claims made on the Applicant’s behalf.”
On 14 December 2006 an application was filed in this Court on behalf of the Applicant seeking judicial review of the Tribunal’s decision. The grounds of the application are identified as follows:
“1. The Tribunal made an error jurisdictionally in deciding the fact of the application.
2. The Tribunal did not consider the material fact of the case.
3. The Tribunal made his decision in bad faith.
4. The Tribunal deprived me of the natural justice.
5. The Member of Tribunal has given a decision, which was preset in the back of his mind.”
As stated above in these Reasons, the Applicant’s father was appointed litigation guardian for the Applicant by this Court on 9 February 2007. On that occasion the Applicant was given leave to file and serve an amended application, giving complete particulars of each ground of review relied upon and any further evidence, including any transcript of the Tribunal hearing.
Nothing was filed by or on behalf of the Applicant in accordance with these directions.
On 26 March 2007, the Applicant again appeared before this Court and was again given leave to file and serve an amended application, giving complete particulars of each ground of review relied upon and any further evidence, including any transcript of the Tribunal hearing.
Again, nothing was filed by or on behalf of the Applicant in accordance with these directions.
On 2 November 2007, the Applicant’s father filed an outline of submissions that was more in the nature of a restatement of his claims.
The Applicant’s father appeared before the Court this morning unrepresented, although with the assistance of a Bengali interpreter. The Applicant’s father confirmed that the Applicant relied upon the grounds identified in the application filed on her behalf on 14 December 2006.
Each of the grounds was interpreted for the Applicant’s father and he was invited to make submissions in support of any of the grounds and in support of the application generally.
The Applicant’s father stated and restated several times that the Tribunal had not believed his claims and had asked him a lot of questions and that he had tried to answer. The Applicant’s father plainly disagrees with the adverse credit findings made by the Tribunal. However, the Applicant’s father had no meaningful submission to make in respect of any error made by the Tribunal going to its jurisdiction.
None of the grounds are supported by particulars. The Applicant’s father was directed on two occasions by this Court to provide particulars of the grounds.
Grounds 3 and 5 plainly require evidence, at least a transcript of the hearing. Again, the Applicant’s father was directed on two occasions to file such evidence. The Tribunal explored with the Applicant’s parents concerns it had about their evidence and noted their responses.
In addition, the Tribunal wrote to the Applicant in accordance with s.424 of the Migration Act 1958 (Cth) (“the Act”), identifying information that may be part of the reason for affirming the decision under review and inviting the Applicant to comment. The Tribunal referred in detail to the responses received from the Applicant’s father, however, was not satisfied that the father demonstrated “any authentic first-hand knowledge of the Awami League or its youth wing consistent with his claims of long political activism in support of the party and membership of the executive committee of a party branch since 1999”.
The Tribunal went on to provide reasons why it was not satisfied about the veracity of the father’s claims of past harm as a result of his political activities, nor that he had been convicted on false charges and sentenced in his absence.
The Tribunal had regard to various documents provided by the Applicant’s parents in support of the Review Application, however, was not ultimately satisfied as to their authenticity. The Tribunal found that many of the documents were “identical or nearly identical in their wording as well as in their peculiarities of spelling”. The Tribunal identified its concerns in respect of each document. Having considered its concerns in respect of the documents and the independent country information, concerning the ready availability of false or falsified documents in Bangladesh, the Tribunal was not satisfied that the documents were genuine.
The Tribunal also found that the Applicant’s mother was unable to provide any meaningful comment on the nature of her husband’s political activities.
The Tribunal considered the risk of future harm to the Applicant by way of economic hardship and lack of proper education in Bangladesh. Ultimately, the Tribunal was not satisfied that the Applicant would suffer economic hardship or that she would be prevented from receiving a proper education in Bangladesh. Those conclusions were open to the Tribunal on the evidence and material before it and for which it provided reasons.
The Tribunal also found that the Applicant is not stateless in that her name, details and photograph have been endorsed in her mother’s Bangladesh passport by Bangladesh authorities, thereby confirming that the Applicant is a Bangladesh citizen.
In respect of the Applicant’s father’s evidence the Tribunal stated the following:
“When his replies were obviously non-responsive I repeated the questions, giving him every opportunity to answer them. I gained a clear impression at a number of points during the hearing that his non-responsive answers owed more to evasiveness and a need to improvise than to any lack of comprehension or misunderstanding on his part.”
A fair reading of the Tribunal’s decision does not suggest that that Tribunal approached its task other than with a mind open to persuasion.
Accordingly grounds 3 and 5 are not made out.
Grounds 1, 2 and 4 are bare assertions of error and do not identify any error capable of review by this Court going to the Tribunal’s jurisdiction. A fair reading of the Tribunal’s decision does not suggest that the Tribunal failed to consider any material fact of the case or deprive the Applicant of natural justice.
The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons.
The Tribunal otherwise complied with the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court commenced by way of application filed on 14 December 2006 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: E. Maconachie

Date: 6 November 2007