SZFYG v Minister for Immigration
[2008] FMCA 443
•12 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFYG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 443 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa – citizen of Bangladesh claiming fear of persecution on account of political opinion – no reviewable error. |
| Migration Act 1958 (Cth), ss.36(2)(a), 424A, 424A(1), 472(2) Federal Magistrates Court Rules 2001, r.13.03A(c) |
| SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 Htun v Minister for Immigration & Multicultural Affairs [2001] 194 ALR 244 Minister for Aboriginal Affairs v Peko-Wallsend [1986] 162 CLR 24 NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] 195 ALR 207 SZALW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1690 SXRB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1222 SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 |
| Applicant: | SZFYG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2956 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 March 2008 |
| Date of Last Submission: | 12 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Shariff |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,900.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2956 of 2007
| SZFYG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant is a citizen of Bangladesh. He asks the Court to set aside a decision by the Refugee Review Tribunal that affirmed a decision of a delegate of the Minister not to grant him a protection visa. He asks the Court to issue a writ of certiorari quashing the decision of the Refugee Review Tribunal and he further asks for the issue of a writ of mandamus requiring the Tribunal to determine his application for a visa according to law. I have explained to the applicant that in order to make the orders which he asks the Court must be satisfied that the Tribunal decision is affecting by jurisdictional error.
In his application the applicant sets out three grounds in which he claims that the Tribunal fell into jurisdictional error. The applicant filed, very late, a written outline of submissions. In paragraph 8 of that outline of submissions, which the applicant says was prepared for him by a friend, there can be made out three further claims of jurisdictional error. I have granted leave to the applicant to bring those further claims in this hearing as I am satisfied that counsel for the first respondent Minister has had sufficient notice of these grounds and was in a position to meet these additional grounds by means of an oral submission.
By way of background, the applicant arrived in Australia on Anzac Day 2004, 25th April. He applied for a protection (Class XA) visa on
17th May 2004. A delegate of the Minister refused his application for a visa on 17th August in that year. The applicant then sought review of the decision of the delegate. The Refugee Review Tribunal, differently constituted, affirmed the decision not to grant him a protection visa, so the applicant then sought judicial review of that decision through the Federal Magistrates Court.
On 29th March 2006, I dismissed the application under r.13.03A(c) due to the non appearance by the applicant at Court. On 3rd May 2007
I made orders by consent setting aside the order of 29th March 2006 dismissing the applicant for non attendance and issuing writs of certiorari and mandamus. The Court noted that the first respondent, the Minister for Immigration & Citizenship, conceded that the decision of the Tribunal was affected by jurisdictional error in that it did not comply with its obligations to put adverse information relied upon as part of the reason for the decision to the applicant to comment in accordance with s.424A of the Migration Act 1958.
The Refugee Review Tribunal, once it had received the matter back before it, wrote to the applicant care of his migration adviser on
31st May 2007. That letter was an invitation to comment on information written to comply with the provisions of s.424A(1) of the Migration Act. The migration agent replied on the applicant's behalf and made comments in the letter of 21st June 2007.
The Tribunal then wrote to the applicant on 3rd July 2007 inviting him to attend a hearing on 9th August. The applicant indicated through his migration agent that he wished to attend the hearing and would need the assistance of an interpreter in the Bengali language. The applicant's migration agent wrote to the Tribunal on 1st August 2007 setting out briefly a claim that the applicant was a leading activist of the Awami League Australian branch and had participated in demonstrations in Canberra. The migration agent submitted a number of photographs for the consideration of the Tribunal.
On 3rd August 2007 the applicant's agent submitted to the Tribunal a letter written by the Bangladesh Awami League Australia on 1st August 2007. On 8th August 2007 the applicant's migration agent submitted a number of documents to the Tribunal for its consideration relating to his claim that the applicant had been active in Awami politics in Bangladesh and feared persecution if he were to require to return to Bangladesh.
The applicant attended the hearing that took place on 9th August 2007 and gave evidence. The Tribunal signed its decision on 16th August 2007 and handed that decision down on 28th August. In the Tribunal decision[1], the Tribunal considered the applicant's claims and evidence including his evidence at the Tribunal hearing and his response to the s.424A letter of 31st May 2007.
[1] A copy of which can be found in the Court Book at pages 143-160
In the Tribunal's findings and reasons[2], the Tribunal accepted that the applicant is a national of Bangladesh and has no right of entry to any other country. The Tribunal noted the applicant's claims that he had been heavily involved in student political activities as a member of the Chattra League and then the student wing of the Awami League. The Tribunal noted the applicant's claims to have been targeted, kidnapped, ill treated and released as a result of his political involvement and noted his belief that he was a target of the BNP in Bangladesh.
[2] See Court Book pages 157-159
The Tribunal noted that:
Critical to the applicant's claims for protection is whether or not the Tribunal believes that the applicant was involved in student politics as a member of the Chattra League. The applicant in his claims has not claimed to be a mere supported of the Chattra League but a member.[3]
[3] See Court Book pages 157-158.
The Tribunal went on to find, however, that the applicant's evidence of the Tribunal about his involvement with the Chattra League and the Awami League in Bangladesh was extremely vague and lacking in credibility. The Tribunal said:
The Tribunal expected that the applicant, if he was vested with the responsibility of organising opposition to the BNP through leading political and cultural rallies, that he would have to have a sound knowledge of the policy and objectives of the BNP in order to garner support for the Chattra League in its opposition for the BNP.
However, the Tribunal noted the applicant was unable to articulate any of the BNP's policies or objectives and it had already noted that the applicant was not able to articulate any of the policies or key objectives of the Awami League. The Tribunal then found:
Based on this lack of knowledge the Tribunal finds that the applicant has not been involved in student politics in Bangladesh. The Tribunal finds that the applicant was not a member of the Chattra League.[4]
The Tribunal also found that the applicant had never been an office holder or a political activist of his claimed political party in Bangladesh, which was the Awami League, or of the Chattra League. The Tribunal noted the evidence that the applicant had been an active member of the Awami League since his arrival in Australia but the Tribunal placed no weight on that evidence because it was not satisfied that the applicant had ever held a political profile either in Bangladesh or in Australia.
[4] See Court book page 158.
The Tribunal found:
The material submitted by the applicant's representative pertaining to an Awami League profile in Australia has been collated to embellish the applicant's claims for protection.[5]
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention and did not satisfy the criterion set out in sub-s.36(2)(a) of the Migration Act for a protection visa. Accordingly, the Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
[5] See Court book page 159.
The applicant commenced proceedings for judicial review in this Court by filing an application and an affidavit in support on 25th September 2007. He filed written submissions on 11th March 2008, a day before the hearing. In his application for judicial review the applicant sets out three grounds.
a)The second respondent failed to consider an integer of the applicant's claims, namely that false cases had been filed against him in Bangladesh by the former BNP government and that the applicant thereby feared persecution on the grounds of his political opinion.
b)The second respondent failed to consider an integer of the applicant's claims, namely that the applicant claimed that he feared the current caretaker government because of his involvement in protest in Australia against that government.
c)The second respondent did not consider the grounds which made a jurisdictional error by the Tribunal.
With respect, it appears to me that ground 3 is really a repetition of the two earlier grounds and does not establish a separate ground for review.
The applicant's written submissions refer to a number of issues. Mr Shariff of counsel who appeared for the Minister submitted that paragraph 8 of the written submissions effectively sets out what could be identified as three additional grounds. As I said earlier I granted leave to consider those grounds as I was satisfied that the respondent was in a position to meet them.
The first of these grounds in paragraph 8 is that the second Tribunal constructively failed to determine the case:
The Tribunal said in its decision that, 'One would expect that a person to be a political activist at the level claimed by the applicant would have a sound knowledge'.
The ground clearly relates to a conclusion drawn by the Tribunal.
The second ground that can be gleaned from paragraph 8 is:
Furthermore, the second Tribunal tested the applicant as a leader of the BNP and ceaselessly asked questions for a substantial time of the hearing.
The third ground bears some relation to the second ground in paragraph 8, and claims:
The Tribunal wished to receive some information about opponent political party BNP. It is unexpected and unreasonable and constructively a failure of the obligation on the part of the Tribunal. The question was whether the applicant was a member of the Awami League but the Tribunal assessed him as the BNP leader and asked so many questions as a leader of the BNP. In SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 the majority of the judges agreed for relevant issues. In this case the relevant issue was the applicant was the member of the Awami League not a member of the BNP.
I will deal with those grounds in order. Ground 1, the failure to consider an integer of the applicant's claims, namely that false cases had been filed against him, appears to be factually incorrect and misconceived. In a very helpful submission, Mr Shariff of counsel made the following point:
A claim that a Tribunal has failed to consider an integer of an applicant's claim is in substance a claim that the Tribunal has failed to take into account a mandatorily relevant consideration, see Htun v Minister for Immigration & Multicultural Affairs [2001] 194 ALR 244 per Alsop J at para.52. However, nothing in the second Tribunal's reasons discloses that it did not take into account a mandatorily relevant consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend [1986] 162 CLR 24. In this regard it is important that a clear distinction be drawn between on the one hand an integer of the applicant's claim (which is a mandatorily relevant consideration) and on the other the items of evidence relating to that integer or claim. See NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] 195 ALR 207 at para.58. The two are different and must be clearly delineated. In the present case there was only one integer to the applicant's application for a protection visa, namely that he feared persecution on the grounds of his political opinion and activities.
In my view, with respect, that submission is an accurate summary of the law.
In effect, what the applicant is submitting in ground 1 is that the Tribunal failed to consider one piece of evidence relating to the integer of his claim, his fear of persecution on the ground of political opinion. It may well be said that the applicant's real complaint is that favourable evidence was not expressly considered by the Tribunal, (see SZALW v Minister for Immigration & Multicultural & Indigenous Affairs).[6]
The fact is that the Tribunal did consider the applicant's evidence about the false charges laid against him by the BNP and even if the Tribunal did not specifically consider the applicant's evidence about that, no jurisdictional error is raised.
[6] [2004] FCA 1690 at [18].
I am referred to the decision of Lander J in SXRB v Minister for Immigration & Multicultural & Indigenous Affairs[7] where his Honour said:
The failure to consider a piece of evidence does not necessarily amount to a failure to consider an integer of an applicant's claim for an entitlement to a visa. Whether it will or will not will depend upon whether it is the only or the overwhelming evidence relating to that integer.
[7] [2005] FCA 1222 at [32].
There were many items of evidence relating to the applicant's claim. The evidence was presented on the basis that various items cumulatively established the applicant's well founded fear of persecution, even if there was a failure to consider the evidence, and I am not satisfied that there was, no jurisdictional error is raised. Ground 1 must fail.
The second ground alleging that the Tribunal failed to consider an integer of the applicant's claims because he feared the current caretaker government in Bangladesh because of his involvement in protest in Australia was indeed considered by the Tribunal. It is clear from the Tribunal's reasons at pages 158 and 159 of the Court Book that the Tribunal did consider that claim. The claim therefore is incorrect on a factual basis and the ground has not been made out.
The third ground in the application is merely a reference to the first two grounds as forming jurisdictional error and does not raise a separate claim.
Turning to the matters in the applicant's written submission in paragraph 8, the first claim there appears to be that the applicant takes issues with the Tribunal's statement that:
One would expect that a person to be a political activist at the level claimed by the applicant would have a sound knowledge.
In my view, this does not establish jurisdictional error. It is no more than a statement by the Tribunal of a part of its reasoning process and it is a conclusion reached by the Tribunal on a consideration of the application's evidence. That ground, if it is a ground, must fail.
The second ground appears to be a complaint that the Tribunal ceaselessly asked the applicant questions for a substantial time of the hearing. Even if that were established it is difficult to see how that would amount to a jurisdictional error. In any event, Mr Shariff of counsel has referred the Court to the RRT hearing record which appears at pages 136 and 137 of the Court book. The hearing record shows that the hearing opened at 10:50 am, adjourned at 12:05 pm, resumed at 12:10 pm and ended at 12:35 pm. The overall time of the hearing was significantly less than two hours.
It may well have been that the Tribunal asked the applicant a number of questions about his political involvement. It is to be expected, however, that the Tribunal on reviewing a decision by a delegate to refuse a protection visa to an applicant would take a robust view of the evidence and would ask questions in some detail in order to test an applicant's evidence. This is a matter that was dealt with particularly in SBAN v Minister for Immigration & Multicultural & Indigenous Affairs.[8] No jurisdictional error is shown.
[8] [2002] FCA 591.
The third ground that can be gleaned from paragraph 8 is based on a misconception. The applicant said:
The question was whether the applicant was a member of the Awami League but the Tribunal assessed him as the BNP leader and asked so many questions as a leader of the BNP.
This is a misconception that arises from a misreading of the Tribunal decision. The Tribunal was in no doubt that the applicant claimed to be involved as a member of the Awami League. That emerges quite clearly from the findings and reasons at pages 157 through to 159.
What the Tribunal had to say about the BNP was this:
The Tribunal expected that the applicant if he was vested with the responsibility of organising opposition to the BNP through leading political and cultural rallies, that he would have to have a sound knowledge of the policy and objectives of the BNP in order to garner support for the Chattra League in its opposition to the BNP.[9]
The Tribunal was not in any way suggesting that the applicant was a member of the BNP, quite the reverse. The Tribunal was considering the situation that a person who was opposed to the BNP politically would have knowledge of the BNP's policies and objectives in order to oppose the activities of the BNP. The Tribunal at no time assumed that the applicant was a member of the BNP and it is clear that the Tribunal was at all times aware that the applicant's claims arose from his membership initially of the Chattra League and then of the Awami League. The third ground that appears in paragraph 8 of the submissions, if it is a ground, is misconceived and must fail.
[9] See Court Book page 158.
I am mindful of the fact that the applicant is not legally represented.
I am of a view that the Court has an obligation to consider the Tribunal decision and the supporting material independently of the applicant's claims or the respondent's submissions in order to see whether an arguable case for jurisdictional error may be found not otherwise referred to. I am unable to discern any arguable case for jurisdictional error. If there is no jurisdictional error the Tribunal decision must be a privative clause decision as defined in sub-s.472(2) of the Migration Act. Privative clause decisions are final conclusive and are not subject to orders in the nature of certiorari or mandamus. It follows that the application must be dismissed.
There is an application for costs on behalf of the first respondent Minister. The applicant has been unsuccessful in his claim and I am satisfied this is a proper matter for an order for costs. The amount sought is $4,900.00 which is within the range set out in the scale in the Federal Magistrates Court rules. The applicant said that he would let the Minister's lawyers know later if he will be able to pay those costs. That may well be the case. I am satisfied this is a proper matter for an order for costs and I am satisfied that $4,900.00 is an appropriate figure in the circumstances.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 7 April 2008
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