SZGBU v Minister for Immigration
[2006] FMCA 1192
•7 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGBU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1192 |
| MIGRATION – RRT decision – Bangladeshi applicant – claiming political and religious persecution – Tribunal found claims fabricated – no error found. |
| Migration Act 1958 (Cth), s.424A, 424A(1), 474, 483A Migration Litigation Reform Act 2005 (Cth) Sch.1 cl.41 |
| Applicant S v Minister for Immigration (2004) 206 ALR 242 SZASX v Minister for Immigration [2004] FMCA 680 SZASX v Minister for Immigration [2005] FCA 68 |
| Applicant: | SZGBU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 923 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 07 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 07 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms L Clegg |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 923 of 2005
| SZGBU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 14 April 2005 under s.483A of the Migration Act 1958 (Cth). It seeks orders by way of judicial review of the decision of the Refugee Review Tribunal dated 2 March 2005 and handed down 22 March 2005. The Tribunal affirmed the decision of a delegate taken on 26 May 2000 which refused to grant a protection visa to the applicant.
The long period between the decision of the delegate and the decision of the Tribunal is in part accounted for by an earlier decision by the Tribunal, handed down on 4 April 2003, which was set aside by order of this Court on 16 April 2004. The grounds upon which that order was made do not appear in the material before me.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the continuance of this proceeding (see Sch.1, cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth) s.8).
The Court's powers under s.483A are subject to limitations under Part 8 of the Migration Act. These have the effect that I cannot set aside the Tribunal's decision and send the matter back, unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claim should be believed, nor whether he qualifies for a protection visa.
The applicant arrived in Australia in February 2000 on a business visa. On 28 March 2000, an application for a protection visa was lodged on his behalf by a migration agent, Mr Haque. The application attached a statement explaining why the applicant sought protection in Australia against return to his country of nationality, Bangladesh. The statement was subsequently amended, and its contents were eventually summarised by Mr Haque in a submission to the Tribunal made on
16 June 2004:
Background of the applicant
1. The applicant belonged to the minority Hindu community in Bangladesh is subject to oppression by the mainstream Muslim Community in Bangladesh. He was also oppressed by his political opponents, which resulted him to leave the country. Political and religious persecution was the root cause for him to leave the country.
2. The applicant’s father was a freedom fighter who fought for the nation during the Liberation War in 1971. Since 1983 the applicant’s involvement in politics turned into a leadership quality which enabled him to become the vice president of the Jatiya Party Sutrapur Thana branch and in 1989 the applicant became the executive member of the Jatiya Party Dhaka city committee and in 1997 the applicant was elected the joint secretary of the Jatiya Party. He was oppressed by the Awami League activist and fanatic Muslims in the region.
Oppression towards the applicant by the political opponents:
3. During last Awami regime (1996-2001), the applicant received ill treatment as the leader of the Jatiya party. As a Hindu he received ill treatment by the then ruling party the Awami League.
4. On 3 December 1990 the applicant’s father’s business was looted and fired by the activist of the Awami League.
5. On 24 December 1994 the applicant was encircled by a group of BNP men at Paltan and they beat him mercilessly and warned him to leave the country as Hindus for the India not Bangladesh.
6. On 12 August 1999 at 7 pm he was attacked by a group of Awami League men near Loharpool at Sutrapur. They beat him severally. As a result the applicant was admitted to a local clinic and spent a few days to recover.
In the course of the proceedings before the Tribunal, Mr Haque also sent to it extensive internet and other general material concerning Bangladesh.
The applicant attended a hearing held by the reconstituted Tribunal on 15 February 2005. The Tribunal gave an account of the hearing, in which it questioned the applicant about his claims, and also about his knowledge of the Jatiya Party and his claimed activities for that party. It also questioned the applicant concerning his claims of fear of persecution as a Hindu person in Bangladesh.
The Tribunal said that it put to the applicant country information concerning the Jatiya Party and the position of Hindus in Bangladesh. It also put material to the applicant concerning the outcome of false charges laid against people in Bangladesh, and asked the applicant to comment on various concerns it had about his claims.
Under the heading: "Findings and Reasons", the Tribunal identified the applicant's claims as evoking two Convention reasons for his fears, being his political opinion and his religion. It addressed each of those separately.
In relation to his claim to fear harm for reasons of political opinions shown as a member of the Jatiya Party, the Tribunal referred to its questioning of the applicant at its hearing. It concluded that his “knowledge about the Jatiya party is negligible”, and identified significant areas of ignorance. It also referred to it being “extremely implausible” that a practicing Hindu person would be “a member of a political party which would, if it became government, bring existing laws ‘into line with the principles of the Koran and the Sunnah’ and would follow Shariah Law ‘as far as possible’”.
It also referred to inconsistencies in the evidence given by the applicant to the hearing as to the positions he claimed to have held in the Jatiya Party. It concluded:
In light of the applicant’s complete lack of knowledge about the party of which he claims to have been a member, and his lack of knowledge and significant inconsistencies and contradictions in the evidence regarding his membership of the party (the reason for his membership and his positions within the party). The Tribunal cannot be satisfied that the applicant has been truthful about his involvement in the Jatiya Party and it cannot be satisfied that the applicant has ever been involved in political activities in Bangladesh. The Tribunal finds that the applicant has not been truthful in his claims and evidence to the Tribunal, and it cannot be satisfied that he has any claim to have a well founded fear of persecution for a Convention reason. It finds that the applicant has fabricated his claim to have been assaulted by the Awami League members in 1999. It also finds the applicant’s claims regarding “false charges” made against him to be a fabrication. The Tribunal notes that when asked at his hearing about the charges that have allegedly made against him, the applicant was only able to describe himself as being “accused of having arms and bombs” – he could be no more specific. He could not even state as to whether or not there is any outstanding charge or arrest warrants against him.
The Tribunal finds that the applicant has been mendacious (in the extreme) in his claims and finds any claims of harm (in the past) and fear of harm in the reasonably foreseeable future for reason of his political opinion, to be a fabrication.
Finally, given the applicant’s lack of political activity in the past in Bangladesh, and the lack of any political activity in Australia (he has failed to provide any evidence of any activity since his arrival five years ago), the Tribunal cannot be satisfied that the applicant would become involve in any political activity upon return to Bangladesh in the reasonable foreseeable future.
The Tribunal then addressed the applicant's fear of harm for reasons of religion, and noted the applicant's claimed attack by BNP supporters because of his religion. The Tribunal referred to general information which it had put to the applicant, and said:
The Tribunal accepts that some Hindus face certain difficulties in Bangladesh, but the Tribunal cannot be satisfied that in this particular case, that there is a well founded fear of harm in the reasonably foreseeable future, vis-à-vis, for reasons of religion.
The Tribunal referred to several reasons explaining that conclusion, including the generality of the applicant’s claims, and contradictory evidence concerning the assault he had given to the hearing. The Tribunal concluded:
The Tribunal is not satisfied on the claims and evidence before it that the applicant never (sic: ever) faced any harmful treatment while he was living in Bangladesh from the BNP (or anyone else for that matter) arising from his religion. It finds his claim of harm in the past and fear of harm in the future to be a fabrication.
The Tribunal finds that the applicant has not been truthful in his claims and evidence to the Tribunal and it cannot be satisfied that he has any claim to have a well founded fear of persecution for a Convention reason.
It is apparent from the context that in the first sentence of the passage quoted above, the Tribunal intended to mean "ever" rather than "never".
I have considered the Tribunal's reasoning, and I consider that the Tribunal has addressed the claims that were made by the applicant to it, and that its conclusions about his credibility were open to it upon its assessment of his evidence given at the hearing in the light of the general information which it put to him.
The applicant's original application to this Court contained four grounds:
1. The Tribunal made a jurisdictional error in saying that the applicant “has ever had been in political activities.
2. The Tribunal has a misconception about the current situation prevailing in Bangladesh, where Hindus are vulnerable under the current fanatic regime. The Tribunal made an error not to consider this issue.
3. The Tribunal was influenced by the country information and the applicant did not receive an opportunity to comment on the materials, which the tribunal relied on its decision. The Tribunal made an error of procedural fairness in regards to this issue.
4. The Tribunal failed to consider the material facts of the claim and also failed to consider the applicant as a member of the particular social group. Thus the Tribunal made an error jurisdictionally.
I do not understand the first ground. In relation to the second ground, I considered that the criticism of the Tribunal goes only to its assessment of the situation in Bangladesh. I do not consider that there was any claim made by the applicant which the Tribunal was obliged to address, but did not.
In relation to ground 3, no particulars of general country information which was not sufficiently put to the applicant, are given in the application or the applicant's submissions. I am unable to identify any such material which was not fairly put by the Tribunal to the applicant at the hearing, and which formed a material part in its decision.
In relation to ground 4, no particulars of the alleged "particular social group" are given by the applicant in his application or in any written submission. I am unable to identify any such claim in the claims made to the Tribunal, which was not sufficiently addressed by the Tribunal by reference to the Convention grounds of political opinion and religion.
The applicant filed an amended application, which counsel for the Minister pointed out, follows a precedent which was also used by the applicant in a matter decided by Barnes FM, SZASX v Minister for Immigration [2004] FMCA 680, which was upheld by Tamberlin J in SZASX v Minister for Immigration [2005] FCA 68. This contends that the Tribunal's statement of reasons reveals a failure to observe the procedure required by s.424A(1), by reason of its reliance upon case law concerning the Convention definition of refugee.
However, as Barnes FM decided in the above case at [16]-[29], s.424A(1) is not directed at information concerning the relevant legal principles which are required to be applied by a Tribunal. I respectfully agree that no breach of s.424A can be shown by reason of the Tribunal’s analysis of the relevant authorities under the heading “Definition of Refugee” in its statement of reasons without having put that material to the applicant for his written comment.
The applicant's application and written submission contain some additional contentions in paragraphs (e) and (f):
(e)The Tribunal cited only a part of some very old reports to reach the applicant’ applicant decision whereas the applicant applied for protection visa in Australia with his own grounds to consider his protection visa application.
(f)The Tribunal generalised the applicant’s claims with others from Bangladesh simply to reject the application in a most conventional and fashionable way. The applicant believes that those case references cited in deciding this application were probably used in many cases just to reject an application without even proper verification or considering any other substantial materials at all.
Paragraph (e) seems to be a contention that the Tribunal did not cite recent legal authorities. However, the Tribunal did cite recent authorities, including Applicant S v Minister for Immigration (2004) 206 ALR 242, and I am unable to detect in the Tribunal's reasoning any misunderstanding on its part as to the current interpretation of the law.
Paragraph (f) seems implicitly to suggest bad faith or bias on the part of the Tribunal, or a failure genuinely to consider the applicant's claims on their merits. However, no particulars have been provided, and there is no substance for this contention shown in the material before me.
Some other criticisms are made in the applicant's written submission, but in my opinion these only argued with the Tribunal's factual assessment of the applicant's claims.
For the above reasons I have not been able to identify any jurisdictional error affecting the Tribunal's decision. It is therefore a privative clause decision from which relief is barred by s.474 of the Migration Act, and I must dismiss the application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 21 August 2006
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