SZGDI v Minister for Immigration
[2006] FMCA 935
•14 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGDI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 935 |
| MIGRATION – Visa – protection visa – application for review of decision to affirm delegate's decision not to grant a protection visa – applicant a citizen of Bangladesh – religion – Buddhist – allegations of bias – allegations of breach of rules of natural justice – whether applicant's claims constitute merits review – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.422B, 424A, 474 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 applied SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493 |
| Applicant: | SZGDI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1027 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 June 2006 |
| Date of Last Submission: | 14 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 June 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The Refugee Review Tribunal is joined as Second Respondent to the application.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1027 of 2005
| SZGDI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 15th March 2005 and handed down on 5th April 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the applicant.
The applicant is a citizen of Bangladesh who arrived in Australia on 23rd October 2004. In November of that year he applied for a Protection Class XA visa which was refused by a delegate of the Minister on 24th December 2004. The applicant then applied for review of that decision by the Refugee Review Tribunal. The Tribunal invited the applicant to attend a hearing on 11th March 2005.
The applicant attended and gave evidence with the assistance of an interpreter.
The applicant’s case is that he claims a well-founded fear of persecution by reason of religion. He said that in Bangladesh he had been persecuted by Muslim fundamentalists and his family had been ill-treated by an organisation called Jamat-e-Islami.
The applicant is a follower of the Buddhist faith and it is part of his case that in following that faith he spent some time as a Buddhist monk. This, he said, drew unfavourable attention from fundamentalist Islamic supporters and on one occasion he said that he had been assaulted. On another occasion he said that he had actually been kidnapped and pressure had been placed upon him to steal certain Buddhist artefacts. He claims that he had to leave Bangladesh for his own safety because he was a victim of systematic harassment for his religious belief. He had in fact spent some time in Sri Lanka in order to avoid persecution.
The applicant presented a number of documents to the Tribunal in support of his case. Copies of those documents are found at pp.62, 70, 72, 76 and 79 of the Court Book. The Tribunal conducted an analysis of those documents at the hearing and a detailed account of the Tribunal’s analysis of the documents and its questioning of the applicant about those documents can be found at pp.99 through to 102 of the Court Book.
The findings and reasons of the Tribunal can be found at pp.102 through to 105 of the Court Book. The Tribunal found that the applicant was a national of Bangladesh. The Tribunal found that certain Buddhist landowners in a region of Bangladesh known as the Chittagong hill tracks do face conflict with Muslim settlers over land. The Tribunal found that the state of Bangladesh was tacitly letting Muslim settlers win that conflict at the expense of the Buddhist landowners. Whilst the Tribunal noted that there had been certain individual instances of violence, such as the murder of a Buddhist monk, the Tribunal found that on the basis of country information the situation of Buddhists in Bangladesh generally was unremarkable.
The Tribunal accepted that the applicant had been a Buddhist monk at some time prior to the hearing, at least by the time he left Bangladesh in 2002. The Tribunal noted the applicant’s claim that the life of a Buddhist monk was unproblematic in Bangladesh, which is referred to at p.103 of the Court Book. The Tribunal dismissed the applicant’s claims about having assaulted by Mullahs or Madrassa students and held that his claims were vague and unsupported. The Tribunal found that the applicant was no longer a Buddhist monk and considered it purely speculative that he would ever be one again, and nevertheless considered whether a Bangladeshi Buddhist might avoid being a monk in order to avoid persecution.
The Tribunal considered the evidence of the large number of monasteries in Bangladesh and the practice of men and boys becoming monks for long periods of time, the lack of evidence of religious-based persecution of Buddhists and Buddhist monks in Bangladesh, and noted evidence that the authorities took immediate action in the case of the murder of the Buddhist monk to which I have previously referred. The Tribunal was not persuaded that the applicant’s claim of having been kidnapped and the implications of an ongoing threat formed a Convention-related matter. The Tribunal was of the view that the account of the kidnapping showed the kidnapping to be an individual criminal matter. In any event, the Tribunal said at p.104:
However, the Tribunal feels that it must put on the record that after a thorough examination of the applicant’s claims about the kidnapping and its consequences, it considers the whole story to be a fabrication.
As to the five letters to which I have previously referred and which the Tribunal discussed and examined in some detail, the Tribunal found all five of those letters to be unreliable. The Tribunal took the view that it was clear from the applicant’s evidence that he did solicit these letters for the purpose of supporting his application for a protection visa.
The Tribunal considered four photographs provided by the applicant and held that they added nothing to the applicant’s case. The Tribunal relied on what it called the strong evidence of fabrication in respect of documents and photographs to add to the view of the Tribunal that the applicant’s accounts of attacks that he had suffered in the past could not be relied upon.
The Tribunal, in short, was not satisfied that the applicant faced a real chance of Convention-related persecution in Bangladesh and was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention. The Tribunal affirmed the decision not to grant a protection visa.
The applicant has challenged that decision and has sought judicial review by means of an application under s.39B of the Judiciary Act and also s.475A of the Migration Act. This application was filed on
22nd April 2005. The applicant has filed an amended application which was filed on 26th July 2005. In that application he sets out some 12 grounds for the relief which he seeks. The applicant has filed a written submission on 25th May 2006. In that written submission the applicant sets out two further grounds as follows:
i)The Tribunal failed to accord procedural fairness.
ii)The Tribunal exceeded its jurisdiction.
In each case the applicant has set out three separate particulars of those grounds. At the hearing today in answer to a question from the Bench the applicant informed the Court that he would wish to rely both on the 12 grounds set out in his application and on the two grounds and of course the particulars set out in his submission. I have heard oral submissions from the applicant in support of his claim. The solicitors for the respondent have filed a written outline of submissions to which I will refer shortly, and I have also heard oral submissions from Mr Leerdam for the respondent.
First of all, it has been brought to my attention that as this application was brought originally in April 2005 the respondent to the application is described under the Minister’s old title as Minister for Immigration and Multicultural and Indigenous Affairs. I am aware that the Minister now has the title of Minister for Immigration and Multicultural Affairs and I propose to make an order amending the title of that respondent.
The other matter which is of relevance is that the only respondent to the original application was the Minister, although in the light of the ruling of the High Court of Australian in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, it is appropriate for the Refugee Review Tribunal to be joined as the second respondent to the application. I propose to make an order joining the Refugee Review Tribunal.
Having dealt with those preliminary matters, I look now at the grounds set out in the applicant’s amended application. They are as follows:
(1) I was persecuted severely by Muslim fundamentalists in Bangladesh.
(2) My family was seriously ill-treated by Jamat-e-Islami.
(3) The Tribunal made his decision in bad faith.
(4) The Tribunal deprived me of the natural justice.
(5) The Tribunal denied the evidentiary proof of my claim.
(6) The Tribunal’s decision did not reflect the material facts of my claim.
(7) The Tribunal has given a decision which was preset in the back of its mind.
(8) The Tribunal mixed up many facts with this decision which affected the decision.
(9) The Tribunal concentrated in particular fact while ignored many other facts in this condition.
(10)The Tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine Convention-based refugee claim.
(11) The Tribunal solely depended on country information.
(12) RRT used US Human Rights Report for 2004 on Bangladesh. It is unfortunate that the Tribunal accepted such material that goes in favour of my claim, but the Tribunal just used all these information and at the end refused my claim because the decision was pre-decided. If violence occurs in such a manner in the minority as member of particular social group of Bangladesh that causes deaths, then such violence should be considered to be the worst persecution of its kind.
Dealing with those 12 grounds, it is my view that the first two are statements of the applicant’s factual claim and amount to a challenge to the factual findings of the Tribunal. As such, they seek a merits review of the Tribunal’s decision, which is not available in judicial review proceedings.
The respondent submits that grounds 3, 7, 10 and 12 amount to mere assertions and are not supported by any particulars or evidence. Ground 3 was bad faith, ground 7, given a decision which was preset in the back of its mind, ground 10, the Tribunal member making up his mind without any inquiry regarding the applicant’s claim, and 12, which includes an allegation that the decision was pre-decided, are said to be mere assertions not supported by any particulars or evidence. They are in fact allegations of bad faith and it is trite law that allegations of bad faith are a serious matter that they go to an allegation of fault on behalf of the decision-maker.
It has been said in a number of decisions in the Full Court of the Federal Court, including SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 that such allegations must be clearly made and strictly proved. It is also a fact that allegations of bias or bad faith are very seldom proved by referral only to the text of the Tribunal decision. In my view, there is no evidence of bad faith or bias and those grounds cannot succeed.
It is submitted on behalf of the respondent that grounds 5, 6, 8, 9 and 11 are grounds for which no meaningful particulars have been provided. Those grounds again go to factual matters, being a claim that the Tribunal denied the evidentiary proof of the applicant’s claim, that the Tribunal’s decision did not reflect the material facts of the applicant’s claim, the claim that the Tribunal mixed up many facts with the decision, the claim that the Tribunal concentrated on particular facts and ignored many others and the claim that the Tribunal was solely dependent on country information.
It should be made clear that factual findings are a matter for the Tribunal. It is not part of judicial review for the Court to consider the facts presented and substitute its own factual findings for the factual findings of the decision-maker. So long as there is evidence upon which factual findings can be made, a Court will not and cannot challenge the factual findings made by the Tribunal. Those matters are purely matters for the Tribunal. This has been said in a number of cases including Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Ground 4 in the application claims that the Tribunal deprived the applicant of natural justice. The solicitors for the respondent say that claim does not make sense and does not bear any relevance. There are no particulars provided as to how it is said the Tribunal deprived the applicant of natural justice. It is clear that the Tribunal invited the applicant to attend the hearing and the applicant attended the hearing. The Tribunal gave the applicant the opportunity to give evidence and present evidence in respect of his claim. The applicant did give evidence. The applicant tendered documents and the Tribunal inspected those documents and it certainly appears from the analysis of those documents in pp.99 through to 102 of the Court Book that the Tribunal asked the applicant about those documents.
The text of the decision makes it clear that the Tribunal left the applicant in no doubt that the Tribunal had very serious doubts about the authenticity and the reliability of all of the documents. It is also clear from p.102 of the Court Book that the Tribunal asked the applicant about other parts of his evidence and put to the applicant the Tribunal’s concerns that the claim about his kidnapping and harassment by a person called Zani Jane Alim were not Convention-related claims.
There is to my mind no evidence of a denial of natural justice.
I turn now to the applicant’s written submissions which are extensive and contain two grounds, each of which was supported by particulars. The first ground referred to is a claim that the Tribunal failed to accord the applicant procedural fairness. There are three particulars given:
(1) That the Tribunal did not give me any opportunity to respond to any adverse material that it possessed prior to taking decision of my refugee claims.
(2) The Tribunal erred to find that the Tribunal is not satisfied that there is a real chance of the applicant being selected or targeted for persecution for any Convention reason and the consequential satisfactions were not formed by correct application of the applicable law, hence the necessary opinion does not exist.
(3) The Tribunal constructively failed to exercise its jurisdiction in arriving at its decision.
Looking at those particulars, it is not, to my mind, a situation that the Tribunal did not give the applicant an opportunity to respond to any adverse material that it possessed. The Tribunal put its concerns to the applicant and sets out what those concerns were at pp.99 through to 102 of the Court Book. The second particular about an error made by the Tribunal in not being satisfied that there was a real chance of the applicant being selected or targeted for persecution for any Convention reason, is, in my view, no more than a challenge to a factual finding and constitutes impermissible merits review.
The third particular mentioned is that the Tribunal constructively failed to exercise its jurisdiction is in fact the second ground referred to in the submissions, and I will deal with that accordingly.
The applicant claims that the Tribunal exceeded its jurisdiction in three ways and provides those particulars. The first is:
(1) Not permitting me to give evidence in accordance with the Act.
(2) Failing to take into consideration the threat to my life and/or liberty and the significant discrimination that I face if I have to return to Bangladesh.
(3) The Tribunal has not also considered the well-founded fear of persecution I shall experience on my return back for my religious beliefs.
In the proceedings today I asked the applicant to explain why it was he said that the Tribunal did not permit him to give evidence in accordance with the Act. The applicant’s answer to that was that after the hearing was done, after he received the decision, he let the Tribunal know that he wanted to bring more documents. That, to my mind, does not amount to not permitting the applicant to give evidence. It is clear from the Court Book from pp.98 through to 102 that the applicant attended the hearing, brought documents and photographs with him, tendered those documents and photographs, gave oral evidence, was asked about his evidence in general and his documents and photographs in particular and had the Tribunal question him about those documents and photographs and express its, at the very least, reservations about the reliability of those documents.
In any event, it has been put to me, and I accept it to be accurate, by the solicitor for the respondent that those documents and the unreliability thereof does not breach the Tribunal’s requirements under s.424A (1) of the Migration Act in that all of the documents were in fact brought by the applicant and relied upon as part of his case. In short, the applicant’s claim that he was not permitted to give evidence in accordance with the Act cannot be accepted.
The other two particulars which allege that the Tribunal failed to take certain matters into consideratio are, to my mind, no more than a challenge to the factual findings of the Tribunal.
The situation is that the Tribunal considered the applicant’s claim in respect of persecution of and discrimination against Buddhists in Bangladesh. This is referred to at p.102 of the Court Book, and with the exception of certain specific instances and specific areas, the Tribunal considered that the position of Buddhists, including Buddhist monks, was unremarkable. The Tribunal had also accepted that the applicant had been a Buddhist monk at one stage but was not satisfied that he had been a monk for as long as he claimed and that it also considered the situation of the applicant as a Buddhist but not being a monk for the purpose of his own protection. Having considered those matters, the Tribunal was not satisfied that the applicant faced persecution on that basis.
As far as the applicant’s claim of having been assaulted by Mullahs or Madrassa students, the Tribunal considered that and dismissed that at p.103 of the Court Book, holding that the claims were vague and unsupported and also formed a pattern with the misleading story the applicant told about Zani or Jane Alim, which the Tribunal said was not a Convention-related matter in any event.
The Tribunal also considered the applicant’s claim of having been kidnapped and refers to that at pp.103 and 104 of the Court Book and made alternative findings. First, that the alleged kidnapping, even if it did occur, was a criminal matter and not a Convention-related matter, but second, the Tribunal considered that after a thorough examination of the applicant’s claims that the Tribunal considered the whole story to be a fabrication.
The submission of the respondents, therefore, is that the decision of the Refugee Review Tribunal is a privative clause decision which attracts the protection of s.474 of the Migration Act. In my view, that submission has been made out. I am not satisfied that any of the grounds in the amended application can be sustained and I am not satisfied that the grounds set out in the submissions can be sustained. In my view, there is no jurisdictional error that has been established and as there is no jurisdictional error – and I have read through the decision independently of the claims of the applicant in order to ascertain whether I could discern any other claim, and I have found none – I am satisfied the decision is a privative clause decision and the application will be dismissed.
In my view, this is an appropriate matter for an order for costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 26 June 2006
1
2
2