SZGDJ v Minister for Immigration
[2008] FMCA 218
•28 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGDJ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 218 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of Bangladesh claming fear of persecution for reasons of his political opinion – whether the Tribunal breached s.91R(3) of the Migration Act 1958 (Cth) considered – where s.91R(3) is enlivened, the relevant conduct must be entirely disregarded by the Tribunal in determining whether an applicant has a well-founded fear of being persecuted – no reviewable error. |
| Migration Act1958 (Cth) ss.91R, 424A |
| SZGDA v Minister for Immigration & Anor [2007] FMCA 1152 SZHFE v Minister for Immigration (No.2) [2006] FCA 648 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 |
| Applicant: | SZGDJ |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 726 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 4 October 2007 & 28 November 2007 |
| Date of Last Submission: | 28 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Young |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $9,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 726 of 2007
| SZGDJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal that was signed on 16th January 2007 and handed down on 6th February 2007. The Applicant, who is a citizen of Bangladesh, asks the Court to review a decision of the Tribunal affirming a decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
Background
The Applicant arrived in Australia on 24th September 2004 and applied to what was then the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 5th October 2004. A delegate of the Minister refused the application for a visa on 27th October 2004.
The Applicant then sought a review of the delegate's decision from the Refugee Review Tribunal. The Tribunal, differently constituted, affirmed the delegate's decision on 11th March 2005. The Applicant sought a review of that decision from the Federal Magistrates Court.
On 16th October 2006 Nicholls FM made orders by consent that a writ of certiorari should be issued to quash the decision of the Tribunal and that a writ of mandamus should be issued directing the Tribunal to reconsider and determine the matter according to law.
Application to the Refugee Review Tribunal
The Refugee Review Tribunal wrote to the Applicant on 31st October 2006 advising him that the Court had remitted his case to the Tribunal. On 8th November 2006, the Applicant's migration agent wrote to the Tribunal advising that the agent had been appointed the Applicant's representative for the purposes of the proceedings. The Tribunal wrote to the Applicant on 2nd November 2006 inviting him to attend the hearing on 12th January 2007.
The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Bengali language. He was accompanied by his solicitor. The Applicant gave evidence to the Tribunal that he was a citizen of Bangladesh, and he brought his Bangladeshi passport to the hearing. He gave evidence that he had a fear of persecution should he return to Bangladesh for reasons of his political opinion.
The Tribunal handed down its decision on 6th February 2007. A copy of the Tribunal decision record can be found at pages 306 through to 326 of the Court Book. In the Tribunal decision record, the Tribunal summarises under the heading “Claims and Evidence”:
· The Applicant's claims in his protection visa application,
· The evidence before the earlier Tribunal hearing and
· The Applicant's evidence to the hearing before the present Tribunal Member.
The Tribunal also considered at pages 320 to 321 of the Court Book Independent Country Information about Bangladesh, particularly the political situation and violence that was described as a “pervasive element” in the country's politics.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out on pages 321 to 326 of the Court Book. The Tribunal was satisfied that the Applicant was a national of Bangladesh, based on his passport. The Tribunal noted the Applicant's claims to fear serious harm in Bangladesh for the Convention reason of political opinion, because he claimed to be a longstanding activist, leader and office holder with a political party currently in opposition in Bangladesh, being the Awami League.
Unfortunately for the Applicant, the Tribunal was not satisfied that he was a political activist with the Awami League. The Tribunal gave the following reasons, which I will summarise:
a)The Applicant was unable to describe his activities as assistant cultural secretary to the Tribunal in anything more than broad generalities.
b)The Applicant told the present Tribunal that he was assistant cultural secretary on the Awami League's Dhaka city committee, but conceded that he had not told the first Tribunal that he was a member of the committee, but instead had said that he was on the Awami League’s “central committee”.
c)The Applicant claimed to have been aware of the existence of what appeared to be an Australian‑based support group for the Awami League and indeed, claimed that his solicitor was involved with it, but he did not claim to have attended any of its meetings or to have played any role in its activities, nor had he met its head, or did he know the name of the head. The Applicant was unaware of a recent and important development relating to the elections in Bangladesh by which the Awami League was directly affected, being the news that the President of Bangladesh had stepped down.
The Tribunal considered the Applicant's claims to have been the target of politically motivated threats, police harassment, false charges and abduction and accepted that Bangladeshis do face politically motivated violence and killings. However, the Tribunal did not take the view that the Applicant was the target of politically motivated harm in Bangladesh. The Tribunal did not consider his claim to have been charged on trumped up false cases with various crimes as a plausible claim. The Tribunal considered the documents that the Applicant had submitted in support of his claim to have been facing charges in 2002 and 1995 but found that the high level of corruption in Bangladesh left the Tribunal unable to regard the documents as genuine without some scrutiny.
The Tribunal did not consider the documents that the Applicant had submitted in support of his claim to be genuine. The Tribunal considered a letter dated 8th January on the letterhead of the Awami League, purporting to be from its General Secretary but was not satisfied that the letter was from that person and did not consider it a reliable source of evidence. The Tribunal did not accept that the Applicant was wanted on politically motivated charges at the time he most recently re-entered Bangladesh in May 2003.
The Tribunal noted the Applicant's claims of a bomb blast in August 2004 in which a number of Awami League supporters were killed. However, whilst the Tribunal accepted that it had occurred, it did not accept the Applicant was present at the bomb blast as he had claimed. The Tribunal noted the Applicant's claims to have been abducted in 2004 by men associated with a known terrorist in an attempt to stop his political activities. The Tribunal did not accept that claim and found his explanation of certain parts of it highly implausible.
The Tribunal noted the Applicant's claim that his mother and wife and children continued to live at his address where he was threatened and that they continued to receive threats by telephone relating to him. The Tribunal noted the Applicant was not able to explain why he had done nothing to protect his family from that harassment. The Tribunal said:
“Apart from the documents set out above and his own assertions, the Tribunal has before it no evidence that the Applicant was ever a member of an Awami League committee, an Awami League “leader”, or in recent years, a member of the Awami League at all.”[1]
[1] See Court Book at page 324.
The Tribunal was not satisfied that the Applicant had been subjected to any harm because of the political opinion imputed to him and was not satisfied that he left Bangladesh on the basis of a fear of being harmed because of his support for the Awami League.
The Tribunal noted the Applicant had not been involved in activities in Australia which would lead to his now being perceived to be an Awami League activist and held that it was a remote chance that he would be harmed in Bangladesh for the Convention reason of political opinion.
The Tribunal noted that the Applicant did not claim to fear being harmed for any reason other than his political opinion and found, therefore, that he did not have a well‑founded fear of Convention‑related persecution in Bangladesh.
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugee Convention and, therefore, did not satisfy the criterion set out in s.36(2) of the Migration Act for a protection visa. Accordingly, the Tribunal affirmed the decision of the delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings for judicial review in this Court by filing an application and an affidavit in support on 2nd March 2007. The application was originally listed for hearing on 19th September 2007. However, it was adjourned until 24th September 2007. On that occasion the application was adjourned until 4th October 2007. On 4th October the Applicant was represented by Mr Young of counsel, and the Court adjourned the application to 28th November 2007 for hearing. The application was heard on 28th November 2007.
The Applicant's application was amended and counsel was briefed, it would appear, at a very late stage. However, I granted leave to file a further amended application under the Migration Act, and the matter has proceeded on the basis of the further amended application. The further amended application sets out three grounds as parts of one ground:
The Second Respondent made jurisdictional error in that it acted in contravention of s.91R(3) of the Migration Act 1958. Particulars:
(a)The Second Respondent considered claims by the Applicant in relation to his political activity in Australia.
(b) The Second Respondent made a finding that the extent of the Applicant's political finding in Australia was not consistent with his claim to be a political activist.
(c)The Second Respondent made a finding that as the Applicant had not been involved in activities in Australia which might lead to his now being perceived as an Awami League activist, the chance was remote that he would be harmed in Bangladesh for the Convention reason of political opinion.
Applicant’s Submissions
The Applicant's counsel submitted that there were essentially five grounds of review:
i)Ground 1 – relating to s.424A.
ii)Ground 2 – a claim that the Tribunal had failed to investigate the veracity of certain documents.
iii)Ground 3 - relating to a statement that the Tribunal would attempt to contact a witness in Bangladesh.
iv)Ground 4 - relating the Tribunal dismissing the genuine necessary of the documents.
v)Ground 5 - relating the current (and changed) political situation in Bangladesh.
These grounds were dealt with by counsel for the Applicant on the basis that Ground 3 would require evidence which had not been made available. The premise in the first ground was not correct, and s.424A did not apply. Ground 2 and 4 did not sufficiently raise an issue of jurisdictional error to be arguable, and counsel proceeded on the basis. However, that there appeared to be a real issue of a possible contravention of s.91R (3) of the Migration Act.
The counsel for the Applicant referred the Court to the decision of Driver FM in SZGDA v Minister for Immigration & Anor[2], where his Honour reviewed the authorities in relation to s.91R(3). His Honour stated that he was bound by the decision of Jacobson J in SZHFE v Minister for Immigration (No. 2)[3]. Driver FM stated that s.91R(3) did not apply “unless an applicant introduced his or her conduct in Australia to support a claim of having a well‑founded fear of persecution”.
[2] [2007] FMCA 1152
[3] [2006] FCA 648
The Applicant, however, submits that, whilst the Court may be bound by the decision in SZHFE, the decision is wrong and should not be followed. The appellant in that case was unrepresented, although submissions were prepared by counsel. The Applicant submitted that to hold that s.91R(3) is only enlivened where “an applicant seeks to rely on conduct in Australia to support a claim to have a well‑founded fear of persecution is to place a gloss on the clear, unambiguous statutory demand to disregard any contact engaged in by the person in Australia”.
In any event, he submitted that the Applicant's case does fall within s.91R (3) as construed by Jacobson J in SZHFE, because the Applicant did, indeed, seek to rely on conduct in Australia.
The Tribunal noted that:
“…the Applicant claimed to have been aware of … the existence of an Australian‑based support group for the Awami League and claimed his solicitor was involved in it “
the extent of the Applicant's political activities since his arrival in Australia was generally not consistent with his claim to be a dedicated political activist.”[4]
[4] See Court Book at page 322
The Tribunal made a finding that the chance that the Applicant would be harmed in Bangladesh was based in part on a finding that “he had not been involved in activities in Australia which might lead to his now being perceived to be an Awami League activist”[5]. Counsel for the Applicant submits that this is precisely what is s.91R(3) forbids unless there was a relevant finding under s.91R(3)(b).
[5] See Court Book at page 324
It was submitted that s.91R(3) applied because the Tribunal itself stated that the Applicant put forward his political activity the Australia to support his claim. Section 91R(3) is plainly engaged and the Tribunal was commanded to disregard the conduct unless satisfied that the person engaged in the conduct otherwise and for the purpose of strengthening that person's claims to be a refugee. The Tribunal made no such finding and no such inquiry. The submission is, therefore, that in using the conduct of the Applicant to support its findings that the Applicant did not have a well‑founded fear of persecution the Tribunal fell into jurisdictional error.
First Respondent’s Submissions
For the First Respondent, the Minister for Immigration and Citizenship, Mr Smith of counsel submitted that there were two answers to the Applicant's submissions.
First, on a proper reading of the Tribunal's reasons, it was satisfied that the conduct was engaged in “otherwise than for the purpose of strengthening” the Applicant's claim to be a refugee. Given the Tribunal's conclusion that the Applicant's conduct in Australia or, rather, lack of political conduct, was inconsistent with his claims it would have been surprising if the Tribunal had concluded otherwise. In the absence of an express reference to such a finding does not militate against this conclusion.
The Tribunal is not obliged to set out its findings on every aspect of the review, only on “material facts.” In other words, facts that it considers material to the decision to be made. (See Minister for Immigration & Multicultural Affairs v Yusuf[6]at [68]). The decision to be made was whether the Applicant was a refugee, not whether he had engaged in conduct for a political reason.
[6] (2001) 206 CLR 323
The second answer, Mr Smith submitted, is that this case is indistinguishable from SZHFE, which was the decision of Jacobson J to which I have previously referred. Mr Smith noted that special leave to appeal to the High Court had been refused. In SZHFE the Tribunal stated:
“However, the Applicant's assertions regarding the positions he held in the Awami League, his profile as a ‘leader’, and his commitment to the Awami League were unsubstantiated and unconvincing. The Tribunal is not satisfied that he was a leader or activist in any lesser function, that he had any profile or influence as an Awami League supporter, or that he has any serious commitment to the party and its politics. The Applicant's knowledge of the party and its policies, and electoral arrangements, fell short of what might reasonably be expected of a person who has been involved in campaigning and ongoing political organisation. His familiarity with and his responses about the Awami League and its processes were mediocre and therefore, at odds with his claims to have been an active, influential local Awami League campaigner and leader of the party's 200 strong youth club. Finally, the Applicant's lack of interest in and contact with the Awami League since his arrival in Australia reinforces the Tribunal's conclusion that he has neither a formal association with nor a genuine commitment to the Awami League nor in the past”.
In that case, Driver FM considered the possibility that that passage revealed a breach of s.91R(3) because the Tribunal did not consider the purpose of the Applicant's conduct in Australia. However, His Honour concluded that there was an alternative basis for the decision and that it may be inferred also that the Tribunal had made the relevant finding under s.91R(3). On appeal, Jacobson J found that s.91R(3) did not apply. His Honour's reasons were not limited to the fact that the Applicant had not introduced his or her conduct in Australia to support a claim of having a well‑founded fear of persecution. His Honour said:
“[27] The appellant also argues that the Federal Magistrate erred in concluding that the RRT was entitled to have regard to the appellant's conduct because the appellant had satisfied the RRT that the conduct was not for the purpose of strengthening his refugee claim. The appellant submits that though this accords with a literal interpretation of the section, it is inconsistent with a purposive construction.
[28]The appellant's argument as to the proper construction of section 91R(3) may be summarised as follows. It is said that the section is designed to exclude evidence of conduct supporting a person's claim for persecution if that conduct was merely motivated by a desire to strengthen the claim the onus being on the appellant to satisfy the Minister that the conduct was not so motivated and it makes no sense to require the appellant to discharge the onus only to have the evidence then used against him. Thus the appellant submits that evidence of the appellant's conduct in Australia, if unhelpful to the claim, should be disregarded.
[29]The effect of the respondent's written submissions is that I should reject the approach of the appellant because the clear purpose of section 91R(3) is to provide a disincentive to applicants for refugee status from taking steps while in Australia to make them more likely to be persecuted on return to their country of origin.
[30]The effect of the submission is that section 91R(3) is only enlivened where an applicant seeks to rely on conduct in Australia to support a claim to have a well-founded fear of persecution. In my opinion this is plainly the effect of section 91R(3) and the subsection is not enlivened in the present case.”[7]
[7] SZHFE at [27] – [30]
Mr Smith of counsel argued that it is the purpose of the provision to prevent “sur place” claims that are not genuine. A sur place claim cannot be made on the basis of conduct that is inconsistent with claims made in support of a protection visa application.
Conclusion
Mr Smith submitted and, I believe, correctly, that the Tribunal's findings and reasons in this case closely follow that of the Tribunal in SZHFE. In my view, I am satisfied that SZHFE is, indeed, on point. I am not satisfied that, with the very greatest of respect, his Honour's decision is wrong, and, even if I were of that view, and I stress that I am not, the decision is binding on this Court.
It is an appeal from a decision of the Federal Magistrates Court, and it is binding, and it must be followed. As I am satisfied that SZHFE is, indeed, on point and I am bound to follow it,
It follows that the Applicant's claim of breach of s.91R(3) has not been made out and there is no jurisdictional error demonstrated. Accordingly, the decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act. As such, it is final and conclusive and it is not subject to orders in the nature of certiorari or mandamus as the Applicant claims. It follows that the application must be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 26 February 2008
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