SZGMD v Minister for Immigration
[2006] FMCA 383
•20 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGMD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 383 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.420, 424A |
| Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 SZAML v Minister for Immigration [2004] FMCA 267 |
| Applicant: | SZGMD |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1469 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 20 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2006 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr A McInerney |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1469 of 2005
| SZGMD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). I will order that the RRT be joined as the second respondent to the application. The decision was handed down on 12 May 2005. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh. He had made claims of political persecution. The procedural background is set out in paragraphs 1 to 11 of the Minister's outline of written submissions. I adopt for the purposes of this judgment as background paragraphs 2 to 11:
The applicant, a citizen of Bangladesh, arrived in Australia on 4 June 2000.
On 12 July 2000, he lodged an application for a protection visa with the Department of the first respondent.
On 30 August 2000, the first respondent refused to grant a protection visa to the applicant.
On 5 September 2000, the applicant applied to the RRT for review of that decision.
On 12 November 2002, the RRT affirmed the decision not to grant a protection visa.
On 14 January 2003, the applicant applied to the High Court seeking a review of the RRT’s decision.
On 10 April 2003, the applicant filed a notice of discontinuance of that application.
On 1 May 2003, the applicant applied to the Federal Magistrates Court seeking a review of the RRT’s decision.
On 14 May 2004, the Federal Magistrate’s Court declared the RRT’s decision invalid and issued a writ of mandamus requiring the RRT to re-determine the matter.
On 9 May 2005, the RRT [again] affirmed the decision of the delegate not to grant a protection visa to the applicant.
The applicant relies upon his judicial review application filed on 6 June 2005. That is the only document he has filed. I note from a file note prepared by Registrar Tesoriero that he had a conversation with the applicant on or about 15 August 2005. The applicant attended the registry on that day to enquire about the receipt of panel advice. The applicant was concerned that he had not received advice under the panel advice scheme. He was evidently contemplating the possibility of an amended application. I note from the Court's correspondence file that Mr Roland Anthony provided advice to the applicant on 22 September 2005. Whatever that advice was, it did not result in an amended application and the applicant confirmed to me this afternoon that he relied upon the application filed on 6 June 2005.
In that application the following jurisdictional errors are alleged. First, that the purported decision of the RRT does not reflect that it was made in good faith according to the rules of natural justice. Secondly, that the RRT used wrong tools of explanation for the definition of "refugees" under the meaning of the UN Convention and Protocols and Australian common law. Thirdly, that the purported decision of the RRT was given in such a way that it is clearly visible that the decision was set in the back of its mind. Again, there is an asserted denial of natural justice. The application promises further details later but none were provided.
The Minister deals with the judicial review application in paragraphs 12 to 28 in the outline of written submissions. I agree with those submissions and adopt the following for the purposes of this judgment:
In his application for review, the applicant puts forward three separate grounds which are largely formulaic in nature, have not been particularised, and provide little assistance to identify the juridical basis upon which jurisdictional error is alleged to have occurred.
In the absence of particulars, it is somewhat difficult to apprehend the legal basis for the applicant’s challenge to the RRT’s decision.
The RRT summarised the applicant’s claims for refugee status on a number of bases:
a)the Islami Chhatra Shibir (“ICS”) will seek to take revenge on the applicant for having abandoned his commitment to his organisation [court book, page 422.9] – the first claim;
b)the politically motivated criminal charges against him and conviction in absentia will lead to his punishment by the State and its authorities [court book, page 422.9] – the second claim;
c)his western lifestyle, particularly his relationship, will lead to persecutory treatment by the populace in general, and by ICS extremists in particular – the third claim.
The RRT rejected the applicant’s claims on the facts.
In summary, the RRT found as follows.
As to the first claim, that the applicant fears retaliatory action by ICS members because he had broken a pledge to remain loyal to that organisation, the RRT was not satisfied that such a pledge existed and was further not satisfied that the ICS would have any motivation in pursuing the applicant if he returned to Bangladesh [court book, page 423.9].
In regard to the second claim, the RRT found that it was not satisfied that the applicant had been subject to false charges, that he had been convicted, or that he had a well-founded fear of politically-motivated judicial action for that or any other reason, in the reasonably foreseeable future [court book, page 428.9].
Finally, with respect to the third claim, the RRT was not satisfied that:
a)The ICS had any ongoing interest in the applicant or his lifestyle [court book, page 430.1];
b)The applicant’s westernised lifestyle would be so prominent or distinct from the conduct of many other Bangladeshis who had spent time abroad such as to trigger attention from the ICS or any other group [court book, page 430.5]; and
c)The mere fact of having lived abroad gave rise to a real chance of any such adverse attention, whether convention-related or not [court book, page 430.8].
In summary, the RRT found that the applicant did not face a real chance of convention related persecution anywhere in Bangladesh [court book, page 430.9].
In any event, the RRT was satisfied that it would be safe and reasonable for the applicant to relocate to another part of Bangladesh if he nonetheless were apprehensive about returning to his home town [court book, page 430.9].
The RRT considered the applicant’s English language skills, managerial experience and good employment and character references, and considered that it would be reasonable for the applicant to live in Dhaka, or another large Bangladeshi city, even though there could be challenges with a tight job and accommodation market [court book, page 431.2].
In summary, the RRT was not satisfied that the applicant’s former association with the ICS, his current lifestyle, or the fact of his having lived abroad, gave rise to a well-founded fear of persecution in the reasonable foreseeable future if he returned to Bangladesh [court book, page 431.3], and was not satisfied that the applicant had been subject to false charges, or had been convicted of such charges [court book, page 431.4].
Much of the RRT’s findings were based on the RRT’s assessment of the applicant’s credibility.
In particular, the applicant’s account of the incidents preceding the alleged police and Court action he alleged was found to be not credible and, his subsequent conduct was found to be not consistent with that of a person who genuinely was subject to politically-motivated criminal prosecution [court book, page 428.7].
An adverse finding as to credibility is a finding of fact par excellence: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407.
The weighing of evidence is a matter quintessentially for the RRT: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281-282, 291-292.
In the proceeding in this Court that dealt with the first RRT decision, reported as SZAML v Ministerfor Immigration [2004] FMCA 267, Barnes FM found a failure to comply with s.424A of the Migration Act 1958 (Cth) in relation to information concerning fraudulent documents from Bangladesh. I note that to the extent that such an obligation of disclosure existed at the time of the second RRT review it was met by letter dated 9 March 2005 (court book, pages 378-379). I queried with the applicant and Mr McInerney a reference in the RRT decision to the possibility of additional evidence relating to the applicant's impugned court documents. On page 423 of the court book the presiding member states:
The Tribunal notes that, in his submission of 28 February 2005 and in previous comments, the Applicant's adviser has invited the Tribunal to inter alia reconvene a hearing in order to take evidence from a new witness, and to initiate enquiries as to the authenticity of recently submitted court documents. The Applicant has had ample opportunity in the period since the lodgement of his primary application in July 2000 to present evidence to support his claims. The Tribunal is satisfied that it can, on the basis of the material before it, complete its review in accordance with sections 420(2)(b) and 420(1) of the Act.
The applicant was uncertain who the witness was who was referred to by the presiding member. He thought that it might have been his girlfriend. However, Mr McInerney pointed out that the reference to the new witness was probably a reference to a “Mr F”[1]. On page 352 of the court book is a letter from the applicant's legal advisers which refers, among other things, to the possibility of Mr F giving evidence at a reconvened RRT hearing. This letter was written after the RRT hearing conducted on 19 February 2005. Mr F was the subject of an earlier protection visa decision. The relevant parts of the decision concerning him are set out on pages 298 and 299 of the court book. It was apparent that Mr F's circumstances were quite different from those of the applicant. It appears to me clear that Mr F would not have been able to give further evidence to throw light on the authenticity of the applicant's purported court documents.
[1] Mr F was named in the court book but as he was a protection visa applicant I should not name him.
In the circumstances I see no legal error in the RRT failing to reconvene to take evidence from Mr F. Beyond that there was no obligation on the RRT to itself undertake inquiries as to the authenticity of the applicant's documents. This was an issue dealt with by Barnes FM in relation to the first RRT decision at paragraph 14 of her reasons. The RRT was aware of that decision and can be assumed to have acted in reliance upon it. In my view, it would be wrong for a court reviewing the subsequent RRT decision to take a different view unless satisfied that the initial court decision was clearly wrong: I am not so satisfied.
The allegation, if there is one, of bad faith is baseless. The allegation of procedural unfairness also fails. I find that there is no jurisdictional error in the decision of the RRT. The decision is therefore a privative clause decision. It follows that the judicial review application must be dismissed.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $4,750. I am satisfied that that is a proper assessment on a party and party basis. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $4,750.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 23 March 2006
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