SZHCH v Minister for Immigration

[2007] FMCA 138

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHCH v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 138

MIGRATION – Review of RRT decision − where the Tribunal sent a s.424A letter to the applicant − where the Tribunal found the applicant not to be credible − whether reference to High Court authorities in the Tribunal’s reasons was “information” for the purposes of s.424A − whether the Tribunal was required to ensure the applicant understood why the information set out in the s.424A letter was relevant to its decision − whether the Court can review the Tribunal’s decision on its merits.

Migration Act 1958, s.424A

SZASX v Minister for Immigration [2004] FMCA 680
SZDFO v Minister for Immigration [2004] FCA 1192

Applicant: SZHCH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2543 of 2005

Judgment of: Raphael FM

Hearing date: 7 February 2007

Date of last submission: 7 February 2007

Delivered at: Sydney

Delivered on: 7 February 2007

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Ms S Sirtes

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Leave granted to the first respondent to amend the name of the Minister and for the Refugee Review Tribunal to be added as second respondent.

3. Applicant to pay the first respondent’s costs assessed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2543 of 2006

SZHCH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh.  He arrived in Australia on 4 November 2004.  On 14 December 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 18 February 2005 a delegate of the Minister refused to grant a protection visa and on 21 March 2005 the applicant applied for review of that decision. 

2. The applicant provided the Tribunal with a statement in support of his application [CB 59-61].  The Tribunal invited the applicant to a hearing which he attended on 30 May 2005 with the assistance of an interpreter.  On 5 July 2005 by agreement with the Tribunal, the applicant submitted to the Tribunal a bundle of additional documents which were considered by the Tribunal before it made its decision on 5 August 2005 to affirm the decision not to grant a protection visa.  The Tribunal handed that decision down on 25 August 2005.

3. The ground upon which the applicant claimed that he was owed protection obligations by Australia was for the convention reason of political opinion.  The applicant claimed to be an active member of the youth wing of the Awami League.  He claimed that he had been involved for some considerable time in Bangladeshi politics.  He claimed that he was well known to the President of the Awami League in his home town of Sylhet and to the General Secretary.  He claimed to have worked for the Awami League candidate in the 2001 general election.  In his statement he said:

   “In 2001 when the Awami League lost the general election with the BNP, the BNP activists and the leaders started to take the local Awami League and the Awami Youth League activists and leaders very badly.  They rounded up, caught and tortured many youth league activists and leaders in the Golapgonj area many times.  The applicant was one of these.  One night when he was returning home from a Golapgonj youth league office to his village he was attacked and tortured.  After torturing him his attackers filed a case against him at the local police station accusing him of creating trouble in the area and murdering a BNP activist in 1998.

   A few weeks later the police arrested him at home and took him to the local police station where they tortured him badly and filed a case against him.  He was released on bail about two weeks later.  He has heard from his parents that the case is still pending and the police are looking for him every now and then. 

   In March 2002 the same local BNP activists attacked him when he was travelling in a rickshaw in Golap Gonj town and beat him unconscious.  Some people took him to a nearby hospital where he stayed for 10 days under treatment.” 

4. The applicant left Bangladesh on 15 May 2003 and went to work in the United Arab Emirates as a cook.  He stayed there until he came to Australia in November 2004.  He had told the Tribunal that he had at all times lived in the house of his parents prior to leaving for UAE and Australia even after he had been arrested and attacked in March 2002. 

5. The further documents submitted by the applicant following the hearing are set out at [CB 118]. They consist of a number of documents relating to the alleged charge of murder; some references including a letter from a lawyer and a political activist and a discharge certificate from the hospital. The Tribunal had some concerns about these documents and so on 12 July 2005 it wrote a s.424A letter to the applicant, the contents of which are set out at [CB 118-120]. The applicant was given until 4 August 2005 to reply in writing to the letter but he did not do so.

6. The Tribunal came to the conclusion that the story that the applicant had given it was not credible.  There were a number of reasons for this which are explained by the Tribunal in its findings and reasons between [CB 122 and 127].  I do not need to rehearse these in detail.  Suffice to say the Tribunal was not satisfied that the applicant had sufficient knowledge of Awami League politics to be the type of activist he claimed to be.  The Tribunal did not believe that the applicant suffered the harm he claimed to have suffered.  There were certain inconsistencies between the applicant’s stories about his activities in town and his living with his parents in a village some considerable distance away.  Not unreasonably, the Tribunal was particularly concerned about the alleged murder charge.  In this regard the Tribunal said at [CB 124]: 

   “The Tribunal’s doubts are further strengthened by aspects of the applicant’s account of the false murder charge he claims has been brought against him.  Having told the Tribunal that he was unable to remember the name of the person he was charged with murdering he claimed that he first heard of the charge in January 2001 when he was visited by the police who told him they had a warrant for his arrest.  He said the police only arrested him when they returned two weeks later, and that he was eventually released after another two weeks when the police themselves gave him bail on condition that he attend a court.  Even if such unusual conduct by the police had occurred, which the Tribunal does not accept, the Tribunal is not satisfied that any arrest warrant for the applicant can have subsequently been in force while he was living in Bangladesh.  By his own account he continued to live in his parents’  house where he lived all his life and where, had they wished to do so, the police could have located and arrested him at any point during the next two years before he left for the UAE. Despite this, the police did not trouble him at all during this period and, when he finally left Bangladesh, he used a genuine passport issued in his own name and encountered no difficulty of any description in passing through the airport on his way to Dubai.  In the light of these considerations the Tribunal is not satisfied that the applicant was wanted by the police on a charge of murder while he was living in Bangladesh as he claims, or that there is any reason to believe he would be the subject of such a charge were he to return.”

7. The Tribunal then goes on to deal very thoroughly with the documents. The s.424A letter that was sent appears to me to clearly set out the difficulties which the Tribunal had in believing those documents. The applicant had had an opportunity to respond to those concerns but had not done so. The Tribunal repeated some of these matters in its findings and reasons before coming to the conclusion that the documents could not provide any corroborative support for the applicant’s story. In all the circumstances the Tribunal had no difficulty in coming to the conclusion that it could not be satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol.

8. The applicant in his application to this court filed on 12 September 2005 claimed that the decision was infected by jurisdictional error for a number of reasons with which I will now deal. The first such reason was that the Tribunal did not comply with the mandatory obligations contained in s.424A of the Migration Act 1958 (the “Act”).  That statement appears to be particularised in the next particular where the applicant refers to the list of cases set out by the Tribunal at the beginning of its decision at [CB 110].  The cases there referred to are a series of important High Court decisions which give the Tribunal the basis of the law in relation to the definition of a refugee and what the Tribunal’s task is in assessing whether or not an applicant is a person who falls within that definition.  As long ago as 2004 Federal Magistrate Barnes in one of her characteristically erudite judgments, SZASX v Minister for Immigration [2004] FMCA 680, dealt with an identical allegation, particularly at [27 and 28] of her reasons. At [28] her Honour says:

   “The “information” that formed the reason or part of the reason in this part of the Tribunal decision was not the legal principle or principles established by any of the relevant High Court cases but rather the Tribunal knowledge of and about facts and circumstances and the independent evidence before it.  The Tribunal reasoning which involves the application of legal principles (in relation to matters such as well-founded fear and concepts such as “a real chance”) to the factual findings made by the Tribunal is not information forming the reason or part of the reason for affirming the decision under review.”

9. The next particular contained in the application is that the Tribunal did not ensure that the applicant understood why the references and information were relevant.  As I have already found that the references do not constitute information there is no requirement for the Tribunal to undertake this task.  Particular (d) of the application is an allegation that the Tribunal did not give the applicant notice of the particulars of the information in the manner required.  I assume that this is a reference to the Tribunal not writing a letter to the applicant.  Again, as I have not found there is any information which the Tribunal should have brought to the applicant’s attention this is not a matter that could constitute a jurisdictional error. 

10. Finally, the applicant argues that the Tribunal failed to accept that the applicant was really being persecuted in Bangladesh and failed to grant him a protection visa on the basis of a generalised decision.  This is a direct attack on the merits of the Tribunal’s decision and of course is not a matter which this Court can involve itself in.

11. Before me today the applicant stated that the documents which he had submitted to the Tribunal were true to the best of his belief and he informed the court that if it required any more documents he would be willing to provide them.  It is clear from the statement that the applicant has misunderstood the role of the court in these proceedings.  In SZDFO v Minister for Immigration [2004] FCA 1192 Allsop J explained at [11]:

    “[11] Within the kinds of boundaries that I have just identified the findings of fact and the assessment of evidence is a matter for the Tribunal in the exercise of the executive power. The Parliament has chosen not to permit the courts to review factual material beyond the proper confines of identifying jurisdictional error. It is against that legal background that the appellant needs to understand the reasons for the disposition of his appeal.

    [12] It should be plain, I hope, from what I have said that it is simply outside my statutory authority and judicial authority to make up my own mind as to whether Australia owes the appellant protection obligations. The only task I am permitted today is to seek to identify whether the learned Federal Magistrate committed any reviewable error in his approach to the dismissal of the application made in respect of the Tribunal's decision.”

12. In that case his Honour was dealing with an appeal from this Court.  But the position of this Court vis-a-vis the Tribunal is exactly the same as that described by his Honour in relation to his position vis-a-vis the Federal Magistrates Court. 

13. It follows from what I have said that I am unable to find any grounds upon which I am able to review the decision of the Tribunal.  That means that I must dismiss the application which I do.  I grant leave to the first respondent to amend the name of the Minister who now conducts these matters and for the Refugee Review Tribunal to be added as second respondent. I order the applicant pay the first respondent’s costs assessed in the sum of $5,000.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: