SZHFE v Minister for Immigration

[2005] FMCA 1857

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHFE v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1857

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – whether the RRT breached ss.424A and 91R(3) of the Migration Act 1958 (Cth) considered – no reviewable error found – application dismissed.

Federal Court Rules
Migration Act 1958 (Cth), ss.91R, 424A

Applicant: SZHFE

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2738 of 2005

Judgment of: Driver FM

Hearing date: 14 December 2005

Delivered at: Sydney

Delivered on: 14 December 2005

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Mr A Carter
Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2738 of 2005

SZHFE

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was made on 22 September 2005 and was notified to the application by a letter dated the same day.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Bangladesh and had made claims of political persecution.  I adopt as background for the purposes of this judgment paragraphs 5, 6 and 9 of the Minister's written submissions:

   The applicant, a citizen of Bangladesh, arrived in Australia on 24 November 1998. The applicant subsequently applied for a protection (class XA) visa on 22 August 2005, approximately 6 years and 9 months after his arrival in Australia. The grounds of the protection visa application being that the applicant had a well founded fear of persecution by the authorities as he was a member of the Awami League (AL) who attended meetings and processions and was a leader and organiser in his local area.  The applicant claimed that he was attacked by a number of Bangladeshi National Party (BNP) cadres or activists with knives in August 1997 and was hospitalised for one month.  The applicant claimed that he stayed at home during the year following the attack.  He claimed he feared he would be arrested, detained or killed by BNP activists and cadres if he returned to Bangladesh because of his past political activities.

   The RRT found that:

   i)the applicant was a supporter of the AL but his assertions that he was a leader were unsubstantiated and unconvincing.  The RRT was not satisfied that the applicant was a leader or activist, that he had any profile or influence as an AL supporter, or that he had any serious commitment to the party or its politics based on his level of knowledge of the party and his lack of interest in, and contact with, the party since his arrival in Australia;[1]

   ii)the RRT was not satisfied that the applicant was subject to attacks as claimed for reason of his political opinion as he was unable to support his account by reference to media reports, medical reports or reports to the police or AL authorities;[2] 

   iii)the applicant’s explanation that his father was simply too scared to make any reports was improvised and unconvincing;[3]

   iv)the applicant’s delay of one year before departing Bangladesh and seven year delay before applying for a protection visa was strong evidence that the applicant did not leave Bangladesh in fear of persecution but rather had put forward refugee claims as a “last-ditch effort” to achieve permanent residency;[4]

   v)the applicant was not an AL leader or activist, and accordingly the RRT was not satisfied that he had any past or current political profile or would be perceived as an activist by BNP supporters.  It found that he would not face harm for reason of his political opinion;[5] 

   vi)the applicant supported the AL in a low profile manner however, relying on country information, it found that the mere fact of support for the AL would not give rise to a well-founded fear of persecution.[6]

   Accordingly, the RRT was unable to be satisfied that the applicant was a person to whom Australia owed protection obligations.[7]

   [1] court book, pages 55.7 to 56.1

   [2] court book, pages 55.4 to 55.6

   [3] court book, page 55.5.

   [4] court book, pages 55.2 to 55.6.

   [5] court book, page 56.8.

   [6] court book, page 56.5.

   [7] court book, page 55.2.

2. The applicant relies upon his judicial review application filed on 12 December 2005.  That is supported by written submissions filed on the same day.  The applicant also took the opportunity to make short oral submissions.  The amended application raises four grounds.  The first is an allegation of bad faith.  The Federal Court Rules require such a claim to be particularised.  No particulars have been provided.  The applicant's submissions on the point, if anything, point to an asserted want of procedural fairness.  There is no substance to the allegation of bad faith and I reject it.  The allegation should not have been made. 

3. The second ground is an assertion of a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant's oral and written submissions inidcate a misunderstanding of the operation of that section. The applicant's concern is that he needed more time to obtain additional documents to support his protection visa claims. Section 424A is not relevant to that concern. To the extent that the applicant's concern raises a general issue of procedural fairness, I find that there was no want of procedural fairness. The applicant was directed in section E of his review application to provide to the RRT any documents or submissions he wished to put forward to support his application to the RRT[8].  As is noted by the presiding member[9], nothing was provided.  There is no indication on the record of the RRT decision that the applicant sought additional time to submit further material. 

   [8] court book, page 37

   [9] court book, page 47

4. In this matter, I am satisfied that there was no breach of section 424A. The RRT decision turned on what the applicant said at the hearing, country information and the applicant's protection visa claims. Mr Carter, for the Minister, submitted that it was apparent from the discussion of what occurred at the hearing[10] that the applicant had adopted his protection visa claims for the purposes of his review application.  In my view, the recitation of that discussion is too general to support the Minister’s contention.  However, I note from page 37 of the court book that the applicant in writing invited the RRT to refer to the Minister's Department’s file that included his original protection visa claims.  Nothing else was submitted to support the review application.  It seems to me that if the RRT were to treat the review application as a valid one, it could only treat the review application as adopting the protection visa claims.  I so find.

   [10] court book, page 49

5. The applicant having adopted his protection visa claims in writing for the purposes of his review application, s.424A(3)(b) of the Migration Act operated to relieve the RRT of any obligation to disclose to the applicant in writing determinative information in them.

6. The remaining ground in the amended application is an assertion that the RRT made other significant errors detailed in the applicant's written submissions.  However, on my reading of those submissions, the asserted errors all go to the merits of the RRT decision.  As I explained to the applicant, those merits are beyond the scope of these proceedings.

7. One other issue occurred to me independently of what is in the applicant's judicial review application and submissions. That issue was whether the RRT breached s.91R(3) of the Migration Act in placing reliance upon the applicant's conduct in Australia without an express finding that the applicant had satisfied the presiding member that that conduct was engaged in otherwise than for the purpose of strengthening the applicant's claim to be a refugee. I have observed in several recent decisions of the RRT a tendency to take into account the conduct of the applicant in Australia in the course of rejecting a review application. In my view, in order to demonstrate compliance with s.91R(3) of the Migration Act, presiding members should make clear that in so taking into account that conduct, they are satisfied that the applicant did not engage in that conduct for the purposes of strengthening a claim to be a refugee.

8. In my view, the effect of s.91R(3) is to render irrelevant the conduct of an applicant in Australia unless the decision maker is so satisfied. If in those circumstances a decision maker takes into account irrelevant considerations, jurisdictional error would be demonstrated. On page 55 of the court book the presiding member said:

   Finally, the Applicant's scant lack of interest in and contact with AL since his arrival in Australia reinforce the Tribunal's conclusion that he has neither a formal association with nor a genuine commitment to the AL now or in the past.

9. On page 56 of the court book the presiding member said:

   The Tribunal accepts that the Applicant does not now wish to return to Bangladesh.  However, it is not satisfied that this is for reason of any fear of persecution in Bangladesh.  According to the Applicant's evidence at hearing, in the seven years after his arrival in Australia, he did not articulate any fears of persecution in his home country, let alone make enquiries about or seek to obtain refugee protection.  These matters emerged only following his immigration arrest.  This prolonged period of silence and inactivity are strong evidence that the Applicant did not leave Bangladesh for his safety, and does not have a well-founded fear of prospective persecution, but rather has brought forward refugee claims as a last-ditch effort to achieve his goal of permanent residency.

10. Some of the applicant's claims were accepted by the RRT.  The RRT accepted that the applicant was a low level Awami League supporter.  It accepted some level of political involvement by him in Bangladesh.  The presiding member clearly had credibility concerns about the applicant's claims and the applicant's conduct in Australia tended to reinforce those credibility concerns.  Ultimately, however, a fair reading of the decision as a whole leads me to the view that the RRT was not satisfied that the applicant's accepted political involvement in Bangladesh exposed him to a well founded fear of persecution should he return there.

11. In my view, this finding supports the RRT decision independently of the presiding member’s credibility concerns.  If I am wrong in that finding then I am nevertheless prepared to infer into the presiding member’s reasoning a satisfaction that the applicant's conduct engaged in in Australia was not engaged in for the purpose of strengthening his claim to be a refugee.

12. What concerned the presiding member was the period of nearly seven years between the applicant's arrival in this country and his making of a protection visa claim.  On page 56 of the court book the presiding member noted a concession by the applicant that he wished to stay in Australia and that he preferred to achieve this goal by completing a series of education courses, ultimately leading to permanent residency.  In my view, the acceptance of that concession can be taken to be acceptance of an explanation offered by the applicant for his conduct in Australia.

13. In substance the applicant was seeking to explain to the RRT that his conduct was not an attempt to enhance his protection visa claims, but on the contrary was an attempt to achieve permanent residency by another route.  Having so satisfied itself, the RRT was entitled to take into account the applicant's conduct in Australia. 

14. I find that the decision of the RRT is tree from jurisdictional error.  It follows that the decision is a privative clause decision and the application must be dismissed.  I will so order.

15. Costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $3,400.  I accept that costs of that order have been properly and reasonably incurred when assessed 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 $3,400. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  20 December 2005